United States v. Green , 2010 CAAF LEXIS 17 ( 2010 )

UNITED STATES, Appellee
v.
Raheem G. GREEN, Corporal
U.S. Marine Corps, Appellant
No. 09-0133
Crim. App. No. 200800005
United States Court of Appeals for the Armed Forces
Argued October 7, 2009
Decided January 20, 2010
ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Lieutenant Michael E. Maffei, JAGC, USN
(argued); Lieutenant Heather L. Cassidy, JAGC, USN (on brief).
For Appellee: Captain Mark V. Balfantz, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief);
Captain Geoffrey S. Shows, USMC.
Military Judge: Brian E. Kasprzyk
This opinion is subject to revision before final publication.
United States v. Green, No. 09-0133/MC
Judge ERDMANN delivered the opinion of the court.
At a contested special court-martial with members, Corporal
Rayheem Green was convicted of a number of charges involving
indecent and inappropriate contact with a female Marine,
including the offense of indecent language.1 He was sentenced to
confinement for four months, reduction to pay grade E-1,
forfeiture of $867.00 pay per month for a period of four months,
and a bad-conduct discharge. The convening authority approved
the sentence and the United States Navy-Marine Corps Court of
Criminal Appeals affirmed the findings and the approved
sentence. United States v. Green, No. 200800005, 2008 CCA LEXIS
303, 2008 WL 3983317 (N-M. Ct. Crim. App. Aug. 28, 2008)
(unpublished).
“‘Indecent’ language is that which is grossly offensive to
modesty, decency, or propriety, or shocks the moral sense,
because of its vulgar, filthy, or disgusting nature, or its
tendency to incite lustful thought. Language is indecent if it
tends reasonably to corrupt the morals or incite libidinous
thoughts. The language must violate community standards.”
Manual for Courts-Martial, United States pt. IV, para. 89.c,
(2008 ed.) (MCM). We granted review in this case to determine
whether the specification charging Green with indecent language
1
Green was convicted of failing to obey a lawful order,
violation of a lawful general order, use of ecstasy, assault and
battery, three specifications of indecent assault, and indecent
language.
2
United States v. Green, No. 09-0133/MC
under Article 134, Uniform Code of Military Justice, 10 U.S.C. §
934 (2000), was legally sufficient where the charged language
was “mmmm-mmmm-mmmm.”2 In the context of this case, we find that
the specification was legally sufficient and therefore affirm
the Court of Criminal Appeals.
Background
Corporal (Cpl) Green worked as an ammunition technician at
the Las Pulgas ammunition supply point at Camp Pendleton,
California. Corporal JL was also an ammunition technician but
was assigned to another section in the ammunition company. Due
to manpower shortages, Cpl JL occasionally assisted in Green’s
section. The two Marines were not social friends but rather
were workplace acquaintances. While working in an ammunition
magazine one day, Cpl JL discovered a mistake on an ammunition
can which was marked with Green’s initials. Cpl JL informed
Green that “you f[.....] something up over here.” In response,
Green came up behind Cpl JL and, pressing his chest against her
back, said in her ear, “I didn’t f[...] anything up, but I could
f[...] you real good.” Cpl JL told Green to back off and,
hoping that it was a one time thing, went back to work.
2
We granted review of the following issue:
WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT APPELLANT’S
UTTERANCE OF “MMMM-MMMM-MMMM” WAS LEGALLY SUFFICIENT TO
SUPPORT A CONVICTION FOR INDECENT LANGUAGE.
United States v. Green, 67 M.J. 408 (C.A.A.F. Apr. 17, 2009)
(order granting review).
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United States v. Green, No. 09-0133/MC
A week or two later Cpl JL and her husband and infant son
were at a party with other Marines in the ammunition company,
including Green. Cpl JL was dancing with her husband when Green
came up to her and tried to pull her away from him. Cpl JL’s
husband told Green to back off and a short time later Cpl JL and
her family left the party.
Several weeks later the two were again working together in
an ammunition magazine and Green told Cpl JL that she had a bug
on her shirt. Cpl JL began to “freak out” and Green told her to
come over to him and he would help get it off. Cpl JL
testified:
I turned around, walked very quickly back to Corporal
Green. He was sitting on a few cans of ammunition
logging in the docs still, and he said, bend down, I’ll
get it. So I bent at the waist towards Corporal Green,
he then grabbed my shirt and my skivvy blouse –- or my
skivvy shirt and my cammie blouse, pulled it down and
said mmmm-mmmm-mmmm.
Cpl JL knocked Green’s hand away, told him he was a disgusting
pervert and ran out of the magazine crying.
Several hours later Cpl JL went back to work in the
magazine while Green was still working inside. Green walked up
behind Cpl JL and began grinding his pelvic area across her
buttocks. Cpl JL testified that she felt something hard like an
erection. She punched Green in the chest. In response Green
punched her in the arm, laughed and walked away. Cpl JL
reported the incidents to her chain of command.
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United States v. Green, No. 09-0133/MC
On appeal to the Navy-Marine Corps Court of Criminal
Appeal, Green argued that the evidence was legally and factually
insufficient to support the finding of indecent language and
also argued that the charge of sexual harassment and the three
specifications of indecent assault coupled with the charge of
indecent language constituted an unreasonable multiplication of
charges. In affirming the convictions, the lower court held
that in regard to the indecent language charge, there was no
requirement that the language at issue be an actual word.
United States v. Green, 2008 CCA LEXIS 303, at *2-*3, 2008 WL
3983317, at *1-*2.
That court went on to find that the language, “mmmm-mmmm-
mmmm,” was sufficient under the facts of this case to constitute
indecent language, noting that any utterance which meets the
Manual’s definition of indecency was sufficient. Green, 2008
CCA LEXIS 303, at *3-*4, 2008 WL 3983317, at *1-*2. The Court
of Criminal Appeals concluded that:
[T]he sound clearly related to the appellant’s non-
consensual and assaultive viewing of his co-worker’s
breasts. In this context, we are hard-pressed to
think of any possible meaning for the appellant’s
expression that is not “grossly offensive to modesty,
decency, or propriety . . . because of its vulgar,
filthy, or disgusting nature.
Green, 2008 CCA LEXIS 303, at *4, 2008 WL 3983317, at *1
(alteration in original) (quotation marks omitted).
Discussion
The challenged specification reads as follows:
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United States v. Green, No. 09-0133/MC
Specification 5: In that Corporal Raheem G. Green, U.S.
Marine Corps, on active duty, did, on board Marine Corps
Base Camp Pendleton, California on or about 10 August 2006,
orally communicate to [Cpl JL] certain indecent language,
to wit: “mmmm-mmmm-mmmmmm,” or words to that effect, while
looking down her blouse at her breasts.
This court reviews the issue of legal sufficiency de novo.
United States v. Chatfield, 67 M.J. 432, 441 (C.A.A.F. 2009).
In reviewing for legal sufficiency of evidence, this court must
determine, “whether, considering the evidence in the light most
favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Young, 64 M.J. 404, 407 (C.A.A.F.
2007) (citations omitted). The elements of indecent language
under Article 134, UCMJ, are as follows:
(1) That the accused orally or in writing communicated
to another person certain language;
(2) That such language was indecent; and
(3) That under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.3
MCM, pt. IV, para. 89.b.
Green argues that the evidence is legally insufficient to
support the charge of indecent language under two theories: the
sound “mmmm-mmmm-mmmm” is just that -– a sound or an utterance,
and does not constitute language as contemplated under the
offense of indecent language; and, in any event, the utterance
is not “indecent” as that term is defined in the Manual and this
court’s jurisprudence. The Government responds that there is no
3
Green does not challenge this element of the offense in his
legal insufficiency argument.
6
United States v. Green, No. 09-0133/MC
requirement that the language used be a word and that in the
context of this case, the utterance was indecent.
Green initially argues that while “mmmm-mmmm-mmmm” is a
sound, it is not a word and it is impossible to determine what
he intended to convey by making the sound. Green points out
that all of this court’s prior cases discussing the offense of
indecent language have only involved “words.” We agree with
Green that our prior decisions addressing the legal sufficiency
of “indecent language” charges are limited to an examination of
the “words” used by the appellants. However, that is easily
explained by the fact that a situation where the alleged
“language” is not a “word” is an issue of first impression
before this court.
The term “language” is not defined in the Manual under the
indecent language offense of Article 134, UCMJ. In the absence
of any evidence to the contrary, this court has held that
“ordinary definitions suffice.” United States v. Roller, 42
M.J. 264, 265 (C.A.A.F. 1995). The term is defined in Black’s
Law Dictionary 958 (9th ed. 2009), as “[a]ny organized means of
conveying or communicating ideas, esp. by human speech, written
characters, or sign language.” Here “mmmm-mmmm-mmmm” meets that
definition of “language.” It need not be a word. It was an
audible sound that, as discussed below, was meaningful under the
circumstances of this case. Green next argues that even if
“mmmm-mmmm-mmmm” is considered “language” under the offense, it
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United States v. Green, No. 09-0133/MC
does not meet the definition of “indecent” in the Manual or our
previous case law. The President has provided a definition of
“indecent” language for this offense:
[T]hat which is grossly offensive to modesty, decency,
or propriety, or shocks the moral sense, because of
its vulgar, filthy, or disgusting nature, or its
tendency to incite lustful thought. Language is
indecent if it tends reasonably to corrupt morals or
incite libidinous thoughts. The language must violate
community standards.
MCM pt. IV, para. 89.c. In United States v. Negron, 60 M.J. 136(C.A.A.F. 2004), we discussed the application of this
definition:
One final matter invites further attention. Because a
rehearing is authorized, it is necessary that we also
address the confusion, apparent in this case, perhaps
arising from this Court’s decision in Brinson, regarding
the definition of “indecent” applicable to charges of
indecent language. The President in Part IV of the MCM
has provided that the use of certain expressly defined
language is punishable for the offenses of indecent
language and depositing obscene matter in the mail.
MCM, Part IV, para. 89.c, provides two alternate
definitions of “indecent language.” The use of the
disjunctive in this paragraph makes clear that either
definition of indecent language may be the legal
authority for a conviction. In addition to
criminalizing language that is grossly offensive because
of “its tendency to incite lustful thought,” the
President made punishable indecent language that “is
grossly offensive to modesty, decency, or propriety, or
shocks the moral sense, because of its vulgar, filthy,
or disgusting nature.” Simply stated, paragraph 89.c
presents two different definitions to measure speech
that may be a crime, dependent on the context in which
it is spoken. We adopt and will apply this plain
language of the Manual prospectively to cases tried
after the date of this decision. See United States v.
Moore, 28 M.J. 366, 367 (C.M.A. 1989).
Id. at 144.
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United States v. Green, No. 09-0133/MC
As this case was tried after Negron was issued, we will
rely on the President’s definition in the Manual, recognizing
that the Manual definition incorporates portions of our earlier
decisions.4 As Negron makes clear, the President’s definition
of “indecent language” has two alternative definitions, either
of which may be relied upon under the offense: (1) grossly
offensive to modesty, decency, or propriety, or shocks the moral
sense, because of its vulgar, filthy, or disgusting nature; or
(2) grossly offensive because of its tendency to incite lustful
thought. Id. We take this occasion to clarify that the final
two sentences of the definition: “[l]anguage is indecent if it
tends reasonably to corrupt morals or incite libidinous
thoughts. The language must violate community standards[,]” do
not create separate definitions but rather modify and further
explain the two definitions identified in Negron.
Turning to whether the utterance “mmmm-mmmm-mmmm”
constitutes “indecent” language, as we noted in United States v.
Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998), we cannot make this
determination in isolation. We must “examine the entire record
of trial to determine the precise circumstances under which the
charged language was communicated.” Id. at 364. See also
4
See United States v. French, 31 M.J. 57 (C.M.A. 1990); United
States v. Hullett, 40 M.J. 189 (C.M.A. 1994); United States v.
Coleman, 48 M.J. 420 (C.A.A.F. 1998); United States v. Brinson,
49 M.J. 360 (C.A.A.F. 1998). Our reliance on the Manual
definition does not vitiate the discussions in these cases
related to nondefinitional issues.
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United States v. Green, No. 09-0133/MC
Negron, 60 M.J. at 141. Green argues that the Court of Criminal
Appeals held that the utterance was indecent simply because it
was “related” to the indecent assault of Cpl JL. However, the
lower court correctly noted that the indecency of a word or
sound must be evaluated in the context in which it is made.
Green, 2008 CCA LEXIS 303, at *3, 2008 WL 3983317, at *1. That
court correctly reviewed the surrounding circumstances to
establish the context of the utterance.
Green and Cpl JL were not social friends and this is not a
case involving conduct that reflects a common, accepted practice
in the workplace. Cf. United States v. Brown, 55 M.J. 375(C.A.A.F. 2001); Hullett, 40 M.J. 189. The record clearly
reflects that Green demonstrated his sexual predatory nature in
a number of encounters with Cpl JL. We cannot ignore Green’s
actions when he uttered “mmmm-mmmm-mmmm” -– he had grabbed and
pulled Cpl JL’s shirt down and was looking at her breasts. Nor
can we ignore Cpl JL’s immediate reaction in calling him a
“disgusting pervert.”
The Court of Criminal Appeals found that in the context of
this case, the language met the Manual definition of “indecent
language” by being “grossly offensive to modesty, decency, or
propriety . . . because of its vulgar, filthy, or disgusting
nature.” Green, 2008 CCA LEXIS 303, at *3, 2008 WL 3983317, at
*1 (alteration in original) (quotation marks omitted).
Considering the evidence in the light most favorable to the
10
United States v. Green, No. 09-0133/MC
prosecution, we agree with the Court of Criminal Appeals that a
reasonable factfinder could have found all the essential
elements of the specification alleging “indecent language”
beyond a reasonable doubt.
Decision
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
11