United States v. Rollins , 2005 CAAF LEXIS 906 ( 2005 )

UNITED STATES, Appellee
v.
George E. ROLLINS, Senior Master Sergeant
U.S. Air Force, Appellant
No. 04-0313
Crim. App. No. 34515
United States Court of Appeals for the Armed Forces
Argued February 8, 2005
Decided August 25, 2005
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Major Karen L. Hecker (argued); Colonel Beverly
B. Knott, Colonel Carlos L. McDade, Major Terry L. McElyea, and
Major James Winner (on brief).
For Appellee: Captain C. Taylor Smith (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Robert V. Combs, and Lieutenant
Colonel Gary F. Spencer (on brief).
Military Judge: Thomas G. Crossan Jr.
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rollins, No. 04-0313/AF
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer members,
Appellant was convicted, contrary to his pleas, of seven
offenses in violation of Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934 (2000). He was found not guilty
of one offense charged under Article 134. The members sentenced
Appellant to a bad-conduct discharge, confinement for eight
years, and reduction to E-5. The convening authority revised
the findings, as reflected in the following tables, to address
issues involving the application of the statute of limitations
under Article 43, UCMJ, 10 U.S.C. § 843 (2000). See Part I.A.
infra; Rule for Courts-Martial (R.C.M.) 1107(b) discussion.
TABLE 1. FINDINGS MODIFIED BY THE CONVENING AUTHORITY
CHARGE RESULT OF TRIAL1 CONVENING AUTHORITY’S ACTION
Charge I Not guilty of attempted Guilty of indecent assault
rape of B; guilty of of B “on divers occasions
indecent assault of B “on from on or about 21 July
divers occasions from on 1995 to on or about 18
or about 27 July 1989 to October 1995”
on or about 18 October
1995”
Charge II, Guilty of committing Guilty of committing
Spec. 1 indecent acts upon the indecent acts on B, a female
body of B, a female under under 16 years of age, “on
16 years of age, “on divers occasions from on or
divers occasions from on about 21 July 1995 to on or
or about 27 July 1989 to about 26 July 1997”
on or about 26 July 1997”
1
As initially charged, the inception date for these two offenses was March
11, 1989. The charge sheet was revised prior to trial to reflect a July 27,
1989, inception date.
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TABLE 2. FINDINGS DISAPPROVED BY THE CONVENING AUTHORITY
CHARGE RESULT OF TRIAL CONVENING AUTHORITY’S ACTION
Charge II, Guilty of taking indecent Dismissed
Spec. 2 liberties with JG, a male
under 16 years of age,
“between on or about 1
November 1990 and on or
about 30 November 1990”
Charge II, Guilty of taking indecent Dismissed
Spec. 3 liberties with JG, a male
under 16 years of age,
“between on or about 1
January 1991 and on or
about 31 December 1992”
Charge II, Guilty of committing an Dismissed
Spec. 4 indecent act upon the
body of KC, a female
under 16 years of age,
“between on or about 1
June 1993 and on or about
30 June 1993”
TABLE 3. OTHER FINDINGS
CHARGE RESULT OF TRIAL CONVENING AUTHORITY’S ACTION
Charge II, Guilty of committing an Approved
Spec. 5 indecent act with JG
“between on or about 15
December 1995 and on or
about 31 January 1996 . .
. by giving him a
pornographic magazine and
by requesting that they
masturbate together”
Charge II, Not guilty of committing Not applicable. See R.C.M.
Spec. 6 indecent acts upon the 1107(b)(4) (an acquittal is
body of B, a female under not subject to disapproval
16 years of age, “on by the convening authority).
divers occasions from on
or about 27 July 1997 to
on or about 31 December
1999”
Charge II, Guilty of receiving child Approved
Spec. 7 pornography “from on or
about 1 December 1996 to
on or about 6 April 2000”
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The convening authority approved the adjudged bad-conduct
discharge and reduction in grade, and reduced the period of
confinement from eight years to seven years. The Air Force
Court of Criminal Appeals, in an unpublished opinion, affirmed
the findings and sentence as modified by the convening
authority. United States v. Rollins, No. ACM 34515, 2003 CCA
LEXIS 303, at *26-*27, 2004 WL 26780, at *10 (A.F. Ct. Crim.
App. Dec. 24, 2003).
On Appellant’s petition, we granted review of the following
two issues concerning the convening authority’s revision of the
findings described in Tables 1 and 2, supra, and the related
modification of the sentence:
I. WHETHER THE CONVENING AUTHORITY ERRED
BY ALTERING THE INCEPTION DATE OF TWO
SPECIFICATIONS IN ORDER TO DEFEAT A
STATUTE OF LIMITATIONS CLAIM.
II. WHETHER THE CONVENING AUTHORITY ERRED
BY ATTEMPTING TO REASSESS THE SENTENCE
AFTER SETTING ASIDE THREE FINDINGS OF
GUILTY.
We also granted review of a separate issue assigned by
Appellant concerning the merits of Charge II, specification 5,
described in Table 3, supra:
III. WHETHER APPELLANT’S CONVICTION FOR
INDECENT ACTS WITH JG MUST BE SET ASIDE
WHERE APPELLANT’S ACTIONS WERE NOT DONE
WITH THE “PARTICIPATION” OF JG AND
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WHERE APPELLANT’S ACTIONS ARE PROTECTED
BY THE FIRST AMENDMENT.
For the reasons set forth below, we conclude under Issue I
that the convening authority erred, in the particular
circumstances of this case, by revising the findings described
in Table 1 rather than ordering a rehearing. Because our
decision on Issue I will require a rehearing on sentence, we
need not address Issue II. With respect to Issue III, we
conclude that a reasonable factfinder could have found beyond a
reasonable doubt that the essential elements of indecent acts
with another were met. We also find that the activity at issue
was not protected by the First Amendment as applied to members
of the armed forces.
I. STATUTE OF LIMITATIONS
A. BACKGROUND
Appellant was convicted of various sexual offenses under
Article 134, including offenses against persons under the age of
16. At the time of Appellant’s trial, the applicable statute of
limitations precluded prosecution of such offenses if “committed
more than five years before the receipt of sworn charges and
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specifications by an officer exercising summary court-martial
jurisdiction over the command.” Article 43(b)(1).2
1. Pretrial and trial proceedings
On July 21, 2000, the officer exercising summary court-
martial jurisdiction over the command received sworn charges
alleging the eight offenses under Article 134 described at the
outset of this opinion. At the subsequent court-martial,
defense counsel moved to dismiss Charge I and its specification,
a portion of specification 1 of Charge II, and specifications 2,
3, and 4 of Charge II, citing the five-year statute of
limitations in Article 43(b)(1). See Tables 1 and 2 supra
(describing the dates of the charged offenses).
The military judge rejected the motion, citing the decision
of the Air Force Court of Criminal Appeals in United States v.
McElhaney, 50 M.J. 819 (A.F. Ct. Crim. App. 1999). In
McElhaney, the court concluded that Article 43(b)(1) had been
supplanted in specified cases by 18 U.S.C. § 3283 (2000), which
provided an extended statute of limitations for certain child
abuse offenses tried in federal civilian courts. McElhaney, 50
M.J. at 826-27.
2
The subsequent legislative extension of the statute of limitations for
certain child abuse offenses is not at issue in the present appeal. See
National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136,
§ 551, 117 Stat. 1392 (2003) (amending Article 43); United States v.
Thompson, 59 M.J. 432, 433 (C.A.A.F. 2004).
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Following presentation of evidence by the parties on the
merits of the charged offenses, the military judge instructed
the members on the findings, including instructions on the two
offenses pertinent to Issue I -- Charge I and its specification
and Charge II, specification 1. Each of these charges alleged
multiple crimes -- offenses that occurred on “divers occasions.”
In the course of instructing the members on attempted rape
under Charge I, the military judge instructed the members on the
elements of lesser included offenses, including the offense of
indecent assault. The instructions advised the members that to
find Appellant guilty of indecent assault under Charge I, they
would have to be convinced beyond a reasonable doubt that
Appellant assaulted the alleged victim “on divers occasions from
on or about 27 July 1989 to on or about 18 October 1995.” The
military judge similarly advised the members that to find
Appellant guilty of indecent acts with a child under Charge II,
specification 1, they would have to be convinced beyond a
reasonable doubt that Appellant committed the charged acts “on
divers occasions from on or about 27 July 1989 to on or about 26
July 1997.”
Under Charge I, the members found Appellant not guilty of
attempted rape but guilty of the lesser included offense of
indecent assault on divers occasions during the charged time
period. The members found Appellant guilty of six of the
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remaining seven specifications under Charge II during the
charged time periods. See Tables 1, 2, and 3 supra.
2. Post-trial proceedings before the military judge
Subsequent to trial, but before the convening authority’s
action, we decided United States v. McElhaney, 54 M.J. 120
(C.A.A.F. 2000), reversing the Air Force court’s interpretation
of Article 43(b)(1). In McElhaney, we held that the extended
statute of limitations applicable to federal civilian
proceedings under 18 U.S.C. § 3283 did not supplant Article 43.
McElhaney, 54 M.J. at 126. Defense counsel in the present case
requested a post-trial session and moved to dismiss five of the
seven findings, citing the recently published decision in
McElhaney.
In the post-trial session, the defense contended that the
entirety of the three offenses described in Table 2, supra, fell
outside the five-year statute of limitations in Article
43(b)(1). With respect to the two offenses described in Table
1, supra, the defense noted that “97% of the charged time frame”
for Charge I fell outside the five-year statute of limitations,
and that “75% of the charged time frame” for specification 1 of
Charge II fell outside the five-year period. The defense
contended “[b]ecause of the manner in which the two
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specifications were charged, it is impossible to determine the
specific events, if any, the members found to be true beyond a
reasonable doubt that fall within the past five years.”
In response, the Government recommended that the military
judge allow the convening authority to address the impact of
McElhaney on the findings and sentence after receiving advice
from his staff judge advocate (SJA). The military judge
rejected the defense motion. It is not apparent from the record
whether the military judge rejected the defense motion on the
merits, or whether the military judge decided that any post-
trial corrections should be made by the convening authority.
3. Revision of the findings and sentence by the convening
authority
In his post-trial recommendation under R.C.M. 1106, the SJA
advised the convening authority that the findings could not be
approved as adjudged in light of the application of the statute
of limitations to the offenses. The SJA recommended that the
convening authority disapprove the findings and dismiss the
charges for the three offenses described in Table 2, supra, all
of which involved findings dated prior to July 21, 1995, the
critical date under the statute of limitations. The two
offenses described in Table 1, supra, involved findings of acts
on “divers occasions” over a period that began before July 21,
1995, and ended after that date. With respect to those
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offenses, the SJA recommended modification of each finding to
show July 21, 1995, as the inception date for each offense. The
SJA also recommended approval of the two findings described in
Table 3, supra, which were not affected by the statute of
limitations. Finally, the SJA recommended that the convening
authority approve the adjudged sentence, subject to reducing the
period of confinement from eight to five years to cure the
prejudice from the erroneous findings.
The convening authority revised the findings as recommended
by the SJA. With respect to the sentence, the convening
authority reduced the period of confinement from eight to seven
years and otherwise approved the adjudged sentence. The Court
of Criminal Appeals affirmed the findings and sentence, as
modified by the convening authority.
B. INSTRUCTIONS TO THE PANEL
REGARDING THE STATUTE OF LIMITATIONS
Issue I asks whether the revisions ordered by the convening
authority cured the prejudice from the erroneous application of
the statute of limitations at trial. The convening authority
has broad discretion under Article 60(c)(1), 10 U.S.C. §
860(c)(1) (2000), to modify the findings and sentence. This
power may be exercised to correct errors or otherwise as a
matter of command prerogative. Id. When the convening
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authority acts to correct errors in the results of trial, we
review that action to determine whether the convening authority
has cured any prejudice flowing from the erroneous treatment of
the statute of limitations at trial. See Article 59(a), 10
U.S.C. § 859(a) (2000).
In Thompson, 59 M.J. 432, 439-40 (C.A.A.F. 2004), we
addressed the relative responsibilities of the military judge
and the members with regard to the statute of limitations. As
in the present case, the accused in Thompson was charged with
committing rape on divers occasions over a lengthy period of
time. Id. at 433. The military judge instructed the members as
to both rape and the lesser included offenses of carnal
knowledge and indecent acts with a child. Id. at 434. The rape
charge was not restricted by the statute of limitations, but the
lesser included offenses at that time were each subject to a
five-year limitation period. Id. at 433. Although the military
judge was required to instruct the members regarding the effect
of the statute of limitations on the lesser included offenses,
he did not do so, and declined to take corrective action when
this defect was brought to his attention while the members were
deliberating on findings. Id. at 435-36. When the members
returned a finding of not guilty on the charge of rape but
guilty on the lesser included offense of indecent acts with a
child, the military judge attempted to correct the error by
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amending the charges to conform the time frame of the offenses
to the statute of limitations. Id. at 437.
The appellant in Thompson challenged the propriety of the
military judge’s action. We held that the military judge erred,
stating that when the evidence raises an issue concerning the
statute of limitations, the military judge must “provide the
members with instructions that focus[] their deliberations on .
. . the period not barred by the statute of limitations.” Id.
at 440. Our opinion emphasized that:
[t]he time to focus the members’ attention on the
correct time period was before they concluded their
deliberations -- not after they concluded their
deliberations and returned a finding that addressed a
much longer span of time. The failure to do so was
not relieved by the military judge’s subsequent
reference to evidence in the record that could
support the finding. The issue here is not legal
sufficiency of the evidence. It is the failure of
the military judge to focus the panel’s deliberations
on the narrower time period permitted by the statute
of limitations.
Id. (internal citations omitted).
The same principles apply in the present case. The issue
is not whether the record contains the bare minimum of evidence
that meets the legal sufficiency test under United States v.
Turner, 25 M.J. 324, 324-25 (C.M.A. 1987)(citing the legal
sufficiency test from Jackson v. Virginia, 443 U.S. 307, 319
(1979)), but whether the military judge properly instructed the
members regarding the statute of limitations. Here, as in
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Thompson, the military judge did not provide the instructions
necessary “to focus the panel’s deliberations on the narrower
time period permitted by the statute of limitations.” 59 M.J.
at 440.
The issue in the present appeal is whether the corrective
action taken by the convening authority cured any prejudice from
the error. The period covered by Charge I and submitted to the
panel extended for more than five years. As modified by the
convening authority, the findings covered less than three
months. See Table 1 supra. The period covered by Charge II,
specification 1, and submitted to the panel encompassed eight
years, and the convening authority revised this to cover only
two years. Under Thompson, the convening authority’s action in
this case did not cure the prejudice from the military judge’s
failure to focus the attention of the members on the appropriate
period of time under the circumstances of this case. See
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
Accordingly, we shall set aside the affected findings and
authorize a rehearing. See infra Part III.
II. INDECENT ACTS
Appellant also challenges his conviction under Charge II,
specification 5, for a violation of Article 134 by committing an
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indecent act with JG “by giving him a pornographic magazine and
by requesting that they masturbate together.” According to
Appellant, the conviction is defective on two grounds: first,
that there was no active participation by JG; and second, that
Appellant’s activities were protected under the First Amendment
to the Constitution. There are no statute of limitations issues
concerning this conviction. We review constitutional and legal
sufficiency claims de novo. Jacobellis v. Ohio, 378 U.S. 184,
190 (1964); Turner, 25 M.J. at 325.
A. BACKGROUND
At trial, the prosecution introduced the following evidence
through the testimony of JG, Appellant’s brother-in-law.
Appellant, who was visiting JG and his family, went to the
movies with JG, who was then under eighteen years of age. After
the movie, Appellant drove to an adult bookstore and purchased a
pornographic magazine as a gift for JG. Upon returning to the
car, Appellant placed the magazine in the backseat and told JG
“Don’t look at it now. Not now.”
Appellant then parked the car behind a nearby grocery
store, handed the magazine to JG, and suggested that the two of
them masturbate together while looking at the magazine.
According to JG:
I don’t recall exactly what he [Appellant] said, but he was
-- I said, “We’re going to look at this now in the back of
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this building?” And he said, “Yes.” And it appeared as
though he was beginning to -- was giving me the magazine
and he said, “Well, it’s all right. Let’s -- let’s,” I
recall. And I was still not understanding exactly what he
was suggesting. I asked, “Are you suggesting that we now
look at this magazine and we masturbate behind this
building?” And he said, “Yes.”
JG refused, left the car, and remained outside until Appellant
dropped the subject. Appellant then drove back to JG’s house
and gave JG the magazine. JG did not mention this event to
anyone at the time. At trial, Appellant acknowledged that he
thought JG was eighteen years of age and that he bought a
pornographic magazine as a gift for JG, but he denied stopping
at the grocery store or discussing masturbation with JG.
B. DISCUSSION
The offense of committing indecent acts with another has
three elements: (1) that the accused committed a wrongful act
with a certain person; (2) that the act 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.
Manual for Courts-Martial, United States (2002 ed.)(MCM), pt.
IV, ¶ 90.b. The determination of whether an act is indecent
requires examination of all the circumstances, including the age
of the victim, the nature of the request, the relationship of
the parties, and the location of the intended act. See
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generally United States v. Brinson, 49 M.J. 360, 364 (C.A.A.F.
1998). An act is indecent if it “signifies that form of
immorality relating to sexual impurity which is not only grossly
vulgar, obscene, and repugnant to common propriety, but tends to
excite lust and deprave the morals with respect to sexual
relations.” MCM, pt. IV, ¶ 90.c. The military judge provided
the members with appropriate instructions on these requirements.
In this appeal, Appellant contends that the evidence did
not demonstrate the requisite commission of a wrongful act
“with” another person. See United States v. Thomas, 25 M.J. 75,
76 (C.M.A. 1987); United States v. Eberle, 44 M.J. 374, 375
(C.A.A.F. 1996); United States v. McDaniel, 39 M.J. 173 (C.M.A.
1994).
In the present case, we assess whether any reasonable
factfinder could have found the essential elements beyond a
reasonable doubt, considering the evidence in the light most
favorable to the prosecution. Turner, 25 M.J. at 324 (citing
Jackson v. Virginia, 443 U.S. at 319). In resolving this
question, we are required to draw every reasonable inference
from the record in favor of the prosecution. United States v.
Blocker, 32 M.J. 281, 284 (C.M.A. 1991). In that context, the
evidence shows that Appellant, while in the parking lot of a
commercial establishment open to the public, gave a pornographic
magazine to a person under eighteen years of age as part of a
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plan or scheme to stimulate mutual masturbation. A reasonable
factfinder could conclude that such conduct amounted to the
commission of a service-discrediting indecent act “with” another
person in violation of Article 134.
With respect to the constitutional challenge, we note that
the present case does not involve a simple exchange of
constitutionally protected material, but instead involves a
course of conduct designed to facilitate a sexual act in a
public place. Appellant has not specified the manner in which
the charge violated the First Amendment, and he has cited no
case for the theory that the conduct here is protected by the
First Amendment.
In any case, even if his conduct were subject to the
heightened standard of review applicable to First Amendment
claims in civilian society, the armed forces may prohibit
service-discrediting conduct under Article 134 so long as there
is a reasonable basis for the military regulation of Appellant’s
conduct. See Parker v. Levy, 417 U.S. 733, 743-52 (1974). The
military has a legitimate interest in deterring and punishing
sexual exploitation of young persons by members of the armed
forces because such conduct can be prejudicial to good order and
discipline, service discrediting, or both. Accordingly,
Appellant had no right under the First Amendment to exchange
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pornographic materials with a young person as part of a plan or
scheme to stimulate a sexual act in a public place.
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is reversed with respect to Charge I and its
specification, and specification 1 of Charge II, and the guilty
findings to those offenses are set aside. The decision of the
Court of Criminal Appeals as to the remaining offenses is
affirmed, and the sentence is set aside. The record is returned
to the Judge Advocate General of the Air Force, and a rehearing
is authorized.
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