United States v. French , 1990 CMA LEXIS 1029 ( 1990 )

Opinion of the Court

COX, Judge:

Appellant was tried by general court-martial with officer and enlisted members. After mixed pleas, he was found guilty of two specifications of communicating indecent language to a child under 16 years of age, and two specifications of committing an indecent act on a child under 16 years of age, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. Appellant was sentenced to 10 years’ confinement, reduction to pay grade E-l, and a bad-conduct discharge. Pursuant to a pretrial agreement, the convening authority approved the sentence except for confinement exceeding 30 months. The Court of Military Review affirmed in an unpublished opinion. This Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING A DEFENSE MOTION TO DISMISS SPECIFICATION 2 OF THE CHARGE FOR FAILURE TO STATE THE OFFENSE OF INDECENT LANGUAGE IN THAT THE WORDS ALLEGEDLY SPOKEN WERE NOT INDECENT.

Appellant was originally charged with one specification of committing an indecent act with his 7-year-old natural daughter, M, by laying on top of her and rubbing his groin area against her. He was also charged with a number of specifications involving his 15-year-old stepdaughter, A. These included communicating indecent language to A by telling her that he had been having sexual fantasies about her; and committing an indecent act with A by fondling her lower back, buttocks, and upper thighs. The subject of this appeal is specification 2 of the Charge, which originally alleged that appellant took “indecent liberties with” A “by asking” her “if he could climb into bed with her.”

Prior to entering pleas, defense counsel moved to dismiss the indecent-liberties specification in that it “failed to state an offense,” because it did not allege “that the accused committed the act with the intent to arouse, appeal to, or gratify” his or the victim’s “sexual desires.” In spite of this deficiency, trial counsel argued that the specification still alleged an indecent act. The military judge disagreed but did find that the specification sufficiently alleged communicating indecent language.¹

Defense counsel then moved to dismiss the specification for failing to state an offense. He argued that the language pleaded was not indecent per se and that not all of the elements were sufficiently pleaded, either expressly or by necessary implication. He further argued, therefore, that appellant was not given adequate notice against what he had to defend. Trial counsel had stated earlier that the Government originally did not charge communicating indecent language because it did not “honestly” believe the language to be offensive, although it felt appellant’s conduct was offensive. Despite trial counsel’s original position, he did not join in the defense motion to dismiss. The military judge adhered to his original ruling and denied the motion. The judge did offer defense counsel a continuance, which was declined.

Appellant pleaded guilty to committing an indecent act with his daughter, and not guilty to all the specifications involving his stepdaughter. He was tried by members.² The Government’s case rested primarily upon A’s testimony. Appellant testified in his own behalf and denied that any of the offenses ever happened. Subsequently, he was found guilty of all specifications. Appellant claims again on appeal that the specification alleging communicating indecent language failed to state an offense under the Uniform Code.

Communicating indecent language to a child under the age of 16 includes the following elements:

(1) That the accused orally or in writing communicated certain language to a child under the age of 16;

(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 such a nature to bring discredit upon the armed forces.

Para. 89b, Part IV, Manual for Courts-Martial, United States, 1984.

“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. The language must violate community standards____

Para. 89c. The word “ ‘[ojbscene’ was removed from the title [of the offense] because it is synonymous with ‘indecent.’ ” Drafters Analysis, Manual, supra at A21102.

A specification must expressly or by fair implication allege all the elements of an offense. Specifications which are challenged immediately at trial will be viewed in a more critical light than those which are challenged for the first time on appeal. See United States v. Bryant, 30 MJ 72, 73 (CMA 1990); United States v. Brecheen, 27 MJ 67, 68 (CMA 1988); United States v. Watkins, 21 MJ 208, 209 (CMA 1986).

We certainly are not the first jurists to wrestle with the issue of what is indecent or obscene against a constantly changing set of societal mores and values. Cf. Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring): “I shall not today attempt further to define the kinds of material I understand to be [obscene]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it____” This Court has never specifically addressed what constitutes indecent language under the Uniform Code of Military Justice. We have had occasion, however, to examine what constitutes an indecent act under the Code: “Under some circumstances a particular act may be entirely innocent; under other conditions, the same act constitutes a violation of the Uniform Code.” United States v. Holland, 12 USCMA 444, 445, 31 CMR 30, 31 (1961). Further, in determining whether a given act with a child is indecent, the age of the victim is important. United States v. Tindoll, 16 USCMA 194, 195, 36 CMR 350, 351 (1966).

There have been some guideposts as to what is obscene or indecent language. See 42 C.J.S. Indecent at 559. “The term has been held equivalent to, or synonymous with, ‘immodest,’ ‘immoral,’ ‘impure,’ ... ‘obscene’____” Id. at 559-60 (citations omitted). See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957): the standard for judging obscene material is

whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Id. at 489, 77 S.Ct. at 1311 (footnote omitted).

The Courts of Military Review have wrestled with the problem of indecent and obscene language in several well-reasoned opinions. Indeed, paragraph 89c is based upon United States v. Wainwright, 42 CMR 997, 999 (AFCMR), aff'd on other grounds, 20 USCMA 183, 43 CMR 23 (1970), which held, inter alia:

“The terms indecent and obscene refer to that which is grossly offensive to modesty, decency or propriety, or shocks the moral sense, because of its vulgar, filthy, or its disgusting nature, or its tendency to arouse lustful thoughts. The language used must violate community standards of decency and substantially exceed customary limits of candor.” AFM 111-2, Court-Martial Instructions Guide, paragraph 3-158, page 89, 15 June 1970.

* * * * * *

... The sufficiency of a specification to allege communication of indecent or obscene language, however, does not require that the words allegedly uttered by the accused be indecent or obscene per se, for even “chaste words may be made the medium of expressing obscene thoughts.”

(Footnotes and citations omitted).

In assessing whether indecent language is framed adequately in a specification, the courts below have recognized a number of factors, including: “fluctuating community standards ..., the personal relationship existing between a given speaker and his auditor, ... and the probable effect of the communication” as deduced from the four comers of the specification. A test which has been used is “whether the particular language is calculated to corrupt morals or excite libidinous thoughts.” United States v. Linyear, 3 MJ 1027, 1030 (NCMR 1977), pet. denied, 5 MJ 269 (1978) [citing United States v. Simmons, 27 CMR 654(ABR), pet. denied, 10 USCMA 679, 27 CMR 512 (1959) ]. We adopt this test as an appropriate determination for indecent language.

Under the facts of this case, we are satisfied that the specification adequately stated the offense of communicating indecent language for a number of reasons. The four corners of the specification allege that appellant asked his stepdaughter, a girl under the age of 16, “if he could climb into bed with her.” Each word individually is chaste, if not innocuous. As a whole, however, the language certainly conveys an indecent message. At a minimum, the language reasonably could have been construed as alleging soliciting illicit sexual activity. Art. 134.

By analogy, in Wainwright, the Court of Military Review held that an airman’s saying to an adult woman, “Meet me at the Downtowner Motel,” did not constitute communicating indecent language. 42 CMR at 1000. However, when the same airman on an earlier occasion said to the same woman, “I’ll give you $50.00 for a date,” such language was found to communicate “an indecent message when reasonably interpreted by commonly accepted community standards.” (Id. at 1000-1001.) Judge Brewer explained:

Human experience of several thousand years standing dictates the conclusion that when compensation ... is tendered to induce female company, it is understood that something more than scintillating conversation is the expectation of the solicitor.

Id. at 1001. When an adult male asks his minor female stepdaughter if he can climb into bed with her, community standards are such that it is not unreasonable to accuse him of asking for something more than a restful sleep. Whether the accusation was true in this case was properly a question of fact for the members. Cf. United States v. Castillo, 29 MJ 145, 149-50 (CMA 1989) (accused’s act of pointing down at his pants in front of his stepdaughter was not unreasonably interpreted as a solicitation for oral sex).

There were no words of criminality absent from the specification. The other specifications in this case, which alleged indecent acts committed upon a child under the age of 16 (appellant’s daughter and stepdaughter), required the additional element that appellant committed the indecent acts “with intent to ... gratify ... [his] ... sexual desires.” Para. 87b(2)(e), Part IV, Manual, supra (emphasis added). For the act of communicating indecent language, however, there is no additional requirement that it be done with the intent to gratify the “sexual desires of the accused.” All that is necessary is that the specification allege that the accused communicated an indecent message. This was adequately done here, particularly in light of the other specification, to which appellant had no objection, alleging that at an earlier time, appellant had told the same stepdaughter that he “had been fantasizing about having sex with” her.

Notwithstanding the Government's hesitation at trial, we are satisfied that appellant’s asking his stepdaughter if he could climb into bed with her conveyed a message as equally libidinous and obscene as telling her that he “had been fantasizing about having sex with” her. Therefore, the specification adequately alleged communicating indecent language.³

The decision of the United States Army Court of Military Review is affirmed.

1 . Specification 2 originally alleged that appellant “did ... take indecent liberties with [A], a female under the age of 16 years, not [appellant’s] wife ..., by asking ... [her] if he could climb into bed with her.”

The military judge amended the specification to allege that appellant "did orally communicate to [A], a child under the age of 16 years, not [appellant’s] wife ... certain indecent language, to wit: asking [A] if he could climb into bed with her.”

2 . The members were given specification 2 as originally pleaded (App Ex IX), but the instructions were phrased in terms of the amended version, and the finding was simply "guilty.” The court-martial order erroneously reflects the findings and should be corrected.

3 . Accord United States v. Knowles, 15 USCMA 404, 35 CMR 376 (1965) (Army Board of Review affirmed holding that specifications did not allege taking indecent liberties, but did allege communicating indecent language to a child, where accused had made obscene phone calls to 7-year-old girl).