Document Info

DocketNumber: ARMY 20101013

Filed Date: 2/27/2013

Status: Non-Precedential

Modified Date: 1/9/2015

  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    COOK, GALLAGHER, and HAIGHT
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Sergeant CHARLES L. SMITH
    United States Army, Appellant
    ARMY 20101013
    Headquarters, III Corps and Fort Hood
    James Varley, Military Judge
    Lieutenant Colonel Mark H. Sydenham, Staff Judge Advocate
    For Appellant: Captain James S. Trieschmann, Jr., JA (argued); Colonel Patricia A.
    Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA;
    Captain James S. Trieschmann, JA (on brief). Colonel Patricia A. Ham, JA;
    Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain
    James S. Trieschmann, JA (on reply brief).
    For Appellee: Captain Sasha N. Rutizer, JA (argued); Major Robert A. Rodrigues,
    JA; Captain Sasha N. Rutizer, JA (on brief).
    27 February 2013
    -----------------------------------
    SUMMARY DISPOSITION
    -----------------------------------
    Per Curiam:
    A panel of officer members sitting as a general court-martial convicted
    appellant, contrary to his pleas, of one specification of false official statement, two
    specifications of wrongful sexual contact, one specification of indecent exposure,
    one specification of aggravated sexual assault, and one specification of adultery, in
    violation of Articles 107, 120, and 134, Uniform Code of Military Justice, 
    10 U.S.C. §§ 907
    , 920, 934 (2006) [hereinafter UCMJ]. 1 The convening authority approved the
    adjudged sentence of a dishonorable discharge, confinement for seven years,
    forfeiture of all pay and allowances, and reduction to the grade of E-1.
    1
    At action, the convening authority disapproved the finding of guilty to adultery
    under Article 134, UCMJ.
    SMITH—ARMY 20101013
    The case is before the court for review under Article 66, UCMJ. Appellant
    raises three assignments of error 2 basically asserting the evidence is factually and
    legally insufficient to find him guilty of Specification 1 of Charge II (wrongful
    sexual contact), Specification 2 of Charge II (wrongful sexual contact), and
    Specification 3 of Charge II (indecent exposure). We agree with appellant’s first
    assignment of error and will order relief in our decretal paragraph. Appellant’s third
    assignment of error merits discussion but no relief. Appellant’s remaining
    assignment of error, along with the matters he personally raises pursuant to United
    States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), is without merit.
    2
    I.
    THE EVIDENCE IS LEGALLY AND FACTUALLY
    INSUFFICIENT   TO  SUPPORT    SGT   SMITH’S
    WRONGFUL SEXUAL CONTACT CONVICTION FOR
    GROPING PVT FD’S INNER THIGH IN THE LION’S
    CLUB PARKING LOT BECAUSE THE GOVERNMENT
    FAILED TO PRODUCE ANY EVIDENCE THAT SGT
    SMITH GROPED PVT FD’S INNER THIGH AND EVEN
    IF HE DID, HE WAS UNDER A MISTAKE OF FACT
    THAT SHE CONSENTED.
    II.
    THE EVIDENCE IS LEGALLY AND FACTUALLY
    INSUFFICIENT   TO   SUPPORT   SGT  SMITH’S
    WRONGFUL     SEXUAL   CONTACT   CONVICTION
    BECAUSE THE MOMENT PVT FD TOLD SGT SMITH
    SHE WAS UNCOMFORTABLE, HE NEVER TOUCHED
    HER AGAIN.
    III.
    THE EVIDENCE IS LEGALLY AND FACTUALLY
    INSUFFICIENT TO SUPPORT SGT SMITH’S
    INDECENT EXPOSURE CONVICTION BECAUSE THE
    HEIGHT OF HIS SUV, THE DARK TINTED WINDOWS
    OF HIS SUV, AND THE FACT HE DID NOT INTEND
    TO BE SEEN BY ANY MEMBER OF THE PUBLIC
    MADE IT HIGHLY UNREASONABLE THAT HIS
    CONDUCT WOUULD BE WITNESSED BY A MEMBER
    OF THE GENERAL PUBLIC AT LION’S CLUB PARK.
    2
    SMITH—ARMY 20101013
    BACKGROUND
    On 8 March 2010, Private (PVT) F-D and another soldier were walking to the
    food court when appellant called out to PVT F-D and asked if she was new on post.
    Private F-D responded that she was in fact new on post and was on her way to eat
    lunch. Appellant offered to drive PVT F-D and the other soldier to the food court in
    his Chrysler SUV. After eating, appellant offered to take PVT F-D off-post to show
    her around. Private F-D agreed and exchanged phone numbers with appellant with
    the intent of meeting later that afternoon.
    After picking up PVT F-D, appellant drove off-post and the conversation
    turned sexual. They drove to a nearby public park and parked in the parking lot. It
    was mid-afternoon and there were several people at the park. Appellant began
    rubbing PVT F-D’s thighs and kissing her. Private F-D did not tell appellant to stop
    and even kissed him back. Appellant then said, “I need to get off.” He then exposed
    his penis and requested PVT F-D “help [him].” Private F-D refused and turned her
    head towards the window. Appellant proceeded to masturbate in PVT F-D’s
    presence. After appellant had completed the act and cleaned up, he saw an
    individual he thought he knew walk past the driver-side window. Appellant
    slouched down in his seat to avoid being detected by the individual.
    LAW AND DISCUSSION
    Wrongful Sexual Contact
    We find the evidence of wrongful sexual contact as alleged in Specification 1
    of Charge II to be factually insufficient. UCMJ art. 66(c); United States v.
    Washington, 
    57 M.J. 394
    , 399 (C.A.A.F. 2002). A person is guilty of wrongful
    sexual contact when he “engages in sexual contact with another person without that
    other person’s permission.” See Manual for Courts-Martial, United States (2008
    ed.) [hereinafter MCM], pt. IV, ¶45.a.(m). “Sexual contact” means “the intentional
    touching, either directly or through the clothing, of the genitalia, anus, groin, breast,
    inner thigh, or buttocks of another person . . . with an intent to abuse, humiliate, or
    degrade any person or to arouse or gratify the sexual desires of any person”
    (emphasis added). MCM, pt. IV, ¶45.a.(t)(2). In this case, while kissing, appellant
    put his hand on PVT F-D’s thigh. Private F-D did not object to appellant’s actions,
    continued kissing him, and she responded “No, I’m ok, I’m straight” when
    questioned by appellant if she okay. In light of the above and all other elicited
    testimony regarding this incident, we maintain reasonable doubt that appellant
    engaged in wrongful sexual contact of PVT F-D’s inner thigh. As such, we will take
    appropriate action in our decretal paragraph.
    3
    SMITH—ARMY 20101013
    Indecent Exposure
    In Specification 3 of Charge II, the government charged appellant with
    indecently exposing himself in violation of Article 120, UCMJ. Indecent exposure
    occurs when an individual “intentionally exposes, in an indecent manner, in any
    place where the conduct involved may reasonably be expected to be viewed by
    people other than members of the actor’s family or household, [his] genitalia . . .”
    MCM, pt. IV, ¶45.a.(n). Here, the parties do not contest the indecency of the
    exposure. Rather, the contention lies with the alleged public nature of appellant’s
    actions.
    Turning to the record, the following circumstances were in evidence
    surrounding the offense of appellant’s indecent exposure while in his vehicle. First,
    appellant exposed himself in the middle of the afternoon, during daylight hours.
    Second, the exposure took place in the center portion of a parking lot of a public
    park. Third, there were twenty to forty cars parked in the parking lot. Fourth,
    children were playing softball on the field directly in front of appellant’s car. Fifth,
    men were playing basketball directly behind appellant’s car. Furthermore, there was
    a lady with a stroller next to a nearby fence. Sixth, although appellant’s car
    windows were tinted, it was established that people were still able to observe inside
    the vehicle. Private F-D testified that after appellant completed masturbating, an
    individual walked past appellant’s car causing him to slouch down to avoid
    detection. Consequently, we find the evidence as to Specification 3 of Charge II to
    be legally and factually sufficient because appellant indecently exposed himself in a
    place where his conduct could be reasonably expected to be viewed by the public.
    UCMJ art. 66(c); Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979); Washington, 57
    M.J. at 399; United States v. Turner, 
    25 M.J. 324
    , 325 (C.M.A. 1987).
    CONCLUSION
    The finding of guilty to Specification 1 of Charge II is set aside and
    dismissed. We affirm the remaining findings of guilty. Reassessing the sentence on
    the basis of the error noted, the entire record, and in accordance with the principles
    of United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986) and United States v. Moffeit,
    
    63 M.J. 40
     (C.A.A.F. 2006), to include the factors identified by Judge Baker in his
    concurring opinion, the court affirms the sentence.
    FOR   THE COURT:
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    MALCOLM         H. SQUIRES, JR.
    Clerk of Court
    Clerk of Court
    4