United States v. Private First Class DAVID L. JORDAN

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
SALUSSOLIA, ALDYKIEWICZ, and EWING
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class DAVID L. JORDAN
United States Army, Appellant
ARMY 20180003
Headquarters, First Cavalry Division
G. Bret Batdorff, Military Judge
Colonel Emily C. Schiffer, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Todd W. Simpson,
JA; Captain Heather M. Martin, JA (on brief).
For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Lieutenant Colonel Wayne H. Williams, JA; Captain Austin I. Price, JA (on
brief).
13 June 2019
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SUMMARY DISPOSITION
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Per Curiam:
Appellant contends that the specification for his sole conviction failed to state
an offense. We disagree and affirm. 1
1
Contrary to appellant’s plea, a military judge sitting as a general court-martial
convicted appellant of one specification of sexual assault, in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012) [UCMJ]. The
convening authority approved the court’s adjudged sentence of a dishonorable
discharge, confinement for eighteen months, and reduction to the grade of E-1.
Appellant’s second assignment of error alleges the government’s evidence was
factually insufficient to sustain his conviction. This claim warrants neither
discussion nor relief. We are personally convinced of appellant’s guilt beyond a
(continued . . .)
JORDAN—ARMY 20180003
The specification at issue reads as follows:
In that [appellant] U.S. Army, did, at or near Fort Hood, Texas, on or about 9
December 2016, commit a sexual act upon PFC [TH], to wit: placing his
mouth on PFC [TH]’s penis, by causing bodily harm to him, to wit: placing
his mouth on PFC [TH]’s penis.
Appellant contends that the phrase “mouth on . . . penis” (emphasis added)
does not describe a sexual act, because it fails to allege penetration of the mouth by
the penis, as required by Article 120(g)(1)(A). The “to wit” language in this
specification could have been more artfully drafted. 2 Nevertheless, we agree with
the military judge that the specification “either expressly or by necessary
implication”: (1) alleged every element of the offense; (2) put appellant on notice
that he needed to defend against the sexual act of placing his mouth on PFC TH’s
penis, causing penetration; and (3) protected appellant from double jeopardy.
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994); see also United States v.
Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (“’A specification is sufficient if it alleges
every element of the charged offense expressly or by necessary implication.’”
(quoting Rule for Courts-Martial 307(c)(3))). The specification’s use of the term
“sexual act” carried with it the applicable definition of “contact between the penis
and the . . . mouth, and for purposes of this subparagraph contact involving the
penis occurs upon penetration, however slight.” Article 120(g)(1)(A).
Moreover, we agree with the military judge that the word “mouth” refers to
the “oral cavity” on the “inside of the human head,” and thus “to access [the mouth],
there must be a penetration, however slight, of it.” Our sister courts have come to
the same conclusion in similar cases. See, e.g., United States v. Ruppel, 45 M.J.
578, 587-88 (A.F. Ct. Crim. App. 1997) (upholding a forcible sodomy conviction,
and explaining that the victim “did not say that she put her lips on [appellant’s]
penis. Rather, she used the word mouth. Using the common understanding of the
word mouth, if [the victim] put her mouth on appellant’s penis, there is a penetration
of the lips.”); United States v. Cox, 23 M.J. 808, 818 (N.M.C.M.R. 1986)
(penetration past lips but not past teeth is sufficient to prove sodomy); United States
(. . . continued)
reasonable doubt. United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
Appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982). After due consideration, we find that appellant’s Grostefon
matters do not warrant discussion or relief.
2
For example, the “to wit” language could have read: “placing PFC TH’s penis
inside [appellant’s] mouth, causing PFC TH’s penis to penetrate [appellant’s]
mouth,” or words to that effect.
2
JORDAN—ARMY 20180003
v. Escamilla, NAVY 201400168, 2015 CCA LEXIS 157, at *2-3 (N.M. Ct. Crim.
App. 23 Apr. 2015) (finding sufficient evidence of sexual assault in a factually
similar case, where the specification alleged that the appellant committed a sexual
act by “placing his mouth on [the victim’s] penis).”
CONCLUSION
The findings and sentence are AFFIRMED.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of
Clerk of Court
Court
3