The NMCCA holds consensual sodomy not a LIO of forcible sodomy; MRE 413 propensity evidence not limited to uncharged acts
In a very interesting published opinion in United States v. Bass, __ M.J. __, No. 201400229 (N-M. Ct. Crim. App. May 27, 2015) (link to slip op.), a three judge panel of the NMCCA holds that the military judge erred in instructing the members on the offense of consensual sodomy in violation of Article 125 as a lesser included offense (LIO) of the offense of forcible sodomy in violation of Article 125 (the alleged offenses occurred before Article 125 was repealed and replaced in the FY14 NDAA). The CCA also holds that the judge did not err in instructing the members that they could use the charged sexual offenses as propensity evidence under Military Rule of Evidence 413 (a similar conclusion was recently reached by the Army CCA, as discussed here). The NMCCA reverses the appellant’s convictions for consensual sodomy, sets aside the sentence, and orders a sentence rehearing.
The appellant was charged with sexual assault of two female sailors, one of whom had a prior consensual relationship with the appellant. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of member with enlisted representation, of sexual harassment and wrongful sexual contact involving one of the sailors, and of consensual sodomy (as a LIO of forcible sodomy) involving the other sailor (the one with whom he had the prior relationship). The appellant was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a dishonorable discharge.
At trial, without objection from the appellant’s defense counsel, the military judge instructed the members that consensual sodomy is a LIO of forcible sodomy:
The lesser included offense of non-forcible sodomy differs from the charged offense of forcible sodomy, in that non-forcible sodomy does not require you to be convinced beyond a reasonable doubt that the sodomy was committed by force and without the consent of the other person. However, in order to find the accused guilty of this lesser included offense, you must find beyond a reasonable doubt both that the physical act of sodomy occurred and that it involved public behavior; an act of prostitution; persons who might be injured, coerced or who were situated in relationships where consent might not easily be refused; or of a unique military interest.
Slip op. at 5 (quoting record). But the NMCCA finds that this instruction was erroneous because a conviction of consensual sodomy requires aggravating factors that remove the sexual activity from the liberty interest identified by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003). CAAF identified those factors in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), and it held in United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013) (CAAFlog case page), that determining the existence of such Marcum factors is a matter for the trier of fact.
In Bass, the NMCCA applies Castellano to conclude that the aggravating factors must be stated in the specification:
The CAAF’s binding interpretation that Marcum factors represent additional facts necessary to prove a criminal act of sodomy——as opposed to factors to guide judges in making legal determinations——constrains us to conclude that, as a result, they must be pleaded in a sodomy specification.
Slip op. at 7.