In United States v. Johanson the appellant was sentenced to “no punishment.”  The case presents another with a issue of statutory interpretation, expansion, contraction, and proposed contortion of Article 120, UCMJ?

Chief Johanson was convicted, after a contested members trial of:

five specifications of maltreatment of persons subject to his orders, in violation of Article 93, Uniform Code of Military Justice (UCMJ); one specification of abusive sexual contact and one specification of indecent exposure, both in violation of Article 120, UCMJ; and three specifications of assault and battery, in violation of Article 128, UCMJ.

Before the Coast Guard Court of Criminal Appeals Chief Johanson raised the following issues.

I. Whether a servicemember can be convicted of abusive sexual contact under the theory of being substantially incapable of declining participation when the victim was fully capable of communicating a lack of consent, communicated a lack of consent, moved away, and was neither asleep, unconscious nor under the influence of any drugs or alcohol.

II. Whether the military judge erred to the substantial prejudice of Appellant by adding to the Military Judges’ Benchbook instruction and instructing the members that mental disorientation could amount to substantial incapacity under Article 120, UCMJ.

III. Whether Appellant’s due process rights were violated when the military judge judicially altered the burden-shifting language of Article 120 and instructed the members accordingly.

The court summarily rejected the third issue.

Appellant’s argument that the military judge judicially altered the statute, invading the domain of Congress, is a novel one that we are not inclined to accept. We discuss the first two issues and grant relief.

The court found the LIO of wrongful sexual contact, and of course there was no need for a Sales or other sentence assessment.

6 Responses to “Coastie discombobulated, but not substantially incapacitated”

  1. anonymous senior defense counsel with the initials nm says:

    Perhaps I’m even less familiar with military appellate law than I previously suspected.  Does anyone know how this got heard on appeal with a sentence of “no punishment”?

  2. Gene Fidell says:

    The TJAG can send to the CCA cases that do not qualify for CCA review as of right. Art. 69(d), UCMJ.

  3. Zachary Spilman says:

    “We have reviewed the record in accordance with Article 69, UCMJ.” Slip op. at 9.


  4. anonymous senior defense counsel with the initials nm says:

    Thank you gentlemen for clearing that up for me.  I’m glad to see this case was reviewed.  Any trial that results in a conviction of a SORNA offense should be reviewed no matter the punishment.  Good use of Art 69.

  5. Phil Cave says:


    There have been many suggestions, good ones, over the years to change how appeals are done.  If you search this blog you will see many of them discussed.

    My personal BLUF is that any court-martial in which the accused pleads not guilty and is found guilty of an offense to which he plead not guilty should be reviewed, regardless of sentence.  If an accused pleads guilty to the “sheet,” then he should be required to petition the CCA for review, stating the issues, in much the same way that is done at CAAF.  The increase in cases to be reviewed would, IMHO, be more than offset by the GP cases which would no longer require the court to do its current 66 review.  It might be argued that part of the reason for AFCCAs delay is the time that must be spent on the GP cases.  Thus, my change would, I think, triage cases for AFCCA and the others.  It is true that there are any number of GP cases which get relief in some fashion, but that potential is preserved by giving that appellant the petition opportunity.


  6. Gene Fidell says:

    Phil, why not just make any court-martial appealable as of right to CAAF, which would apply normal federal practice with respect to appeals in guilty-plea cases and summary disposition for cases in which plenary briefing and argument serve no purpose?