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, 74 M.J. 806, 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of the offense of forcible sodomy in violation of Article 125 (the alleged offenses occurred before Article 125 was repealed and replaced in the FY14 NDAA).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.
Update: The panel reconsidered this opinion, issuing a new opinion reaching the same result on August 18, 2015 (available here).
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.
The CCA bases this conclusion on three points:
First . . . [t]he existence of at least one Marcum factor is, as established, a fact necessary to constitute the crime of sodomy under the UCMJ. Second, a specification, to be sufficient, must allege every element expressly or by necessary implication. Third, a fact that is essential to a determination of guilt or innocence to an offense, however it may be labeled, is the “functional equivalent” of an element.
Slip op. at 7 (citations omitted). Considering forcible and non-forcible sodomy in this context, the CCA holds that:
The offense of non-forcible sodomy thus required proof of essential facts absent from the forcible sodomy specification. As charged, then, non-forcible sodomy was not an LIO of forcible sodomy and it was error to instruct or to find otherwise.
Slip op. at 7-8.
The Government also used the charged offenses as propensity evidence at trial, citing M.R.E. 413. The defense opposed this tactic and moved to sever the charges, but the judge permitted the Government to make the propensity argument (providing a tailored spillover instruction to the members regarding how to use the propensity evidence).
The CCA concludes that this was not error, rejecting the appellant’s argument that M.R.E. 413 “was never meant to allow charges before a court-martial to support each other’s proof and that doing so in his case violated his constitutional rights to presumption of innocence and due process.” Slip op. at 11 (marks omitted). The court finds that:
First, the plain language of MIL. R. EVID. 413——allowing “evidence that the accused committed any other sexual offense”——is broad and betrays no exception for charged misconduct. We are not a rulemaking body and, even were we inclined to find such an exception prudent, we are bound to apply the Rule as written, not as may be desired, unless it is unconstitutional. Wright, 53 M.J. at 481.
Second, we see nothing more prudent or fair about a rule that would prohibit evidence from being considered under MIL. R. EVID. 413 if it pertains to charged offenses, but allow it if the evidence is too old or too weak to be charged or if the Government presents it twice in two separate courts-martial.
Third, we reject the argument that MIL. R. EVID. 413 as applied to charged misconduct is unconstitutional. “The presumption is that a rule of evidence is constitutional unless lack of constitutionality is clearly and unmistakably shown.” Id. (citations omitted). The appellant has pointed us to no precedent where a sister or superior court has interpreted MIL. R. EVID. 413 to reach only uncharged misconduct.
Slip op. at 11.