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of the offense of forcible sodomy in violation of Article 125 (the alleged offenses occurred before Article 125 was repealed and replaced in the FY14 NDAA).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.

10 Responses to “The NMCCA holds consensual sodomy not a LIO of forcible sodomy; MRE 413 propensity evidence not limited to uncharged acts”

  1. Peanut Gallery says:

    Interesting opinion, and I think NMCCA got it exactly right.  I’m curious as to whether the TC and the DC agreed with the MJ on the LIO instruction.  Why not ignore the LIO issue, and simply argue that one of the Marcum factors was present; disparity in rank.  Appellant was an E-5, victim an E-4.  Let the members decide whether that satisfied Marcum. 

  2. Tami a/k/a Princess Leia says:

    @Peanut Gallery,
    They couldn’t “just argue” it because none of the other Marcum factors were alleged in the specifications.  Therefore, Bass wasn’t on notice that he could be convicted of a crime of consensual sodomy.  A sexual relationship between an E-5 and E-4 isn’t enough of a disparity in rank to criminalize consensual sodomy.  And since there was no objection, yes TC and DC agreed with the MJ, which I’m surprised didn’t raise an IAC complaint.
    I hope CAAF takes up the use of MRE 413 with charged misconduct issue.  It boggles my mind that it’s “OK” for the panel to consider one charged offense to find him guilty of another charged offense, but then give a spillover instruction that prohibits them from doing that very thing.  Seems extremely counterintuitive, even for lawyers. 
    I suppose I could have fun with it as a defense counsel–“You just heard the judge talk to you about the presumption of innocence, and each specification in each charge must stand on its own.  But you also heard the judge talk about propensity.  Well, please consider my client’s propensity to be innocent.  He has a propensity for innocence.  If you find him not guilty of one offense, then you should consider that lack of guilt for ALL offenses, due to his propensity for innocence.”

  3. Steve Perry says:

    Despite having had clients on the business end of 413, I don’t understand why it would apply any differently to charged misconduct vice uncharged.  Not a fun rule to deal with, and the instructions probably aren’t much help to the members, but I can’t find logic in the assertion it doesn’t apply to charged conduct.  If that were the case, any multiple-C.W.-accused is going to enjoy multiple trials instead of multiple charges.  I’d much rather face it all in one go.

  4. Saul says:

    Just wait for Congress to prohibit consideration of the accused’s propensity for innocence. 
    If a princess and rebel pilot consent to sodomy, does that violate 125?

  5. Michael Lowrey says:

    Here’s the strange part of this case to me: Bass was convicted of of one specification of violating a lawful general regulation (sexual harassment), two specifications of wrongful sexual contact, and two specifications of sodomy. He was sentenced to seven years, a reduction to E-1, and a DD. As NMCCA notes, “By setting aside the findings of guilty to the sodomy specifications, the maximum period of confinement goes from 14 years down to only four,” which is to says that the consensual sodomy part of the convictions must have added at least three years to the sentence (!). Sounds like the panel reached some sort of comprise verdict, not convicting of forcible sodomy but sentencing like it probably happened that way. It’s easy to understand why NCMMA ordered a sentence rehearing and thus avoided the obvious sentence appropriateness issue. 

  6. Tami a/k/a Princess Leia says:

    Steve Perry,
    The problem with using MRE 413 on charged misconduct is that it cuts against the presumption of innocence that applies to every single charged offense, even the sex offenses.  It’s not a “prior act” if it’s a charged offense
    Saul, to answer your question, no.  That’s why she “knighted” him in Star Wars.  ;)

  7. stewie says:

    So take an allegation.  Scenario 1, it’s uncharged, and you can use it (assuming it meets the rules) as propensity evidence. Scenario 2, it’s charged.  Why would you create a preference for it’s use as propensity in scenario 1, but not 2?

  8. Phil Cave says:$FILE/oc-bridges,%20al.pdf

  9. Tami a/k/a Princess Leia says:

    Depends on how old and/or weak the allegation is.  I may have a preference to include it as uncharged misconduct because it’s much easier to get into evidence–much lower standard of proof, and I get to argue propensity, so it helps me bolster the charged misconduct and makes it easier to get a conviction.
    If I pursue the old/weak allegation as charged, then I have a heavier burden to prove BRD that both charged offenses happened, and there is the spillover problem.  Plus how do I know I’m being  held to a BRD standard?  Are judge’s still requiring BRD for charged misconduct under MRE 413, or is the judge going to allow it in under PoE standard?  Additionally, the charged conduct I’m using for MRE 413 purposes, there has to be a determination that the accused actually did it on some level, otherwise, how is it relevant?  Then that cuts against the presumption of innocence.

  10. Tami a/k/a Princess Leia says:

    Obviously incomplete, as this video doesn’t touch on (drum roll) drunk sex, or regret the next morning, but otherwise an entertaining and simple way of explaining consent.