Week in Review

Court of Appeals for the Armed Forces

United States v. Schmidt. Does a child victim of  "indecent conduct by intentionally masturbating in his presence."

I think the question is whether the child has to be aware of the acts. The factual issue here being that the child was allegedly asleep. The members themselves wanted to know this in the context of what does "in the presence of mean." Of course part of the issue was about the instructions, lack of instructions, and waiver. The court concluded that they should review for plain error.

In Davis, we noted that we review a matter for plain error “ ‘when there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to a subsequent rule.’ ” 79 M.J. at 331 (first alteration in original removed) (second alteration in original) (quoting United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017)). At the time of Appellant’s trial, it was unsettled whether the phrase “in the presence of” used to define the term “lewd act” in Article 120b(h)(5)(D), UCMJ, required the child to be aware of the lewd act. The statute did not define “in the presence of” and there was no case law interpreting this phrase in Article 120b(h)(5)(D), UCMJ. Thus, there was no binding precedent demonstrating that “in the presence of” required victim awareness. Accordingly, trial defense counsel’s failure to object was not waiver given the unsettled nature of the law at the time of Appellant’s court-martial.

Observers have pointed out that,

• Judge Sparks "announced the judgment of the court." He finds error, in that the child must have been aware, but there is no prejudice. Slip op. at 9. And, since the law was unsettled at the time there cannot be a "plain and obvious error."
• Chief Judge Ohlson and Senior Judge Erdmann concurred in the judgment. Here they write that the statute requires the accused to be aware of the child's presence, but not that the child must be aware.
• Judge Maggs, writing for himself and Judge Hardy concludes it is waiver plain and simple. He does discuss the IAC issue. NMCCA had presumed IAC but found no prejudice.
• Some suggest that Judge Ohlson's is the "lead" opinion, or should be.
• Some have suggested this is not an instructional error case but one of factual sufficiency.

United States v. Anderson. GP to UA (AWOL) and use of marijuana, and conviction of sexual assault. He was sentenced to 30 months, RiR, and a DD. The issue was denial of post-trial speedy review. 481 days elapsed between the close of trial and the CA action. The court finds sufficient information to trigger a Moreno review, but not enough to show prejudice. Some comments.

• The delays were attributable to the court reporter and military judge but were unexplained. "[delay which GAD argued were] generally attributed to “the realities, circumstances, and operational tempo” of the Fort Bliss trial circuit."
• There were three requests for speedy review.
• General anxiety from the delay without a showing of "particularized anxiety or concern" is insufficient. The court points to United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005) as an example of potential prejudice.

​No. 22-0066/AR. U.S. v. Ethen D. Black. CCA 20210310. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:
 
WHETHER THE ARMY COURT ERRED IN ITS ABUSE OF DISCRETION ANALYSIS BY (1) CREATING A NOVEL TEST FOR COMMON AUTHORITY, (2) FAILING TO GIVE DEFERENCE TO THE MILITARY JUDGE'S FINDINGS, (3) COMPARING A MODERN CELL PHONE TO A TRADITIONAL "CONTAINER," AND (4) FINDING ERROR BASED ON A DIFFERENCE OF OPINION.
 
Pursuant to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed.

Navy-Marine Corps Court of Criminal Appeals

United States v. Murphy. An enlisted panel convicted Appellant of abusive sexual contact of his sister-in-law. They sentenced him to xim months, TF, RiR, and a BCD. On appeal he raised factual sufficiency.

​The manner in which this case was prosecuted invites more questions than were answered regarding this particular offense, and causes this Court to find the evidence insufficient to support a conviction. Appellant’s conviction for abusive sexual contact essentially rests on the testimony of Ms. Sierra and Mrs. Mike, which is conflicting in a number of material areas and also presents significant credibility issues. We are therefore not convinced beyond a reasonable doubt that Appellant committed abusive sexual contact upon Ms. Sierra by touching, directly or through the clothing, her genitalia.

Cheers, Phil Cave