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,
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.
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
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