United States v. Specialist KEVIN RODRIGUEZ ( 2015 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                HAIGHT, PENLAND, and ALMANZA
                                    Appellate Military Judges
    
                                  UNITED STATES, Appellee
                                               v.
                                Specialist KEVIN RODRIGUEZ
                                 United States Army, Appellant
    
                                          ARMY 20130577
    
                   Headquarters, National Training Center and Fort Irwin
                           Timothy P. Hayes, Jr., Military Judge
             Lieutenant Colonel Gail A. Curley, Staff Judge Advocate (pretrial)
           Lieutenant Colonel Jeffrey A. Miller, Staff Judge Advocate (post-trial)
    
    For Appellant: Captain Scott A. Martin, JA (argued); Colonel Kevin Boyle, JA;
    Lieutenant Colonel Jonathan F. Potter, JA; Major Yolanda McCray Jones, JA (on
    brief); Lieutenant Colonel Jonathan F. Potter, JA; Captain Heather L. Tregle, JA (on
    supplemental brief).
    
    For Appellee: Captain Tara E. O’Brien, JA (argued); Major A.G. Courie III, JA;
    Major Steven J. Collins, JA; Captain Benjamin W. Hogan, JA (on brief); Major A.G.
    Courie III, JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien, JA (on
    supplemental brief).
    
    
                                          1 December 2015
    
                                     ----------------------------------
                                      MEMORANDUM OPINION
                                     ----------------------------------
    
      This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
    
    ALMANZA, Judge:
    
           A military judge sitting as a general court-martial convicted appellant,
    consistent with his pleas, of one specification of failing to obey a lawful order, one
    specification of sexual abuse of a child by committing a lewd act, and six
    specifications of wrongfully annoying and molesting a minor in violation of
    RODRIGUEZ — ARMY 20130577
    
    California Penal Code § 647.6(a)(1), 1 in violation of Articles 92, 120b, and 134,
    Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920b, and 934 (2012)
    [hereinafter UCMJ]. 2 The military judge sentenced appellant to a bad-conduct
    discharge, confinement for two years, and reduction to the grade of E-1. The
    convening authority approved the sentence as adjudged and credited appellant with
    sixty-three days of confinement.
    
          This case is before us pursuant to Article 66, UCMJ. Appellant raises three
    assignments of error and one supplemental assignment of error. We granted
    appellant’s request for oral argument on two of his assignments of error and heard
    argument on 20 October 2015. 3 As appellant’s first assignment of error merits
    discussion and relief, his remaining assignments of error are rendered moot.
    
                                      BACKGROUND
    
           Appellant was stationed at Fort Irwin, California. On several occasions
    between November 2012 and April 2013, appellant followed minor girls walking on
    post in his car, and then approached them and talked to them. In November 2012,
    appellant drove up to ACA, a fourteen-year-old girl walking along the road, rolled
    down his window, and asked her for her phone number. After ACA said, “no” and
    tried to walk away, appellant parked and asked her to join him. When she did, they
    spoke and ACA told him she was fourteen. Appellant subsequently took her cell
    phone, entered his phone number in it, and called himself so he would have her
    phone number. The next day, appellant sent ACA a text asking if she wanted to have
    sex with him. 4
    
    
    1
      The provision reads, “[e]very person who annoys or molests any child under 18
    years of age shall be punished by a fine not exceeding five thousand dollars
    ($5,000), by imprisonment in a county jail not exceeding one year, or by both the
    fine and imprisonment.”
    2
      After appellant pleaded not guilty to one specification of wrongfully annoying and
    molesting a minor in violation of Cal. Penal Code § 647.6(a)(1) assimilated under
    Article 134, UCMJ, and to one specification of stalking in violation of Article 120a,
    UCMJ, the military judge dismissed these two specifications in accordance with the
    terms of the pretrial agreement.
    3
     We note with appreciation the high level of oral and written advocacy on behalf of
    both parties in this case.
    4
     This text message, which constituted a lewd act upon a child, was the basis for the
    Specification of Charge III.
    
    
    
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    RODRIGUEZ — ARMY 20130577
    
           On the morning of 21 February 2013, appellant approached two other girls,
    EMM and KMT—who were thirteen years and fourteen years old, respectively—in
    his car as they were walking to the Fort Irwin Middle School. He rolled down his
    car window, said, “hey,” and told them, “you look good today.” The girls then tried
    to ignore appellant and continued to walk to school. At that point, appellant circled
    around the block so he could continue following them in his car. 5
    
           On the morning of 22 February 2013, appellant was in his car and saw EMM
    as she was walking to the home of KMT before school. He waved to EMM a couple
    of times. When she raised her phone to take a picture of his license plate, he
    reversed his car so she could not see or take a picture of his license plate. Appellant
    then stopped his car and EMM walked away. 6
    
           On the same day, 22 February 2013, appellant was in his car and saw a twelve
    year old girl, ANC, on the way to Fort Irwin Middle School. He pulled up to her and
    asked her, “has anyone ever told you, you look gorgeous?” 7
    
            Just over a week later, on 1 March 2013, one of the teachers at Fort Irwin
    Middle School was told by two students that they had seen appellant driving nearby.
    The teacher then got in her car and followed appellant until he pulled over. After a
    brief conversation in which appellant asked the teacher if she knew him, appellant
    drove off. Five days later, on 6 March 2013, appellant’s company commander
    ordered him to stay away from all schools, playgrounds, youth centers, and day care
    facilities on Fort Irwin and to have no verbal or physical contact with any minor
    females other than his stepdaughter.
    
            Despite that “no contact” order, on 13 April 2013, appellant approached two
    girls, a twelve year old, TSH, and a thirteen year old, MGV, walking back to one of
    the girls’ homes from the on-post commissary. Appellant drove up to them and
    asked them for their phone numbers. They declined and then ran away from
    
    
    5
     This conduct, which constituted wrongfully annoying and molesting the girls in
    violation of Cal. Penal Code § 647.6(a)(1), was the basis for Specifications 2 and 3
    of Charge I.
    6
     This conduct, which constituted wrongfully annoying and molesting the girl in
    violation of Cal. Penal Code § 647.6(a)(1), was the basis for Specification 4 of
    Charge I.
    7
     This conduct, which constituted wrongfully annoying and molesting the girl in
    violation of Cal. Penal Code § 647.6(a)(1), was the basis for Specification 5 of
    Charge I.
    
    
    
                                               3
    RODRIGUEZ — ARMY 20130577
    
    appellant’s car. Shortly thereafter, the girls saw appellant drive through the
    neighborhood. TSH tried to see if she could get appellant’s license plate number but
    did not succeed because, once appellant saw her running after his car, he accelerated
    and left the area. 8
    
          At trial, the military judge advised appellant that the offense described in Cal.
    Penal Code § 647.6(a)(1), the basis of Specifications 2-7 of Charge I,
    
                 is not preempted by Article 120a, stalking, in that it [the
                 California statute] prohibits conduct less severe than that
                 required by the stalking article, which contemplates a fear
                 of death or bodily harm. California Criminal Jury
                 Instructions 1122 [the jury instructions applicable to the
                 California statute] describes annoying or molesting a child
                 as requiring that, first, you engaged in conduct directed at
                 a child; second, a normal person, without hesitation,
                 would have been disturbed, irritated, offended or injured
                 by your conduct; third, your conduct was motivated by an
                 unnatural and abnormal sexual interest in the child; and
                 fourth, that the child was under the age of 18 years at the
                 time of your conduct.
    
                 It is not necessary that the child actually be irritated or
                 disturbed. It’s also not necessary that the child actually
                 be touched. It is not a defense that the child may have
                 consented to the act.
    
          In pleading guilty to Specifications 2-7 of Charge I, appellant admitted the
    elements of Cal. Penal Code § 647.6(a)(1) accurately described his actions. He also
    admitted that the offenses occurred at Fort Irwin, California, a place under exclusive
    or concurrent federal jurisdiction, that Cal. Penal Code § 647.6(a)(1) was properly
    assimilated into federal law by 18 U.S.C. § 13, and finally that, under the
    circumstances, his conduct was both to the prejudice of good order and discipline in
    the armed forces and of a nature to bring discredit upon the armed forces.
    
    
    
    
    8
      This conduct, which constituted wrongfully annoying and molesting the girls in
    violation of Cal. Penal Code § 647.6(a)(1) also constituted failure to obey the lawful
    order of appellant’s company commander to have no verbal or physical contact with
    minor females and was simultaneously the basis for Specifications 6 and 7 of Charge
    I and the Specification of Charge IV.
                                               4
    RODRIGUEZ — ARMY 20130577
    
                                  LAW AND ANALYSIS
    
          In his first assignment of error, appellant argues that “the Government was
    preempted from charging the assimilated Article 134 offense in . . . [this] case
    because . . . Congress intended to limit prosecution for conduct of this nature in a
    complete way to Article 120b.” Appellant asks us to dismiss Specifications 2-7 of
    Charge I and order a sentence rehearing. We agree with appellant that
    Specifications 2-7 of Charge I are preempted by Article 120b, UCMJ, and therefore
    must be set aside. However, we find a sentence rehearing unnecessary.
    
           The President has limited the application of Article 134, UCMJ, by the
    doctrine of preemption, set forth below:
    
                 The preemption doctrine prohibits application of Article
                 134 to conduct covered by Articles 80 through 132. For
                 example, larceny is covered in Article 121, and if an
                 element of that offense is lacking—for example, intent—
                 there can be no larceny or larceny-type offense, either
                 under Article 121 or, because of preemption, under Article
                 134. Article 134 cannot be used to create a new kind of
                 larceny offense, one without the required intent, where
                 Congress has already set the minimum requirements for
                 such an offense in Article 121.
    
    Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM, 2012), pt.
    IV, ¶ 60.c.(5)(a). The United States Court of Appeals for the Armed Forces has also
    required that, in order for preemption to apply, not only must an offense charged
    under Article 134 lack an element of an enumerated offense, “it must be shown that
    Congress intended the other punitive article to cover a class of offenses in a
    complete way.” United States v. Anderson, 
    68 M.J. 378
    , 387 (C.A.A.F. 2010)
    (quoting United States v. Kick, 
    7 M.J. 82
    , 85 (C.M.A. 1979)). In Anderson, our
    superior court further explained, “[t]hus, we have required Congress to indicate
    through direct legislative language or express legislative history that particular
    actions or facts are limited to the express language of an enumerated article, and
    may not be charged under Article 134, UCMJ.” Id. (citations omitted).
    
           The Air Force Court of Criminal Appeals recently considered whether
    preemption applied to bar Article 134 offenses alleging violations of a state law
    prohibiting using a computer to entice a minor to engage in sexual contact and
    giving a minor a sexually oriented image. United States v. Long, 2014 CCA LEXIS
    386 (A.F. Ct. Crim. App. 2 July 2014) (unpub.). In Long, a divided panel found that
    these offenses were preempted by Article 120b(c), finding first that the only
    difference between the state law and Article 120b(c) was that the state law covered
    children under 18 years of age while Article 120b(c) covered children under 16, and
    
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    RODRIGUEZ — ARMY 20130577
    
    second that Congress intended to cover these types of offenses in a complete way.
    Id. at *8-13. 9
    
           Here, appellant argues that Cal. Penal Code § 647.6(a)(1) is a sexually based
    crime, given its requirement that a defendant’s conduct be motivated by a sexual
    interest in a child. Given the breadth of Article 120b, appellant argues that we
    should follow Long and find that the violation of California law is preempted.
    
          In response, and in seeking to distinguish Long, the government argues that:
    
                 In this case, the element, wrongfully annoy or molest is
                 different from a lewd act. Appellant’s actions are
                 something not contemplated within Article 120b because it
                 is addressing conduct that, while not amounting to
                 indecent, is harassing and targeting children.
    
           Upon reviewing the elements of an offense under Cal. Penal Code §
    647.6(a)(1) and the elements of an offense under Article 120b(c), UCMJ, we find
    that the former are subsumed into the latter. We thus find the preemption doctrine
    applies because the conduct covered by the state law is also covered by Article
    120b(c).
    
          Specifically, the elements of a violation of Cal. Penal Code § 647.6(a)(1) are:
    
                 1. The defendant engaged in conduct directed at a child;
    
                 2. A normal person, without hesitation, would have been
                 disturbed, irritated, offended, or injured by the
                 defendant’s conduct;
    
                 3. The defendant’s conduct was motivated by an unnatural
                 or abnormal sexual interest in the child; [and]
    
                 4. The child was under the age of 18 years at the time of
                 the conduct.
    
    Judicial Council of California Criminal Jury Instructions (2015 ed.) No. 1122. As
    this offense was charged under all three clauses of Article 134, the government was
    also required to establish that appellant’s conduct was prejudicial to good order and
    
    
    9
      The federal Assimilative Crimes Act, 18 U.S.C. § 13, also contains language
    referencing the concept of preemption in that the statute only applies in those
    instances of misconduct not otherwise “punishable by any enactment of Congress,”
    to include the UCMJ.
                                              6
    RODRIGUEZ — ARMY 20130577
    
    discipline or was service discrediting. We decline to find that the terminal element
    precludes application of the preemption doctrine. See Long, 2014 CCA LEXIS 386,
    at *9-11.
    
          The elements of a violation of Article 120b(c), Sexual Abuse of a Child, are:
    
                 1. That the accused engaged in a lewd act; and
    
                 2. That the act was committed upon a child who has not
                 attained the age of 16 years.
    
    MCM, 2012, pt. IV, ¶ 45b(c); see also Note at IV-72. A “lewd act” for purposes of
    Article 120b(c), UCMJ, is defined, in relevant part, as:
    
                 intentionally communicating indecent language to a child
                 by any means . . . with an intent to . . . arouse or gratify
                 the sexual desire of any person; or
    
                 any indecent conduct, intentionally done with or in the
                 presence of a child . . . that amounts to a form of
                 immorality relating to sexual impurity which is grossly
                 vulgar, obscene, and repugnant to common propriety, and
                 tends to excite sexual desire or deprave morals with
                 respect to sexual relations.
    
    MCM, 2012, pt. IV, ¶ 45b(h)(5)(C) and (D).
    
           There are only two differences between the elements of the state law offense
    and Article 120b(c). The first is that the state law protects children under 18, while
    Article 120b(c) protects children under 16. The second is that the state law prohibits
    conduct “motivated by an unnatural or abnormal sexual interest in the child” that
    “without hesitation, would have . . . disturbed, irritated, offended, or injured” a
    normal person, while Article 120b(c) prohibits indecent language or conduct as
    defined above.
    
           With respect to the first difference, “[t]he Government cannot use Article 134,
    UCMJ, to enlarge the age range of an enumerated offense.” Long, 2014 CCA LEXIS
    386, at *9 (citing Williams v. United States, 
    327 U.S. 711
     (1946)). That said, as the
    children victimized in this case were all under the age of 16, this facial difference is
    not significant for purposes of our “as-applied” analysis.
    
           With respect to the second difference, a review of California case law
    indicates that the prohibition of Cal. Penal Code § 647.6(a)(1) is sufficiently broad
    
    
    
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    RODRIGUEZ — ARMY 20130577
    
    as to include indecent language or conduct. Thus, the state law prohibits the very
    same conduct that is also prohibited by Article 120b(c).
    
          In People v. Carskaddon, the California Supreme Court interpreted the
    predecessor to Cal. Penal Code § 647.6(a)(1) and stated:
    
                 Ordinarily, the annoyance or molestation which is
                 forbidden is not concerned with the state of mind of the
                 child but it is the objectionable acts of defendant which
                 constitute the offense, and if his conduct is so lewd or
                 obscene that the normal person would unhesitatingly be
                 irritated by it, such conduct would annoy or molest within
                 the purview of the statute.
    
    
    49 Cal. 2d 423
    , 426 (1957) (citation and internal quotation marks omitted). We
    recognize that in People v. Thompson, the California Court of Appeal rejected the
    defendant’s argument that in order to violate the predecessor of Cal. Penal Code §
    647.6(a)(1), a defendant must have committed a lewd or obscene act. 
    206 Cal. App. 3d
     459, 465-66 (Cal. App. 1988). In its holding, however, the Thompson court
    indicated that the Carskaddon court’s discussion of “lewd or obscene” included not
    just the defendant’s specific act, but the motivation for that act as well:
    
                 the [Carskaddon] court’s reference to a lewd or obscene
                 act which would unhesitatingly irritate the normal person
                 was a reference to the entire crime prohibited by the
                 section: the forbidden “conduct” of the perpetrator. This
                 would include both the act of annoying or molesting under
                 the objective test, and the requisite mental state. We
                 doubt the court intended to separate the two elements
                 when it made its general statement about the section.
    
    Id. at 465 (emphasis in original). Thompson stands for the proposition that a
    violation of Cal. Penal Code § 647.6(a)(1) may involve an act that, viewed without
    regard to its motivation, is not lewd or obscene. Thompson does not, however, stand
    for the proposition that a defendant’s conduct, considering both his acts and the
    motivation for those acts, need not be lewd or obscene to violate the statute. Indeed,
    the California Supreme Court subsequently characterized the Thompson court’s
    holding as follows, indicating that lewdness is still part of the equation: “[t]he . . .
    [Thompson] court concluded that, although the conduct was not particularly lewd,
    the ‘behavior would place a normal person in a state of being unhesitatingly
    irritated, if not also fearful,’ thereby satisfying the conduct element of [the
    
    
    
    
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    RODRIGUEZ — ARMY 20130577
    
    predecessor of § 647.6(a)(1)]. People v. Lopez, 
    19 Cal. 4th 282
    , 292 (1998)
    (emphasis added) (internal citation omitted). 10
    
           The California Supreme Court also made clear in Carskaddon that the
    California statute prohibits sexual misconduct with children, holding that “[t]he
    primary purpose of the [] statute is the protection of children from interference by
    sexual offenders, and the apprehension, segregation, and punishment of the latter.”
    Carskaddon, 49 Cal. 2d at 425 (citations and internal quotation marks omitted). In
    People v. Shaw, the California Court of Appeal reiterated the statute’s purpose,
    stating that “it is the sexual interest in the child that is the focus of the statute’s
    intent” and that “the primary purpose of the statute is to protect children from
    interference by sexual offenders.” 
    177 Cal. App. 4th 92
    , 103 (Cal. App. 2009)
    (citing In re Gladys R., 
    1 Cal. 3d 855
    , 867-68 (1970)).
    
            Our review of the California cases leads us to conclude that Cal. Penal Code §
    647.6(a)(1) is a statute aimed at sexual misconduct with children, and that it covers
    conduct that, when specific acts are considered in light of the motivation for those
    acts, is “indecent” as defined for purposes of Article 120b(c), UCMJ. Moreover,
    government appellate counsel’s characterization of appellant’s conduct as a violation
    of the state law in support of its position that Long is distinguishable and that
    appellant’s conduct did “not amount[] to indecent,” in our view, tends to support a
    conclusion that the state law covers indecent conduct:
    
                 Appellant is preying on children with his vehicle,
                 following them around and asking them questions in order
                 to probe their sexual interest. It’s his actions, not just the
                 words he is communicating, that make his conduct
                 different from Long. Not only is he expressing a sexual
                 interest in them with his words, but he is following or
                 lingering in the area, proving further evidence of his
                 abnormal interest in the children.
    
    
    
    10
       In Lopez, the court found that a violation of Cal. Penal Code § 647.6(a)(1) was not
    a lesser-included offense of the California offense of committing a lewd act on a
    child because the lewd act offense requires touching, while Cal. Penal Code §
    647.6(a)(1) does not require a touching but requires the irritating conduct and the
    sexual motivation described above. Lopez, 
    19 Cal. 4th
     at 288-94. In Lopez, the
    court cited to Carskaddon; while the Lopez court did not cite Carskaddon for the
    proposition that lewd or obscene conduct would annoy or molest a child under the
    statute, the Lopez court did not disapprove Carskaddon’s language. Lopez, 
    19 Cal. 4th
     at 290.
    
    
    
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    RODRIGUEZ — ARMY 20130577
    
    Brief on Behalf of Appellee, at 14 (emphasis added). Indeed, a grown man asking
    middle school girls for their phone number and telling them they are pretty “in order
    to probe their sexual interest” and thus “expressing a sexual interest in them with his
    words” could constitute communicating indecent language to a child, and a grown
    man’s following middle school girls around in his car to approach them to ask such
    questions could constitute indecent conduct. 11
    
           In short, this case is closely analogous to the well-known example the Manual
    for Courts-Martial uses to explain the preemption doctrine. MCM, 2012, pt. IV, ¶
    60.c.(5)(a). In this example, a “larceny-type offense” (lacking the element of intent)
    would be preempted by Article 121, UCMJ. Here, Article 120b is a broad crime
    prohibiting sexual misconduct with children, as explained below, and Article
    120b(c), Sexual Abuse of a Child, specifically defines a crime prohibiting, among
    other things, indecent conduct with and communicating indecent language to a child.
    In our view, Cal. Penal Code § 647.6(a)(1)’s requirement that a defendant’s conduct
    be motivated by a sexual interest in a child is sufficient to make it an offense of the
    same type as that proscribed by Article 120b generally – a crime prohibiting sexual
    misconduct with children. Moreover, we believe that Cal. Penal Code § 647.6(a)(1)
    prohibits conduct that, considering both a defendant’s actions and his motivation for
    those actions, is lewd or obscene. We thus conclude that the California statute is an
    offense of the same type as that proscribed by Article 120b(c) specifically – a crime
    prohibiting indecent conduct and language upon a child. Accordingly, we find that
    Cal. Penal Code § 647.6(a)(1) prohibits conduct that is also prohibited by an
    enumerated article of the UCMJ. The first prong of the preemption doctrine is
    therefore met.
    
            Having made that determination, we now turn to whether “Congress intended
    . . . [Article 120b(c)] to cover a class of offenses in a complete way.” The history of
    the various UCMJ articles prohibiting indecent acts or communications involving
    child victims, and the legislative history concerning the 2007 and 2012 amendments
    to the UCMJ, indicate that in enacting Article 120b, Congress intended to cover
    sexual misconduct with children in a complete way, including covering all indecency
    crimes involving child victims in a complete way under Article 120b(c).
    
           Before the 2007 amendments to Article 120, UCMJ, indecency crimes against
    children were prohibited by the Article 134 offense entitled, Indecent Acts or
    Liberties with a Child. The elements of this offense when no physical contact
    occurred were:
    
    
    11
      As this case was a guilty plea, there is an insufficient record on which to
    determine whether appellant’s communications and conduct that constituted the
    basis of Specifications 2-7 of Charge I were, in fact, indecent communications and
    indecent conduct. We need not, however, make a finding on this issue in order to
    resolve this assignment of error.
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    RODRIGUEZ — ARMY 20130577
    
    
                 (a) That the accused committed a certain act;
    
                 (b) That the act amounted to the taking of indecent
                 liberties with a certain person;
    
                 (c) That the accused committed the act in the presence of
                 this person;
    
                 (d) That this person was under 16 years of age and not the
                 spouse of the accused;
    
                 (e) That the accused committed the act with the intent to
                 arouse, appeal to, or gratify the lust, passions, or sexual
                 desires of the accused, the victim, or both; and
    
                 (f) That, under the circumstances, the conduct of the
                 accused was to the prejudice of good order and discipline
                 in the armed forces or was of a nature to bring discredit
                 upon the armed forces.
    
    MCM, 2005, pt. IV, ¶ 87.b.(2). In relevant part, the then-applicable definition of
    “indecent liberties” included, “the liberties must be taken in the physical presence of
    the child, but physical contact is not required. . . . An indecent liberty may consist
    of communication of indecent language as long as the communication is made in the
    physical presence of the child.” MCM, 2005, pt. IV, ¶ 87.c.(2). Two definitions of
    “indecent” applied; although phrased differently, both definitions stated the term
    meant immoral, offensive to propriety, corrupting to morals, and tending to incite
    lust. Compare MCM, 2005, pt. IV, ¶ 89.c and ¶ 90.c.
    
          In 2007, Congress enacted a version of Article 120, including Article 120(j),
    Indecent Liberties with a Child. This offense had the following elements:
    
                 (a) That the accused committed a certain act or
                 communication;
    
                 (b) That the act or communication was indecent;
    
                 (c) That the accused committed the act or communication
                 in the physical presence of a certain child;
    
                 (d) That the child was under 16 years of age; and
    
                 (e) That the accused committed the act or communication
    
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    RODRIGUEZ — ARMY 20130577
    
                with the intent to:
    
                       (i) arouse, appeal to, or gratify the sexual
                       desires of any person; or
    
                       (ii) abuse, humiliate, or degrade any person.
    
    MCM, 2008, pt. IV, ¶ 45.b.(10). The Analysis of Punitive Articles found in the 2008
    Manual for Courts-Martial explained “[t]his new Article 120 consolidates several
    sexual misconduct offenses” and included in the list of offenses “replaced by this
    new paragraph 45 [i.e., the 2007 version of Article 120]” the previous Article 134
    offense of Indecent Acts or Liberties with a Child. MCM, 2008, App. 23, Analysis
    of Punitive Articles, A23-15.
    
          Under the 2007 version of Article 120, UCMJ, the following definitions
    applied:
    
                (11) Indecent liberty. The term “indecent liberty” means
                indecent conduct, but physical contact is not required. It
                includes one who with the requisite intent exposes one’s
                genitalia, anus, buttocks, or female areola or nipple to a
                child. An indecent liberty may consist of communication
                of indecent language as long as the communication is
                made in the physical presence of the child. If words
                designed to excite sexual desire are spoken to a child, or a
                child is exposed to or involved in sexual conduct, it is an
                indecent liberty; the child’s consent is not relevant.
    
                (12) Indecent conduct. The term “indecent conduct” means
                that form of immorality relating to sexual impurity that is
                grossly vulgar, obscene, and repugnant to common
                propriety, and tends to excite sexual desire or deprave
                morals with respect to sexual relations. Indecent conduct
                includes observing, or making a videotape, photograph,
                motion picture, print, negative, slide, or other
                mechanically, electronically, or chemically reproduced
                visual material, without another person’s consent, and
                contrary to that other person’s reasonable expectation of
                privacy, of—
    
                        (A) that other person’s genitalia, anus, or buttocks,
                or (if that other person is female) that person’s areola or
                nipple; or
    
    
    
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    RODRIGUEZ — ARMY 20130577
    
                        (B) that other person while that other person is
                 engaged in a sexual act, sodomy (under section 925
                 (article 125) of this chapter), or sexual contact.
    
    MCM, 2008, pt. IV. ¶ 45.a.(t)(11), (12); see also MCM, 2012, App. 28, Punitive
    Articles Applicable To Sexual Offenses Committed During the Period 1 October
    2007 Through 27 June 2012, A28-4.
    
           In 2012, Congress enacted Article 120b of the UCMJ. This article
    “criminalizes sexual offenses against children under the age of 16 which were
    previously contained in the 2007 version of Article 120.” MCM, 2012, App. 23,
    Analysis of Punitive Articles, A23-16. The President further explained that in
    Article 120b, “[t]he definitions of prohibited sexual acts, sexual contact, and lewd
    acts have been broadened to cover all sexual offenses against children currently
    covered under the 2007 version of Article 120(g), Article 120(i), and Article 120(j).”
    Id. Moreover, the analysis explained that Article 120b(c) specifically covers all
    indecency crimes against children:
    
                 The new “Sexual Abuse of a Child” offense under Article
                 120b.(c), which proscribes committing a “lewd act” upon a
                 child, was intended to consolidate the 2007 version of
                 Article 120(f), Article 120(g), Article 120(i), and Article
                 120(j), by expanding the definition of “lewd act” to
                 include any sexual contact with a child, indecent exposure
                 to a child, communicating indecent language to a child,
                 and committing indecent conduct with or in the presence
                 of a child. Exposure, communication, and indecent
                 conduct now include offenses committed via any
                 communication technology to encompass offenses
                 committed via the internet (such as exposing oneself to a
                 child by using a webcam), cell phones, and other modern
                 forms of communication. This change expands the pre-
                 2012 definition of “indecent liberty” which proscribed
                 conduct only if committed in the physical presence of a
                 child.
    
    Id.
    
           We conclude after reviewing this history that Congress intended Article
    120b(c) to cover all indecency crimes involving child victims. In short, the 2007
    version of Article 120 was intended to cover all offenses prohibited under the old
    Article 134 offense of Indecent Acts or Liberties with a Child, and when Article
    120b was enacted in 2012, it in turn was intended to cover all offenses prohibited
    under the 2007 version of Article 120(j). Moreover, after reviewing this history we
    
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    agree with our sister court in Long “that Congress intended for Article 120b, UCMJ,
    to be a comprehensive statute to address sexual misconduct with children.” Long,
    2014 CCA LEXIS 386, at *13. 12 As Cal. Penal Code § 647.6(a)(1) is a statute
    prohibiting sexual misconduct with children as explained above, the second prong of
    the preemption doctrine is met. In other words, there was no “gap” in federal
    criminal law which necessitated “filling” by resorting to state law.
    
          Having found that both prongs of the preemption doctrine are met with respect
    to Specifications 2-7 of Charge I, we will set aside those specifications and that
    charge. Our resolution of the preemption issue renders appellant’s other
    assignments of error moot. 13
    
                                       CONCLUSION
     
           The findings of guilty of Specifications 2-7 of Charge I and Charge I are set
    aside. The remaining findings of guilty are AFFIRMED.
    
           In addition to asking that we dismiss Specifications 2-7 of Charge I, appellant
    asks that we order a sentence rehearing. We decline to do so. Instead, we reassess
    appellant’s sentence.
    
            In United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986), our superior court set
    forth the standard for sentence reassessment: “if the [service] court can determine to
    its satisfaction that, absent any error, the sentence adjudged would have been of at
    least a certain severity, then a sentence of that severity or less will be free of the
    prejudicial effects of error . . . .” Id. at 308. After conducting a thorough analysis
    on the basis of the entire record and in accordance with the principles articulated in
    Sales and United States v. Winckelmann, 
    73 M.J. 11
    , 15-16 (C.A.A.F. 2013), we are
    confident in our ability to reassess appellant’s sentence without the need for a
    rehearing.
    
          In evaluating the Winckelmann factors, we find there is no dramatic change in
    the penalty landscape or significant decrease in sentencing exposure because
    appellant’s maximum sentence is now reduced from 21.5 years to 15.5 years of
    confinement as a result of our setting aside the six specifications of Charge I, each
    
    
    12
      In reaching this conclusion, we are mindful that Congress left sodomy against a
    child outside of Article 120b. See Article 125, UCMJ. That Congress left this type
    of sexual crime against a child outside of Article 120b does not compel a conclusion
    that Congress did not intend Article 120b to be an otherwise comprehensive statute
    addressing sexual misconduct against children.
    13
     Specifically, we need not determine whether the Article 120a offense of stalking
    may also have preempted a state stalking statute.
                                              14
    RODRIGUEZ — ARMY 20130577
    
    of which carried a maximum of one year of confinement. Appellant’s adjudged and
    approved sentence of two years of confinement was still well below the newly
    applicable maximum punishment. Also, appellant remains convicted of the most
    egregious offense he was charged with—Article 120b, UCMJ, Sexual Abuse of a
    Child (the Specification of Charge III). Moreover, appellant’s underlying
    misconduct (asking TSH and MGV for their telephone numbers) that served as the
    basis for Specifications 6 and 7 of Charge I would have remained admissible—and
    necessary—in order for the government to prove appellant violated the no-contact
    order issued by his company commander (the Specification of Charge IV). Finally,
    we review the records of a substantial number of courts-martial involving sexual
    misconduct and we have extensive experience with the level of sentences imposed
    for such offenses under various circumstances.
    
           After our review of the record, and accounting for setting aside Specifications
    2-7 of Charge I and Charge I, we are confident that the military judge would have
    adjudged a sentence no less severe than reduction to the grade of E-1, twenty
    months’ confinement, and a bad-conduct discharge. We are also confident that the
    convening authority would have approved that sentence. We also conclude, pursuant
    to Article 66, UCMJ, that such a sentence is appropriate for the remaining findings
    of guilty.
    
           After considering the entire record, we AFFIRM only so much of the sentence
    as provides for a bad-conduct discharge, confinement for twenty months, and
    reduction to the grade of E-1. All rights, privileges, and property, of which
    appellant has been deprived by virtue of that portion of the findings and sentence set
    aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
    
          Senior Judge HAIGHT and Judge PENLAND concur.
    
    
                                            FORTHE
                                           FOR  THECOURT:
                                                    COURT:
    
    
    
    
                                           MALCOLM
                                            MALCOLMH.   H.SQUIRES,
                                                           SQUIRES,JR.
                                                                    JR.
                                           Clerk of Court
                                            Clerk of Court
    
    
    
    
                                              15
    

Document Info

DocketNumber: ARMY 20130577

Filed Date: 12/1/2015

Precedential Status: Non-Precedential

Modified Date: 12/3/2015