U.S. v. Rollins, 61 M.J. 338

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. when the evidence raises an issue concerning the statute of limitations, the military judge must provide the members with instructions that focus their deliberations on the period not barred by the statute of limitations

Military Justice Personnel: Convening Authority: Action

1. the convening authority has broad discretion under Article 60(c)(1), 10 U.S.C. § 860(c)(1) (2000), to modify the findings and sentence; this power may be exercised to correct errors or otherwise as a matter of command prerogative

Core Criminal Law Subjects: Crimes: Article 134 - Indecent Acts or Liberties with a Child Pre-2019 offenses

1. the offense of committing indecent acts with another has three elements: (1) that the accused committed a wrongful act with a certain person; (2) that the act was indecent; and (3) 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; the determination of whether an act is indecent requires examination of all the circumstances, including the age of the victim, the nature of the request, the relationship of the parties, and the location of the intended act; an act is indecent if it signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations
2. in this case, the evidence was legally sufficient to sustain a conviction of committing indecent acts with another, despite the accused’s contention that the evidence did not demonstrate the requisite commission of a wrongful act “with” another person, where the evidence showed that the accused, while in the parking lot of a commercial establishment open to the public, gave a pornographic magazine to a person under eighteen years of age as part of a plan or scheme to stimulate mutual masturbation; a reasonable factfinder could conclude that such conduct amounted to the commission of a service-discrediting indecent act “with” another person in violation of Article 134
3. the accused’s conviction of committing indecent acts with another based on evidence showing that the accused, while in the parking lot of a commercial establishment open to the public, gave a pornographic magazine to a person under eighteen years of age as part of a plan or scheme to stimulate mutual masturbation did not violate the First Amendment where the offense did not involve a simple exchange of constitutionally protected material, but instead involved a course of conduct designed to facilitate a sexual act in a public place; even if his conduct were subject to the heightened standard of review applicable to First Amendment claims in civilian society, the armed forces may prohibit service-discrediting conduct under Article 134 so long as there is a reasonable basis for the military regulation of the accused’s conduct; the military has a legitimate interest in deterring and punishing sexual exploitation of young persons by members of the armed forces because such conduct can be prejudicial to good order and discipline, service discrediting, or both; the accused had no right under the First Amendment to exchange pornographic materials with a young person as part of a plan or scheme to stimulate a sexual act in a public place

Trial Stages: Merits: Instructions › Generally

1. when the evidence raises an issue concerning the statute of limitations, the military judge must provide the members with instructions that focus their deliberations on the period not barred by the statute of limitations

Trial Stages: Initial Review: Action

1. the corrective action taken by the convening authority did not cure the prejudice from the military judge’s error in failing to provide the instructions necessary to focus the panel’s deliberations on the narrow time period permitted by the statute of limitations, where the period covered by one charge submitted to the panel extended for more than five years, but the findings as modified by the convening authority covered less than three months, and where the period covered by another charge encompassed eight years, and the convening authority revised this to cover only two years

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. when the convening authority acts to correct errors in the results of trial, an appellate court reviews that action to determine whether the convening authority has cured any prejudice flowing from the erroneous treatment of the statute of limitations at trial
2. an appellate court reviews constitutional and legal sufficiency claims de novo
3. to determine whether the evidence is legally sufficient, an appellate court assesses whether any reasonable factfinder could have found the essential elements beyond a reasonable doubt, considering the evidence in the light most favorable to the prosecution; in resolving this question, that court is required to draw every reasonable inference from the record in favor of the prosecution