

   
   
   
   U.S. v. Johnson



United States, Appellee
v.
Benjiman JOHNSON, Staff Sergeant
U. S. Army, Appellant
 
No. 99-0556
Crim. App. No. 9602016
 
United States Court of Appeals for the Armed
Forces
Argued January 13, 2000
Decided September 7, 2000
COX, S.J., delivered the opinion of the
Court, in which CRAWFORD, C.J., GIERKE, and EFFRON, JJ., joined. SULLIVAN,
J., filed a dissenting opinion.
Counsel
For Appellant: Captain Kirsten C. Brunson
(argued); Colonel Adele H. Odegard, Colonel Peter V. Train
(USAR), and Major Scott R. Morris (on brief); Colonel John T.
Phelps II.
For Appellee: Captain Mary E. Braisted
(argued); Colonel Russell S. Estey (on brief).
Military Judge: Linda K. Webster
 
 


This opinion is subject
to editorial correction before publication.


Senior Judge COX delivered the opinion of the
Court.
On October 22, December 9, 12, and 13, 1996,
and January 16, 1997, appellant, a staff sergeant, was tried by a general
court-martial comprised of officer and enlisted members. Pursuant to his
pleas, he was found guilty of carnal knowledge, in violation of Article
120, Uniform Code of Military Justice, 10 USC § 920. Contrary to his
pleas, he was found guilty of one specification each of maltreatment1
and assault consummated by a battery,2
in violation of Articles 93 and 128, UCMJ, 10 USC §§ 893 and
928, respectively. Appellant was sentenced to a bad-conduct discharge,
5 years' confinement, forfeiture of $874.00 pay per month for 60 months,
and reduction to the grade of Private E-1. The convening authority approved
this sentence.
The carnal-knowledge conviction resulted from
appellants admitted sexual intercourse (3 times) with S, a 14-year-old
girl he was babysitting. Appellant does not appeal this conviction. The
maltreatment and assault-consummated-by-a-battery convictions resulted
from incidents which occurred between appellant and Specialist (SPC) MC
over a year (June 1995-June 1996).
The Court of Criminal Appeals set aside the
finding of guilty of maltreatment of SPC MC and dismissed that charge in
an unpublished opinion. The convictions for carnal knowledge (of SP) and
assault consummated by a battery (of SPC MC) were affirmed. Unpub. op.
at 2-3. The sentence was also affirmed, based on the entire record and
the error noted, under United States v. Sales, 22 MJ 305 (CMA 1986).
Unpub. op. at 3.
We granted review of the following issues:

I



WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO PROVE APPELLANT GUILTY OF ASSAULT AND BATTERY AS [SPC MC] CONSENTED
TO THE TOUCHING.



II



WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT
TO PROVE APPELLANT GUILTY OF ASSAULT AND BATTERY AS [SPC MCs] CONDUCT
GAVE APPELLANT THE MISTAKEN BELIEF THAT SHE CONSENTED TO THE TOUCHING.



FACTS
At the time of the offenses, SPC MC was stationed
at Fort Drum in the 10th Mountain Division Band. According to
SPC C, appellant was SPC Cs squad leader, operations NCO, and friend.
When asked if appellant had ever touched her in any way, SPC C testified
that the touches consisted of: "Massages, hugs, tickling, [and] punching
fights."
This conduct lead to appellants being charged
with one specification of hugging SPC C and rubbing her back with the intent
to gratify his lust and sexual desires. As a result of SPC Cs trial testimony
that the hugs were consensual and pursuant to a defense motion for a finding
of not guilty, the military judge excepted "hugging" from the specification.
The members also altered the specification, finding appellant, by exceptions
and substitutions, not guilty of indecent assault on SPC C, but guilty
of the lesser-included offense of assault consummated by a battery by rubbing
her back.
With regard to the backrubs, SPC C testified
that appellant rubbed her back on several occasions when she was "typing
or doing some type of work." SPC C shrugged "to try to get out of it,"
but did not specifically tell him to stop because "there was [sic] other
people around and [she] didnt want any attention." SPC C testified on
direct examination that she didnt like the backrubs because they interrupted
her work, and later on redirect examination, that they made her feel uncomfortable.
She also testified that in response to her shrugging, sometimes appellant
would stop and sometimes he would rub a little bit more. She testified
that she didnt report this conduct because she didnt want to draw attention
to herself and because

at the time, I didnt feel it was necessary.
And the reason why I did come out with this is because when the whole case
with [SP] came out, my commander had asked all the squad leaders- - -

At this point the testimony was interrupted by
a hearsay objection. SP is the 14-year-old daughter of appellants supervisor
in the same band unit. Appellant was charged with carnal knowledge of SP
which occurred while appellant was babysitting SP.
The court below concluded, with respect to
the back rubbing: "A failure to verbally protest, and thus draw attention
to oneself, when the assault takes place in an open administrative office,
does not equate to consent." Unpub. op. at 2-3. The court below also concluded
that failing "to confront appellant and verbalize that his improper touching
bothered her could not have raised an honest and reasonable belief in the
mind of this experienced NCO that SPC C consented to his advances." Id.
at 3.

DISCUSSION
The elements of assault consummated by a battery
are (1) "That the accused did bodily harm to a certain person; and" (2)
"That the bodily harm was done with unlawful force or violence." Para.
54b(2), Part IV, Manual for Courts-Martial, United States (1995 ed.). The
"bodily harm . . . must be done . . . without the lawful consent of the
person affected." Bodily harm is defined as "any offensive touching of
another, however slight." Para. 54c(1)(a). We have also determined that,
as a general matter, consent "can convert what might otherwise be offensive
touching into nonoffensive touching" and that "a reasonable and honest
mistake of fact as to consent constitutes an affirmative defense in the
nature of legal excuse." United States v. Greaves, 40 MJ 432, 433
(CMA 1994).3
The question presented is whether in view of
the nature of the physical contact involved in the friendly relationship
between appellant and SPC C, a reasonable factfinder could conclude beyond
a reasonable doubt that the backrubs were undertaken without the
consent of SPC C. SPC C, according to her own testimony, regarded appellant
as a friend. She also testified, when asked if appellant had ever touched
her in any way, that the touches consisted of: "Massages, hugs, tickling,
[and] punching fights." This conduct lead to the charge against appellant
for hugging SPC C and rubbing her back. No charges were brought against
appellant for the tickling and punching fights the two engaged in. At trial,
SPC C testified that the hugs were consensual, and the military judge eliminated
"hugging" from the specification, leaving only the backrubs.
There is no question that a backrub could,
under some circumstances, constitute an offensive touching; this Court
has found even a kiss to be an offensive touching. See United
States v. Sever, 39 MJ 1 (1994). We are also sensitive to the fact
that appellant was a superior noncommissioned officer and that such a relationship
can create a "unique situation of dominance and control". United States
v. Clark, 35 MJ 432, 436 (CMA 1992).
Under the facts presented here, however, there
is no indication that SPC C felt unable to protest appellants actions
and in fact felt comfortable enough to shrug him off. Numerous types of
touches marked SPC Cs relationship with appellant, none of which SPC C
testified were offensive. On the contrary, the only difficulty SPC C had
with the backrubs was related to appellants poor judgment. She was uncomfortable
because the backrubs were open and notorious in the work environment, but
she did not provide any evidence that they were offensive. Although theevidence
may show appellants bad judgment or a violation of other social or military
norms, we hold that the evidence does not support a criminal conviction
for assault consummated by a battery under Article 128. The fact that SPC
C was not motivated to report any of this mutual touching, including the
backrubs, until she heard about the carnal-knowledge charge against appellant
which involved the young daughter of another band member, supports this
conclusion.4
Even viewing this evidence in the light most
favorable to the Government, we are not persuaded that appellant was on
notice that SPC C did not consent to the backrubs, and we do not believe
that a rational trier of fact could have found the elements of assault
consummated by a battery beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Turner, 25 MJ 324, 326
(CMA 1987). Accordingly, that conviction cannot stand. This action requires
further review of the sentence by the court below.
The decision of the United States Army Court
of Criminal Appeals is reversed as to Charge III and its specification
and the sentence. The findings of guilty thereon are set aside and that
charge is dismissed. The record of trial is returned to the Judge Advocate
General of the Army for remand to the Court of Criminal Appeals for reassessment
of the sentence based on the remaining findings of guilty.
FOOTNOTES:
1 At trial,
appellant was found not guilty of another specification of maltreatment.
2
The members found appellant not guilty of indecent assault, but guilty
of the lesser-included offense of assault consummated by a battery.
3
Our dissenting colleague, in his zeal to affirm appellants assault-consummated-by-a-battery
conviction, turns the burden of proof on its head. It is not the burden
of appellant to prove that SPC C consented to the backrubs; rather, in
the entire context of this case, the burden was on the Government to prove
each and every element of the assault consummated by a battery, one of
which is lack of consent. Para. 54c(1)(a).
4
With respect to our colleagues expressions of concern about sexual harassment,
we emphasize that sexual harassment should not and cannot be tolerated
in the military community. Appellant, however, was charged with assault,
not with sexual harassment. Thus, as appellate judges, we are not confronted
with the question whether appellant was guilty of sexual harassment, but
rather whether the Government proved each and every element of assault
consummated by a battery beyond a reasonable doubt. It did not.


SULLIVAN, Judge (dissenting):
I cannot join the Judges of the majority today
when they reverse the assault-and-battery conviction of appellant, because
I believe they do so in violation of the well-established standard set
out by Jackson v. Virginia, 443 U.S. 307, 319 (1979). Looking at
the record in this case, one can plainly see that there is sufficient evidence,
when
viewed in the light most favorable to the Government, to uphold the
jurys conviction of appellant for assault and battery. Jackson v. Virginia,
supra.
The record clearly shows that the victim, Specialist
(SPC) MC, was given repeated uninvited "back massages" by her superior,
Staff Sergeant (SSG) Johnson in her workplace. These back massages formed
the basis for the conviction of SSG Johnson for assault and battery of
SPC C. The evidence of the assault and battery comes from the direct testimony
of SPC C. A key and unrebutted portion of that evidence from the record
of trial is as follows:



Q. [By Prosecutor] I want to talk about the
back massages you made reference to. Describe for us how he would massage
you.
A. [By the Victim, SPC C] It was usually when
I was working in the Admin office upstairs in T-341. I was usually typing
or doing some type of work and he would come up to me and massage my back.
And I would shrug to try to get out of it, and I never really did say anything,
because I didnt want attention. And I didnt want andbecause there was
other people around and I didnt want any attention.
Q. How did you feel about those massages?
A. I didnt like them. They were interrupting
my work.
Q. And what if anything did you do to try to
stop the accused from massaging you?
A. I would just shrug my shoulders to try to
get out of it. I would never say anything. I would just pull myself forward
just to get out of it.
Q. And what did he do in response to your shrugging?
A. Sometimes he would quit. And there were
other occasions, he would just massage a little bit more.
Q. Do you believe that was appropriate conduct
for a noncommissioned officer?
A. No, I do not.
Q. [SPC C], has the accused ever made any [1]
sexually related comments to you?
A. Yes, he has, maam.



(R. 123-24)
There is no direct evidence in the record
that the victim consented to these touchings by appellant. The only evidence
in the record which is directly related to the issue of consent is the
fact that the victim tried to escape these back massages by her superior.
She stated:



I would just shrug my shoulders to try to
get out of it [the uninvited back massages by appellant]. I would never
say anything. I would just pull myself forward just to get out of it.



(R. 124) Appellant apparently understood the meaning
of the non-verbal actions of the victim sending signals of non-consent
because as she testified:



Q. [By Prosecutor] And what did he do in
response to your shrugging?
A. [By Victim] Sometimes he would quit. And
there were other occasions, he would just massage a little bit more.



(R. 124)
If one looks for direct evidence that appellant
may have been under the mistaken belief that the victim consented to the
touching, there is also none in this record. Neither the Government
nor the defense offered any direct evidence either through witnesses
or by testimony of appellant that appellant thought she consented. To make
up for no direct evidence in this area, the majority circumstantially relies
on evidence of prior consensual physical touchings ("hugs") of the alleged
victim by appellant.2
Surprisingly, the majority ignores the evidence that there was no expressconsent
in this case and the evidence that appellant was under no mistaken belief
of consent with respect to these particular back massages. Instead, the
majority focuses on the victims late reporting of the massages 3
and its semantic assertion that "she did not provide any evidence
that they were offensive." ___ MJ at (8) (only evidence she was "uncomfortable").
Contrary to the majority, the court below (a
court with special factfinding powers) had no trouble with the legal sufficiency
of the assault-and-battery charge and the finding of non-consent. That
court found:



In two additional, related assignments of
error, appellant attacks his conviction for assault consummated by a battery.
He maintains that SPC C consented to his hugging her and rubbing her back,
and the victims conduct gave him the mistaken belief that she did consent
to the contact. The evidence shows otherwise.
SPC C testified that appellants back massages
"made her feel uncomfortable." She shrugged her shoulders and wriggled
to manifest her discomfort and dislike of appellant's actions. A failure
to verbally protest, and thus draw attention to oneself, when the assault
takes place in an open administrative office, does not equate to consent.
See
generally United States v. Bonano-Torres, 29 MJ 845 (ACMR
1989). Similarly, SPC Cs failure to confront appellant and verbalize that
his improper touching bothered her could not have raised an honest and
reasonable belief in the mind of this experienced NCO that SPC C consented
to his advances.
We have considered the matters personally raised
by the appellant pursuant to United States v. Grostefon, 12 MJ 431
(CMA 1982), and find them to be without merit.



United States v. Johnson, unpub. op. at
2-3.
In a separate concurring opinion, one of the
judges concisely summarized the evidence supporting the assault-and-battery
charge as follows:



The evidence shows appellant to be a sexual
predator who, inter alia, embarked on a campaign of unwarranted
sexually suggestive remarks and physically assaultive overtures in hopes
of engaging a subordinate, SPC C, in a romantic adventure.



United States v. Johnson, unpub. op. at
3 (Squires, J., concurring).
Contrary to the majority, I agree with the
lower courts findings on the legal sufficiency of the assault-and-battery
conviction of appellant. See Jackson v. Virginia, supra.
Furthermore, in my view, the U.S. Army Court of Criminal Appeals properly
used its factfinding power and experience to correctly assess all the evidence
in this case on the question of legal sufficiency and consent in light
of the unique military setting of a superior-subordinate relationship.
See
generally Parker v. Levy, 417 U.S. 733 (1974).
In this regard, I note my dissenting opinion
in United States v. Hullett, 40 MJ 189, 194-95 (1994) (Sullivan,
C.J., and Crawford, J., dissenting), where I said:



Here, a competent jury of his peers found
that the above-quoted words spoken by a married senior noncommissioned
officer (NCO) to a young junior soldier in the performance of her duties
during work hours at the workplace of the senior NCO were of an indecent
nature. I cannot disagree with their finding and that of the court below.
In
todays Army, no junior soldier should have to put up with such remarks
and appellant should not be excused from the consequences of his remark
because, as the lead opinion puts it, "The remark in question was a common
joke." 40 MJ at 193. I would affirm.



(Emphasis added.)
Likewise, in appellants case, I do not agree
with the majoritys holding that appellant should be excused from the consequences
of his offensive physical touchings because there was no verbal protest
by the junior enlisted female victim in this military-office environment.
See
United States v. Clark, 35 MJ 432, 436 (CMA 1992) (recognizing unique
situation of discrimination and control presented by superior rank and
position), cert. denied, 507 U.S. 1052 (1993). Some subordinates
in the Army, like some subordinates in the workplaces of America, may not
verbally protest every offensive touching by their boss. Some subordinates
may say nothing or may communicate by non-verbal conduct like the victim
in this case. Why? Well, in this case, the victim explained that she "never
really did say anything, because I didnt want attention. . . because there
were other people around and I didnt want any attention." R. 123.
From a legal viewpoint, this case should be
affirmed. In this case, a military judge implicitly found that there was
sufficient evidence of assault and battery by his allowing this charge
to be submitted to the military jury. That jury which heard the evidence
convicted appellant of this crime beyond a reasonable doubt. Later, three
appellate military judges, on the appeal, found that there was sufficient
evidence to sustain the conviction. Notwithstanding this solid legal case,
the majority of this Court, without legal authority, substitutes its view
for the supported findings of the judge, the jury, and the lower appellate
court.4
The majority is bound by the evidence of record
legally supporting this crime. The record showed that the victim by
non-verbal conduct did show that she didnt
want to be touched by her superior. The record further showed that appellant
was in a power relationship with her, not a dating or sexual relationship.
On the contrary, the record showed that there was a one-way sexual interest
manifested by sexual comments and touchings by her supervisor, who was
at one point her squad leader, her work- detail supervisor, and then later
her operations non-commissioned officer. The record clearly shows that
the victim evidenced her lack of consent by obvious evasive conduct, that
she did so on a number of occasions, and that appellant persisted in continuing
to physically massage her. In view of this evidence, Supreme Court precedent
does not allow me to overturn this conviction. Jackson v. Virginia,
supra;
see United States v. Cage, 42 MJ 139, 147 (1995) (Sullivan,
C.J., dissenting) ("If the majority were driving a car on the road to justice
in this case, I am certain it would crash into the stonewall of Jackson
v. Virginia,
supra."). Evidence of appellants repeated
uninvited public massages of a female subordinates person against her
will is a rational basis for the members to reject the mistake-of-fact
defense and is sufficient to uphold the conviction of assault and battery.
In my view, the majority today takes the law
relating to sexual harassment in the workplace back a few steps
from the progress our modern armed forces have made along the path of true
protection for subordinate servicemembers. I respectfully dissent in this
significant case.
FOOTNOTES:
1 At trial,
the jury heard evidence that appellant made four sexually-related comments
to the victim. These comments formed the basis of the conviction of appellant
for maltreatment. The lower court voided that conviction on appeal on legal,
not factual, grounds. However, it is unrebutted that appellant made such
comments to the victim. One example of such comments was a remark by appellant
when he was supervising the victim on a work detail; appellant said to
the males on the detail that they could take off their shirts and the victim
could also. He said, "Go ahead and take off your shirt. I wouldnt mind
seeing your breasts." (R. 126)
2
I disagree with the majoritys suggestion that failure to object to prior
sexual advances somehow constitutes a defense to later sexual advances
which are rejected by the victim. See United States v. Hullett,
40 MJ 189, 194 (CMA 1994) (Sullivan, C.J., and Crawford, J., dissenting);
R. Perkins and R. Boyce, Criminal Law, Ch. 9 §3A at 1077 (3d
ed. 1982).
3
It is telling of the majoritys mind-set to note that while the trial record
and the lower court consistently refer to appellants touchings of SPC
C as "back massages" in the course of this criminal prosecution, the majority
uses the euphemism "backrubs" to describe the uninvited touchings. __ MJ
at (4), (5), (7), and (8).
4
The majority is not a jury of factfinders. If they were members of the
jury in this case, perhaps they could have argued to the other jury members
that the back massages were not offensive to them. They also could have
tried to convince the other jury members that the victim consented to the
massages. But the majority are not factfinders and they cannot find such
facts now when sitting as an appellate court of law. Article 67(c), UCMJ,
10 USC §867(c) (1994).


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