

   
   
   
   U.S. v. Taylor



United States, Appellee
v.
Johnnie M. TAYLOR, Sergeant
U.S. Air Force, Appellant
 
No. 96-1241
Crim. App. No. 31574
United States Court of Appeals for the Armed
Forces
Argued February 9, 1999
Decided August 27, 1999
CRAWFORD, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ., joined.
SULLIVAN, J., filed a concurring opinion.

Counsel
For Appellant: Captain Tishlyn E. Taylor
(argued); Colonel Douglas H. Kohrt (on brief).
For Appellee: Major J. Robert Cantrall
(argued); Colonel Anthony P. Dattilo and Major Ronald A. Rodgers
(on brief); Lieutenant Colonel Michael J. Breslin.
Military Judge: Peter A. Keller
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
 
Judge CRAWFORD delivered the opinion of the
Court.
This case is here for the second time.
Appellant was charged with forcible sodomy,
assault and battery, indecent assault, and committing indecent acts. He
pleaded guilty to consensual sodomy and the judge dismissed the assault
and battery and the indecent assault as being multiplicious with the forcible
sodomy. In the end, appellant was convicted at a general court-martial
composed of officer members of forcible sodomy and committing indecent
acts. Appellant was sentenced to a dishonorable discharge, confinement
for one year, total forfeitures, and reduction to the lowest enlisted grade.
47 MJ 322, 323 (1997). Based on the recommendation of the staff judge advocate
that there was improper argument by the prosecutor, the convening authority
approved only consensual sodomy and reduced the sentence to a bad-conduct
discharge, 8 months confinement, total forfeitures, and reduction to the
lowest enlisted grade.
On June 21, 1996, the Court of Criminal Appeals
affirmed the findings and reassessed the sentence because of the Staff
Judge Advocate's incorrect advice to the convening authority regarding
the legal standard to be applied in reassessing the sentence. The court
reduced the period of total forfeitures to 6 months.
On September 30, 1997, this Court set aside
the Court of Criminal Appeals decision because an erroneous standard was
used in reassessing appellants sentence. 47 MJ at 325-26.
On January 28, 1998, the Court of Criminal
Appeals, with one judge dissenting, held that they could reliably reassess
appellants sentence by reducing it to a bad-conduct discharge.
We granted review of the following issue:



WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ABUSED ITS DISCRETION IN FINDING THAT APPELLANTS SENTENCE COULD BE RELIABLY
REASSESSED BY THAT COURT.



We hold that the Court of Criminal Appeals did
not abuse its discretion in reassessing appellants sentence.

DISCUSSION
When this case was here before, we explained
that the standard for reassessment is not what sentence would be imposed
at a rehearing, but rather, would the sentence have been "at least of
a certain magnitude." 47 MJ at 324-25 (emphasis added); see
United States v. Jones, 39 MJ 315, 317 (CMA 1994). We emphasize
the "at least of a certain magnitude" language because a sentencing authority
may not be able to determine with precision the exact sentence that would
have been adjudged absent the error, but at a bare minimum, the court can
say with confidence that the sentence would have been "at least of a certain
magnitude."
Sentencing in the military is not based solely
on the charged offense. Except as to certain crimes, there is no mandatory
minimum or maximum; there is only a ceiling on the punishment. Thus, punishment
is based on the offenders underlying conduct plus other evidence introduced
by both the prosecution and the defense during the sentencing stage. Appellant
has not challenged his conviction for consensual sodomy or the authority
of the President to prescribe the penalty of a punitive discharge for consensual
sodomy.
The record reveals that appellant exploited
the vulnerabilities of a teenager to satisfy his own sexual desires. Appellant,
a 37-year-old married noncommissioned officer with 3 children, met AMD,
a 17-year-old, when he dropped his son off at school. After making arrangements
to see her the next day, he dropped her off at a friends house. The next
day, he picked her up at her home where she lived with her mother and stepfather.
He convinced her not to go job hunting but to ride around the area. During
this time, he asked her about her family and her relationships, including
her sexual experiences with her boyfriends. During this conversation, AMD
admitted that she had already engaged in sexual intercourse and had performed
oral sex on one of her boyfriends. When she saw appellants wifes identification
card in his car, he claimed that that person was "just a friend," not admitting
he was married.
Over the following 2 days, he again met with
her and discussed oral sex. He asked her about her sexual fantasies, and
she agreed to write one down. During this particular meeting, they discussed
her sexual fantasies, and would hug and kiss and "play around" in his parked
car.
A few days later, they met and decided to go
on a picnic. He rented a car because his wife needed the family car. Eventually,
they stopped the car and decided to have the picnic there. They wrestled
and kissed each other. Again, appellant brought up her sexual experiences,
and AMD said she preferred performing oral sex. So he asked her to perform
oral sex on him. When she paused, he "pleaded" with her to do it. Ultimately,
she agreed. After engaging in oral sex, appellant told her he could not
see her again because his wife was suspicious. AMD became upset. She rhetorically
asked--now that he was satisfied, was he going to stop seeing her. When
she started to leave, appellant roughly restrained her and would not let
her go until she picked up the trash from the picnic. They then went back
to the Visitors Center, where the car was parked, and she went to the
restroom. Upset, she called a friend to come and get her. Appellant said
he was sorry for deceiving her, returned to his rental car, and left without
her.
Based on the original charges and the facts
of this case, we hold that the Court of Criminal Appeals did not abuse
its discretion in determining that the minimum sentence would have
at least included a punitive discharge.
The decision of the United States Air Force
Court of Criminal Appeals upon further review is affirmed.
 
 
SULLIVAN, Judge (concurring):
I join the majority in this reassessment case
because the facts are clearly distinguishable from those in United States
v. Hawes, No. 98-0199, ___ MJ ___ (Aug. 13, 1999) (Sullivan, J., dissenting),
and United States v. Davis, 48 MJ 494, 496 (1998) (Sullivan, J.,
dissenting). In this case, I agree "that the minimum sentence would have
at least included a punitive discharge." ___ MJ at (6). Thus, I
join in affirming the decision of the court below.

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