                       UNITED STATES, Appellee

                                    v.

                      Raheem G. GREEN, Corporal
                    U.S. Marine Corps, Appellant

                              No. 09-0133

                       Crim. App. No. 200800005

       United States Court of Appeals for the Armed Forces

                        Argued October 7, 2009

                       Decided January 20, 2010

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel


For Appellant: Lieutenant Michael E. Maffei, JAGC, USN
(argued); Lieutenant Heather L. Cassidy, JAGC, USN (on brief).

For Appellee: Captain Mark V. Balfantz, USMC (argued); Colonel
Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on brief);
Captain Geoffrey S. Shows, USMC.

Military Judge:   Brian E. Kasprzyk


       This opinion is subject to revision before final publication.
United States v. Green, No. 09-0133/MC

     Judge ERDMANN delivered the opinion of the court.

     At a contested special court-martial with members, Corporal

Rayheem Green was convicted of a number of charges involving

indecent and inappropriate contact with a female Marine,

including the offense of indecent language.1   He was sentenced to

confinement for four months, reduction to pay grade E-1,

forfeiture of $867.00 pay per month for a period of four months,

and a bad-conduct discharge.   The convening authority approved

the sentence and the United States Navy-Marine Corps Court of

Criminal Appeals affirmed the findings and the approved

sentence.   United States v. Green, No. 200800005, 2008 CCA LEXIS

303, 2008 WL 3983317 (N-M. Ct. Crim. App. Aug. 28, 2008)

(unpublished).

     “‘Indecent’ language is that which is grossly offensive to

modesty, decency, or propriety, or shocks the moral sense,

because of its vulgar, filthy, or disgusting nature, or its

tendency to incite lustful thought. Language is indecent if it

tends reasonably to corrupt the morals or incite libidinous

thoughts. The language must violate community standards.”

Manual for Courts-Martial, United States pt. IV, para. 89.c,

(2008 ed.) (MCM).   We granted review in this case to determine

whether the specification charging Green with indecent language


1
  Green was convicted of failing to obey a lawful order,
violation of a lawful general order, use of ecstasy, assault and
battery, three specifications of indecent assault, and indecent
language.
                                 2
United States v. Green, No. 09-0133/MC

under Article 134, Uniform Code of Military Justice, 10 U.S.C. §

934 (2000), was legally sufficient where the charged language

was “mmmm-mmmm-mmmm.”2    In the context of this case, we find that

the specification was legally sufficient and therefore affirm

the Court of Criminal Appeals.

                             Background

       Corporal (Cpl) Green worked as an ammunition technician at

the Las Pulgas ammunition supply point at Camp Pendleton,

California.    Corporal JL was also an ammunition technician but

was assigned to another section in the ammunition company.     Due

to manpower shortages, Cpl JL occasionally assisted in Green’s

section.    The two Marines were not social friends but rather

were workplace acquaintances.    While working in an ammunition

magazine one day, Cpl JL discovered a mistake on an ammunition

can which was marked with Green’s initials.     Cpl JL informed

Green that “you f[.....] something up over here.”    In response,

Green came up behind Cpl JL and, pressing his chest against her

back, said in her ear, “I didn’t f[...] anything up, but I could

f[...] you real good.”    Cpl JL told Green to back off and,

hoping that it was a one time thing, went back to work.


2
    We granted review of the following issue:

       WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT APPELLANT’S
       UTTERANCE OF “MMMM-MMMM-MMMM” WAS LEGALLY SUFFICIENT TO
       SUPPORT A CONVICTION FOR INDECENT LANGUAGE.

United States v. Green, 67 M.J. 408 (C.A.A.F. Apr. 17, 2009)
(order granting review).
                                  3
United States v. Green, No. 09-0133/MC

     A week or two later Cpl JL and her husband and infant son

were at a party with other Marines in the ammunition company,

including Green.   Cpl JL was dancing with her husband when Green

came up to her and tried to pull her away from him.    Cpl JL’s

husband told Green to back off and a short time later Cpl JL and

her family left the party.

     Several weeks later the two were again working together in

an ammunition magazine and Green told Cpl JL that she had a bug

on her shirt.   Cpl JL began to “freak out” and Green told her to

come over to him and he would help get it off.    Cpl JL

testified:

     I turned around, walked very quickly back to Corporal
     Green. He was sitting on a few cans of ammunition
     logging in the docs still, and he said, bend down, I’ll
     get it. So I bent at the waist towards Corporal Green,
     he then grabbed my shirt and my skivvy blouse –- or my
     skivvy shirt and my cammie blouse, pulled it down and
     said mmmm-mmmm-mmmm.

Cpl JL knocked Green’s hand away, told him he was a disgusting

pervert and ran out of the magazine crying.

     Several hours later Cpl JL went back to work in the

magazine while Green was still working inside.    Green walked up

behind Cpl JL and began grinding his pelvic area across her

buttocks.    Cpl JL testified that she felt something hard like an

erection.    She punched Green in the chest.   In response Green

punched her in the arm, laughed and walked away.    Cpl JL

reported the incidents to her chain of command.



                                  4
United States v. Green, No. 09-0133/MC

     On appeal to the Navy-Marine Corps Court of Criminal

Appeal, Green argued that the evidence was legally and factually

insufficient to support the finding of indecent language and

also argued that the charge of sexual harassment and the three

specifications of indecent assault coupled with the charge of

indecent language constituted an unreasonable multiplication of

charges.   In affirming the convictions, the lower court held

that in regard to the indecent language charge, there was no

requirement that the language at issue be an actual word.

United States v. Green, 2008 CCA LEXIS 303, at *2-*3, 2008 WL

3983317, at *1-*2.

     That court went on to find that the language, “mmmm-mmmm-

mmmm,” was sufficient under the facts of this case to constitute

indecent language, noting that any utterance which meets the

Manual’s definition of indecency was sufficient.   Green, 2008

CCA LEXIS 303, at *3-*4, 2008 WL 3983317, at *1-*2.   The Court

of Criminal Appeals concluded that:

     [T]he sound clearly related to the appellant’s non-
     consensual and assaultive viewing of his co-worker’s
     breasts. In this context, we are hard-pressed to
     think of any possible meaning for the appellant’s
     expression that is not “grossly offensive to modesty,
     decency, or propriety . . . because of its vulgar,
     filthy, or disgusting nature.

Green, 2008 CCA LEXIS 303, at *4, 2008 WL 3983317, at *1

(alteration in original) (quotation marks omitted).

                            Discussion

     The challenged specification reads as follows:

                                 5
United States v. Green, No. 09-0133/MC

     Specification 5: In that Corporal Raheem G. Green, U.S.
     Marine Corps, on active duty, did, on board Marine Corps
     Base Camp Pendleton, California on or about 10 August 2006,
     orally communicate to [Cpl JL] certain indecent language,
     to wit: “mmmm-mmmm-mmmmmm,” or words to that effect, while
     looking down her blouse at her breasts.

     This court reviews the issue of legal sufficiency de novo.
United States v. Chatfield, 67 M.J. 432, 441 (C.A.A.F. 2009).
In reviewing for legal sufficiency of evidence, this court must
determine, “whether, considering the evidence in the light most
favorable to the prosecution, a reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.”   United States v. Young, 64 M.J. 404, 407 (C.A.A.F.
2007) (citations omitted).   The elements of indecent language
under Article 134, UCMJ, are as follows:
     (1) That the accused orally or in writing communicated
     to another person certain language;

     (2) That such language 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.3

MCM, pt. IV, para. 89.b.

     Green argues that the evidence is legally insufficient to

support the charge of indecent language under two theories: the

sound “mmmm-mmmm-mmmm” is just that -– a sound or an utterance,

and does not constitute language as contemplated under the

offense of indecent language; and, in any event, the utterance

is not “indecent” as that term is defined in the Manual and this

court’s jurisprudence.   The Government responds that there is no


3
  Green does not challenge this element of the offense in his
legal insufficiency argument.
                                 6
United States v. Green, No. 09-0133/MC

requirement that the language used be a word and that in the

context of this case, the utterance was indecent.

     Green initially argues that while “mmmm-mmmm-mmmm” is a

sound, it is not a word and it is impossible to determine what

he intended to convey by making the sound.   Green points out

that all of this court’s prior cases discussing the offense of

indecent language have only involved “words.”   We agree with

Green that our prior decisions addressing the legal sufficiency

of “indecent language” charges are limited to an examination of

the “words” used by the appellants.   However, that is easily

explained by the fact that a situation where the alleged

“language” is not a “word” is an issue of first impression

before this court.

     The term “language” is not defined in the Manual under the

indecent language offense of Article 134, UCMJ.   In the absence

of any evidence to the contrary, this court has held that

“ordinary definitions suffice.”   United States v. Roller, 42

M.J. 264, 265 (C.A.A.F. 1995).    The term is defined in Black’s

Law Dictionary 958 (9th ed. 2009), as “[a]ny organized means of

conveying or communicating ideas, esp. by human speech, written

characters, or sign language.”    Here “mmmm-mmmm-mmmm” meets that

definition of “language.”   It need not be a word.   It was an

audible sound that, as discussed below, was meaningful under the

circumstances of this case.   Green next argues that even if

“mmmm-mmmm-mmmm” is considered “language” under the offense, it

                                  7
United States v. Green, No. 09-0133/MC

does not meet the definition of “indecent” in the Manual or our

previous case law.   The President has provided a definition of

“indecent” language for this offense:

     [T]hat which is grossly offensive to modesty, decency,
     or propriety, or shocks the moral sense, because of
     its vulgar, filthy, or disgusting nature, or its
     tendency to incite lustful thought. Language is
     indecent if it tends reasonably to corrupt morals or
     incite libidinous thoughts. The language must violate
     community standards.

MCM pt. IV, para. 89.c.   In United States v. Negron, 60 M.J. 136

(C.A.A.F. 2004), we discussed the application of this

definition:

     One final matter invites further attention. Because a
     rehearing is authorized, it is necessary that we also
     address the confusion, apparent in this case, perhaps
     arising from this Court’s decision in Brinson, regarding
     the definition of “indecent” applicable to charges of
     indecent language. The President in Part IV of the MCM
     has provided that the use of certain expressly defined
     language is punishable for the offenses of indecent
     language and depositing obscene matter in the mail.
     MCM, Part IV, para. 89.c, provides two alternate
     definitions of “indecent language.” The use of the
     disjunctive in this paragraph makes clear that either
     definition of indecent language may be the legal
     authority for a conviction. In addition to
     criminalizing language that is grossly offensive because
     of “its tendency to incite lustful thought,” the
     President made punishable indecent language that “is
     grossly offensive to modesty, decency, or propriety, or
     shocks the moral sense, because of its vulgar, filthy,
     or disgusting nature.” Simply stated, paragraph 89.c
     presents two different definitions to measure speech
     that may be a crime, dependent on the context in which
     it is spoken. We adopt and will apply this plain
     language of the Manual prospectively to cases tried
     after the date of this decision. See United States v.
     Moore, 28 M.J. 366, 367 (C.M.A. 1989).

Id. at 144.


                                 8
United States v. Green, No. 09-0133/MC

     As this case was tried after Negron was issued, we will

rely on the President’s definition in the Manual, recognizing

that the Manual definition incorporates portions of our earlier

decisions.4    As Negron makes clear, the President’s definition

of “indecent language” has two alternative definitions, either

of which may be relied upon under the offense:     (1) grossly

offensive to modesty, decency, or propriety, or shocks the moral

sense, because of its vulgar, filthy, or disgusting nature; or

(2) grossly offensive because of its tendency to incite lustful

thought.    Id.   We take this occasion to clarify that the final

two sentences of the definition:      “[l]anguage is indecent if it

tends reasonably to corrupt morals or incite libidinous

thoughts.     The language must violate community standards[,]” do

not create separate definitions but rather modify and further

explain the two definitions identified in Negron.

     Turning to whether the utterance “mmmm-mmmm-mmmm”

constitutes “indecent” language, as we noted in United States v.

Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998), we cannot make this

determination in isolation.    We must “examine the entire record

of trial to determine the precise circumstances under which the

charged language was communicated.”     Id. at 364.   See also


4
  See United States v. French, 31 M.J. 57 (C.M.A. 1990); United
States v. Hullett, 40 M.J. 189 (C.M.A. 1994); United States v.
Coleman, 48 M.J. 420 (C.A.A.F. 1998); United States v. Brinson,
49 M.J. 360 (C.A.A.F. 1998). Our reliance on the Manual
definition does not vitiate the discussions in these cases
related to nondefinitional issues.
                                  9
United States v. Green, No. 09-0133/MC

Negron, 60 M.J. at 141.   Green argues that the Court of Criminal

Appeals held that the utterance was indecent simply because it

was “related” to the indecent assault of Cpl JL.   However, the

lower court correctly noted that the indecency of a word or

sound must be evaluated in the context in which it is made.

Green, 2008 CCA LEXIS 303, at *3, 2008 WL 3983317, at *1.      That

court correctly reviewed the surrounding circumstances to

establish the context of the utterance.

     Green and Cpl JL were not social friends and this is not a

case involving conduct that reflects a common, accepted practice

in the workplace.   Cf. United States v. Brown, 55 M.J. 375

(C.A.A.F. 2001); Hullett, 40 M.J. 189.    The record clearly

reflects that Green demonstrated his sexual predatory nature in

a number of encounters with Cpl JL. We cannot ignore Green’s

actions when he uttered “mmmm-mmmm-mmmm” -– he had grabbed and

pulled Cpl JL’s shirt down and was looking at her breasts.     Nor

can we ignore Cpl JL’s immediate reaction in calling him a

“disgusting pervert.”

     The Court of Criminal Appeals found that in the context of

this case, the language met the Manual definition of “indecent

language” by being “grossly offensive to modesty, decency, or

propriety . . . because of its vulgar, filthy, or disgusting

nature.”   Green, 2008 CCA LEXIS 303, at *3, 2008 WL 3983317, at

*1 (alteration in original) (quotation marks omitted).

Considering the evidence in the light most favorable to the

                               10
United States v. Green, No. 09-0133/MC

prosecution, we agree with the Court of Criminal Appeals that a

reasonable factfinder could have found all the essential

elements of the specification alleging “indecent language”

beyond a reasonable doubt.

                             Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                               11
