UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            TOZZI, 1 SIMS, and GALLAGHER
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                      v.

                         Private E2 JONATHON L. TRUSS
                           United States Army, Appellant

                                    ARMY 20080988

                             Headquarters, Fort Drum
                Andrew Glass and Theodore Dixon, Military Judges
             Lieutenant Colonel Steven P. Hester, Staff Judge Advocate


For Appellant: Captain Richard M. Gallagher, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA;
Captain Todd Lindquist, JA (on brief); Major Laura Kesler, JA; Captain Richard M.
Gallagher, JA (on supplemental filings).

For Appellee: Captain Frank E. Kostik, Jr., JA (argued); Major Christopher B.
Burgess, JA; Lieutenant Colonel Jan E. Aldykiewicz, JA; Captain Michael J.
Weniger, JA (on brief).


                                     31 August 2011

                              ------------------------------------
                                OPINION OF THE COURT
                              ------------------------------------

GALLAGHER, Judge:

       Appellant was convicted by a court-martial composed of a military judge
alone of two specifications of sodomy and one specification of assault consummated
by a battery in violation of Articles 125 and 128, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 925 and 928. In a single allegation of error,
appellant contends that the convictions for sodomy cannot stand because his conduct
was protected by the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558
(2003). Finding no protected liberty interest, under the facts of this case, we affirm.


1
 Senior Judge TOZZI took final action in this case prior to his permanent change of
duty station.
TRUSS – ARMY 20080988

                                       FACTS

       On the evening of 10-11 April 2008, the victim, Private First Class (PFC) LY
and three of his fellow soldiers, all of whom were friends, were drinking and
“playing beer pong” in PFC LY’s barrack’s room. At some point, appellant joined
the gathering. PFC LY recognized appellant from seeing him at work and at the
barracks but had no prior social contact with him. In short, appellant just “showed
up.”

       Prior to midnight, all the soldiers had departed the victim’s barracks room and
an intoxicated PFC LY went to sleep fully clothed. He failed to lock the door to his
room, but was not expecting any other visitors that night.

        At some point in the night, appellant returned to PFC LY’s room, awakened
the still intoxicated and now nauseated victim by shaking his shoulder, and asked
“where are all the hoes at.” Appellant then laid down next to PFC LY and told him
to “suck my dick.” PFC LY said “no.” Appellant then grabbed PFC LY’s head and
pushed PFC LY’s head to appellant’s penis and held it there the entire time PFC LY
performed oral sodomy on appellant. Immediately thereafter, appellant removed
PFC LY’s pants without his assistance and anally sodomized PFC LY, again over
some degree of verbal protestation. Following the anal sodomy, appellant again
asked PFC LY “to suck his dick” and PFC LY again refused. In anger, appellant
urinated on PFC LY, to include his face, for which he was convicted of assault
consummated by battery.

      As to Charge II, the military judge found:

             Of Specification 1 of Charge II: Guilty, except the words,
             “by force and without the consent of the said PFC LY”
             Of the excepted words, Not Guilty.

             Of Specification 2 of Charge II: Guilty, except the words,
             “by force and without the consent of the said PFC LY”
             Of the excepted words, Not Guilty.

             Of Charge II: Guilty

      Following his announcement of findings, the military judge announced that he
had considered Lawrence as it related to the charge and specifications involving
sodomy and made the following special findings:

             The conduct of the accused occurred in the early morning
             hours in a barracks room after an evening of drinking
             alcohol. Both the accused and [PFC LY] were intoxicated.



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             They are both young soldiers that were assigned to the
             same company. The court does not find consent by [PFC
             LY], although the court finds a failure of proof beyond a
             reasonable doubt of the lack of consent.

       Following extenuation and mitigation, the military judge sentenced appellant
to a bad-conduct discharge, confinement for thirty (30) months, forfeiture of all pay
and allowances, and reduction to the grade of E1, with a further notation that he had
“adjudged the maximum sentence authorized for Charge III [assault consummated by
battery] and its specification.” The convening authority approved the adjudged
sentence.

                              LAW AND DISCUSSION

                                   Special Findings

       Pursuant to Article 51(d), UCMJ, 10 U.S.C. § 851(d) and Rule for Court
Martial [hereinafter R.C.M.] 918(b), in a trial “by court-martial composed of
military judge alone,” the military judge is required to make special findings of fact
under certain circumstances upon proper request. Historically, even without a
request, the military judge may make such special findings as deemed appropriate.
United States v. Gibson, 44 C.M.R. 333, 338 n.2 (A.C.M.R. 1971); see also United
States v. Hussey, 1 M.J. 804, 808 (A.F.C.M.R. 1976); Rivera v. Harris, 643 F.2d 86,
95 (2d Cir. 1981) (finding it desirable for the judge to make special findings sua
sponte), rev’d on other grounds, 454 U.S. 339 (1981). Article 51(d), UCMJ is
derived from Rule 23(c) of the Federal Rules of Criminal Procedure [hereinafter
Fed.R.Crim.P.], which is viewed as an important right of the defendant in a non-jury
criminal case. United States v. Gerard, 11 M.J. 440, 441 (C.M.A. 1981). In this
regard, special findings may be made “whenever the judge concludes that the record
does not adequately reflect all significant matters considered when ‘the trial court
saw and heard the witnesses.’ (See Article 66(c), UCMJ.)” Dep’t of Army, Pam 27-
9, Legal Services: Military Judge’s Benchbook, Appendix F, para. F-1, note 3 (01
January 2010).

       “The need to have trial judges set forth their conclusions of law and
determinations of fact has always been viewed as a method of insuring compliance
with the law, and for effecting justice.” Lee D. Schinasi, Special Findings: Their
Use at Trial and on Appeal, 87 Mil.L.Rev. 73, 75 (Winter 1980)(citing Norris v.
Jackson, 76 U.S. 125 (1870)).

             Special findings are to a bench trial as instructions are to a
             trial before members. Such procedure is designed to
             preserve for appeal questions of law. Cesario v. United
             States, 200 F.2d 232, 233 (1st Cir. 1952). It is the remedy



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TRUSS – ARMY 20080988

             designed to rectify judicial misconceptions regarding: the
             significance of a particular fact, Wilson v. United States,
             250 F.2d 312, 325 (9th Cir. 1958); the application of any
             presumption, Howard v. United States, 423 F.2d 1102,
             1104 (9th Cir. 1970); or the appropriate legal standard,
             United States v. Morris, 263 F.2d 594 (7th Cir. 1959).

United States v. Falin, 43 C.M.R. 702, 704 (A.C.M.R. 1971).

        We adopt the standards applied to appellate review of special findings under
Fed.R.Crim.P. 23(c), for appellate review of special findings under R.C.M. 918(b).
2 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 10.04 (3d
Ed. 1999). Special findings for an ultimate issue of guilt or innocence are subject to
the same appellate review as a general finding of guilt, while other special findings
are reviewed for clear error. United States v. Jones, ACM 37122, 2009 WL
1508418, *3 (A.F. Ct. Crim. App. 29 Apr. 2009); United States v. McMurrin, 69
M.J. 591 (N.M. Ct. Crim. App. 2010). “We review legal and factual sufficiency de
novo.” Article 66(c), UCMJ; 10 U.S.C. § 866(c); United States v. Washington, 57
M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency is whether,
considering the evidence in the light most favorable to the government, any rational
trier of fact could have found the appellant guilty beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Quintanilla, 56 M.J.
37, 82 (C.A.A.F. 2001); United States v. Turner, 25 M.J. 324 (C.M.A. 1987). “The
test for factual sufficiency is whether, after weighing the evidence in the record of
trial and allowing for the fact that we did not personally see and hear the witnesses,
we ourselves are convinced of the appellant’s guilt beyond a reasonable doubt.”
Turner, 25 M.J. at 325. “Findings of fact will not be overturned unless they are
clearly erroneous or unsupported by the record.” United States v. Leedy, 65 M.J.
208, 213 (C.A.A.F. 2007).

       The military judge properly used special findings in this case to clarify for
appellate review a potential inconsistency between the general verdict of not guilty
of forcible sodomy but guilty of sodomy in light of Lawrence. Appellant argues,
essentially, that the military judge’s general finding which excepted the language
“by force and without consent” is inconsistent with a finding of guilt of sodomy. He
contends the finding by exceptions brings appellant’s conduct ipso facto within the
constitutionally protected zone established by Lawrence. We reject appellant’s
assertions.

       In United States v. Smith, 39 M.J. 448, 451-452 (C.M.A. 1994), our superior
court held that even though this court has fact finding capacity, this court could not
make factual findings that would be inconsistent with a trial level fact finder’s
verdict of not guilty. This case is distinctly different because of the military judge’s
special findings. In this case, it is the trial level fact finder that made the



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determination that PFC LY did not consent. As the fact finder, he saw and heard the
witnesses and was in the best position to make the determination as to the fact of
consent. Additionally, it was this same fact finder that explained how the general
verdict was consistent with the special findings.

       This is not a case where the special findings changed the nature of the offense
or increased the punishment, because the prohibited conduct remains “unnatural
carnal copulation.” See United States v. Nedeau, 23 CMR 182 (C.M.A. 1957). In
the instant case, the charge at all times remained “sodomy” under Article 125,
UCMJ. Lack of consent is not a statutory element of Article 125, UCMJ. 10 U.S.C.
§ 925. However, both specifications included the extra words “by force and without
consent.” These words are sentence aggravators properly promulgated by the
President. Article 56, UCMJ, 10 U.S.C. § 856; United States v. Jones, 68 M.J. 465,
472 (C.A.A.F. 2010) (Congress has delegated authority to the President to prescribe
maximum punishment limitations). As sentence aggravators, they must be pled and
proven beyond a reasonable doubt to enable the enhanced maximum sentence
potential but are not necessary to obtain a conviction for the underlying offense.
United States v. Zachary, 61 M.J. 813, 819 (Army Ct. Crim. App. 2005) (citing
United States v. Harris, 45 C.M.R. 364, 367 (C.M.A. 1972)).

       The special findings in this case are factual findings made in the context of
evaluating the constitutionality of the specification pursuant to Lawrence, 539 U.S.
558, and are therefore reviewed for clear error. The special findings by the military
judge, including the finding that PFC LY did not consent, were amply supported by
the record in this case and were not clearly erroneous.

       The special finding by the military judge explaining the excepted language of
the general verdict is a mixed question of law and fact which pertains to the ultimate
issue of guilt. Accordingly, we review this special finding the same as the general
finding of guilt. In specifically finding that PFC LY did not consent, the military
judge explained his general finding of “not guilty” to the excepted language
“without consent” resulted from a failure of proof beyond a reasonable doubt of the
lack of consent. This finding makes clear that the military judge applied the correct
burden of proof to the sentence enhancing language, that being beyond a reasonable
doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Harris, 45 C.M.R. 367.
Furthermore, it explains how the special finding that PFC LY did not consent can
consistently coexist with the general verdict of “not guilty” to the excepted language
in light of Lawrence.

       We hold that the military judge’s general and special findings are not
inconsistent and are legally and factually sufficient. In light of the military judge’s
special findings, especially with regard to consent, we now analyze the criminal
nature of appellant’s conduct. See United States v. Wilson, 66 M.J. 39, 41 (C.A.A.F.
2008).



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TRUSS – ARMY 20080988

                                  Constitutionality

       The constitutionality of a statute is a question of law we review de novo.
United States v. Neal, 68 M.J. 289, 296-297 (C.A.A.F. 2010) (citing United States v.
Disney, 62 M.J. 46, 48 (C.A.A.F. 2005)). Constitutional challenges to Article 125
based on the Supreme Court’s decision in Lawrence must be addressed on an as
applied, case-by-case basis. United States v. Stirewalt, 60 M.J. 297, 304 (C.A.A.F.
2004) (citing United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004)). CAAF also
identified a tripartite framework for addressing Lawrence challenges within the
military context. Marcum’s three-part test asks: (1) Was the conduct that the
accused was found guilty of committing of a nature to bring it within the liberty
interest identified by the Supreme Court? (2) Did the conduct encompass behavior
or factors identified by the Supreme Court as outside the analysis in Lawrence? (3)
Are there additional factors relevant solely in the military environment that affect
the nature of each of the Lawrence liberty interests? Marcum, 60 M.J. at 206-07.

       The essence of appellant’s argument is that a finding of not guilty of forcible
sodomy due to a failure of proof ipso facto draws his otherwise unprotected criminal
conduct into the sphere of a protected liberty interest. Appellant is mistaken. The
facts of this case remove appellant’s convictions for sodomy from the ambit of
Lawrence v. Texas.

       Petitioners in Lawrence were “two adults who, with full and mutual consent
from each other, engaged in sexual practices common to a homosexual lifestyle . . . .
Their right to liberty under the Due Process Clause [gave] them the full right to
engage in their conduct without intervention of the government.” 539 U.S. at 578
(citation omitted). See Marcum, 60 M.J. at 203 (C.A.A.F. 2004). In Lawrence,
there was never a question or issue regarding the consensual nature of the petitioners
conduct. In Marcum, our Superior court assumed without deciding that the “jury
verdict of non-forcible sodomy” placed the act of sodomy occurring off-base and in
private within the Lawrence liberty interest. In this case we are squarely presented
with special findings by the military judge sitting as the fact finder that PFC LY did
not consent to the acts of sodomy. The events in a Fort Drum, New York, barracks
room on the evening of 10–11 April 2008 between appellant and PFC LY bear little
or no relation to the conduct giving rise to the Lawrence litigation.

       Using the three-prong test set forth by the Court of Appeals for the Armed
Forces in Marcum, we answer the first question in the negative. Appellant’s conduct
did not involve “private, consensual sexual activity between adults.” Id at 207.
Clearly shown by the facts elicited at trial and specifically found by the military
judge, there was no consensual activity between PFC LY and appellant, a soldier
with whom PFC LY had no existing personal relationship.




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TRUSS – ARMY 20080988

       Additionally, we find the third prong of Marcum to be applicable. That being
whether there are additional factors relevant solely in the military environment that
affect the nature and reach of the Lawrence liberty interest. Marcum, 60 M.J. at 207.
The military has a unique need for unit cohesion and discipline that does not
necessarily exist outside of the military environment. The nonconsensual nature of
the prohibited sexual contact occurring in the barracks between and two young
intoxicated members of the same company remove this case from the nature and
reach of the Lawrence liberty interest. Appellant’s act of sodomizing PFC LY in
PFC LY’s barracks room, without PFC LY’s consent, not only violates the trust
between soldiers, but also compromises unit cohesion and discipline.

                                  CONCLUSION

      On consideration of the entire record, including consideration of the issues
personally specified by the appellant, pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), we hold the findings of guilty and the sentence as approved by
the convening authority correct in law and fact. Accordingly, the findings of guilty
and the sentence are AFFIRMED.

      Senior Judge TOZZI and Judge SIMS concur.

                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:



                                      MALCOLM H. SQUIRES, JR.
                                       MALCOLM
                                      Clerk of CourtH. SQUIRES, JR.
                                       Clerk of Court




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