

   
   
   
   U.S. v. Southworth



IN THE CASE OF
UNITED STATES, Appellee
v.
Samuel J. SOUTHWORTH, Seaman Apprentice
U.S. Navy, Appellant
 
 
No. 97-1203
Crim. App. No. 96-0960
United States Court of Appeals for the Armed
Forces
Argued October 6, 1998
Decided March 24, 1999
 
 
GIERKE, J., delivered the opinion of
the Court, in which
COX, C.J., and SULLIVAN, CRAWFORD, and
EFFRON, JJ., joined.
 
Counsel
For Appellant: Lieutenant
Robert Attanasio, JAGC, USNR (argued); Lieutenant Jeffrey K. Van
Nest, JAGC, USNR (on brief).
For Appellee: Colonel
Kevin M. Sandkuhler, USMC (argued); Commander D. H. Myers, JAGC,
USN, and Lieutenant Commander Nancy Blankenship Jones, JAGC, USN
(on brief); Colonel Charles Wm. Dorman, USMC.
Military Judge: Ronald
B. Leo

 
 
This opinion
is subject to editorial correction before publication.
 
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer
and enlisted members convicted appellant, contrary to his pleas, of willfully
damaging military property of the United States, indecent assault, rape,
drunk and disorderly conduct, and committing an indecent act, in violation
of Articles 108, 120, and 134, Uniform Code of Military Justice, 10 USC
§§ 908, 920, and 934, respectively. The adjudged and approved
sentence provided for a dishonorable discharge, confinement for 8 years,
total forfeitures, and reduction to the lowest enlisted grade. The Court
of Criminal Appeals set side the conviction of indecent assault, dismissed
that specification, and reassessed the sentence, affirming only a dishonorable
discharge, confinement for 6 years, total forfeitures, and reduction to
the lowest enlisted grade.
This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
BY DENYING APPELLANTS MOTION TO SEVER THE RAPE CHARGES PERTAINING TO SEAMAN
APPRENTICE [AL] AND MISS [LP].

We affirm, for the reasons set out below.

Factual Background
The charges arose from appellants conduct
during the weekend of August 5-7, 1995, and included two specifications
of rape. The alleged victim of the first rape was a Navy enlisted woman,
AL; the alleged victim of the second rape was a 13-year-old daughter of
a Navy senior chief petty officer.
The defense made a timely motion for severance,
arguing that it was necessary to prevent manifest injustice. The defense
argued that the evidence of one incident would be inadmissible to prove
the other, and that there was a substantial risk of spillover because of
the similarity of the two incidents. The military judge denied the motion.
The incident involving AL occurred on Friday
night, August 5. Appellant was drunk, loud, and belligerent when he returned
to the barracks with two friends. He broke a mirror in the barracks hallway
and then passed out, clad only in his underwear.
Appellant awakened and joined ongoing sexual
activity among AL and four other sailors in a barracks room. AL was heavily
intoxicated. Appellant was charged with raping AL, committing forcible
sodomy with her, and committing indecent acts with her by engaging in vaginal
and anal intercourse and fellatio.
Appellant contended at trial that he believed
AL consented to the various sex acts. The defense argued that appellant
believed AL was consenting to the various sexual acts because she eluded
the quarterdeck watch to sneak into a male barracks room, arrived with
a female friend but sent the friend away, engaged in group sex with various
men in the room, did not resist or cry out, successfully sneaked out of
the barracks, and did not report the incident.
The incident involving LP happened on Saturday,
August 6. Appellant attended an outdoor festival where he met two friends,
Seaman Apprentice Pace and Airman Mercado. Pace had become involved with
LP, but after LPs father complained to Paces command, Pace was ordered
to stay away from LP. In spite of the no-contact order, Pace was with LP
at the festival.
Appellant, Pace, Mercado, and LP spent about
2½ hours listening to music and drinking beer. LP and Pace testified
that appellant and Mercado held LP down and poured beer down her throat.
LP and Pace testified that, while appellant and Mercado were holding LP
down, appellant grabbed her breast and tried to kiss her. LP responded
by striking appellant in the groin. Appellant became angry and threatened
LP with a knife.
All four used the restrooms, but when Pace
and Mercado came out of the mens restroom, they could not find appellant
or LP. Pace eventually found them in a nearby storage shed, apparently
having sexual intercourse. Pace and Mercado shouted at appellant to "get
the hell out." When appellant and LP came out of the shed, LP was drunk
and stumbling. Pace asked what they had been doing. LP said to appellant,
"You f---ed me." After the three sailors returned to the anchorage, appellant
was bragging about what he had done with LP. LP later wrote a letter to
Pace telling him that she was sorry and that she did not want to have sex
with appellant.
LP testified that appellant grabbed her arm
and led her into the storage shed. She testified that she did not want
to go into a dark corner with appellant, and so she sat down near the entrance.
Appellant grabbed her by both arms and pulled her into a corner, where
he removed her shorts and underwear, pinned her hands over her head, and
raped her.
The defense conceded at trial that appellant
had sexual intercourse with LP but argued that she consented. Appellant
argued that LP lied about her age, did not cry out for help, did not try
to leave, did not appear upset afterwards, displayed no evidence of force
or a struggle, and sent Pace a note saying that the sexual encounter was
her fault. The defense argued that LP was accusing appellant of rape because
she was in love with Pace and felt bad when Pace saw her having intercourse
with appellant.
When the military judge denied the motion to
sever, he offered the defense an opportunity to request special findings
if the court-martial found appellant guilty of either rape specification.
The defense did not request special findings. The military judge required
the members to make special findings on the allegation of sodomy with AL,
identifying whether appellant was convicted of oral or anal sodomy or both,
and on the allegation of indecent acts with AL, identifying which of the
acts alleged were the basis of any finding of guilty.
Defense counsel proposed a spillover instruction,
which the military judge adopted without significant change. He instructed
the members as follows:

[E]ach offense must stand on its own and
you must keep the evidence of each offense separate. The burden is on the
prosecution to prove each and every element of each offense beyond a reasonable
doubt. In other words, proof of one offense carries with it no inference
that the accused is guilty of any other offense.

The defense did not object to the instruction
as given or ask for any additional instructions.
The court members acquitted appellant of raping
AL but found him guilty of the lesser-included offense of indecent assault.
The Court of Criminal Appeals set aside the conviction of indecent assault
based on insufficient evidence. The court-martial convicted appellant of
raping LP.
Appellant now argues that the evidence relating
to the incident with AL impermissibly bolstered the weaker case involving
LP, resulting in appellants conviction of raping LP. Appellant further
argues that the military judges spillover instruction was inadequate to
cure the prejudice resulting from the improper joinder of offenses.
The Government argues that military practice
favors joinder of all known offenses, that the military judge took adequate
measures to prevent impermissible spillover, and that the findings with
regard to each incident make it clear that there was no spillover.

Discussion
RCM 601(e)(2), Manual for Courts-Martial, United
States (1998 ed.), provides: "In the discretion of the convening authority,
two or more offenses charged against an accused may be referred to the
same court-martial for trial, whether serious or minor offenses or both."
RCM 906(b)(10) provides for severance of offenses by the military judge,
"but only to prevent manifest injustice." RCM 906(b)(10) "roughly parallels
Fed. R. Crim. P. 14, but is much narrower because of the general policy
in the military favoring trial of all known charges at a single court-martial."
Drafters Analysis of RCM 906(b)(10), Manual, supra at A21-53*.
We review the military judges ruling for abuse of discretion. United
States v. Foster, 40 MJ 140, 148 (CMA 1994), citing United States
v. Curry, 31 MJ 359, 374 (CMA 1990).
In the past, we have considered three factors
in determining whether the military judge has abused his discretion in
applying the "manifest injustice" test under RCM 906(b)(10): (1) whether
the evidence of one offense would be admissible proof of the other; (2)
whether the military judge has provided a proper limiting instruction;
and (3) whether the findings reflect an impermissible crossover. See
United States v. Curtis, 44 MJ 106, 128 (1996), rev'd as
to sentence on recon., 46 MJ 129 (1997), citing
with approval United States v. Silvis, 31 MJ 707, 709 (NMCMR 1990).
See also United States v. Curry, supra at 375 (no
manifest injustice whether "other crime" evidence would have been admissible);
United States v. Foster, supra (limiting instruction reduced
risk of spillover); United States v. Haye, 29 MJ 213, 215 (CMA 1989)
("special findings may well prevent spillover").
Applying the first Curtis factor, we
hold that the evidence pertaining to one alleged rape probably would not
have been admissible to prove the other, absent some showing of relevance
not apparent from this record. The two alleged rapes were similar in that
they both involved intoxication on the part of appellant and the alleged
victim. In both cases, appellant claimed that he thought the alleged victim
had consented. Both incidents appear to have been spontaneous acts as opposed
to carefully planned.
On the other hand, AL was an adult woman but
LP was a 13-year-old child. The incident with AL was a drunken orgy involving
five male sailors and one female sailor, but the incident with LP was private
vaginal intercourse. With AL, appellant joined ongoing sexual activity.
With LP, he initiated the sexual activity.
Turning to the second Curtis factor,
we note that the military judge gave a limiting instruction virtually identical
to the instruction requested by the defense. Appellant cites United
States v. Haye, in which a conviction was reversed because the military
judges instructions, which were similar to those given in this case, were
inadequate to cure the prejudice resulting from spillover. The military
judge in Haye instructed the members as follows:

Each offense charged must stand on its own.
Proof of one carries with it no inference that an accused is guilty of
another offense. The Government has the burden of proving each and every
element of each offense, beyond a reasonable doubt.

29 MJ at 214 n.*. This Court held that the "task"
of giving "adequate instructions to the members admonishing them not to
merge evidence . . . was faithfully carried out by the military judge in
[that] case." Id. at 214. This Court reversed the conviction, not
because the military judges instructions were inadequate, but because
"[t]he evidence presented by the Government in its case-in-chief, its cross-examination
of the accused, and its rebuttal was so merged into one that it [was] difficult
to distinguish its intended purpose." Id. at 215.
In the case before us, not only did the military
judge give adequate instructions, but the Government presented its case
in a manner likely to preserve the distinction between the proof offered
on each of the charges. In both the presentation of evidence and arguments,
the prosecution carefully compartmented its case, presenting the evidence
of each alleged rape separately. The prosecutions theory was that AL was
incapable of consent because she was grossly intoxicated and unconscious.
The prosecutions theory was that LP was threatened with a knife, subdued
by physical force, and raped. Trial counsel presented her arguments and
evidence pertaining to each rape charge separately. In her opening statement,
she first outlined the evidence supporting the allegation of raping LP.
She then outlined the case for the allegation of destroying property, which
she followed with her outline of the evidence supporting the allegation
of raping AL.
Similarly, in the Governments case-in-chief,
trial counsel first presented the evidence on the alleged rape of LP, then
on the alleged destruction of property, and finally on the alleged rape
of AL. In closing arguments, the Government summarized the evidence pertaining
to the rape of AL separately from its summation of the evidence pertaining
to the rape of LP. There was no suggestion in closing arguments that appellants
defense, based on mistake of fact, lacked credibility because he used it
twice.
We turn finally to the third Curtis
factor. We hold that the findings do not reflect an impermissible crossover.
We note that the military judge offered the defense an opportunity to request
special findings, but the defense did not take the opportunity. The military
judge sua sponte required special findings on other offenses.
The evidence itself does not suggest spillover.
Instead of a strongly supported allegation joined with a weakly supported
one, the Government presented strong and independent factual cases with
respect to each victim. The court members obviously distinguished between
the two rape allegations, finding appellant not guilty of raping AL but
guilty only of an indecent assault. The court members meticulously excepted
certain allegations from their finding of guilty on the allegation of committing
indecent acts.
Based on this record, we hold that the military
judge did not abuse his discretion in denying the motion for severance.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
*These
provisions of the Manual for Courts-Martial are unchanged from the 1995
edition, which was in effect at the time of trial.
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