States v. Kenneth M. Bullock
STATES ARMY COURT OF CRIMINAL APPEALS
MERCK, JOHNSON, and MOORE
Appellate Military Judges
Specialist KENNETH M. BULLOCK
United States Army, Appellant
Readiness Training Center and Fort Polk
Donna M. Wright, Military Judge
Lieutenant Colonel Floyd T. Curry, Acting Staff Judge Advocate (trial)
Colonel Jon L. Lightner, Staff Judge Advocate (post-trial)
Appellant: Lieutenant Colonel Mark Tellitocci, JA; Major Allyson G. Lambert,
JA; First Lieutenant Robert L. Martin, JA (on brief).
Appellee: Colonel Steven T. Salata, JA; Lieutenant Colonel Mark L. Johnson,
JA; Major Natalie A. Kolb, JA; Captain Isaac C. Spragg, JA (on brief).
MERCK, Senior Judge:
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of consensual sodomy and assault
consummated by a battery, in violation of Articles 125 and 128, Uniform Code
of Military Justice, 10 U.S.C. §§ 925 and 928 [hereinafter UCMJ]. Contrary
to his pleas, appellant was convicted by the military judge of indecent acts
with another, in violation of Article 134, UCMJ. The convening authority
approved the adjudged sentence of a bad-conduct discharge, confinement for six
months, forfeiture of all pay and allowances, and reduction to Private E1. The
convening authority credited appellant with seventy-nine days of confinement
credit against the approved sentence to confinement.
This case is before the court for automatic review
pursuant to Article 66, UCMJ. We have considered the record of trial,
appellant’s assignments of error, the matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
the government’s response thereto. Appellant asserts that his conviction for
consensual sodomy, in violation of Article 125, UCMJ, violated his
constitutional rights. We agree that the facts admitted by appellant during
the providence inquiry fail to establish that Article 125 was constitutionally
applied in this case and we will grant relief accordingly.
Appellant pled guilty to, and was convicted of, engaging
in consensual sodomy with MG. During the providence inquiry, appellant
testified under oath about the facts and circumstances of the alleged offense.
He said that MG was a civilian woman whom he met after going to a club
on-post. The following exchange occurred between appellant and the military
MJ: So you had sexual intercourse with her in the
barracks’ room and during the course of having intercourse with her you
had oral sodomy with her?
ACC: Yes, ma’am.
MJ: Tell me exactly what part of your body went into
what opening in her body?
ACC: My penis into her mouth, ma’am.
MJ: And you actually penetrated her mouth with your
ACC: Yes, ma’am.
MJ: Do you agree that, as I read that definition to
you, that was unnatural carnal copulation?
ACC: Yes, ma’am.
Appellant pled not guilty to a charge of indecent assault
upon MG based on conduct which occurred many hours after the initial
consensual encounter. After the guilty plea inquiry, the government attempted
to prove appellant’s guilt to that offense. During the government’s
opening statement, the trial counsel told the military judge, “this is a
case about a soldier who took what began as an innocent, consensual encounter
and pushed it far beyond what the military can accept as reasonable.”
“For a guilty plea to be provident, the accused must be
convinced of, and be able to describe, all of the facts necessary to establish
guilt.” United States v. O’Connor, 58 M.J. 450, 453 (C.A.A.F.
2003). The military judge must elicit “‘factual circumstances as revealed
by the accused himself [that] objectively support that plea[.]’” Id.
(quoting United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)). A
finding of guilty based on a guilty plea will not be set aside on appeal
unless the record of trial shows a “substantial basis in law and fact for
questioning the guilty plea.” Id.
Until recently, a providence inquiry supporting a plea of
guilty to consensual sodomy in violation of Article 125, UCMJ, required only
that an accused describe sufficient facts to find that he had engaged in
“unnatural carnal copulation.”
However, in Lawrence v. Texas, 539 U.S. 558, 572 (2003), the
Supreme Court recognized “an emerging awareness that liberty gives
substantial protection to adult persons in deciding how to conduct their
private lives in matters pertaining to sex.” The Court stated, ‘“It is a
promise of the Constitution that there is a realm of personal liberty which
the government may not enter.’” Id. at 578 (quoting Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847 (1992)). The
Court held that two adults who engage in completely consensual sexual behavior
are “entitled to respect for their private lives. The State cannot demean
their existence or control their destiny by making their private sexual
conduct a crime. Their right to liberty under the Due Process Clause gives
them the full right to engage in their conduct without the intervention of the
In United States v. Marcum, 60 M.J. 198 (C.A.A.F.
2004), the Court of Appeals for the Armed Forces applied the Lawrence constitutional
analysis to the military context where a soldier was convicted of
“non-forcible sodomy” in violation of Article 125, UCMJ. The Court stated,
“In the military setting, . . . an understanding of military culture and
mission cautions against sweeping constitutional pronouncements that may not
account for the nuance of military life.” Id. at 206. Consequently,
the Court reasoned that a “contextual, as applied analysis, rather than
facial review” of Article 125 was necessary to review convictions for
non-forcible sodomy, particularly in the military environment. Id. at
205. Therefore, the correct question when reviewing such a conviction is
“whether Article 125 [was] constitutional as applied to Appellant’s
conduct.” Id. at 206.
The Court outlined the following three-prong test for
determining whether such a conviction is constitutional in a given case:
First, 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 [in Lawrence]? Second, did the
conduct encompass any behavior or factors identified by the Supreme Court as
outside the analysis in Lawrence? 539 U.S. at 578. Third, are there
additional factors relevant solely in the military environment that affect
the nature and reach of the Lawrence liberty interest?
Id. at 206-207; see also United States v.
Stirewalt, 60 M.J. 297 (C.A.A.F. 2004). Consequently, for a plea of guilty
to Article 125, UCMJ, to be provident, the providence inquiry must now
establish a factual predicate which objectively supports a finding that an
accused’s conduct was outside the liberty interest identified in Lawrence
and discussed in Marcum.
The providence inquiry failed to establish a sufficient
factual predicate to objectively establish that appellant’s conduct was
outside the liberty interest identified in Lawrence and Marcum.
The facts admitted by appellant describe a consensual encounter between two
adults in the privacy of a barracks room. Nothing in the providence inquiry
indicates that anyone other than appellant and MG were present. This conduct is squarely within the liberty interest recognized
in Lawrence and Marcum.
Second, the conduct as described by appellant did not
“encompass any behavior or factors identified by the Supreme Court as
outside the analysis in Lawrence.” See Marcum, 60 M.J. at
206-207. The conduct did not involve a minor. See Lawrence, 539 U.S. at
578. It did not involve public conduct or prostitution. Id. It did not
involve “persons who might be injured or coerced or who are situated in
relationships where consent might not easily be refused.” Id.
Finally, there are no “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. Appellant described
conduct with a civilian, with no military connection other than that it
occurred in a barracks room. Appellant did not admit any facts during the
providence inquiry which demonstrated any military necessity to circumscribe
his liberty interest in engaging in private, consensual behavior with another
adult. Consequently, the providence inquiry was insufficient to support
appellant’s plea of guilty to this offense.
Accordingly, the findings of guilty to Charge I and its
Specification are set aside and dismissed. The remaining findings of guilty
are affirmed. Reassessing the sentence on the basis of the error noted, the
entire record, and applying the principles of United States v. Sales,
22 M.J. 305 (C.M.A. 1986), the court affirms only so much of the sentence as
provides for a bad-conduct discharge, confinement for five months, forfeiture
of all pay and allowances for five months, and reduction to Private E1. All
rights, privileges, and property of which appellant has been deprived by
virtue of that portion of his sentence set aside are ordered restored as
mandated by Article 75(a), UCMJ.
Judge JOHNSON and Judge MOORE concur.
For the Court:
MALCOLM H. SQUIRES, JR.
Clerk of Court
Article 125, UCMJ, states that “[a]ny person . . . who engages in
unnatural carnal copulation with another person of the same or opposite sex or
with an animal is guilty of sodomy. Penetration, however slight, is sufficient
to complete the offense.”
The government asserts that “the sodomy occurred in a military
barracks room in the presence of appellant’s roommate.” The record does
not establish that the conduct occurred in the roommate’s “presence.”
However, even assuming the government did establish this fact during the
contested portion of the case, appellant did not admit it during the
providence inquiry into his plea to the consensual sodomy, which was the basis
for the finding of guilty. See United States v. Garcia, 44 M.J. 496,
497-98 (C.A.A.F. 1996) (stating that “[a] providence inquiry into a guilty
plea must establish, inter alia, ‘not only that the accused himself
believes he is guilty but also that the factual circumstances as revealed by
the accused himself objectively support that plea’”) (quoting United
States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994).
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