Navy-Marine Corps Court of Criminal Appeals

​United Schmidt, 80 M.J. 586 (N-M. Ct. Crim. App. 2020), aff'd 82 M.J. 68 (C.A.A.F. [Feb] 2022)

​Panel

Gaston (author)
Stewart
​Crisfield

United States v. Tabor, __ M.J. ___ (N-M. Ct. Crim. App. 2022).

en banc
​
Deerwester (author)
Gaston (concur/dissent)
Stewart (concur/dissent)
Monahan
Stephens (also files separate concur)
Holifield
Myers
Hackel
​Houtz (excused)

Tabor pled guilty to sexually abusing a child, five specifications of indecent language, and one specification of indecent conduct, in violation of Articles 120b and 134, Uniform Code of Military Justice [UCMJ], for communicating indecent language to Ms. Charles and encouraging her to masturbate while her ten-year-old daughter, Miss Bravo, was lying in bed next to her. He was sentenced to 7.5 years, TF, RiR, and a DD. The PTA called for all but 60 months to be suspended.

While standing duty in his squadron’s ready room, Appellant engaged in a sexually explicit text message conversation with Ms. Charles, a former high school classmate of his. During their exchange, Ms. Charles disclosed to Appellant that her ten-year-old daughter, Miss Bravo, was in the bed with her, and sent Appellant a photo of Miss Bravo, who was lying down, facing away from Ms. Charles. She told Appellant she intended to masturbate once her daughter fell asleep. Appellant responded that he was sexually aroused by the thought of Ms. Charles masturbating in the bed with her daughter and encouraged Ms. Charles to “do it anyway,” even though Miss Bravo was not yet asleep.

And events developed--etc., etc., etc.

The assigned errors in Tabor were,

• Appellant’s plea to Specification 2 of Charge I was improvident where Miss Bravo was asleep during the alleged indecent conduct.
• The MJ abused his discretion in denying Appellant’s motion to recuse himself based upon the military judge’s position as Regional Trial Counsel when  NCIS consulted with one of his subordinate Senior Trial Counsel regarding Appellant’s case.
• Sentence severity to 90 months’ confinement that Ms. Charles received in a closely related case.
• Government’s delay in post-trial processing of Appellant’s case warrants relief.

In Schmidt, the CAAF issues were,

I. Whether the phrase "in the presence of" used to define the term 'lewd act' in Article 120b(h)(5)(D) requires the child to be aware of the lewd act or merely that the accused be aware of the child's presence.

II. Whether Appellant affirmatively waived any objection to the military judge's instructions and the failure to instruct on the affirmative defense of mistake of fact.

III. Whether, having assumed deficient performance by counsel, the lower court erred in finding no prejudice.

United States v. Schmidt, 82 M.J. 68, 71-72 (C.A.A.F. 2022).

The court found waiver. Yet, Judge Sparks agreed with NMCCA on the statutory interpretation. But C.J. Ohlson and J. Maggs and J. Hardy (also still on the court) disagreed with the statutory interpretation. So this is not a situation where the CAAF actually decided the issue.

Good chance of a CAAF grant?