No. 23-0134/AF. U.S. v. Zachary C. Rocha. CCA 40134. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date:
WHETHER THE PRESIDENTIALY-ENUMERATED ARTICLE 134, UCMJ, OFFENSE OF INDECENT CONDUCT PROVIDED APPELLEE WITH CONSTITUTIONALLY-REQUIRED FAIR NOTICE THAT COMMITTING SEXUAL ACTS WITH A CHILD SEX DOLL WAS SUBJECT TO CRIMINAL SANCTION.
Appellant raises several assignments of error, asserting: (1) private masturbation with a doll is constitutionally protected conduct; (2) Appellant did not have fair notice that private masturbation with a doll was subject to criminal sanction; (3) the military judge erred in denying the Defense’s motion to dismiss for failure to state an offense; (4) trial defense counsel was ineffective; and (5) Appellant’s conviction is not legally and factually sufficient. Additionally, Appellant asserts: (6) the Government cannot meet its burden to prove that the military judge’s failure to instruct the panel that a guilty verdict must be unanimous was harmless beyond a reasonable doubt; (7) trial defense counsel was ineffective for failing to ask two panel members questions regarding their experience and ability to sit in Appellant’s court-martial; and (8) trial counsel engaged in prosecutorial misconduct in findings argument. Because we find in Appellant’s favor on issue (2), we do not address the remaining issues.
Some basic facts
Appellant purchased online a short silicone doll with female physical characteristics, including oral, anal, and vaginal orifices and small breasts. Appellant had the doll shipped to another Airman’s house; Appellant lived on base and could not receive the package at his on-base postal box. Appellant also purchased clothing for the doll. About three weeks after Appellant received the doll, Appellant’s commander ordered an inspection of the dorms, including Appellant’s dorm room. Command representatives received a briefing from agents from the Air Force Office of Special Investigations (AFOSI) before beginning their inspection. Appellant shared a kitchen and bathroom with another Airman, but had his own separate bedroom.
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