United States v. Useche, 70 M.J. 657

Appellant, a Marine Lance Corporal, was convicted at a general court-martial of false official statement, forcible anal sodomy, consensual oral sodomy, drunk and disorderly conduct, and soliciting another to obstruct justice; sentenced to nine years, reduction to E-1, dishonorable discharge; CA approved sentence.
RM, a 22-year-old with mental retardation (IQ 46), was on a blind date and later found in appellant's barracks room handcuffed and distressed after sexual activity including oral and anal sodomy; appellant briefed two Marines and a Duty NCO to remove RM.
Special findings under Article 125 were issued for forcible oral sodomy but with a finding excluding the force-and-without-consent language; appellant challenged whether this created a material variance and constitutional liberty interests.
Appellant argued Lawrence and Marcum protected a liberty interest to engage in consensual sodomy, contested the material variance, and challenged sufficiency of the consensual sodomy charge; he also challenged the solicitation-to-obstruct-justice charge’s terminal element and post-trial processing.
The appellate court addressed multiple issues by applying Marcum and Lawrence to determine liberty interests, upheld a lesser-included-offense conviction for consensual sodomy, and found the evidence legally and factually sufficient; the solicitation charge is deemed to include the terminal element and the record was not incomplete.
The court affirmed the findings and the sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether consensual oral sodomy falls within a protected liberty interest	Marcum protects liberty interests; appellant engaged in private consensual act.	RM’s vulnerability and military context remove activity from liberty interest.	Not within the liberty interest; SODOMY outside Lawrence protections.
Whether there is a material variance between forcible vs. consensual sodomy specifications	Variance prejudices notice and trial strategy, potentially duplicative charges.	Consensual sodomy is a lesser included offense of nonconsensual sodomy; not prejudicial.	No substantial prejudice; consensual sodomy valid as lesser included offense.
Sufficiency of the evidence for consensual sodomy	RM testified to appellant placing his penis in her mouth; evidence supports elements.	Marcum factors redefine elements; burden shifts with liberty-interest analysis.	Legally and factually sufficient; RM’s testimony supports the offense.
Validity and sufficiency of the solicitation to obstruct justice charge	Charge sufficiently alleged offense under Article 134 through implied prejudicial effect.	Terminal element required by Article 134 not explicitly stated.	Charge stated the terminal element; legally and factually sufficient.
Whether leading questions in direct examination were improper	Appellant preserved summary Grostefon issues challenging trial conduct.	Leading questions improperly used on direct examination.	No reversible error; no abuse of discretion found.

United States v. Marcum, 60 M.J. 198 (CAAF 2004) (three-factor test for Liberty Interest under Lawrence)
Lawrence v. Texas, 539 U.S. 558 (Sup. Ct. 2003) (privacy in intimate conduct; basis for liberty interest)
Fosler, 70 M.J. 225 (CAAF 2011) (terminal element sufficiency in Article 134 specifications; implied elements)
Hackler, 70 M.J. 624 (NM Ct Crim App 2011) (framework for liberal vs. narrow reading of defective specifications)
Watkins, 21 M.J. 208 (C.M.A. 1986) (lenient treatment of defective specifications when not challenged at trial)
Dear, 40 M.J. 196 (C.M.A. 1994) (notice requirements for offense elements in specifications)
Oliver, 70 M.J. 64 (CAAF 2011) (legal sufficiency standard; Jackson v. Virginia standard applied)
Turner, 25 M.J. 324 (C.M.A. 1987) (factual sufficiency standard; appellate weighing of evidence)
Beatty, 64 M.J. 456 (CAAF 2007) (legal and factual sufficiency standards applied to Article 125)
United States v. Stephens, No. 200602368, 2007 WL 3025080 (NM Ct Crim App 2007) (post-Marcum context; consensual sodomy as lesser included offense)