United States v. Gaskins

STATES, Appellee, UNITED GASKINS, Sergeant, H.

Daniel Staff Army, Appellant.

U.S.

No. 13-0016.

Crim.App. No. 20080132. Appeals

U.S. Court of

the Armed Forces.

Argued Feb. 2013. May

Decided

RYAN, J., opinion delivered the Court, ERDMANN, J., EF- in which J, FRON, S.J., STUCKY, joined. filed separate opinion concurring part in and in BAKER, C.J., separate filed a result. opinion concurring part dissenting part. (ar- Appellant: E.

For William Cassara gued); Captain S. Trieschmann Jr. James (on brief), Major Richard E. Gorini Captain Appellee: For Chad M. Fisher (on Major Rodrigues (argued); Robert A. brief).

Judge opinion RYAN delivered the Court.

Contrary pleas, panel composed his Ap- officer and enlisted members convicted pellant knowledge, in of carnal violation of Military Justice Article Uniform Code (UCMJ), (2006), repealed by § Act National Defense Authorization for Fis- 109-163, § cal Pub.L. No. Year 119 Stat. 3136 and indecent acts tion) assault, (unpublished).3 rehearing, a child and indecent both violation On the ad- 934 judged approved provided U.S.C. (2006).1 hearing, At E-l, his first sentence years, confinement for nine reduction to panel sentenced to confinement for allowances, pay of all forfeiture pay twelve forfeiture of all and allow- discharge. dishonorable ances, E-l, pay grade reduction to and a granted following We review of the issues: discharge.2 convening au- dishonorable The I. WHETHER THE GOVERNMENT’S thority approved adjudged the sentence. A LOSS OF SENTENCING EXHIBIT Army Before the United States Court of RENDERED THE TRI- RECORD OF (ACCA), Appeals Appellant alleged Criminal AL INCOMPLETE UNDER ARTI- sentencing that the omission of a exhibit— 54, UCMJ, A CLE RESULTING IN (DE) Defense Exhibit A—from the record of JURISDICTIONAL LIMITATION ON trial constituted a ren substantial omission THE SENTENCE TO ONE NO dering incomplete trial Ar record under THAN THAT GREATER WHICH (2006). 54, UCMJ, ticle 854 On BE A COULD APPROVED FOR 27, 2010, ACCA, banc, August sitting en NON-VERBATIM RECORD. ordered that case be returned to Army II. WHETHER APPELLANT Judge Advocate General for a hearing pursuant DuBay, to United States v. WAIVED THE FAILURE PLEAD TO 147, 411 17 C.M.A. 37 C.M.R. to de THE TERMINAL ELEMENT OF (2)A, DE termine the exact contents of THE 134 BY ARTICLE CHARGES substantial, whether the was omission THAT HIS FAILURE TO RAISE IS- whether reconstruction of the was exhibit AT THE SUE SENTENCE REHEAR- Gaskins, possible. v. United States NOT, ING AND IF WHETHER (en banc). 569, (A.Ct.Crim.App.2010) 572-73 BE THOSE CHARGES SHOULD DIS- 9, 2010, granted On December this Court a THE MISSED BECAUSE GOVERN- petition extraordinary prohibit for relief to MENT FAILED PLEAD TO THE ordering DuBay hearing, the ACCA from TERMINAL ELEMENT.4 concluding DuBay hearing that a to recon urged by Appellant The sentence limitation DE A “inappropriate struct would be under compelled by any is not statute or Rule case,” the facts of this and remanded the (R.C.M.), and for Courts-Martial the ACCA case to the for ACCA further consideration ordering did not abuse its discretion in options. Hoffman, of its Gaskins v. However, rehearing on sentеnce. we dis- (C.A.A.F.2010) (summary disposition). 452 agree Appellant waived the ACCA banc, remand, Upon again sitting en plead failure to Government’s the termi- ACCA set aside sentence and 134, UCMJ, speci- nal element to the Article rehearing. authorized United fications, Gaskins, and conclude that this error materi- 20080132, ARMY States No. 498371, ally prejudiced Appellant’s right substantial (A.Ct.Crim.App. WL LEXIS 2011) (en banc) 10, (summary disposi- Humphries, Feb. to notice. See United States II, child, place February Charge 1. The conduct at issue took indecent acts with a were multi- 1, Therefore, plicious sentencing. prior for the maxi- and March of to the October punishment thirty-two mum was reduced from effective date of the amendments to Article Thus, time, years twenty-five years. knowledge at that carnal 120, UCMJ, an was offense under Article 28, 2011, indecent assault and indecent acts with a child Februaiy filed a second On were enumerated offenses under Article petition extraordinary seeking enjoin for relief UCMJ, President, June, 1, 2011, as defined Manual rehearing. On this Court Courts-Martial, IV, pt. para. petition prejudice. United States denied the without Gaskins v. (2005 ed.) (MCM). Hoffman, (summary 70 M.J. 207 disposition). sentencing, military judge 2. On ruled that the I, (C.A.A.F. charged Specification Charge offenses 4. United States v. M.J. 448 (order review). 2012) knowledge, Specification granting carnal and the (C.A.A.F.2012). finger. AD vagina her with his SSG Accordingly, we ed 71 M.J. 209 again pen- away, but he part pushed Appellant and re- decision affirm ACCA’s finger. AD vagina her with his SSG etrated part. it in verse forcefully awаy him more then shoved left the room. I. FACTS following February a contested On February assigned trial, composed of general court-martial Treaty Organization to the North Atlantic Ap- and enlisted members convicted officer Latina, Italy. Sergeant First Class school knowledge, in pellant carnal violation (SFC) Appellant’s sponsor assigned S acts with a Article and indecent assignment new help him acclimate to the assault, both in violation of child and indecent community. and the panel sentenced UCMJ. The for twelve February Sergeant Appellant to confinement On Technical allowances, (TSGT) S, pay and reduction Daley, hosted a forfeiture of all a friend SFC E-l, discharge. a dishonorable During party, Apрel- to and party at his home. TS, brought daughter, who was lant SFC S’s During sentencing, Appellant offered the time, years spare into a twelve old at the (1) testimony following mitigation: in pants. hand down her bedroom and his Appellant’s rehabilita- three witnesses about shirt, bra, pulled up unsnapped her TS her (2) potential; tive an unsworn statement “grabbing on left Appellant [her] and started (3) Appellant; single a exhibit —DE from initially say- sucking on it.” After boob and A—that as a “Good Soldier was described Appellant told her that “he “No” when documents, and contained various such Book” [her],” “fine,” said wanted to be inside TS Corps record Marine service Appellant penetrated vagina. TS’s book, awards, college transcripts, let- photоs, commendation, 2007, Appellant reassigned ters of and character letters. In March Naples, Italy, pending from Latina to investi- trial, point At some after the Government Naples, gation into the incident with TS. In A, misplaced DE and the exhibit was not (SSG) AD, Sergeant a fellow he met Staff of trial.5 included the authenticated record assigned officer to his unit. noncommissioned clemency to the Defense counsel’s submission Appel- AD On March SSG ran into convening authority DE A as cru- described Navy Exchange. Appel- lant Because at the Appellant’s sentencing Despite case. cial to area, lant new to the she invited him to exhibit, authority missing convening her house so that he could see the area and adjudged The approved the sentence. community. stopping After meet the ‍​​​‌​‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌​​‍SSG ACCA, however, ultimately Appel- aside set house, they AD’s looked at his house and lant’s and authorized a sentence sentence barbeque. At the end of the then went to *3, 19, at rehearing. 2011 LEXIS stay night, Appellant AD offered to let SSG 2011WL at *1.6 guest in her room because he had been going sleep, AD was held on drinking. Before SSG guest Appel- October 2011. The defense filed a motion went into the room to check punishment to that lant because she was concerned about how to limit the maximum 1103(f)(1) permitted AD which under R.C.M. much he had to drink. SSG sat down on couch next for a non-verbatim record: six months’ con- the foldout finement, E-l, okay. Appellant asked if he was then reduction to and forfeiture of thigh pay per for six months. touched SSG AD’s inner and started two-thirds month 1103(f)(1). moving up leg. AD R.C.M. The Government offered his hand her SSG said A, stipulate DE but the “Stop,” Appellant persisted penetrat- but to the contents of A, description proce- place In of DE the Government attached to 6. For more detailed the record a memorandum for the record from history supra pp. dural see 226-27. supervisory reporter, which court summa- por- rized the efforts to locate DE A and some tions of DE A. lege defense declined because it was uncertain terminal an Article element[ ] precise error, about the nature of DE A’s contents. UCMJ offense constitutes [the ACCA] military judge The [Ajppellant’s deniеd the defense motion conclude[d] failure to raise punishment. to limit the maximum Howev- the issue constitute^] conscious waiver.” er, 212). she ruled that the Government would be (citing Humphries, Id. aggravation limited in what it could offer

of the offenses. III. INCOMPLETE RECORD offered, aggravation, question The threshold is whether a stat- (1) admitted, military judge and the Appel- ute or rule either mandated the sentence Military lant’s Official Personnel File urged by Appellant limitation precluded (2) (OMPF), Appellant’s Enlisted Record permitting the ACCA from a sentence re- (3) (ERB), Brief several character letters hearing, where incomplete the record was copied post-trial clemency from his package, because of the substantial omission of sen- (4) stiрulation expected testimony tencing DE exhibit A. We review these TS’s mother. The defense offered an questions of law de novo. United States v. Appellant. unsworn statement from After Blanc, (C.A.A.F.2012). St. evidence, hearing military judge sen- parties The agree that: the Govern- tenced to confinement for nine responsible ment is ensuring that a rec- E-l, pay reduction to forfeiture of all complete, ord is presented the record allowances, and a dishonorable dis- the ACCA for its initial Article charge. convening authority The subse- U.S.C. review did not include quently approved adjudged sentence. (3) A, DE DE A omission of

substantial, making incomplete the record 54, under Article UCMJ. See United States II. ACCA DECISION Henry, 108, appeal On sentencing from re- (stating that “[a] substantial omission hearing, summary in a disposition, the ACCA renders a incomplete”). They record of trial held “the approved by sentence as the con- however, disagree, as to the maximum au- vening authority to be correct in law and circumstances, thorized sentence under the fact,” and affirmed both the whether, here, the ACCA was authorized Gaskins, 259, sentence. 2012 CCA LEXIS rehearing. to order a sentence *4,2012 2887988, at WL at *1. Appellant argues confronted respect issue, granted With to the second sentence, incomplete with an record on noted, footnote, the ACCA in a “that both the affirming ACCA was limited to a sentence no Specification Charge Specifica II and the greater than that аpproved which could be if tion of the Charge Additional fail to transcript. there was not a verbatim Re the terminal elements of a violation of Article 2008). quest Clemency 11, (July at 1 134, Gaskins, UCMJ.” 2012 CCA LEXIS 54, argues further that an Article *, at *3 n. 2012 WL *1 2887988 at n. *. UCMJ-compliant “jurisdictional record is a observed, however, The lower court that al prerequisite to a valid exceeding sentence though this Court decided United States v. may imposed that which be in [the] absence (C.A.A.F.2011), 70 M.J. 225 more complete Reply of a record.” Ap Brief for than prior two months sen Gaskins, pellant at United States v. No. rehearing, “Appellant tence never made a (C.A.A.F. 2013). 13-0016 Jan. The Gov motion to dismiss for failure to state an ernment, turn, argues rehearing that a is objected or offense otherwise to the form of options one of two authorized where a tran charges grounds,” on Foster nor did he 1103(f). verbatim, script citing is not R.C.M. raise a pleadings Foster issue in his before Appellee Brief for at United States Gaskins, the ACCA. 2012 CCA LEXIS (C.A.A.F. No. 13-0016 Jan. *, at *3 n. 2012 WL at *1 n. *. 2013). “Because it was settled law the time of [Ajppellant’s rehearing that a required failure to al- A verbatim record is when: (1973) (noting that 415, 47

(i) adjudged ex- C.M.R. Any part of the sentence “[ijnsubstantial from a record omissions ... or other confinement six months ceeds aas not affect its characterization by a trial do adjudged that be punishments Henry that the transcript”). held court-martial; or verbatim special in- exhibits was prosecution omission of four (ii) discharge been ad- has A bad-conduct and, thus, not record was substantial judged. the substance “incomplete,” where 1103(f) 1103(b)(2)(B)(i)-(ii). R.C.M. R.C.M. by other corroborated missing exhibits was authority’s convening remedial explains the Henry, 53 M.J. at in the record. exhibits transcript cannot verbatim options where a McCullah, 111; (opining at 237 cf. instances, conven- In such prepared. be pre- should not “insubstantial omissions authority may: complete” characterizing a record as vent only much of the sentence Approve so omitted)). (internal While quotation marks by special court- adjudged that could be Henry, holding in necessary to its not dis- martial, except that a bad-conduct of trial that “[r]ecords Court asserted more than six confinement for charge, are incоm- substantially verbatim or are not pay per months, two-thirds or forfeiture of includes support a sentence that plete cannot months, may not for more than six month in excess punitive discharge or confinement approved; or be 1103(b)(2)(B).” Henry, of 6 months. R.C.M. rehearing as to offense Direct a here, However, where, as 53 M.J. at 111. guilty if the was found the accused which transcript, verbatim record includes a summary by the finding supported 1103(f)’s inap- limiting provisions are R.C.M. record, pro- contained the evidence posite. authority may not convening vided that the prepa- require does imposed at such approve any sentence proceed- complete record of the ration of a than or еxcess more severe general court-martial where “the ings in a court-martial. adjudged the earlier death, a dismiss- adjudged includes 1103(f)(l)-(2). R.C.M. (if adjudged al, discharge, the sentence parties’ reliance on problem with both The discharge) any pun- other not include a does they point provisions 1103 is that the R.C.M. may other- that which ishment which exceeds by application, in their R.C.M. to are limited adjudged by special a court-martial.” wise be terms, a to instances where express 1103’s 54(c)(1)(A), Among other Article Id. transcript prepared. cannot be verbatim complete “[e]x- must contain things, a record verbatim, case, but transcript is In this hibits, or, military permission of the with the incomplete prior to was otherwise the recоrd descriptions of judge, copies, photographs, or clemency because submission any which were received evidence exhibits missing. sentencing a defense exhibit R.C.M. any appellate exhibits.” McCullah, United States Cf. ‍​​​‌​‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌​​‍1103(b)(2)(D)(v). However, the MCM —in- (“A ‘complete record’ is 54, UCMJ, cluding and R.C.M. Article ” (quoting necessarily a record.’ not ‘verbatim of criminal not limit the court 1103—does Whitman, 3 C.M.A. United States (CCA’s) remedy er- appeals’ to an discretion (1953))). 179, 181 181, 11 C.M.R. complete record.7 Com- compiling ror in a 19, UCMJ, § 819 pare Article 10 U.S.C. transcript and the lack of a verbatim While (2006) (conditioning special court-martial’s a separate are and dis- incomplete an record R.C.M., jurisdiction impose punishments certain to we think tinct errors under on, availability a among things, the on dicta in other has been blurred based distinction proceedings), and “complete other cases. See record” Henry, 53 M.J. at 18, UCMJ, § Boxdale, Article 10 U.S.C. States v. C.M.A. also United 66, UCMJ, pursuant Article recognized of trial to "[a] substantial record 7. While we have ability remedy incomplete constrained in its to of trial omission renders a record ques- a Henry, stemming omission is presumption prejudice,” from a substantial and raises a CCA, impression. reviewing the tion of first whether a UCMJ; Sills, jurisdiction (placing no such limitation on the United States v. court-martial), (C.A.A.F.2002); general of a with R.C.M. 240 see also United States v. 1103(f) Miller, (addressing prepare the failure to a 10 C.M.A. 27 C.M.R. transcript required (1959) (“[W]e under the verbatim when previous reaffirm our hold listing oрtions). R.C.M. and remedial ings may that a case be returned a court- rehearing only.”). martial for on sentence 810(a)(2) contrast, specifically R.C.M. that, rehearing, mili We further note on sentence, rehearing authorizes a on as does tary judge took extra care to craft remedial 63, UCMJ, sought any prejudice measures that to cure (limiting imposed the sentence that be Appellant may have suffered from the ab 66(d), rehearing), at a and Article UCMJ sence of DE A. ruled that She victim- (authorizing rehearing). the CCA to order a impact aggravation evidence in would be authority Where CCA exercises its original pre- time-limited to the date of the sentence, rehearing order a on the record of senteneing hеaring. She further ruled that rehearing, in concert with the record on testify, allowing only could stipula TS not a findings, complete constitutes the record for expected testimony tion of from TS’s mother. by convening authority review and the Moreover, that, we consider the fact on re CCA, required by Articles 54 and sentence, hearing, Appellant’s original 1103(f) apply UCMJ. While R.C.M. does not by every awarded members who had had record, incomplete an it would make little opportunity to DE review A—confinement permit rehearing sense to a on pay for twelve forfeiture of all remedy create a new record of trial as a for allowances, E-l, pay grade reduction to transcript, the absence оf a verbatim but not discharge dishonorable reduced —was permit rehearing on sentence to seek to years’ three confinement as indicative that any prejudice missing cure suffered from a remedy nonprejudicial the ACCA’s sentence exhibit. this case.8 facts, nothing in On these Articles 18 Given that neither a statute nor an R.C.M. nothing or R.C.M. 1103 particular directs a remedial measure to ad- compels urged by the limitation on sentence incomplete general dress an record in a prohibits rehearing on sen court-martial, we hold that the ACCA did not then, question, tence. The is whether the ordering abuse its discretion in the rehear- remedy incomplete ACCA’s sentenc facts, ing, under these record, permit which was to prejudiced by remedy. was not the chosen sentence, was an abuse of discretion or prejudiced Appellant. otherwise IV. HUMPHRIES ISSUE balance,

On we hold that the ACCA’s rem- argues also that the edy appropriate under the circumstances specifications Charge under II and the Addi may of this case. We note that a CCA order rehearing Charge tional both fail to state an offense where it sets aside a sentence adjudged by they allege approved by a lower court and because do not the terminal ele 66(d), WTiere, convening authority. the See Article ment of Article UCMJ.9 as rehearing, Appellant Sergeant 8. On was sentenced to SPECIFICATION: that Staff Dan- E-l, Gaskins, did, Latina, confinement for Army, nine reduction to iel U.S. at or near allowances, pay forfeiture of all and a dis- Italy, February on or about 24 commit discharge. honorable The revised sentence is in [TS], body an indecent act the female requirement convening accord with the that a years age, under 16 not the wife of the said authority may approve not a sentence on re- Sergeant by sucking Staff Daniel on hearing that is or in more severe excess of the breast, kissing the her her on mouth and rub- original sentence. Article bing vaginal gratify the her area with intent to Sergeant lust of the said Staff Daniel Gaskins charges specifications 9. The read as follows: and [TS]. UCMJ, ADDITIONAL CHARGE: VIOLATION OF CHARGEII: VIOLATIONOF THE AR- UCMJ, TICLE 134. THE ARTICLE 134 UCMJ, plead that fails to here, alleges specification expressly specification neither element, put not an accused on terminal element does necessarily implies the terminal nor Fosler, or clauses of the 70 M.J. fair notice of which clause specification is defective. against. Appellant’s trial oc element he must defend at 229-30. Because terminal Fosler, Fosler, 230; decision in we see also United curred before our 70 M.J. (C.A.A.F. Medina, object failure to at trial to Appellant’s deem v. 26-28 States 2008) Hum than waive the error. (concluding forfeit rather the three clauses Moreover, 211, 213-15. as phries, are UCMJ’s terminal element concedes, failure and, criminality the Government there theories of alternative rehearing, the issue at his sentence fore, to raise declining to affirm a conviction on claus months after this Court’s which was held two charged 1 or 2 where the accused was es 3). did not constitute waiver decision violating clause with and tried the find a defense motion to dismiss because disagrees with the Govern No one allege the terminal element ings for failure to speaking, generally intuition ser- ment’s proscribed beyond military judge’s poorly acts can reflect on vicemembers’ bad authority conduct a on sentence. to services, Appellee at the armed Brief for Smith, v. M.J. United States Cf. (C.A.A.F.1995) of the bad acts this or that the evidence can (holding that “a court this may legally be sufficient under case limita action that conforms to the take precedent prove to Cоurt’s prescribed and conditions the re tions “directly prejudicial good or conduct was omitted)). (internal quotation mand” marks tendency to discipline” or had “a der disrepute or which bring the service into waiver, “where In the absence of public to lower it in esteem.” MCM tends specification in a are raised for the defects (3) (2008 ed.). IV, 60.c.(2)(a), pt. para. How appeal, [defec time on dismissal of the first ever, where, here, fails to specification] depend will on whether tive element, it dur allege the terminal mention which, cases, plain most there error — trial, independent on evidence of prejudice.” question turn on the will it, may acts have that the evidence of the bad Here, par Humphries, 71 M.J. at 213. legally prove sufficient to the terminal been agree plain that it was and obvious error ties altogether dif element does not answer the not to the termi for the Government question whether suffered ferent specifications under nal element right to material to his substantial Charge Charge. II the Additional Id. at notice and to defend himself. See United then, question, is whether the “The 202, 208, Goings, 2013 WL States specification^] in material defective resulted (C.A.A.F.2013); United States prejudice Appell[ant]’s right substantial Tunstall, WL 215; 59(a), Id. at see also Article notice.” (C.A.A.F.2013)(reversing appellant’s con 859(a) (2006) (“A UCMJ, finding charge alleged viction where sheet or sentence of court-martial not be held alleged indecent because the his сonduct was ground of an error of law incorrect substantially incapable of declin victim was materially prejudices unless the error ing participation, military judge al but accused.”). rights of the substantial panel “open convict on an lowed the theory); v. Luba notorious” United States Sixth] “Both Fifth [the (C.A.A.F.2010) (re 260, sky, 68 M.J. 264-65 right of an accused ensure the [A]mendments jecting government’s argument that this being the to receive fair notice of what he is Girouard, may affirm a conviction where the charged Court with.” United States v. (C.A.A.F.2011). 134, 5, 10 legally prove to 70 An Article evidence was sufficient hand, Sergeant touching thigh [AD's]inner with his feel- SPECIFICATION: In that Staff Dan- did, Lago Army, iel U.S. at or near vaginal around her area with his hand and Patria, Italy, between on or about 17 March digitally pеnetrating vagina with his fin- [AD’s] 2007, 24 an indecent 2007 and March commit gratify ger, his desires. with intent to sexual [AD], upon person assault not his wife (1) charged variant offense when the concluded the context of a defective charges on specification factfinder based its raised for (2) drafted, specifications and as and appeal, the first time on the failure to proved offense at trial was not a lesser in- necessarily the terminal element is not struc offense). charged cluded offense of the dismissal, tural warranting error automatic but error that can prejudice. be tested for argument The that an accused is not Humphries, 213; 71 M.J. at generally see prejudiced by government’s failure to Tunstall, (finding preju 72 M.J. at 197-98 no allege the terminal element because it is dice where the defense introduced evidence “intuitive” that the bad act discredited the specific purpose negating for the the ter military contrary long-established runs to (find element); Goings, minal 72 M.J. at 208 notice, principles acknowledged of fair in ing prejudice appellant no where the “was punish Fosler. To conduct that is to the put on that notice the Government intended prejudice good discipline order and prove to prejudicial that his conduct was both forces, bring armed or of a nature to discred good discipline to order and service dis forces, upon government it the armed crediting against defended [] himself (1) predicate must establish аct or failure Thus, guilt”). those theories of where a de act, (2) the terminal element. Medi (1) specification: fective prior was tried na, clear, 66 M.J. at 26. As Fosler makes (2) our decision was raised for charging UCMJ, offense, an Article lan appeal, first time on we test that error (1) (2). guage describing fairly imply does not prejudice, for which turns on whether that 229-31; 70 M.J. at Goings, see also right error frustrated an accused’s to notice Suggesting at 207-08. that there no opportunity zealously himself, defend prejudice predicate because the acts were Humphries, 215-16; atM.J. cf. Lankford “intuitively” prejudicial good order and Idaho, 110, 124, 600 U.S. 111 S.Ct. discipline and discrediting service fails to (observing L.Ed.2d 173 that “the recognize Article UCMJ’s ‍​​​‌​‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌​​‍terminal ele question inаdequate is whether notice ... ment for what Fosler reiterated it is—a dis opportunity frustrated counsel’s to make an crete element of a criminal offense. 70 M.J. argument might” that have influenced the (“An at 230 accused cannot be convicted un outcome), depends in which turn on “whether der if Article 134 the trier of fact determines missing notice of the element is somewhere act]; that the accused committed [the record, extant in the trial or whether the beyond the trier fact must also determine ”10 ‘essentially element is uncontroverted.’ a reasonable doubt that the terminal element Humphries, (quoting 71 M.J. at 215-16 Unit satisfied.”). has been Cotton, 625, 633, ed States v. 535 U.S. (finding S.Ct. 152 L.Ed.2d 860

Moreover, operating we are not in a vacu- 907(b)(1)(B) drug quantity that evidеnce of the omitted um; R.C.M. establishes “overwhelming” “essentially uncon- failure to grounds state an offense is for 907(b)(1)(B) troverted” where in dismissing charge. R.C.M. dependent (noting charge specification going beyond pos that a evidence mere prove conspiracy fails to state an offense is a session to nonwaivable involved ground any stage drug quantity dismissal at sufficient to increase the maximum)). proceeding). however, Humphries, statutory we States, 10. We continue to find the standard of in [Puckett concerns noted v. United Benitez, Dominguez set out in United U.S. States U.S. (2009)]”). 129 S.Ct. 173 L.Ed.2d 266 124 S.Ct. 159 L.Ed.2d 157 ap- Different considerations would 134, UCMJ, specifi ill-suited for defective Article cations tried however, ply, respect to cases tried after See, priоr e.g., to Fosler. Hum Fosler was decided because that case clarified for phries, (noting n. 7 that "Domin the field that the terminal element Article because, guez inapposite” among other Benitez UCMJ, is a discrete criminal element that —like reasons, "any objection by Appellee at trial indepen- other criminal element—must be would have been futile based on the law at the time—which also dently pleaded proven. and 'sandbagging' alleviates terminal evidence of the overwhelming put evi on direct Here, no there was concedes, inapposite to those Su- simply are no element the Government dence. As in which the Government put prove preme on to Court cases dirеct evidence directly Appellee at that went to the Brief for on evidence element. terminal see, element, directly aggravating 1 nor 2 was factor or clause omitted 30. Neither Cotton, until party either 535 U.S. indirectly e.g., mentioned States v. United (2002); the members military judge instructed 152 L.Ed.2d 860 122 S.Ct. 134, UCMJ, States, the Article the elements of 527 U.S. 119 S.Ct. on Neder v. United did the Government specifications, nor unless we disre- 144 L.Ed.2d 35 or witness proffer any physical evidence that the sage reminder from Fosler gard the might testimony Appellant’s acts 134, UCMJ, as to how are distinct of Article elements public’s Fosler, his unit or the have affected either at 230. non-fungible. forces, nor did the opinion of the armed case, solely relied In this they they were that knew defensе indicate acts, the first element on evidence of the bad liability. theory of defending against either UCMJ, prove the offenses of Tunstall, 72 M.J. at 197-98 Compare, e.g., military judge trial. The instructed at prejudice where the trial rec (finding no disjunctive, telling that them members that the defense introduced ord indicated they Appellant guilty of the Article could find purpose negat specific ‍​​​‌​‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌​​‍for the evidence they specifications if concluded element, indicating thus ing the terminal prejudi- either that conduct was it); against himself Go that he defended good discipline or service cial to order and (finding preju no ings, 72 M.J. at 208-09 circumstances, discrediting. these Under ap witnesses testified dice where Appellant and this Court lack knowl- both gоod prejudicial pellant’s conduct was edge significance— of critical of matter discipline and service discredit order and criminality Ap- namely, theory which on vigorously defended ing, appellant and the Medina, convicted, see pellant was tried element); against and see the terminal (concluding the three Ballan, States v. United element are alterna- clauses of the terminal (finding no criminality). tive theories of guilty plea appel where the context of lant informed of the terminal element invitation to decline the Government’s We why acts were service explained his Appellant would or speculate as to whether discrediting). differently if the could have defended himself thеory proffered had either its Government (1) here, Where, Appellant’s trial oc- directly criminality or introduced evidence curred before this Court’s decision criminality theory of proving at least one (2) evidence of the terminal no mention or satisfying the terminal element. Chiarel trial, in the record of element is extant Cf. States, 222, 236-37, 100 la v. 445 U.S. United (3) otherwise the evidence at trial did not (1980) (stating S.Ct. 63 L.Ed.2d 348 theory notify Appellant of the Government’s not affirm a conviction that the Court would criminality, none- or show jury); theory presented not to the based on against did defend the terminal ele- theless States, Dunn v. U.S. United ment, impossible guess Appel- what it is (1979) (“[AJppel- 60 L.Ed.2d 743 S.Ct. strategy might have been had the lant’s are not free to revise the basis on late courts alleged the terminal element Government simply be which a defendant is convicted theory put Appellant on notice of which likely the same result would obtain Cases, cause criminality pursuing. like it was (“[A]n retrial.”); Medina, ap 66 M.J. at 27 Humphries, where the Govern- this one and (1) theory pellate court not affirm on not ment fails to an element adjudicated offense, criminality presented to the trier of fact and theory of mention its doubt.”).11 element, beyond a terminal reasonable respect to the theory pellant himself on the doubt as to its to have defended 11. The Government leaves no prejudicial good foolhardy Ap- that his conduct was not would have been belief that it 235 given Becausе was never necessarily notice ments of the LIO prov- would be theory criminality by of proving en greater the elements of the pursued, no evidence was introduced on offense.” Id. any theory, say cannot in we that the errors occurred, At the time the acts the elements 134, UCMJ, specifications

the Article were assault, of indecent charged, as were: Humphries, 217; cured. See 71 M.J. at see (1) That the bodily accused did harm to a Tunstall, 197-98; Goings, also 72 M.J. at person; certain Accordingly, M.J. at 208-09. we hold that the Government’s failure the termi- (2) That the act was done with unlawful Charge nal element in II and the Additional violence; force or Charge plain and obvious error person That spouse was not the of materially prejudiced Appellant’s substantial accused; right to notice under the Fifth and Sixth (4) That the acts were done with the intent theory Amendments as to which or theories gratify the lust or sexual desires of liability 134, UCMJ, under Article he accused; needed against. to defend himself See Arti- 59(a), cle findings UCMJ. The guilt as to (5) That, circumstances, under indecent assault and indecent acts with a conduct of the prej- accused was to the 134, UCMJ, child violation of Article are good udice of discipline order and hereby Humphries, set aside. See atM.J. the armed forces or was of a nature to bring upon discredit the armed forces. IV, (2005 ed.). 54.b.(2), pt. para.

MCM 63.b. V. The elements of by LESSER INCLUDED assault consummated OFFENSE battery were: The remaining question is whether (1) That bоdily the accused did harm ato we finding nonetheless affirm a of as person; certain sault by battery, consummated in violation of bodily That the harm was done with (LIO) as a lesser included offense of indecent unlawful force or violence. 59(b), assault.12 See Article UCMJ. 54.b.(2). para. Id. at process “The principle due of fair comparing After elements the two offenses, notice mandates that ‘an right accused has a it is evident that each element of to know what legal offense and under what by battery assault consummated would nec- theory’ convicted; he will essarily be an proving LIO meets be met the first two requirement this notice if ‘it is a subset of the specifica- elements of indecent assault. The ” greatеr ‍​​​‌​‌‌‌​​‌‌​‌​​‌‌‌​‌‌‌​​​​‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌‌‌​​‍alleged.’ offense United States v. tion of Charge alleged the Additional Jones, (quot by battery, elements of assault consummated Medina, 26-27). supra “This Court see n. legally the evidence is applies the elements test support determine sufficient to a finding guilty as to Therefore, whether one an offense is LIO of another.” this offense. affirm we so Wilkins, United States v. Charge much of the Additional speci- and its (C.A.A.F.2012). “[A]pplying normal rules of fication that guilty extends to statutory construction, interpretation by battery LIO of assault consummated this Court will determine whether the ele- violation of Article discipline discrediting, order and any or service Brief 12. We are not aware of LIOs of indecent acts 33-34, Appellee child, but the Fifth and Sixth chаrged, require with a that do not protect Appellant's right

Amendments to make proving Article UCMJ’s terminal element. Goings, that determination for himself. See Thus, because was never notice (finding ap- M.J. at 209 no where the element, of the terminal we cannot affirm pellant given opportunity to defend him- LIO of indecent acts with child. against so); self the terminal element and did Tunstall, (same). 72 M.J. at 197-98 specifications by of the prejudiced the failure DECISION VI. Code Article Uniform alleged under Army States of the United The decision (UCMJ), § U.S.C. Military Justice affirmed as Appeals is of Criminal Court element. See terminal the toas specification, reversed Charge I and its 859(a) UCMJ, 59(a), Article and reversed specification, Charge II and its (2006). specifica- its Charge and Additional to the specification are its Charge II and tion. Nonetheless, present at apparent that it is only so affirm We prejudice. dismissed to ad- continues majority of Court this speci- Charge and its the Additional much plain error test for to the truncated here guilty to extends to fication least since United followed has been consum- of assault offense lesser included (C.A.A.F.1998). Powell, 49 M.J. v. States battery in violation mated reargue the issue each Having no desire to Judge to the The record is returned situation, plain error we encounter time Army for remand to of the Advocate General are, bound, all myself as we considering reassess- Appeals for of Criminal the Court Court, I will await precedents of the by the action on light in of our ment apply of which test to in ease which issue findings. squarely presented. concur in result. I therefore STUCKY, (concurring part in Judge result): in part in BAKER, Judge, (concurring Chief under majority I concur with dissenting part): in case, of this circumstances analysis I. in of Issue I concur the Court’s Soldier Good the loss of remedied II, my I adhere to respect Issue hearing. sentencing With original after his Book in States expressed United my earlier views dissent set out For the reasons (Bak (C.A.A.F.2011) Humphries, States v. United analysis er, J., Applying that J., dissenting). (C.A.A.F.2012) dissenting), (Stucky, involving Ap this case in mutatis mutandis to my concurrence referred to recent with a servicemem- Tunstall, pellant’s indecent acts States United indecent as dependent J., concurring in the ber’s (Stucky, AD, Sergeant I would affirm result), the ma sault Staff respectfully disagree with I materially Issue II as well. jority’s holding

Case Details

Case Name: United States v. Gaskins

Court Name: Court of Appeals for the Armed Forces

Date Published: May 23, 2013

Citation: 72 M.J. 225

Docket Number: 13-0016/AR

Court Abbreviation: C.A.A.F.