Case Information
*1
BAUM, Chief Judge:
Appellant was tried by a general court-martial composed of officer and enlisted members. Despite his pleas of not guilty, he was convicted of one specification of attempted forcible sodomy on a child under the age of twеlve years in violation of Article 80, Uniform Code of Military Justice (UCMJ); one specification of forcible sodomy on a child under the age of twelve years in violation of Article 125, UCMJ; and three specifications of taking indecent liberties with a female under sixteen years of age, and one specification of committing an indecent act upon a female under sixteen years of age in violation of Article 134, UCMJ. The members sentenced Appellant to a bad-conduct discharge, confinemеnt for three years, and reduction to E-1. The Convening Authority changed the adjudged reduction from E-1 to E-4 and approved the sentence as changed. Before this Court, Appellant has assigned eight errors, three of which were orally argued. [1]
The orally arguеd errors, assignments I, II, and IV, along with assignment of error III, will be addressed. After careful consideration, the other assignments of error are deemed to be without merit and are summarily rejected.
Assignment I In his first assignment of error, Appellant contends that the record is legаlly and factually insufficient to support findings of guilty of sodomy and attempted sodomy with another. Appellant’s argument with respect to the attempted sodomy offense centers on claimed contradictory statements by the alleged victim. She testified thаt Appellant tried to force her to take his penis in her mouth but that she prevented that act by keeping her mouth closed. Appellant contends that her testimony is inherently unreliable because it flatly contradicts earlier statements she made to a doctor, who was one of the prosecution’s expert witnesses. According to her account to the doctor Appellant had, in fact, placed his penis in her mouth. The specification under Additional Charge I alleged attempted sodomy without stating the factual basis, but the members were instructed on the elements of attempted oral sodomy for that offense and, based on the evidence, the members returned a finding of guilty of attempted sodomy. The trial court members obviously chose to believe the testimony given by the victim at trial as the correct account rather than the one given to the doctor before trial. We, too, are convinced beyond a reasonable doubt by the victim’s testimony and reject Appellant’s argument on this offense for that reason.
In its response, the Government asserts that a bill of particulars set out the prosecution’s theory for that offense under Additional Charge I as attempted anal sodomy rather than oral sodomy and the Government cоntends that the prosecution is bound by that theory. Since no evidence of attempted anal sodomy was introduced, the Government submits that this Court should set aside the one finding of guilty of attempted sodomy under Additional Charge I. Appellant, in his reply brief, has joined in that request. The Government in its brief states:
Generally, the Government is limited by a bill of particulars. See e.g. , United States v. Haskins , 345 F. 2d 111, 114 (6th Cir. 1965); Francis A. Gilligan & Fredric I. Lederer, Court-Martial Procedure § 6-13.00, n17 (2nd ed. 1999); cf. , United States v. Harris ,25 M.J. 281 , 283 (C.M.A. 1987) (holding that when an appellant affirmatively declines a bill of particulars he can not on appeal clаim that he was misled when convicted of a lesser included offense).
Gov’t Br. at 10.
On the other hand, the purposes of a bill of particulars are to inform the
defendant of the nature of the charge against him with sufficient precision to
enable him to prepare for trial, to avoid or minimize the danger of surprise at time
of trial and to enable him to plead his acquittal or conviction in bar of another
VIII.
THAT THE MILITARY JUDGE’S ERRONEOUS RULINGS ON TWO KEY PIECES OF EVIDENCE
SUBSTANTIALLY PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL.
prosecution for the same offense when the indictment itself is too vague and
indefinite for such purposes.
United States v. Francisco
,
In this case, thе Appellant clearly knew at trial that he stood accused of attempted oral sodomy since the bill of particulars for Charge II included this allegation. It is also clear that no one at trial considered the Government bound by the bill of particulars with respect to the charge of attempted sodomy. The Government offered no evidence of attempted anal sodomy and the defense did not challenge the treatment of Additional Charge I as an attempted oral sodomy offеnse. The defense did not object to the military judge’s instruction on this charge as attempted oral sodomy and everyone proceeded on that theory of the offense. The trial court’s guilty finding clearly relates to oral sodomy, not anal sodomy. Thеre is no danger the Appellant could be prosecuted a second time for the same offense. We do not believe, under these facts, that the Government is bound by the bill of particulars with respect to Additional Charge I and we will not set aside the finding оf guilty as recommended by the Government and Appellant.
Appellant was also convicted of one specification of sodomy on “divers
occasions from June 2000 to December 2002,” as alleged under Charge II. He
argues in his assigned error that the сritical element of unnatural carnal
penetration has not been established either under factual or legal standards, the
former requiring the evidence to convince this Court beyond a reasonable doubt,
United States v. Turner
,
The Government disagrees, contending that this testimony raises an inference of
penetration sufficient to establish that element, when considered with other testimony that
Appellant would move his tongue up and down when he touched the alleged victim’s
vagina with his mouth and testimony about the vagina which includes both the internal
and external organs. In support of its argument, the Government cites, among other
cases,
United States v. Ruppel
,
Assignments II & III Appellant’s second assignment asserts that the evidence is legally and factually insufficient to sustain findings of guilty of indecent liberties and indeсent acts in specifications 1, 2, and 3, of Charge III and the specification under Additional Charge II. He bases his argument on the contention that the alleged victim’s testimony is unworthy of belief, and, when weighed against Appellant’s “emphatic and unwavering denial оf the offenses,” that the guilty findings should be set aside. The Government, in response, argues that the alleged victim’s testimony is credible, and that we should be convinced of Appellant’s guilt beyond a reasonable doubt after weighing the evidence and making allowanсes for not having personally observed the witnesses. We have weighed the evidence, as requested, and are convinced by it beyond a reasonable doubt that Appellant committed the acts resulting in the guilty findings with respect to specifications 2 and 3 of Charge III and the specification under Additional Charge II.
In assignment of error III, Appellant asserts that
United States v. Walters
,
Assignment IV Assignment of error IV challenges all of the findings of guilty based on the Government’s failure to present evidence of the qualifications of an interpreter of Spanish used by the Government fоr the alleged victim’s testimony, and the military judge’s failure to find the interpreter qualified, as required, according to Appellant, by the Military Rules of Evidence (M.R.E.), as well as the R.C.M. and the UCMJ. Appellant argues that he was prejudiced by the failure to qualify the interpretеr in accordance with M.R.E. 604, which states that an interpreter is subject to the rules relating to qualification as an expert. The Government acknowledges that the interpreter’s qualifications were not placed on the record, but responds that Appellant failed to question the interpreter’s qualifications at trial, raising the issue for the first time on appeal. Citing United States v.
Rynning
,
With respect to the issue of prejudice from failure to qualify the interpreter on the record, we note that Appellant has not challenged the accuracy of the interprеter’s translations by citing to specific errors in her account of the witness’s testimony. Instead, Appellant in his brief submits that the testimony is often contradictory, revealing frequent confusion by the witness, and general failure to clearly express herself, but acknowledges that “[i]t is simply unclear from the record whether these deficiencies are the result of [the witness’s] contradictory testimony, or the poor quality of the translation.” Appellant has not asserted that the interpreter was in fact unqualified to translate from Spanish to English, only that her qualifications were not made a matter of record. Without something showing her deficiency as an interpreter that resulted in inaccurate translations, we find that prejudice from failure to qualify the interpreter on the reсord has not been established. Thus, the asserted error was not plain error and we deem Appellant’s failure to object at trial to have waived the error. For this reason, Appellant’s fourth assignment of error is rejected.
Decision In light of the foregoing discussiоn with regard to assignment of error III, specification 1 under Charge III is set aside and dismissed. The remaining findings of
guilty are deemed to be correct in law and fact and are affirmed. We have reassessed the sentence and have concluded that a lesser sentence would not have been imposed even if the offense that has been set aside had not been before the court. We have also determined, upon reassessment, that on the basis of the entire record the sentence should be approved. Accordingly, the sentence, as approved and partially suspended below, is affirmed.
Judges M C CLELLAND and FELICETTI concur.
For the Court, Roy Shannon Jr. Clerk of the Court
Notes
[1] The eight errors assigned by Appellant are:
I.
THAT THE EVIDENCE OF RECORD IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A
FINDING OF GUILTY OF SODOMY OR ATTEMPTED SODOMY WITH ANOTHER.
II.
THAT THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN GUILTY FINDINGS OF
THE INDECENT LIBERTIES AND INDECENT ACTS OFFENSES.
III.
THAT UNITED STATES V. WALTERS,