## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before BURTON, HAGLER, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Specialist CHARLES W. WOOD

United States Army, Appellant

ARMY 20160364

Headquarters, Fort Bliss Michael J. Hargis, Military Judge (arraignment) Kurt J. Bohn, Milita ry Judge (trial) Colonel Charles C. Poché , Staff Judge Advocate

For Appellant: Lieutenant Colone l Christopher D. Carrier, JA; Major Patrick J. Scudieri, JA; CaptainMatthew L. Jalandoni , JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major C ormac M. Smith, JA (on brief).

27 February 2018

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

A military judge sitti ng as a general court-martial convicted a ppellant, contrary to his pleas, of two specifications of sexual abuse of a child in violation of Article 120b, Uniform Code of Milit ary Justice, 10 U.S.C. § 920 b (2012 & Supp. I 2014). The military judge sentence d appellant to a dishonorabl e discharge, six years of confinement, and reduction t o the grade of E-1 . The conveni ng authority approved the sentence as adjudged.

Appellant’s case is be fore us for review u nder Article 66, UCMJ . Appellant alleges the findings o f guilty reflecting that he committed the charged misconduct on divers occasions in bo th specifications are legally and factual ly insufficient. We agree with appellant, for the charged time period, the evidence only supports theWOOD—ARMY 20160364

2 finding that appellant committed each specif ication of sexual a buse of a child one time. 1

BACKGROUND

On 5 September 2014, appellant atte nded the weddi ng of his sist er, AS. The wedding was held in Al buquerque, New Mexic o. After the wedding , appellant offered to take WH, his four-year-old nephew , back to the hotel . WH’s car seat was placed in the back center seat of appellant’s car and WH was se cured in his car seat.

Two years later, while at a slee pover, WH was ov erheard telling his sevenyear-old friend they should get under the cover and touch each other’s privates. When asked whether he understood it was wrong for little boys t o touch other little boys, WH responded, “no, it’s no t” because “Uncle Charlie [appe llant] does it.”

1 Appellant personally r aises, in an unswor n submission pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 19 82), eight allegations of error. One m erits mention; appellant asserts his de fense counsel were ineffective for pressuring him to elect trial by a milit ary judge alone and failing t o investigat e and present evidence of AS manipulating her mother, YD, during the tri al. Under the circumstances of this case, we see no n eed to order affidavi ts from counsel or a fact-finding hearing pursuant to United States v. DuBay , 17 U.S.C.M.A . 147, 37 C.M.R. 411 (1967). The facts in appellant’s s tatement—even if tru e—“would no t result i n relief.” United States v. Ginn , 47 M.J. 236 , 248 (C.A.A.F. 1997).

Regarding forum select ion, appellant was tw ice advised of his r ight to a trial by members. Appellant was advised of this ri ght during arraignmen t. Then, on the day of trial, with the panel members waiting in the deliberation ro om, appellant changed his forum selection to trial by a military judge alone. In res ponse, the military judge again informed appella nt of his rights, discussed that he would be the milita ry judge, and asked appellant if this choi ce was made voluntarily. Appel lant assured the military judge that it was. Under the terms of Rule for Courts -Martial 903, appellant made a knowing and vol untary election of tri al by a military ju dge alone.

Regarding counsel’s pr etrial investigation a nd trial performanc e, the defense theory of the case was that A S was a bad mother an d harbored a grudge against her family because they may have tried to get custody of h er son. YD test ified that her daughter, AS, was a liar, bad mot her, and threatened her. The military ju dge had the opportunity to see this evidence and weigh it along with the te stimony of all of the other witnesses. Eve n assuming deficient investigation or perf ormance by counsel, appellant’s burden to show prejudice has not been met.WOOD—ARMY 20160364

3 At trial, WH 2testified as follows:

Q. . . . And can you tell th e judge sitting up there did anything happen in the car r ide back to th e hotel with Uncle Charlie?

A. Mm-hmm. [Affirm ative response.]

Q. And what happened?

A. He touched both of my pr ivates when he was not opposed [sic] to.

Q. Okay. And what do you m ean by your privates? Do you mean you r penis?

A. Mm-hmm. [Affirm ative response.]

Q. Okay. Did he m ake you touch him at all in the car?

[The witness indicated a negati ve response by shaking his head.]

When the trial counsel repeated the questio n whether he was mad e to touch appellant in the car, WH again s hook his head indicat ing a negative respo nse.

WH also testified about what ha ppened once they were in the hot el room.

Q. . . . So, did an ything happen in t he hotel room?

A. Grabbed the gooey stuff and made me touch his privates.

Q. . . . Was that Uncle Charlie?

[The witness indicated an affir mative response by nodding his head.]

During the colloquy WH described the gooey stuff as “Slimy” anddescribed appellant’s peni s as “Hard.” WH also described “Yellow stuff” coming out of appellant’s penis an d landing on the carpe t. When asked if thi s ever happened with

2At the time of trial, WH was six years old. A lthough young, W H demonstrated his ability to distinguish between statements that were false and t hose that were true.WOOD—ARMY 20160364

4 appellant before, WH responded, “Yes.” When asked how many tim es, WH held up two fingers. The trial counsel c ontinued the inqu iry as follow s:
Q. Okay. And do you remember where it happened before?

A. In the car.

Q. In the car. Okay. Was that in the car on the way to the hotel?

[The witness indicated an affir mative response by nodding his head.]

WH added a few more details ab out the incidents during cross-ex amination, but did not pr ovide informatio n about any additional times wher e he either touched appellant or appellant touched him.

At the conclusion of the government’s case, trial counsel moved to dismiss the words “and Cedar City, Utah,” and the words “between on or about 28 June 2012 and” from both specifications of The Charge. Defense counsel a greed that it was a minor change and did not oppose the motion. Further, the milit ary judge discussed the change with appell ant and appellant agreed that it was a mi nor change. As a result, both spe cifications of The Charge were limited to misco nduct on or about 5 September 2014, in Alb uquerque, New Mexico.

Ultimately, the milit ary judge found appella nt guilty of both s pecifications of The Charge as amended (i.e., com mitting a lewd act on divers oc casions by both touching WH and having WH touch him on 5 Septe mber 2014).

LAW AND DISCUSSION

Article 66(c), UCMJ, establishes our statutory duty to review a record of trial for legal and factual sufficiency de novo. United States v. Walters , 58 M.J. 391, 395 (C.A.A.F. 2003). Under Article 66(c), UCMJ, we may affirm only those findings of guilty that we find corr ect in law and fact and determine shoul d be affirmed based on the entire record. Id . “‘The test for legal sufficiency is whether, after viewing the evidence in the light most fa vorable to the prosecution, an y rational trier of fact could have found the essential elements of the crime beyond a r easonable doubt.’” United States v. Rosario , 76 M.J. 114, 117 (C.A. A.F. 2017) (quoting United States v. Bennitt , 72 M.J. 266, 268 (C.A.A.F. 2013)). In resolving q uestions of legal sufficiency, this cour t is “bound to draw e very reasonable infe rence from the record in favor of the prosecution.” United States v. Craion , 64 M.J. 531, 5 34 (Army Ct. Crim. App. 2006) (citations omit ted). The test f or a factual s ufficiency “is ‘whether, after weighing the evidence in t he record of trial and making a llowances for not having personally observed the witnesses, [we are] convinced of appellant’s guiltWOOD—ARMY 20160364

5 beyond a reasonable doubt. ’” Rosario , 76 M.J. at 117 (quoting United States v. Oliver , 70 M.J. 64, 68 (C.A. A.F. 2011)). In weigh ing factual suffici ency, we take “a fresh, impartial loo k at the evidence,” applying “neither a pre sumption of innocence nor a presumptio n of guilt.” United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002).

Here, the record of trial contain ed ample evidence from which t he military judge could find and t his court found the e ssential elements 3 of the charged offenses were proved beyond a reasonable doub t on at least o ne occasion (i.e., appellant touched WH’s penis once and ca used WH to touch h is penis once). The evidence in the record, therefore, clearly establishes the legal and factua l sufficiency for one incident in each spe cification. The remai ning question is: whe ther the evidence supports the fin dings that the charged m isconduct occurred more than once? 4

A. Specification 1 – Causin g WH to Touch Appellant

WH clearly describes tugging o n appellant’s penis in the hotel room. WH is less clear about whet her this was the onl y time. Twice when qu estioned by the trial counsel, WH indicated t hat he never t ouched appella nt in the ca r. After testifying

3 The essential element s of sexual abuse of a child are: “[1] th at the accused committed sexual contact upon a c hild by touching or causing an other person to touch, either directly or through the clothing, the genitalia . . . of any person; and [2] that the accused did so wit h intent . . . t o arouse or grat ify the sexual desire of any person.” Manual for Courts-Mar tial, United States (2016 ed.), pt. IV, ¶ 45b.b.(4)(a).

4The government, even after ame nding the specifi cations to a sp ecific day and place, charged each offense as o ccurring “on divers occasions[. ]” The term “divers occasions” means “two or more o ccasions.” Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benc hbook, para. 7-25 (10 Sept. 2014 ). Therefore, to sustain a convic tion for an offense “on d ivers occasions,” we m ust find the misconduct happe ned on two or more occasi ons. As this court ha s stated before, the government’s continue d use of the word “di vers” frequently crea tes appellate issues– either with ambiguou s verdicts as in United States v. Walters , 58 M.J. 391 (C.A.A.F. 2003), or legal insufficien cy as in this case. See United States v. Pasay , ARMY 20140930, 2017 CCA LEXIS 268, *3 n.4 (Army Ct. Crim. App. 19 Ap r. 2017) (mem. op.). If the government charge d offenses on “one or more” inst ead of “two or more” occasions, the Walters issue would be eliminated, the amount of admissible evidence would be the same, and the accused would con tinue to receive ad equate notice of the charges and double je opardy protection. Id. To the extent charging “one or more” presents disjunctive charging, i t is a problem a lready present when the government charges misconduct o n “divers” (i.e., two or more) occasions. Id.WOOD—ARMY 20160364

6 about the incident in hotel room , WH indicated that he had touc hed appellant previously. WH held up two fingers to indicate it had happened two times and then stated it was in the car. 5While there was testimony o f appellant stopping at a fraternity house on th e way to the hotel, th ere was no evidence about WH getting out of the car or appellant getting into the back seat.

When viewing the facts in the light most fa vorable to the gover nment, we conclude the evidence for a finding of “on divers occasions” me ets the minimal standards for legally sufficien cy. However, when applying the test for factual sufficiency, we are not convince d beyond a reason able doubt tha t a second touching occurred. Therefore, we find this specification is factually i nsufficient, and the words “on divers occasions” must be excepted.

B. Specification 2 – Appellant Touching WH

WH testified that appellant touched his “privates” in the car o n the way to the hotel room. There was no other evidence introduced regarding a ppellant touching WH. The government conceded the record does not show appellant committed a lewd act on WH by touching his geni tals on divers occasions. A fter a thorough review of the record, we also cannot concl ude that ap pellant to uched WH on more than one occasion.

CONCLUSION

The court affirms on ly so much of the fi ndings of guilty of Spe cifications 1 and 2 of The Charg e as finds that:

Specification 1: In t hat [appellant], U.S . Army, did, at or near Albuquerque, New Mexi co, on or ab out 5 September 2014, commit a lewd act upon [ WH], a chil d who had not attained the age of 12 years, to wit: caus ing [WH] to touch [appellant’s] penis.

Specification 2: In that [appellant], U. S. Army, did, at or near Albuquerque, New Mexi co, on or ab out 5 September 2014, commit a lewd act upon [ WH], a chil d who had not

5After defense elicited testimon y that WH at times told “tall t ales” and exaggerated, and suggested his mot hers manipulat ed WH’s memory, the governme nt introduced a prior consistent sta tement from WH under M ilitary Rule of Evide nce 801(d)(1)(B). This statement would also sup port the conclusi on that appellant had WH touch his penis on more than one occasion. The statem ent was devoid of a time period or location so it is impossible to tell if it was within the charg ed timeframe, or even within a time period when appellant was subject to military jur isdiction.WOOD—ARMY 20160364

7 attained the age of 12 years, to wit: touching with his hand the penis of [WH].

We are able to reassess the sentence in this case, and we do so after a thorough analysis and in accordance with the principles articul ated by our superior court in United States v. Winckelmann , 73 M.J. 11, 15-16 ( C.A.A.F. 2013), and United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1 986). We must “assure that the sentence is appropriate in r elation to the a ffirmed finding s of guilty, [ and] that the sentence is no greater than that which would have been impo sed if the prejudicial error had not been committed.” Sales , 22 M.J. at 308 (quoting United States v. Suzuki , 20 M.J. 248, 249 (C.M .A. 1985)). If we “ca n determine to [ou r] satisfaction that, absent any error, the s entence adjudged woul d have been of at least a certain severity, then a sentence of that severity or less wi ll be free of the prejudicial effects of error . . . .” Id.

Weighing in favor of rea ssessment is the fact that there is no change to the penalty landscape; the gravamen of the criminal conduct remains substantially the same; appellant chos e to be tried by milita ry judge alone; and this type of offense is of the type with which we have e xperience and familiarity. Acc ordingly, we are confident that based on the enti re record and ap pellant’s condu ct, the military judge sitting alone as a gene ral court-martial wo uld have imposed a s entence of at least a dishonorable discharge , confinement for si xty-six months, and r eduction to the grade of E-1.

All rights, privileges , and property, of whi ch appellant has be en deprived by virtue of that portion of the fin dings and sentence set aside b y this decision, are ordered to be restored. See UCMJ arts. 58a(b) , 58b(c), 75(a).

Senior Judge BURTON an d Judge HAGLER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: