UNITED STATES, Appellee 

v. 

George E. ROLLINS, Senior Master Sergeant 

U.S. Air Force, Appellant 

No. 04-0313 

Crim. App. No. 34515 

United States Court of Appeals for the Armed Forces 

Argued February 8, 2005 

Decided August 25, 2005 

EFFRON, J., delivered the opinion of the Court, in which GIERKE, 

C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined. 

Counsel 

For Appellant: Major Karen L. Hecker (argued); Colonel Beverly 

B. Knott, Colonel Carlos L. McDade, Major Terry L. McElyea, and 

Major James Winner (on brief). 

 

For Appellee: Captain C. Taylor Smith (argued); Colonel LeEllen 

Coacher, Lieutenant Colonel Robert V. Combs, and Lieutenant

Colonel Gary F. Spencer (on brief). 

 

Military Judge: Thomas G. Crossan Jr. 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Rollins, No. 04-0313/AF 

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Judge EFFRON delivered the opinion of the Court. 

At a general court-martial composed of officer members, 

Appellant was convicted, contrary to his pleas, of seven 

offenses in violation of Article 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 934 (2000). He was found not guilty 

of one offense charged under Article 134. The members sentenced 

Appellant to a bad-conduct discharge, confinement for eight 

years, and reduction to E-5. The convening authority revised 

the findings, as reflected in the following tables, to address 

issues involving the application of the statute of limitations 

under Article 43, UCMJ, 10 U.S.C. § 843 (2000). See Part I.A. 

infra; Rule for Courts-Martial (R.C.M.) 1107(b) discussion. 

TABLE 1. FINDINGS MODIFIED BY THE CONVENING AUTHORITY 

CHARGE RESULT OF TRIAL1 CONVENING AUTHORITY’S ACTION 

Charge I Not guilty of attempted 

rape of B; guilty of 

indecent assault of B “on 

divers occasions from on 

or about 27 July 1989 to 

on or about 18 October 

1995” 

Guilty of indecent assault 

of B “on divers occasions 

from on or about 21 July 

1995 to on or about 18 

October 1995” 

Charge II, 

Spec. 1 

Guilty of committing 

indecent acts upon the 

body of B, a female under 

16 years of age, “on 

divers occasions from on 

or about 27 July 1989 to 

on or about 26 July 1997” 

Guilty of committing 

indecent acts on B, a female 

under 16 years of age, “on 

divers occasions from on or 

about 21 July 1995 to on or 

about 26 July 1997” 

 

1

 As initially charged, the inception date for these two offenses was March 

11, 1989. The charge sheet was revised prior to trial to reflect a July 27, 

1989, inception date. 
United States v. Rollins, No. 04-0313/AF 

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TABLE 2. FINDINGS DISAPPROVED BY THE CONVENING AUTHORITY 

CHARGE RESULT OF TRIAL CONVENING AUTHORITY’S ACTION 

Charge II, 

Spec. 2 

Guilty of taking indecent 

liberties with JG, a male 

under 16 years of age, 

“between on or about 1 

November 1990 and on or 

about 30 November 1990” 

Dismissed 

Charge II, 

Spec. 3 

Guilty of taking indecent 

liberties with JG, a male 

under 16 years of age, 

“between on or about 1 

January 1991 and on or 

about 31 December 1992” 

Dismissed 

Charge II, 

Spec. 4 

Guilty of committing an 

indecent act upon the 

body of KC, a female 

under 16 years of age, 

“between on or about 1 

June 1993 and on or about 

30 June 1993” 

Dismissed 

TABLE 3. OTHER FINDINGS 

CHARGE RESULT OF TRIAL CONVENING AUTHORITY’S ACTION 

Charge II, 

Spec. 5 

Guilty of committing an 

indecent act with JG 

“between on or about 15 

December 1995 and on or 

about 31 January 1996 . . 

. by giving him a 

pornographic magazine and 

by requesting that they 

masturbate together” 

Approved 

Charge II, 

Spec. 6 

Not guilty of committing 

indecent acts upon the 

body of B, a female under 

16 years of age, “on 

divers occasions from on 

or about 27 July 1997 to 

on or about 31 December 

1999” 

Not applicable. See R.C.M. 

1107(b)(4) (an acquittal is 

not subject to disapproval 

by the convening authority). 

Charge II, 

Spec. 7 

Guilty of receiving child 

pornography “from on or 

about 1 December 1996 to 

on or about 6 April 2000” 

Approved 
United States v. Rollins, No. 04-0313/AF 

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The convening authority approved the adjudged bad-conduct 

discharge and reduction in grade, and reduced the period of 

confinement from eight years to seven years. The Air Force 

Court of Criminal Appeals, in an unpublished opinion, affirmed 

the findings and sentence as modified by the convening 

authority. United States v. Rollins, No. ACM 34515, 2003 CCA 

LEXIS 303, at *26-*27, 2004 WL 26780, at *10 (A.F. Ct. Crim. 

App. Dec. 24, 2003). 

On Appellant’s petition, we granted review of the following 

two issues concerning the convening authority’s revision of the 

findings described in Tables 1 and 2, supra, and the related 

modification of the sentence: 

I. WHETHER THE CONVENING AUTHORITY ERRED 

BY ALTERING THE INCEPTION DATE OF TWO 

SPECIFICATIONS IN ORDER TO DEFEAT A 

STATUTE OF LIMITATIONS CLAIM. 

II. WHETHER THE CONVENING AUTHORITY ERRED 

BY ATTEMPTING TO REASSESS THE SENTENCE 

AFTER SETTING ASIDE THREE FINDINGS OF 

GUILTY. 

 We also granted review of a separate issue assigned by 

Appellant concerning the merits of Charge II, specification 5, 

described in Table 3, supra: 

III. WHETHER APPELLANT’S CONVICTION FOR 

INDECENT ACTS WITH JG MUST BE SET ASIDE 

WHERE APPELLANT’S ACTIONS WERE NOT DONE 

WITH THE “PARTICIPATION” OF JG AND 
United States v. Rollins, No. 04-0313/AF 

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WHERE APPELLANT’S ACTIONS ARE PROTECTED 

BY THE FIRST AMENDMENT. 

 For the reasons set forth below, we conclude under Issue I 

that the convening authority erred, in the particular 

circumstances of this case, by revising the findings described 

in Table 1 rather than ordering a rehearing. Because our 

decision on Issue I will require a rehearing on sentence, we 

need not address Issue II. With respect to Issue III, we 

conclude that a reasonable factfinder could have found beyond a 

reasonable doubt that the essential elements of indecent acts 

with another were met. We also find that the activity at issue 

was not protected by the First Amendment as applied to members 

of the armed forces. 

I. STATUTE OF LIMITATIONS 

A. BACKGROUND

 

Appellant was convicted of various sexual offenses under 

Article 134, including offenses against persons under the age of 

16. At the time of Appellant’s trial, the applicable statute of 

limitations precluded prosecution of such offenses if “committed 

more than five years before the receipt of sworn charges and 
United States v. Rollins, No. 04-0313/AF 

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specifications by an officer exercising summary court-martial 

jurisdiction over the command.” Article 43(b)(1).2 

1. Pretrial and trial proceedings

On July 21, 2000, the officer exercising summary courtmartial jurisdiction over the command received sworn charges 

alleging the eight offenses under Article 134 described at the 

outset of this opinion. At the subsequent court-martial, 

defense counsel moved to dismiss Charge I and its specification, 

a portion of specification 1 of Charge II, and specifications 2, 

3, and 4 of Charge II, citing the five-year statute of 

limitations in Article 43(b)(1). See Tables 1 and 2 supra

(describing the dates of the charged offenses). 

The military judge rejected the motion, citing the decision 

of the Air Force Court of Criminal Appeals in United States v. 

McElhaney, 50 M.J. 819 (A.F. Ct. Crim. App. 1999). In 

McElhaney, the court concluded that Article 43(b)(1) had been 

supplanted in specified cases by 18 U.S.C. § 3283 (2000), which 

provided an extended statute of limitations for certain child 

abuse offenses tried in federal civilian courts. McElhaney, 50 

M.J. at 826-27. 

 

2

 The subsequent legislative extension of the statute of limitations for 

certain child abuse offenses is not at issue in the present appeal. See

National Defense Authorization Act for Fiscal Year 2004, Pub. L. No. 108-136, 

§ 551, 117 Stat. 1392 (2003) (amending Article 43); United States v. 

Thompson, 59 M.J. 432, 433 (C.A.A.F. 2004). 
United States v. Rollins, No. 04-0313/AF 

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Following presentation of evidence by the parties on the 

merits of the charged offenses, the military judge instructed 

the members on the findings, including instructions on the two 

offenses pertinent to Issue I -- Charge I and its specification 

and Charge II, specification 1. Each of these charges alleged 

multiple crimes -- offenses that occurred on “divers occasions.” 

In the course of instructing the members on attempted rape 

under Charge I, the military judge instructed the members on the 

elements of lesser included offenses, including the offense of 

indecent assault. The instructions advised the members that to 

find Appellant guilty of indecent assault under Charge I, they 

would have to be convinced beyond a reasonable doubt that 

Appellant assaulted the alleged victim “on divers occasions from 

on or about 27 July 1989 to on or about 18 October 1995.” The 

military judge similarly advised the members that to find 

Appellant guilty of indecent acts with a child under Charge II, 

specification 1, they would have to be convinced beyond a 

reasonable doubt that Appellant committed the charged acts “on 

divers occasions from on or about 27 July 1989 to on or about 26 

July 1997.” 

Under Charge I, the members found Appellant not guilty of 

attempted rape but guilty of the lesser included offense of 

indecent assault on divers occasions during the charged time 

period. The members found Appellant guilty of six of the 
United States v. Rollins, No. 04-0313/AF 

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remaining seven specifications under Charge II during the 

charged time periods. See Tables 1, 2, and 3 supra. 

 2. Post-trial proceedings before the military judge

Subsequent to trial, but before the convening authority’s 

action, we decided United States v. McElhaney, 54 M.J. 120 

(C.A.A.F. 2000), reversing the Air Force court’s interpretation 

of Article 43(b)(1). In McElhaney, we held that the extended 

statute of limitations applicable to federal civilian 

proceedings under 18 U.S.C. § 3283 did not supplant Article 43. 

McElhaney, 54 M.J. at 126. Defense counsel in the present case 

requested a post-trial session and moved to dismiss five of the 

seven findings, citing the recently published decision in 

McElhaney. 

In the post-trial session, the defense contended that the 

entirety of the three offenses described in Table 2, supra, fell 

outside the five-year statute of limitations in Article 

43(b)(1). With respect to the two offenses described in Table 

1, supra, the defense noted that “97% of the charged time frame” 

for Charge I fell outside the five-year statute of limitations, 

and that “75% of the charged time frame” for specification 1 of 

Charge II fell outside the five-year period. The defense 

contended “[b]ecause of the manner in which the two 
United States v. Rollins, No. 04-0313/AF 

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specifications were charged, it is impossible to determine the 

specific events, if any, the members found to be true beyond a 

reasonable doubt that fall within the past five years.” 

In response, the Government recommended that the military 

judge allow the convening authority to address the impact of 

McElhaney on the findings and sentence after receiving advice 

from his staff judge advocate (SJA). The military judge 

rejected the defense motion. It is not apparent from the record 

whether the military judge rejected the defense motion on the 

merits, or whether the military judge decided that any posttrial corrections should be made by the convening authority. 

3. Revision of the findings and sentence by the convening 

authority

In his post-trial recommendation under R.C.M. 1106, the SJA 

advised the convening authority that the findings could not be 

approved as adjudged in light of the application of the statute 

of limitations to the offenses. The SJA recommended that the 

convening authority disapprove the findings and dismiss the 

charges for the three offenses described in Table 2, supra, all 

of which involved findings dated prior to July 21, 1995, the 

critical date under the statute of limitations. The two 

offenses described in Table 1, supra, involved findings of acts 

on “divers occasions” over a period that began before July 21, 

1995, and ended after that date. With respect to those 
United States v. Rollins, No. 04-0313/AF 

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offenses, the SJA recommended modification of each finding to 

show July 21, 1995, as the inception date for each offense. The 

SJA also recommended approval of the two findings described in 

Table 3, supra, which were not affected by the statute of 

limitations. Finally, the SJA recommended that the convening 

authority approve the adjudged sentence, subject to reducing the 

period of confinement from eight to five years to cure the 

prejudice from the erroneous findings. 

The convening authority revised the findings as recommended 

by the SJA. With respect to the sentence, the convening 

authority reduced the period of confinement from eight to seven 

years and otherwise approved the adjudged sentence. The Court 

of Criminal Appeals affirmed the findings and sentence, as 

modified by the convening authority. 

B. INSTRUCTIONS TO THE PANEL 

REGARDING THE STATUTE OF LIMITATIONS 

Issue I asks whether the revisions ordered by the convening 

authority cured the prejudice from the erroneous application of 

the statute of limitations at trial. The convening authority 

has broad discretion under Article 60(c)(1), 10 U.S.C. § 

860(c)(1) (2000), to modify the findings and sentence. This 

power may be exercised to correct errors or otherwise as a 

matter of command prerogative. Id. When the convening 
United States v. Rollins, No. 04-0313/AF 

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authority acts to correct errors in the results of trial, we 

review that action to determine whether the convening authority 

has cured any prejudice flowing from the erroneous treatment of 

the statute of limitations at trial. See Article 59(a), 10 

U.S.C. § 859(a) (2000). 

In Thompson, 59 M.J. 432, 439-40 (C.A.A.F. 2004), we 

addressed the relative responsibilities of the military judge 

and the members with regard to the statute of limitations. As 

in the present case, the accused in Thompson was charged with 

committing rape on divers occasions over a lengthy period of 

time. Id. at 433. The military judge instructed the members as 

to both rape and the lesser included offenses of carnal 

knowledge and indecent acts with a child. Id. at 434. The rape 

charge was not restricted by the statute of limitations, but the 

lesser included offenses at that time were each subject to a 

five-year limitation period. Id. at 433. Although the military 

judge was required to instruct the members regarding the effect 

of the statute of limitations on the lesser included offenses, 

he did not do so, and declined to take corrective action when 

this defect was brought to his attention while the members were 

deliberating on findings. Id. at 435-36. When the members 

returned a finding of not guilty on the charge of rape but 

guilty on the lesser included offense of indecent acts with a 

child, the military judge attempted to correct the error by 
United States v. Rollins, No. 04-0313/AF 

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amending the charges to conform the time frame of the offenses 

to the statute of limitations. Id. at 437. 

The appellant in Thompson challenged the propriety of the 

military judge’s action. We held that the military judge erred, 

stating that when the evidence raises an issue concerning the 

statute of limitations, the military judge must “provide the 

members with instructions that focus[] their deliberations on . 

. . the period not barred by the statute of limitations.” Id.

at 440. Our opinion emphasized that: 

[t]he time to focus the members’ attention on the 

correct time period was before they concluded their 

deliberations -- not after they concluded their 

deliberations and returned a finding that addressed a 

much longer span of time. The failure to do so was 

not relieved by the military judge’s subsequent 

reference to evidence in the record that could 

support the finding. The issue here is not legal 

sufficiency of the evidence. It is the failure of 

the military judge to focus the panel’s deliberations 

on the narrower time period permitted by the statute 

of limitations. 

Id. (internal citations omitted). 

 The same principles apply in the present case. The issue 

is not whether the record contains the bare minimum of evidence 

that meets the legal sufficiency test under United States v. 

Turner, 25 M.J. 324, 324-25 (C.M.A. 1987)(citing the legal 

sufficiency test from Jackson v. Virginia, 443 U.S. 307, 319 

(1979)), but whether the military judge properly instructed the 

members regarding the statute of limitations. Here, as in 
United States v. Rollins, No. 04-0313/AF 

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Thompson, the military judge did not provide the instructions 

necessary “to focus the panel’s deliberations on the narrower 

time period permitted by the statute of limitations.” 59 M.J. 

at 440. 

 The issue in the present appeal is whether the corrective 

action taken by the convening authority cured any prejudice from 

the error. The period covered by Charge I and submitted to the 

panel extended for more than five years. As modified by the 

convening authority, the findings covered less than three 

months. See Table 1 supra. The period covered by Charge II, 

specification 1, and submitted to the panel encompassed eight 

years, and the convening authority revised this to cover only 

two years. Under Thompson, the convening authority’s action in 

this case did not cure the prejudice from the military judge’s 

failure to focus the attention of the members on the appropriate 

period of time under the circumstances of this case. See

Kotteakos v. United States, 328 U.S. 750, 765 (1946). 

Accordingly, we shall set aside the affected findings and 

authorize a rehearing. See infra Part III. 

II. INDECENT ACTS 

Appellant also challenges his conviction under Charge II, 

specification 5, for a violation of Article 134 by committing an 
United States v. Rollins, No. 04-0313/AF 

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indecent act with JG “by giving him a pornographic magazine and 

by requesting that they masturbate together.” According to 

Appellant, the conviction is defective on two grounds: first, 

that there was no active participation by JG; and second, that 

Appellant’s activities were protected under the First Amendment 

to the Constitution. There are no statute of limitations issues 

concerning this conviction. We review constitutional and legal 

sufficiency claims de novo. Jacobellis v. Ohio, 378 U.S. 184, 

190 (1964); Turner, 25 M.J. at 325. 

A. BACKGROUND 

At trial, the prosecution introduced the following evidence 

through the testimony of JG, Appellant’s brother-in-law. 

Appellant, who was visiting JG and his family, went to the 

movies with JG, who was then under eighteen years of age. After 

the movie, Appellant drove to an adult bookstore and purchased a 

pornographic magazine as a gift for JG. Upon returning to the 

car, Appellant placed the magazine in the backseat and told JG 

“Don’t look at it now. Not now.” 

Appellant then parked the car behind a nearby grocery 

store, handed the magazine to JG, and suggested that the two of 

them masturbate together while looking at the magazine. 

According to JG: 

I don’t recall exactly what he [Appellant] said, but he was 

-- I said, “We’re going to look at this now in the back of 
United States v. Rollins, No. 04-0313/AF 

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this building?” And he said, “Yes.” And it appeared as 

though he was beginning to -- was giving me the magazine 

and he said, “Well, it’s all right. Let’s -- let’s,” I 

recall. And I was still not understanding exactly what he 

was suggesting. I asked, “Are you suggesting that we now 

look at this magazine and we masturbate behind this 

building?” And he said, “Yes.” 

JG refused, left the car, and remained outside until Appellant 

dropped the subject. Appellant then drove back to JG’s house 

and gave JG the magazine. JG did not mention this event to 

anyone at the time. At trial, Appellant acknowledged that he 

thought JG was eighteen years of age and that he bought a 

pornographic magazine as a gift for JG, but he denied stopping 

at the grocery store or discussing masturbation with JG. 

B. DISCUSSION 

 The offense of committing indecent acts with another has 

three elements: (1) that the accused committed a wrongful act 

with a certain person; (2) that the act was indecent; and (3) 

that under the circumstances, the conduct of the accused was to 

the prejudice of good order and discipline in the armed forces 

or was of a nature to bring discredit upon the armed forces. 

Manual for Courts-Martial, United States (2002 ed.)(MCM), pt. 

IV, ¶ 90.b. The determination of whether an act is indecent 

requires examination of all the circumstances, including the age 

of the victim, the nature of the request, the relationship of 

the parties, and the location of the intended act. See 
United States v. Rollins, No. 04-0313/AF 

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generally United States v. Brinson, 49 M.J. 360, 364 (C.A.A.F. 

1998). An act is indecent if it “signifies that form of 

immorality relating to sexual impurity which is not only grossly 

vulgar, obscene, and repugnant to common propriety, but tends to 

excite lust and deprave the morals with respect to sexual 

relations.” MCM, pt. IV, ¶ 90.c. The military judge provided 

the members with appropriate instructions on these requirements. 

 In this appeal, Appellant contends that the evidence did 

not demonstrate the requisite commission of a wrongful act 

“with” another person. See United States v. Thomas, 25 M.J. 75, 

76 (C.M.A. 1987); United States v. Eberle, 44 M.J. 374, 375 

(C.A.A.F. 1996); United States v. McDaniel, 39 M.J. 173 (C.M.A. 

1994). 

In the present case, we assess whether any reasonable 

factfinder could have found the essential elements beyond a 

reasonable doubt, considering the evidence in the light most 

favorable to the prosecution. Turner, 25 M.J. at 324 (citing 

Jackson v. Virginia, 443 U.S. at 319). In resolving this 

question, we are required to draw every reasonable inference 

from the record in favor of the prosecution. United States v. 

Blocker, 32 M.J. 281, 284 (C.M.A. 1991). In that context, the 

evidence shows that Appellant, while in the parking lot of a 

commercial establishment open to the public, gave a pornographic 

magazine to a person under eighteen years of age as part of a 
United States v. Rollins, No. 04-0313/AF 

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plan or scheme to stimulate mutual masturbation. A reasonable 

factfinder could conclude that such conduct amounted to the 

commission of a service-discrediting indecent act “with” another 

person in violation of Article 134. 

With respect to the constitutional challenge, we note that 

the present case does not involve a simple exchange of 

constitutionally protected material, but instead involves a 

course of conduct designed to facilitate a sexual act in a 

public place. Appellant has not specified the manner in which 

the charge violated the First Amendment, and he has cited no 

case for the theory that the conduct here is protected by the 

First Amendment. 

In any case, even if his conduct were subject to the 

heightened standard of review applicable to First Amendment 

claims in civilian society, the armed forces may prohibit 

service-discrediting conduct under Article 134 so long as there 

is a reasonable basis for the military regulation of Appellant’s 

conduct. See Parker v. Levy, 417 U.S. 733, 743-52 (1974). The 

military has a legitimate interest in deterring and punishing 

sexual exploitation of young persons by members of the armed 

forces because such conduct can be prejudicial to good order and 

discipline, service discrediting, or both. Accordingly, 

Appellant had no right under the First Amendment to exchange 
United States v. Rollins, No. 04-0313/AF 

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pornographic materials with a young person as part of a plan or 

scheme to stimulate a sexual act in a public place. 

III. CONCLUSION 

 The decision of the United States Air Force Court of 

Criminal Appeals is reversed with respect to Charge I and its 

specification, and specification 1 of Charge II, and the guilty 

findings to those offenses are set aside. The decision of the 

Court of Criminal Appeals as to the remaining offenses is 

affirmed, and the sentence is set aside. The record is returned 

to the Judge Advocate General of the Air Force, and a rehearing 

is authorized.