## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before WOLFE, SALUSSOLIA, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant LAWRENCE P. MUSCAT United States Army, Appellant

ARMY 20160534

Headquarters, 1st Special Forces Command (Airborne) Deidra J. Fleming and Richar d J. Henry, Military Judges

Lieutenant Colonel Terri J. E risman, Staff Judge Advocate

For Appellant: Major Brendan R . Cronin, JA; Captain Meghan E. Mahaney, JA (on brief); Lieutenant Col onel Tiffany Pond, JA; Captain Patrick G. Hoffman, JA; Captain Benjamin A. Accinelli, JA (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Captain Jeremy Watf ord, JA (on brief).

26 October 2018

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

SALUSSOLIA, Judge:

A military judge sitti ng as a general court-martial convicted a ppellant, contrary to his pleas, of two sp ecifications of aggravated sexu al contact with a child under age twelve, one specifi cation of indecent liberty with a child under age sixteen, three specifi cations of non-forci ble sodomy with a chi ld under age twelve, three specifications o f assault consummate d by battery with a c hild under age sixteen, and one specification of communi cating a threat, in vi olation of Articles 120, 125, 128, and 1 34, Uniform Code of Military Justice, 10 U. S.C. §§ 920, 925, 928, and 934 (2007 and 2012) [UCMJ]. The m ilitary judge senten ced appellant to be dishonorably discharged from the service, confined for twenty y ears, and reduced to the grade of E-1. The convening authorit y approved only so muc h of the sentence asMUSCAT—ARMY 20160534

2 provided for a dishonorable discharge, confinement for seventee n years a nd eleven months, and reduction t o the grade of E-1. 1

Appellant’s case is no w before us for revi ew pursuant to Articl e 66, UCMJ. Appellant raises four assignments of error, one of which merits discussion, but no

relief. 2 Appellant also personally r aises matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 19 82). We have reviewe d these matters an d find they do not merit di scussion or relief. 3

1 The convening author ity granted clemency i n the form of a two year reduction of appellant’s sentence to confinement after disapproving and dism issing one specification of sexual assault, one specifica tion of sodomy, a nd one specif ication of assault consummated by battery o f a child under a ge sixteen. T he convening authority determine d clemency was warrant ed because the militar y judge made a fatal variance when finding appe llant guilty by exceptions and substitutions for those specifications. The conven ing authority also granted cle mency by reducing appellant’s approved sentence to confinement by thirty days due to the delay in posttrial processing.

2 One of appellant’s assignments of error states the conviction under the Specification of Charge V, allegi ng a violation of Article 134, UCMJ, is legally

insufficient because the record c ontains no eviden ce that said conduct was prejudicial to the goo d order and dis cipline in the armed force s. Appellant requests

this court dismiss t hat language from the specification, and gr ant any other relief as appropriate. The government conc urs as to the lac k of evidence and requests this court dismiss the language. The government, however, asks this court to affirm both the remainder of the specification and the sentence as adjudged . Having reviewed the record of trial, we find it devoid of any evidence demonstr ating that appellant’s

communication of a threa t caused a reasonabl y direct and palpab le injury to good order and discipline i n the armed forces. Recognizing the prin ciple of “plead in the conjunctive, prove in the disjunctive,” the military judge’s ge neral finding of guilty was proper becaus e at least one theory – that appella nt’s misco nduct was of a nature to bring discredit upo n the armed forces – was proven beyond a reasonable doubt.

See United States v. Williams , 78 M.J. 54 3, 547 (Army Ct. Crim. App. 2018) . As such, we reject the g overnment’s concession and affirm the spec ification as is.

3 In appellant’s Grostefo n matters, he contends t he military j udge erred by permitting the government to use charged sexual misconduct to p rove propensity to commit other charged s exual misconduct. A ppellant’s contention is based solely on the government’s notice of inten t to use charge d misconduct as propensity evidence, marked as Appellate Exhibit XIV . We find no merit to appellant ’s position. Other than the government’s notice of i ntent, there is nothing in the record indicating

(continued . . .)MUSCAT—ARMY 20160534

3 BACKGROUND

While stationed at Fort Bragg, North Carolin a, appellant sodomi zed his biological son, NM. The misco nduct took place in their home wh en NM was four years old. 4 No one else was prese nt when the incident occurred. NM repor ted this

incident towards the e nd of January 2014.

As a result of the m isconduct, appellant was charged in Speci fication 3 of Charge III with a violation of A rticle 125, UCMJ. The specific ation alleged:

In that [appellant] did at or near Fort Bragg, North Carolina, on divers occasi ons between on or about 1 August 2012 and o n or about 27 Jan uary 2014, commit sodomy with [NM] a child u nder the age of 12 years.

Appellant’s assignment of error s tates Specification 3 of Charg e III is legally and factually insufficient becau se the evidence at trial did no t establish he committed the charged offense prio r to Congress re pealing and r eplacing the statute under which the govern ment charged him.

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 we find correct in law and fact and determine, based on the entire record,

should be affirmed. Id . The test for legal sufficien cy of the evidence is whether, viewing the evidence in a light m ost favorable to the governmen t, a fact-finder could rationally have found all of the essential elemen ts of an offen se beyond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 318-19 (1979); United States v. Blocker

, 32 M.J. 281, 284-85 ( C.M.A. 1991). In res olving questions of l egal sufficiency, this

(. . . continued) the government sought to use charged misco nduct as pr opensity e vidence. More importantly, there is nothing in the record indicat ing the mili tary judge co nsidered improper propensity ev idence while servin g as the trier of fact . We note appellant’s trial occurred after our superior court’s decision in United States v. Hills , 75 M.J.

350 (C.A.A.F. 2016), and ar e confident the military judge knew and followed the

law in effect at the time of trial. Furth ermore, no thing in th e record contravenes or

undermines this presumption.

4 NM was born in June 2009.MUSCAT—ARMY 20160534

4 court is “bound t o draw every reas onable inference from the evi dence of record in favor of the p rosecution.” United States v. Craion , 64 M.J. 531, 534 (C.A.A.F. 2006) (citations omitted). In wei ghing factual sufficiency, we take “a fresh, impartial look at the evidence, ” applying “neither a presumptio n of innocence nor a presumption of guilt.” United States v. Washington , 57 M.J. 394 , 399 (C.A.A.F. 2002). "[A]fter weighi ng the evidence in the recor d of trial a nd making allowances for not having personally observed the witnesses, [we must be] convinced of the [appellant's] guilt beyond a reasonable doubt.” United States v. Turner , 25 M.J. 324, 325 (C.M.A. 1987).

In 2013, the National Defense Authorizatio n Act for Fiscal Year 2014, Pub. L. No. 113-66 § 1707, 127 Stat. 672, 961 ( 2013) [NDAA] repealed an d replaced the offense of Sodomy, Article 125, UC MJ (prior Artic le 125), with the offense of Forcible Sodomy, Article 125, UCMJ (revised A rticle 125), with an effective date of

26 December 2013. Based on this legislative change, appellant argues the time period covered by the s pecification crossed the effective date and resulted in the government inadvertently charging appellant with committing off enses under these two different articles. Noting the military judge did not make specific findings as to when the misconduct on divers occasions actually occurred, appe llant contends we

cannot discern whether the misc onduct occurred u nder either the prior or revised

version of Artic le 125, UCMJ.

Essentially, the issue could be summarized as follows: NM cred ibly testified appellant orally sodomized him w hen he was four y ears old. Dur ing the year NM was four years old, Ar ticle 125, UCMJ, was a mended. If we cann ot determine, with certainty, whether the offense o ccurred before or after the sta tutory change, can we affirm the finding of guilty? We conclude we may affirm the co nviction only if: (1) the specification sta tes an offense under both the prior and revised versions of Article 125, UCMJ; and (2) the evi dence is factual ly and legall y sufficient under both the prior and re vised versions of Article 125, UCMJ.

A. Does the specification state an offense?

We first look to wheth er the specification states an offense un der either

version of Article 12 5, UCMJ. The standar d for determining whe ther a specification

states an offense is whether the specification alleges “every e lement either expressly or by implication, so as to give the accused notice or protect him from double jeopardy.” United States v. Crafter , 64 M.J. 209 , 211 (C.A.A.F. 2006); United

States v. Dear , 40 M.J. 196, 1 97 (C.M.A 1994). “The q uestion of whether the specification states an offense is a question of the law this C ourt reviews de novo.” Crafter , 64 M.J. at 211.

As already noted, Speci fication 3 of Charge II I alleges a viola tion of Article 125, UCMJ, “in that [appellant] di d at or near Fort Bragg, Nort h Carolina, on diversMUSCAT—ARMY 20160534

5 occasions between on or about 1 A ugust 2012 and on or about 27 January 2014, commit sodomy with [NM] a child under the age of 12 years.”

Given the date range ch arged in the specification, we find that both the prior

and revised versions of Article 125, UCMJ, were charged under t his specification.

We also hold it states an offense as it pertains to both versio ns of Article 125,

UCMJ.

As to the prior Article 125, UC MJ, the specifica tion provides s ufficient notice to the appellant by alleging the element of engag ing in the act of unnatural carnal copulation with ano ther along w ith the Marcum factor that the act was done with a child under the age of twelve. United States v. Marcum , 60 M.J. 198, 207 (C.A.A.F. 2004). 5 The same conclusion is reached regarding the revised Article 125, UCMJ. The revised Article 125, UCMJ, c riminalizes acts of sodomy that are accomplished either by “unlawful fo rce or without the co nsent of the other p erson.” See Article 125, UCMJ; Manual for Courts-Mar tial, United States (2016 ed.) [ MCM ], pt. IV, para. 51.a.(a). Our s uperior court has nev er recognized the ab ility of a child under the age of twelve to leg ally consent to sodomy. 6 See United States v. Banker , 60 M.J. 216, 220 (C.A.A.F . 2004). Here, by alle ging appellant sod omized NM, a child under the age of twelve, the sp ecification alleges by implicati on the element of “without consent of the other per son.” According ly, the specif ication provides notice to the appellant as to t he elements of bo th versions of Article 125, UCMJ.

B. Is the evidence legally and factually sufficient?

Having reviewed the en tire record of trial , and after making al lowances for not having seen and heard the witn esses, we are convinced the e vidence is legally and factually sufficient in all but one respect.

5 In Marcum , our superior court provided the framework for d istinguishing between constitutionally protected conduc t determined by the Supreme Co urt in Lawrence v.

Texas , 539 U.S. 558 (2003), and conduct that ma y be prosecuted crimi nally under Article 125, UCMJ. 60 M.J. at 205-06. Our s uperior court uses the term “ Marcum factors” to refer to any factor that removes the sexual conduct from the scope of

Lawrence’s protected interest. United States v. Castellano , 72 M.J. 217, 218 n. 5 (C.A.A.F. 2013).

6 During the date range charged und er Specification 3 of Charge I II, the UCMJ explicitly provides th at a child, not legal ly married to the pe rson committing a sexual or lewd act, cannot consent to the act. See Article 120b, UCMJ; MCM (2012 ed.), pt. IV, para. 45b.a(g). A c hild is defined as any person who has not attained the age of sixteen years. MCM (2012 ed.), pt. IV, p ara. 45b.a(h)(4).MUSCAT—ARMY 20160534

6 We are not convinced appellant sodomized NM on more than one oc casion. NM testified he was sodomized by appellant when he was four yea rs old and lived in

their home in North C arolina. NM stated a ppellant pl aced his m outh on NM’s private part after a ppellant removed NM’s clothes. NM stated h e and appellant were alone during the incident and that his mother and sister were d ownstairs watching a movie. NM also indicated appellant told him not to tell anyone about what happened. When asked how many times this happened, NM replied “probably about

fifteen.” NM did not provide any d etails as to t he other incid ents nor does the

record contain any other ev idence NM was sodom ized more than th e one time he

described. While NM’s statement the sodomy occurr ed “probably about fifteen” times is legally sufficient evid ence to support the specificati on as charged, we are not personally convin ced, beyond a reasonabl e doubt, a nd we the refore grant relief in our decretal paragraph below.

CONCLUSION

On consideration of the entire record, we AFFIRM only so much o f the finding of guilty of Specificatio n 3 of Charge III as finds app ellant did, at or near Fort Bragg, North Carolina, bet ween on or about 1 August 2012 a nd on or about 27 January 2014, commit so domy with [NM] a chil d under th e age of 12 years. The remaining findings of guilty are AFFIRMED.

We are able to reasse ss the sentence on the basis of the errors noted and do so after conducting a thorough a nalysis of the tot ality of the cir cumstances presented by appellant's ca se and in accordance with the principles artic ulated by our superior

court in United States v. Sales , 22 M.J. 30 5, 307-08 (C.M.A. 1986) and United

States v. Winckelmann , 73 M.J. 11, 15-16 ( C.A.A.F. 2013).

In evaluating the Winckelmann factors, we first find n o change in the penalty landscape that might cause us pa use in reassessi ng appellant's sentence, as the potential maximum sentence to confinement remains life, a sente nce far greater than that which the military judge im posed. Second, we note appella nt elected to be tried by a military judge al one. We are confident the sentence to co nfinement would have

extended to at least se venteen years and el even months had the factfinder found appellant guilty of S pecification 3 of Charg e III for sodomizin g his son, N M, on one

vice more than one o ccasion. Third, we fi nd the remaining offe nses capture the gravamen of appellant's criminal conduct. Finally, based on ou r experience as judges on this court, we are f amiliar with the remaining offens es so that we may reliably determine wha t sentence would have been imposed at tri al. Having conducted this reassessment, we A FFIRM only so muc h of the sent ence as provides for a dishonorable discharge, co nfinement for se venteen years a nd eleven months, and reduction to the grade of E-1.

Judge ALDYKIEWICZ concurs.MUSCAT—ARMY 20160534

7 WOLFE, Senior Judge, concurring:

I have been unable to find a mi litary case that definitively es tablishes a framework for charging (and reviewing on app eal) crimes that ar e alleged to have occurred during a period of statutory c hange. By this I mean a statutory change that

affects cases where th e government alleges the offense occurred before and after the

effective date of th e amendment to a pun itive article. Today, we determine a specification will stat e an offense if it co ntains all of the e lements from both the old and new versions of the punitive article. This is a reasonable conclusion and I therefore fully join the opinion . Under this fra mework, the ac cused is put fully on

notice of all elements for whic h he must defend against, and, a t worse, the government is req uired to over prov e its case.

In United States v. Forrester, 76 M.J. 389 (C.A.A.F. 201 7), the military judge faced just such an iss ue. The offense of c hild pornography cha nged on 12 January

2012. See Article 134, UCMJ; MCM (2012 ed.), pt. IV, par a. 68b. The accused was charged with possessing child por nography both bef ore and after the effective date of the change. Forrester , 76 M.J. 391. The m ilitary judge’s solu tion was to sever each child pornography specification into two specifications, o ne alleging conduct before 12 January 2012, and on e alleging conduct after that dat e. Id . The military judge then merged the specificat ions back together after findin gs. Id . at 392. This is a possible solution, but is i t the only one?

Consider, as an example, a carja cking that occurs sometime this coming New

Year’s Eve. As of 1 J anuary 2019, the defi nition of robbery wi ll no longer require

as an element that the accused took propert y with the intent to permanently deprive

the owner of its use and benefit. 7 If the government canno t prove the intent to permanently depri ve, (if for example the car was taken for a br ief joy ride) then the

government must prove that the taki ng by force occurred after m idnight (i.e. “ on 1 January 2019,” not “o n or about 1 January 2019”). However, if the government alleges and proves the accused t ook the propert y with the inten t to keep it, then it

matters little whether the offense occurred before or after the clock strikes midnight.

Whether this is the correct fra mework, time will tell. I write separately to

note this is soon like ly to be an issue of s ignificant importan ce. On 1 Jan uary 2019, more changes to puniti ve articles will simultaneously take effe ct than has ever

7 Compare Article 122, U CMJ (2016 ed.) with Military Justice Ac t of 2016, Pub. L. No. 114-328, § 5434 (2016) (removing the wo rds “with intent to steal” from robbery eliminating the r equirement to show the accused intended to per manently deprive the

victim of the vic tim’s property).MUSCAT—ARMY 20160534

8 occurred since the pas sage of the UCMJ near ly seventy years ago . Thus, ou r opinion today might be ripe for additional scrutiny.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: