UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, HERRING, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant KORTNEY R. MARBURY 

United States Army, Appellant 

ARMY 20140023 

Headquarters, United States Army Alaska 

Timothy Grammel, Military Judge (arraignment) 

Jeffery D. Lippert, Military Judge (trial) 

Colonel Tyler J. Harder, Staff Judge Advocate (pretrial) 

Colonel Erik L. Christiansen, Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather Tregle, 

JA; Captain Jennifer K. Beerman, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief). 

29 November 2016 

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SUMMARY DISPOSITION 

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PENLAND, Judge: 

 

 Appellant was charged with one specification of sexual assault,1 to which he 

pleaded not guilty. The military judge, contrary to appellant’s plea, found him 

guilty of abusive sexual contact in violation of Article 120, Uniform Code of 

Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The military judge 

 

1

 The Charge and its Specification alleged the following sexual assault: 

In that [appellant], United States Army, did, at or near 

Joint Base Elmendorf-Richardson, Alaska, on or about 16 

February 2013, commit a sexual act upon Specialist (E-4) 

[SLH], to wit: penetrating Specialist (E-4) [SLH’s] vulva 

with his penis, when [appellant] knew or reasonably 

should have known that Specialist (E-4) [SLH] was 

unaware that the sexual act was occurring.
MARBURY – ARMY 20140023 

2

sentenced appellant to reduction to E-1, two months hard labor without confinement, 

and a bad-conduct discharge. The convening authority approved all but the hard 

labor portion of the sentence. 

We review this case under Article 66, UCMJ. Appellant assigns three errors: 

the military judge erred in finding abusive sexual contact is a lesser-included 

offense of sexual assault; the military judge’s finding of guilty is ambiguous, thus 

precluding this court from conducting a factual sufficiency review; and, the military 

judge created a fatal variance when, through special findings, he substantially 

changed the nature of the offense. The first assigned error merits discussion and 

relief, rendering the second and third moot. 

FACTS 

Specialist (SPC) SLH testified she passed out at a fellow soldier’s home after 

a night of excessive alcohol consumption. She testified appellant woke her up by 

shaking her and calling her name. Finally, she said she became upset when she 

noticed appellant was simultaneously engaged in sexual intercourse with her. After 

reporting appellant’s misconduct, SPC SLH underwent a Sexual Assault Nurse 

Examination (SANE). A government expert forensic biologist testified she 

examined a swab taken from SPC SLH’s breast and detected amylase thereon. The 

expert was able to extract a mixture of deoxyribonucleic acid (DNA) profiles from 

the amylase; one of the profiles was consistent with appellant’s DNA. 

After hearing evidence and deliberating on the verdict, the military judge 

found appellant “Not Guilty of sexual assault, but guilty of abusive sexual contact.” 

Before appellant presented his pre-sentencing case, the military judge acknowledged 

potential confusion which may have resulted from his “finding that [appellant] was 

guilty of a lesser-included offense . . . .” The military judge, sua sponte, announced 

special findings: 

The Court finds that...[appellant] committed sexual 

contact upon [SPC SLH], to wit: touching areas of her 

body, including her bare breast or breasts, with some part 

or parts of his body, with the intent to gratify his sexual 

desires and that [appellant] did so when he knew or 

reasonably should have known that [SPC SLH] was asleep, 

unconscious, or otherwise unaware that sexual contact was 

occurring. 

The Court finds there is insufficient evidence to find, 

beyond a reasonable doubt, that [appellant’s] penis 

penetrated [SPC SLH’s] vulva, anus, or mouth. 
MARBURY – ARMY 20140023 

3

LAW AND DISCUSSION 

After reviewing the matter de novo and applying the elements test,2

 we find 

that abusive sexual contact is not a lesser-included offense of sexual assault under 

the facts and circumstances of this case. The elements of abusive sexual contact 

include specific intent, which is not an element of the penetrative sexual assault as 

charged. Additionally, the specified elements here described appellant’s penetrating 

another soldier’s vulva with his penis; the specification did not encompass a 

scenario in which appellant touched another soldier’s breast with an unknown part or 

parts of his body. 

A charge and specification serve a crucial constitutional purpose, informing a 

soldier of the legal and factual ground on which he may prepare to defend. 

Convicted of a crime that the military judge erroneously perceived as “included” in 

the charged offense, appellant was denied his right to due process.3

 The government 

has not met its burden to prove beyond a reasonable doubt that this constitutional 

error was harmless. See United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011). 

CONCLUSION 

The findings of guilty and the sentence are set aside. The Charge and its 

Specification are DISMISSED. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of his sentence set aside by this 

decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a). 

Senior Judge CAMPANELLA and Judge HERRING concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

 

2 United States v. Riggins, 75 M.J. 78, 82-83 (C.A.A.F. 2016). 

3

 The following from Riggins concisely states the problem: “This lack of notice was 

exacerbated in the instant case by the fact that the military judge developed and 

applied what was, in essence, a new legal theory—one that was never charged or 

argued by the Government—in the middle of his own deliberations in this case.” 

Riggins, 75 M.J. at 84. 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: