## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant JASON R. CREWS United States Army, Appellant

ARMY 20130766

Headquarters, 1st Infantry Division and Fort Riley Gregory A. Gross, Military Judge
Lieutenant Colonel John A. Hamner , Staff Judge Advocate (pretrial) Colonel Craig E. Merutka, Sta ff Judge Advocate (post-trial)

For Appellant: Captain Matthew L. Jalan doni, JA (argued); Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA; Capt ain Patrick J. Scudie ri, JA (on brief); Colonel Mary J. Bradley, JA; Major Christ opher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brie f on specified issue).

For Appellee: Captain Timoth y C. Donahue, JA (argued) ; Major Daniel D. Derner, JA; Captain James P. Curtin, JA (on brie f); Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief on specified issue).

29 February 2016

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

----------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A panel composed of office r and enlisted members s itting as a ge neral courtmartial convicted appellant, contrary to his pleas, of indecent e xposure (as a lesserincluded offense of i ndecent acts) and sexu al abuse of a child (as a lesser-included offense of rape of a child) , in violation of Articles 120 and 120b, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 920b (2 006 & Supp. IV; 2 012) [hereinafter UCMJ]. Appellant was arraigne d on charges that included one specification of rape of a child (KG) under the age of 12 years, and one specification of indecent acts inCREWS — ARMY 20130766

2 the presence of Mrs. SG. 1 The convening authority appr oved the adjudged sentence
of a dishonorab le discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the grad e of E-1.

Appellant’s case is now before this court for revi ew pursuant to Article 66(c), UCMJ. Appellant assigns tw o errors, both of which me rit discussio n, and one of which merits relief. Specif ically, we find the eviden ce supporting appellant’s
conviction for sexual abuse of a child to be fact ually insufficient.

BACKGROUND

The facts surrounding this case all took place in 2012 in a neighbor hood of family housing at Fort Riley, Kansas. While not strict ly neighbors, appellant, KG,
and Mrs. SG all lived within a few minutes’ drive of each othe r. KG is the fiveyear-old daughter of an Army specialist who served in the same company as appellant. Appellant, how ever, did not have any supe rvisory relationship or responsibilities over KG’s father. Mrs. SG was the wife of an Army soldier. Mrs.
SG and KG are not related and lived in separate homes in the neighborhood.

DISCUSSION

A. Factual Sufficiency of Sexual Abuse of a Child

Appellant visited KG’s ho use often. KG’s mother te stified that appellant stopped by nearly every work day during his lunch break fo r a brief visit, and often on weekends. During these visits, KG would ask appellant for piggybac k rides, and
crawl over him while he was on the floor. KG’s mother testified that several times appellant volunteered to babysit KG, wh ich she and her husband declined. Appellant was also very gracious with help ing around the house, to include changing the brakes and oil on the family car, fixing the dryer, and assisting with an intra-post move to a one-story house necessitated by a back inju ry to KG’s father.

KG had an electronic toy which in addition to playing math and reading games allowed the user to take short 30-second videos. In October of 2012, KG’s mother was looking at the toy when she saw a video of appell ant and KG that she found disturbing. She asked KG if anyone had ever don e anything inappropriate with her. KG answered yes, and indicated that appellant had touched her genitals. During a subsequent child fo rensic interview, KG stated that appellant had touched her genitals and penetr ated her vagina.

1 A third charge of inde cent language was dismissed after arraignment.CREWS — ARMY 20130766

3 At trial, the government attempted to prove their case that appellant raped KG through the admiss ion of the video and the testim ony of KG, KG’s mother, and the boy who filmed the video, DH. We will discuss ea ch at length.

1. Facts

a) Testimony of KG’s Mother

KG’s mother was the government’s first witness. She provided background information and the history of interact ions between appellant and KG. Most crucially, she also testified to her da ughter’s statement that appellant had inappropriately touched KG ’s genitals. Her key te stimony was as follows:

Q [TC]: Has anything betw een your family and Sergeant Crews changed that relationship?

A: The instant [sic] that happened with our daughter.

Q: Can you tell the panel me mbers a little bit about that?

A: It was one September evening, my friend has just gotten back from her grandmothe r’s funeral. So we had a little barbeque and [appellant] was also over there with us, and we were just -- all the ad ults were outside and the kids were playing in [KG’s] bedr oom. And my daughter had one of those Leap Frogs that records videos and stuff. And I actually didn’t notice it until October, but I was watching the video and it wa s actually recorded with [appellant] sitting on the edge of my daughter’s bed with her completely cove red underneath the jacket sitting on his lap, and that is when I di scovered it. And I went and told my husba nd about it because he was in the bathroom -- and our daughter was in the living room when I discussed it with him; and I had walked back into the living room to ask her if anybody had done anything that she thought was wron g, and she shook her head yes; and I asked her, “Who?” I never sa id any name, but she said, “Sergeant Crews,” and I asked her, “What did he do?” and
she doesn’t know the term names fo r her body parts because she is only six, but I asked her can -- I said, “Can you show me where he touche d you?” and she proceeded to move the blanket and pointed down to her vaginal area,
and that is how I discovered what had happened in her
bedroom.CREWS — ARMY 20130766

4 KG’s mother further clarif ied that she discovered th e video about a month and
a half after it was taken. The defense did no t object to KG’s mo ther’s testimony as hearsay or otherwise. The record provides no basis to believe that a plausible hearsay exception wo uld have applied. 2

b) The Video

The video, which was admi tted over defense objectio n, is somewhat grainy. 3 Additionally, the video’s camerawork reflec ts the fact that the video was taken by KG’s friend, DH, a six-year -old neighborhood boy.

At the outset of the 30-second video, ap pellant is seen sit ting on the edge of KG’s bed. KG is sitting on ap pellant’s lap and has a la rge adult jacket wrapped around her midsection and waist. Appr oximately halfway through the video, KG pulls the jacket over her h ead while appellant embraces KG by the waist with his left arm, which remains above the jacket. Ho wever, appellant then places his hand beneath the jacket, al though his upper arm, elbow, and parts of his forearm remain visible. The angle of his forearm makes it possible that appellant has placed his
hand near either KG’s stomach or pelvic ar ea. The video ends a few seconds later.

c) Testimony of KG

At trial KG’s mother generally testified consistently with her initial statement to investigators and her te stimony at the Article 32, UC MJ, investigation. KG, however, did not. While KG answered some initial background questions, such as the name of her dog, her answer to every question of substance on direct exam was
“I don’t know.” 4

2 We note of course that as there was no objection, the government did not attempt to lay down a foundation for a he arsay exception. Our review of the record, to include the criminal investigation, Article 32, UCMJ, investigation, and other allied papers
attached to the record under Rule for Courts-Martial [hereinafter R.C.M.] 1103, does not reveal any indication of an applicable exception, such as an excited utterance.

3 Testimony at trial revealed that a technician was unable to digita lly copy the video. Instead the copy presen ted at trial was made by film ing the screen of the video player.

4 The record does no t indicate any request for remote live testimony under R.C.M. 914A, or any other accommoda tion to assist a six-year -old testifying about a difficult subject. Nor was there any at tempt by the trial counsel to declare KG
unavailable and admit he r testimony at the Article 32 investigation. See Mil. R. Evid. 804(a)(3).CREWS — ARMY 20130766

5 d) Testimony of DH

Finally, the government called DH, the boy who recorded th e video. DH’s direct testimony, at least when reduced to a written transc ript, could generously be
described as muddled. It appears that DH, who the government relied on in authenticating the vide o, hadn’t seen the vi deo at any time betwee n when it was first filmed and when it was played in court. DH at times appears to testify about videos
he made which were not admitted into evid ence. When recounti ng a conversation he had with his mother (w here he told his moth er that KG “got touc hed in the private”) he appears to confuse counsel ’s questions about where he was when he was talking to his mother, and where he was when KG was touched. DH testified he saw KG get touched, and immediately thereaft er said he did not see it. In short, it is not possible to make any sense of DH’s testimony one way or the ot her with respect to the charged misconduct he was called to testify about.

e) The Defense Case

The defense case-in-chief co nsisted of several witnesse s. The first, a child psychologist, testified as an expert witne ss about child memories . The defense also
called several character witnesses who ha d daughters the same age as KG. After laying the foundation that appe llant also spent a lot of ti me playing with their kids, they testified that they had high opinions of appell ant’s “character towards
children” 5 and that he was helpful.

2. Law

On appeal, appellant claims that th e evidence of child sexual abuse is factually insufficient to supp ort the convicti on. In response, th e government argues that KG’s hearsay statement to her mother , in light of the vi deo, is sufficient. 6

5 The testimony was admitted without objectio n and it is not n ecessary for us to
address whether this was testimony about the appellant’s behavior around children, or whether it was a pertinen t character trait and admissible under Mil. R. Evid. 404(a)(1).

6 The government’s brief argu ed only that the evidence wa s legally sufficient. That is, the government argued th at “[w]hen viewed in a li ght most favorable to the government, there was sufficient evidence fo r a rational fact finde r to find beyond a
reasonable doubt that appellant sexually abused a ch ild under the age of twelve.” At oral argument, the government made clear that the positi on of the United States was that the evidence was both lega lly and factuall y sufficient.CREWS — ARMY 20130766

6 Nonetheless, we have the independent duty to review the record to determine
whether it is correct in law and fact. UCMJ art. 66(c). Th e test for legal sufficiency is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, (1979);
see also United St ates v. Phillips, 70 M.J. 161, 166 (C.A.A.F . 2011). Th e test for factual sufficiency, on the other hand, “involves a fresh , impartial look at the evidence, giving no deference to the decision of the trial court on factual sufficiency beyond the admonition in Article 66(c), UC MJ, to take into account the fact that the
trial court saw and heard the witnesses.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). In exer cising this authority this co urt gives no deference to
the decisions of the trial court (suc h as a finding of guilty) , but does recognize the trial court’s superior ability to see and hear the witnesses. Id . (A court of criminal appeals gives “no deference to the decision of the trial court” but is required to
adhere to the admonition to take into account the fact that the trial court saw and heard the witnesses).

In reviewing for factual su fficiency we are limited to the facts in troduced at trial and considered by the court-martial. United States v. Beatty , 64 M.J. 456 (C.A.A.F. 2007). Thus, for example, we do not consider KG’s unadmitted pretrial statements, no matter how comp elling, in determining wh ether there was sufficient evidence to support th e findings. We may affirm a co nviction only if we conclude,
as a matter of factual suffici ency, that the evid ence proves appell ant’s guilt beyond a
reasonable doubt. United States v. Sills, 56 M.J. 239, 240–41 (C.A.A.F. 2002); United States v. Turner, 25 M.J. 324, 324– 25 (C.M.A. 1987).

Our superior court does not share either our fact ual review authority or responsibility. Compare Article 66 with Article 67, UCMJ. Nonetheless, our decisions are subject to revi ew by the United States C ourt of Appeals for the Armed Forces (C.A.A.F.). United States v. Nerad , 69 M.J. 138, 14 0 (C.A.A.F. 2010) (“[W]hile CCAs have broad authority under Article 66( c), UCMJ, to disapprove a finding, that authorit y is not unfettered. It must be exercised in the context of legal—not equitable—st andards, subject to appellate review.”).

3. Analysis

This case, somewhat uniquely, raises th e degree to which we recognize the trial court’s superior positio n in seeing and hearing the evidence. Ac cordingly, and as we find the evidence factually insufficien t, we believe it wise to discuss how we arrive at our conclusion in ligh t of these considerations.

The deference given to the trial court’s ability to s ee and hear the witnesses and evidence—or “recogni[t ion]” as phrased in Arti cle 66, UCMJ—reflects an appreciation that much is lo st when the testimony of live witnesses is converted into the plain text of a trial tran script. While court-reporter notes may sometimes reflectCREWS — ARMY 20130766

7 a witness’s gesture, laugh, or tearful response, they do not attempt to reflect the pauses, intonation, defensiven ess, surprise, calm reflection, or deception that is often apparent to those pres ent at the court-ma rtial. A panel hears not only a witness’s answer, but may also observe the witness as he or she responds. For instance, a transcript may state “I am showing the wi tness prosecution exhibit 13 for
identification” but will leave unstated th e witness’s demeanor—whether surprise, recognition, or dread, when reviewing or confronted with evidence.

To say that an appellate court is at a relative disadvantage in determining questions of fact as compared to a trial court is to state the obvious. In New York State—the only othe r jurisdiction we are aware of where the intermediate appellate
court conducts a review for factual suffici ency—the intermediate appellate court gives “[ g ] reat deference . . . to the fact-finder’s oppor tunity to view the witnesses, hear the testimony and observe demeanor.” People v. Romero , 7 N.Y.3d 633, 644 (2006) (emphasis added) (quoting People v. Bleakley , 69 N.Y.2d 490, 495 (1987)). However, neither this court, nor our superior court, has quite so clearly delineated
the amount of deferen ce due the trial court when co nducting a factua l sufficiency
review.

In United States v. Johnson, 30, M.J. 930, 934 (A.C.M.R. 1990), we distinguished betwee n evidence whose weight de pended on the factfinder’s
assessment of cred ibility, and ev idence where the appellate court was at little or no disadvantage in reviewing the evidence. 7 Similarly, and more recently, in United
States v. Davis , 75 M.J. 537, 546 (Army Ct. Crim . App. 2015) (en banc), we noted that “the degree to which we ‘recognize’ or give deference to th e trial court’s ability
to see and hear the witnesses will often depend on the degree to wh ich the credibility
of the witnesses is at issue.”

As related above, the gov ernment sought to introduce four substantive components of evid ence to support th e conviction involving KG: First, KG’s mother
testified that KG had told her that appellant had touched her sexually; second, a

7 In Johnson we stated that Article 66(c), UCMJ, “caution s us to bear in mind that
‘the trial court saw and heard the witn esses.’ Thus, in cases where witness credibility plays a critical role in the outc ome of the trial, we hesitate to secondguess the court’s findings.” 30 M.J. at 934 (citation omitt ed). This was inartfully
stated as it is our du ty to “second-guess” a court-ma rtial’s findings and we do not hesitate in this duty. Ho wever, the underlying concept— that more defe rence is due when credibility is key to determining the weight of evidence—remai ns sound. We went on to say in Johnson , for example, that when th e evidence does not depend on credibility determinations, “our independ ence as a fact-finde r should only be constrained by the evidence of record and the logical inferences emanating
therefrom.” Id.CREWS — ARMY 20130766

8 video, that while certainl y concerning, does not explicitly de pict any sexual touching; third, the government’s attempt to present testimony by the alleged victim, KG; and fourth, the te stimony of DH, who stated both that he saw and didn’t see appellant touch KG’s “privates.”

With regards to the video, our ability to review the evid ence and assign it proper weight is near ly identical to that of the panel members. 8 The record of trial contains the same digital copy of the video that was played for th e members. It is
what it is. While the video was relevant evidence that explains how the allegations came to light, as well as de monstrating opportunity, th e video does not explicitly depict a sexual assault.

While we give little or no deference to the trial cour t’s weighing of a video, the testimony of the two child witnesses fa lls on the other side of the spectrum.
Children sometimes testif y with shocking can dor, but may al so be easily manipulated on the stand. A dry transcript will contain some of these elements, but
the trial court is far better positioned to determine the appropriate weight such testimony should be given.

Nonetheless, the testimony of the two child eyewitnes ses does not support the court-martial’s findings. KG’s testimony of “I don’t know ” can be interpreted in two ways: first, as some evidence that the assault did not happen; or second, that she was essentially refusing to answer any questions. Ne ither interpretation provides evidence of appellant’ s guilt. Similarly, it is ha rd to draw any inferences, one way or the other, from DH’s internally contradi ctory testimony. Even applying the “great deference” standard employed by New York inte rmediate appellate courts,

see, e.g

. Romero , 7 N.Y.3d at 644, the testimony of the two chil dren in this case does not weigh in favo r of appellant’s guilt. 9

Accordingly, the only evidence of weight of appellant’s guil t is the testimony
of KG’s mother. As discusse d above, KG’s mother had no firsthand evidence of the offense. Rather, the inculpatory evidence consisted of repeating KG’s statements that appellant had touched her inappropri ately. While these uno bjected-to hearsay
statements were admitted for their truth—an d we consider them as such—the lack of an applicable hearsay exception is concernin g. Additionally, as recounted at trial, the key statement by KG was in response to a leading qu estion from her mother.

8 We say “nearly identical” for two reasons. First, the panel me mbers had the ability
to observe the witness’s react ion when the video was play ed in court. Second, the admonition that we recognize the panel’ s ability to see and hear the witnesses applies not only to cr edibility determinations, but also to “weigh[ing] the evidence.” UCMJ art. 66(c).

9 In its brief the government does not rely on either ch ild’s testimony in arguing in
favor of affirmance.CREWS — ARMY 20130766

9 After KG indicated that appe llant had done something wr ong, her mother asked “can you show me where he touche d you” which presupposed that an inapprop riate touch was the “something wrong.”

Having reviewed the entire record, we are not convinced beyond a reasonable doubt that appellant committed the offense of sexu al abuse of a chil d. The evidence
in this case did not “exclude every fair and reasonable hypothesis of the evidence except that of guilt.” Dep’ t of Army, Pam. 27-9, Legal Services: Mil itary Judges’ Benchbook [hereinafter Benc hbook], para. 8-3 (10 Sept. 2014). Acco rdingly, we
will set aside the findin g of guilty in our decretal paragraph.

B. Indecent Exposure

During the course of appellant’s frien dship with KG’s family, he was also
introduced to Mrs. SG. Mr s. SG was an adult woman al so living in family housing on Fort Riley. Appellant wo uld stop by and talk to Mrs. SG while sh e was sitting outside on her porch. At trial, however, one instance stood out in her mind.

Mrs. SG stated she was sitting on her po rch talking with appellant. She stated it was a perfectly normal co nversation, until it suddenly wasn’t. Specifically, she testified it got awkward wh en appellant unbut toned his ACU pant s, took out his penis, and began “messing” w ith himself by stroking his pe nis. Mrs. SG estimated this went on for twenty mi nutes while she tried to igno re what appellant was doing and concentrated on her laptop. She st ated she discussed this event with her husband that night but decided not to report the incident as it did not happen again.

Prior to instructing the me mbers on findings, the mi litary judge conducted an Article 39(a), UCMJ, session to discuss instructions. Sp ecifically, the military judge addressed whether indecent exposure was a lesser-included offense of indecent acts:

MJ: Now regarding Charge II and its Specification as I
mentioned in the 802 conferen ce this morn ing I saw one lesser include [sic] of indece nt exposure; does either side
want to be heard on that?

DC: No, Your Honor.

At the end of the Article 39(a), UCMJ, session, a nd again at several more instances during the remainder of the trial, the defense did not object to the military judge’s proposed instruction on the lesser-included offense. 10 After bein g notified

10 The maximum authorized punis hment for an indecent act includes up to five yearsCREWS — ARMY 20130766

10 of the issue first at a R.C. M. 802 conference, and later at the Ar ticle 39(a), UCMJ, session, the defense chose not to object to the instruction on the lesser-included
offense.

We find that this amount ed to an affirmative waiver of the matter.

“Deviation from a lega l rule is ‘error’ unless the rule has
been waived.” United States v. Olano , 507 U.S. 725, 732– 33, 113 S. Ct. 1770, 1 23 L. Ed. 2d 508 (1 993). Waiver is
the “intentional re linquishment or abandonment of a known right.” United States v. Harcrow , 66 M.J. 154, 156 (C.A.A.F. 2008) (quoting United States v. Olano, 507 U.S. 725, 732–33, 113 S. Ct. 1770, 123 L. Ed.2d 508 (1993)). “Whether a particular righ t is waivable ; whether the defendant must participate personally in the waiver; whether certain procedures ar e required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depe nd on the right at stake.”
Id. (quoting Olano , 507 U.S. at 733).

United States v. Girouard , 70 M.J. 5, 10 (C .A.A.F. 2011). In Girouard, the court found that waiver was not pres ent, because (unlik e this case), the case law governing
what constituted a lesser-i ncluded offense had changed between trial and appeal. That is, the defense counsel in Girouard did not intentionall y relinquish a known right, as the right had not yet been clearly identified in United States v. Jones , 68
M.J. 465 (C.A.A.F. 2010). The present case wa s tried well after Jones. Here, the military judge specifically notified the de fense that he intended to instruct on the lesser-included offense of indecent exposu re, and the defense de clined the military judge’s invitation to be heard on the matt er. Moreover, the defense was provided a copy of the written in structions to review, and heard the instructions given to the panel. In each instance, the elements of the two offenses in qu estion were laid out
one after the other without ob jection. Under the circumst ances of this case, this
constituted waiver.

Even assuming that an ob jection to the instruction on the lesser-included
offense of indecent e xposure was not affirm atively waived, the failure to object to the instructions forfeited the objection, absent plain error. R.C.M. 920(f); United
States v. Tunstall , 72 M.J. 191, 193 (C.A.A.F. 2013); see also United States v.

of confinement. See Manual for Courts-Ma rtial, United States (2008 ed.) [hereinafter MCM , 2008 ed.] pt. IV, ¶ 45.f.(6) . The maximu m authorized punishment for indecent expo sure includes up to one year of confinement. MCM

, 2008 ed. at ¶ 45.f.(7). That is, a conviction on in decent exposure reduced the possible confinement that could be ad judged for that offense by 80%.CREWS — ARMY 20130766

11 Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012) (citing United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011)); Davis , 75 M.J. 537.

“Under a plain error analysis, [an appe llant] ‘has the burde n of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substa ntial right of the accused.’” Tunstall , 72 M.J. at 193- 94 (quoting Girouard, 70 M.J. at 11).

Applying the elements test, appellant claims that the military judge committed
error as an “indecent act does not require proof of an additional el ement not found in
the instruction for indecent exposure” and that “proof of indecent exposure requires proof that the exposure was intentional an d that it was made at a place where the
conduct could reason ably be expected to be viewed by people other than members of the accused’s family or household.”

We first note that a reas onable panel could have cr edited the testimony that appellant pulled out and exposed his pe nis on Mrs. SG’s fr ont porch, but not credited the testimony that he then stro ked his penis for twenty minutes while she
continued to work on her co mputer. That is, the pane l could have credited the evidence supporting the exposure , while not crediting the act of masturbation.

We also note that the element of indece nt exposure that re quires the conduct
to occur somewhere other than in front of his own family or ho usehold serves as a
limitation on what conduct is indecent. That is, bein g seen naked by your own family—while an “exposure” —is not an indecent exposu re. Appellant was charged with exposing his penis to Mr s. SG, a person he clearly knew not to be a member of his family. Moreover, as ch arged, the specification allege d that appellant pulled out his penis and stroked it on the front porch of Mrs. SG. That is, as charged, appellant’s exposure of his pe nis was an intentional act, committed in public; it was not an accidental or neglig ent exposure or an exposure in front of his family.

When it comes to unpreserved error, the burden is on the appellant to establish prejudice. Wilkins , 71 M.J. at 413; United States v. Humphries

, 71 M.J. 209, 217 n.10. “A ppellant bears the burden of pr oving prejudice beca use he did not object at trial. Appellant mu st show ‘that under the tota lity of the circ umstances in this case, the Government’s error . . . resulted in ma terial prejudice to [his] substantial, constituti onal right to notice.’” Wilkins , 71 M.J. at 413 (alterations in original) (quoting Humphries , 71 M.J. at 215) (internal citation omitted).

In Wilkins the United States Court of Appeals for the Armed Forces (C.A.A.F.) found that the military judge committed error by inst ructing the panel on
abusive sexual contact as a lesser-include d offense of aggravated sexual assault
based on how the offense was charged. However, as the appellant had not objected at trial, the C.A.A.F. tested for plain error. The C. A.A.F. found that the appellant
was “on notice of all of the elemen ts he had to defend against.” Wilkins , 71 M.J. atCREWS — ARMY 20130766

12 414. Additionally, th e lesser-included offense did not change the defe nse’s strategy
at trial. Id . Thus while finding erro r, and finding th at it was plain and obvious, the court affirmed the findings as the appellant in Wilkins did not carry his burden of demonstrating a material prejudice to a substantial right. Id . at 413 (“Appellant has
not met this burden because he cannot establish prejudice to his ability to defend against the charge he wa s convicted of or his right to notice.”). Cf. United States v. Riggins , 75 M.J. 78, 85 (C.A.A.F. 2016) (preserved constitutional error reviewed for harmlessness beyond a reasonable doubt).

In the present case , appellant does no t even attempt to meet his burden. While appellant’s brief identifies that plai n error is the approp riate test, the brief addresses only the firs t prong of the plain error test, and does not address whether the error was plain or obvious, and if s o, how the error resu lted in a material prejudice to a substant ial right of appellant. Accordingly, appellant has failed to
meet his burden a nd is not entitled to reli ef. Even if we were to attempt to meet appellant’s burden for him regarding the pl ain and obvious nature of the error, we
find that as in Wilkins , the instruction on the lesser-i ncluded offense did not deprive appellant of notice regarding what he was defending against or alter his trial strategy. The defense in this case did no t hinge on whether appellant’s actions were an exposure or an indecent act. Rather, the de fense’s case claimed that the charged misconduct simply never happ ened, a theory that applies with equal force to both indecent acts and indecent exposure.

Finally, setting aside whet her appellant waived, forf eited, or met his plain error burden in this case, we find that this issue is contro lled by our superior court’s
decision in United States v. Rauscher , 71 M.J. 225 (C.A.A.F. 2012). In that case, the appellant was charged with assault with intent to commit murd er (a violation of Article 134), but convic ted of the lesser-inc luded offense of aggr avated assault with a dangerous weapon or means likely to cause death or grievous bodily harm (a violation of Article 128). Id . In a per curiam opinio n, our superior court never
addressed the elements test to determine whether aggravated assault is a lesserincluded offense of assault with intent to commit murder. Rather, the C.A.A.F. looked at the words of the specification which alleged that the appellant committed “an assault . . . by stabbing [the victim] in the hand and chest with a knife.” Id . at 226. Id . The court was “convinced that the specification clearly allege[d] every element of [aggravated assault].” Id

. That is, an elements test is unnecess ary if the specification itself alleges the less er-included offens e in question.

In this case, the specific ation alleged that appellan t did “wrongfully commit indecent conduct, to wi t: pulling his penis ou t and openly stroking it with his hand in the presence of [SG].” One commits in decent exposure when one “intentionally exposes, in an indecent mann er, the genitalia . . . .” MCM , 2008 ed. at ¶ 45.a.(n). As every element of indecent exposure was contained in the specification, appellant was on notice that he was charged with indecent exposure. Jones , 68 M.J. at 472CREWS — ARMY 20130766

13 (“The charge sheet itself give s content to that general language, thus providing the required notice of what an a ccused must defend against.”).

CONCLUSION

The finding of guilt to the Specification of Charge I, sexual abuse of a child, is set aside and that charge and its specif ication are DISMISSED. The finding as to the Specification of Charge II, indecent exposure, is AFFIRMED . The sentence is
set aside. In accordance w ith R.C.M. 810, a se ntence rehearing is authorized. All rights, privileges, and property of which ap pellant has been depr ived by virtue of that portion of the findings and sent ence set aside by ou r decision, are ordered
restored. See UCMJ arts. 58b(c) and 75(a).

Senior Judge HAIGHT and Judge PENLAND concur.

FOR THE COURT:

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