## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before SIMS, COOK, and GALLAGHER Appellate Military Judges

UNITED STATES, Appellee

v. Master Sergeant RAYMOND J. REYNARD United States Army, Appellant

ARMY 20100351

Headquarters, Fort Riley John Saunders, Military Judge Lieutenant Colonel Robert A. Borc herding, Staff Judge Advocate

For Appellant: Captain Matthew T. Grady, JA (argued); Colone l Mark Tellitocci, JA; Lieutenant Colonel Jona than F. Potter, JA; Major Laura R. Kesler, JA; Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief).

For Appellee: Capt ain Kenneth W. Borgnino, JA (argued); Majo r Amber J. Williams, JA; Major Katherine S. Gowel, JA; Captain Kenneth W. Borgnino, JA (on brief).

21 February 2012

---------------------------------- SUMMARY DISPOSITION

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Per Curiam:

A military judge, sitting as a general court-martia l, convicted appellant, contrary to his pleas, of two specifications of rape of a child, and one specification of indecent assault, in vi olation of Articles 120 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 920 and 934 [2005] . Pursuant to his pleas appellant was found not guilty of a third sp ecification of rape, but was convicted of the lesser included offense of carnal knowledge, in violation of Article 120, UCMJ (2005). Appellant was sent enced to a dishonorable disc harge and conf inement for seven years. The convening authority dism issed the carnal knowledge specification and approved the remaini ng findings of guilt and th e adjudged sentence.REYNARD

— ARMY 20010351

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises three assignments of error, listin g multiple sub-issues under these assignments. After c onsidering the reco rd of trial, ap pellant’s assignmen ts of error, the government’s answer, matt ers submitted by appellant, and oral argument, we find that one of th e sub-issues under Assignment of Error I merits discussion, but no relief.

LAW AND DISCUSSION

Military Rule of Evidence [hereinafter Mil. R. Evi d.] 414 states, in relevant part:

(a) In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused’s commission of one or more offe nses of child molestation is admissible . . . . .

(d) For purposes of this rule, “child” means a person below the age of sixteen . . . .

The victim in this case, LK, was born on 8 May 1990 and was no longer considered a child for Mil. R. Evid. 414 purposes as of 8 May 2006, when she reached the age of si xteen. In response to a defens e motion to suppress evidence, the military judge erred in finding Charge II to be a child mole station offense. During the time period alle ged in the specification, be tween on or ab out 1 May 2007 and 30 September 2007, LK wa s over the age of si xteen. Pursuant to Mil. R. Evid. 414, Charge II was not a child molestation offense because the alleged victim was not below sixteen. Simila rly, the military judge erred in concluding appellant’s alleged digital penetration of LK in 2007 was an act of child molestation and admissible under Mil. R. Ev id. 414 because LK was not und er sixteen at the time of the incident and ther efore not a child.

The government concedes the military judge erred in bo th instances, but argues the military judge also correctly ad mitted the allegation concerning the 2007 digital penetration pursua nt to Mil. R. Evid. 4 04(b). We agree.

The military judge found this incident was relevant to the appellant’s “intent when he hugged [LK] and touc hed her bottom [the conduct alleged in] (Charge II). It is also relevant to show absence of mistake and indicate s the [appellant’s] intention to resume their se xual relationship.” The m ilitary judge concluded his analysis on this is sue by stating “the pr obative value outweighs its prejudicial effect.”REYNARD

— ARMY 20010351

3 Because we find the military judge properly admitted this incident under Mil. R. Evid. 404(b) as pr oof of appellant’s intent and absence of mistake, we will not disturb this conv iction. One of the elements the government was required to prove in regards to Charge II was that appellan t committed the assault with the intent to gratify his lust or sexual desires. An incident involving appellant digitally penetrating LK contemporaneous ly with the allega tion contained in Charge II would clearly be illustrative of ap pellant’s intent to re-engage in a sexual relationship with LK.

CONCLUSION

On consideration of the entire record and the submissions of the parties, to include those matters raised personally by the appellant in his affidavit and pursuant
to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), we hold the findings of guilty and the sentence as ap proved by the conv ening authority to be correct in law and fact. Accordingly, the findings of guilty and th e sentence are AFFIRMED. *

FOR THE COURT:

MALCOLM H. SQUIRES JR. Clerk of Court

* Appellant pleaded not guilty, without object ion, to the Specification of Charge II which did not expressly allege the terminal elements of i ndecent assault in violation of Article 134, UCMJ. "[A] ch arge and specificat ion challenged for the first time on appeal is liberally construed and will not be held invalid absent a clear showing of substantial prejudice to the accused -- such as a showing that the indictment is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had." United States v. Roberts , 70 M.J. 550, 553 (Army Ct. Crim. App. 2011) (quoting United States v. Watkins , 21 M.J. 208, 209-10 (C.M.A. 1986)) (internal q uotation marks omitted). Cf. United States v. Fosler , 70 M.J. at 225, 230 (C.A.A.F. 201 1). The specification and charge can be reasonably construed to imply th at appellant’s conduct was to the prejudice of good order and discipline and of a nature to bring discre dit upon the armed fo rces. Appellant was on notice of the charge against him and is protected against doubl e jeopardy. MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: