UNITED STATES, Appellee 

v. 

Joshua P. LOVETT, Staff Sergeant 

U.S. Air Force, Appellant 

No. 03-0072 

Crim. App. No. 33947 

United States Court of Appeals for the Armed Forces 

 Argued October 21, 2003 

 Decided February 3, 2004 

CRAWFORD, C.J., delivered the opinion of the Court, in 

which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined. 

Counsel 

For Appellant: Mr. Norman R. Zamboni, Esq. (argued); Colonel 

Beverly B. Knott, Major Karen L. Hecker, Major Andrew S. 

Williams, and Captain James M. Winner (on brief); Major Terry L. 

McElyea. 

For Appellee: Major John C. Johnson (argued); Colonel LeEllen 

Coacher, Lieutenant Colonel Robert B. Combs, and Captain Kevin 

P. Stiens (on brief); Colonel Anthony P. Datillo, Lieutenant 

Colonel Lance B. Sigmon, and Major Linette I. Romer. 

Military Judge: B. T. Brown and L. S. Murnane. 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Lovett, No. 03-0072/AF 

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Chief Judge CRAWFORD delivered the opinion of the Court. 

On May 12 and July 12-17, 1999, Appellant was tried by 

general court-martial at Shaw Air Force Base (AFB), South 

Carolina. Contrary to his pleas, Appellant was convicted of 

wrongful possession of Percocet, rape, and soliciting the 

commission of an offense to the prejudice of good order and 

discipline, in violation of Articles 112a, 120, and 134, Uniform 

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a, 

920, and 934 (2000), respectively. 

Appellant was sentenced to a dishonorable discharge, 

confinement for 15 years, total forfeiture of all pay and 

allowances, and reduction to pay grade E-1. The convening 

authority approved the sentence as adjudged and waived the 

forfeitures for six months for the benefit of Appellant’s 

family. 

On September 9, 2002, the Air Force Court of Criminal 

Appeals (CCA) affirmed the findings and sentence in an 

unpublished opinion. United States v. Lovett, ACM No. 33947 

(A.F. Ct. Crim. App. Sept. 9, 2002). This Court has granted 

review of the following issues: 

I. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING 

INTO EVIDENCE HEARSAY STATEMENTS MADE BY 

APPELLANT’S WIFE, MM, AND LC, AND BY EXCLUDING, 

AS HEARSAY, EXCULPATORY EVIDENCE OFFERED BY 

APPELLANT. 
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II. WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING 

THE PANEL THAT THE MAXIMUM SENTENCE WAS LIFE 

WITHOUT PAROLE WHEN THAT PUNISHMENT WAS NOT AN 

AUTHORIZED SENTENCE AS ITS IMPLEMENTATION HAD NOT 

YET BEEN ORDERED BY THE PRESIDENT, OR, IN THE 

ALTERNATIVE, WHERE INSUFFICIENT EVIDENCE WAS 

PRESENTED AT TRIAL TO PROVE THAT ANY ALLEGED ACTS 

OF RAPE HAD OCCURRED AFTER 19 NOVEMBER 1997. 

III. WHETHER APPELLANT’S CONVICTION FOR SOLICITATION 

SHOULD BE SET ASIDE BECAUSE (1) IT FAILS TO STATE 

AN OFFENSE, (2) IT IS NOT A LESSER INCLUDED 

OFFENSE OF SOLICITATION TO COMMIT MURDER, OR (3) 

THERE IS A FATAL VARIANCE BETWEEN THE CHARGED 

SPECIFICATION AND THE FINDINGS. 

 

For the reasons set forth below, we affirm as to Issue I and 

reverse as to Issue III. Because we grant Appellant relief on 

Issue III, we need not address Issue II. 

FACTS

Appellant and his wife (TL) married in 1994. TL had a son 

(CF) and daughter (MM) from previous relationships. TL 

testified that in the spring of 1997, when MM was five years 

old, MM told TL that Appellant was “touching” her. When TL 

confronted Appellant with this accusation, he denied that this 

ever occurred. 

During the following school year (1997-98), MM developed a 

friendship with another little girl (DI) in her kindergarten 

class. The girls played together and occasionally they would 

sleep at each other’s homes. On one occasion, DI’s mother 

observed MM pulling up her dress and dropping her underwear. 

Later, DI told her mother that MM had been showing boys her 
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“privates” and telling a boy at school that he should be kissing 

DI’s “privates.” DI’s mother relayed the incident to TL. 

Around October 24, 1998, DI’s mother again observed MM engage in 

overtly sexual behavior. During a sleepover at DI’s house, the 

girls went to DI’s bedroom and locked the door. When they 

became very quiet, DI’s mother unlocked the door and discovered 

MM lying on the bed with her nightgown pulled up and DI 

pretending to give her a shot in the genital area with a toy 

hypodermic needle. The next morning, DI’s mother told TL about 

the incident and suggested that she find out why MM had been 

behaving in such a sexual manner. 

Following TL’s conversation with DI’s mother, TL questioned 

MM about her behavior, asking whether anyone had ever touched 

her. MM first responded that the doctor had touched her, but 

after further questioning from TL, MM eventually admitted that 

“Daddy put his private in [my] tushy.” TL immediately called a 

friend, LS, who came to the house and asked MM to tell her what 

she had told her mother. MM revealed additional information to 

LS, who then took MM to the emergency room at Shaw AFB. There, 

the pediatric nurse practitioner who examined MM found a defect 

in her hymen that was consistent with some form of penetration. 

At trial, MM testified (after TL, but before LS) that 

Appellant on many occasions “stuck his private up my private” 

while the two were in Appellant’s bedroom and study. MM also 
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testified that it hurt when Appellant did this, that Appellant 

used a bottle of lotion during these acts, and that Appellant 

told her not to tell anyone. MM had previously told a victim’s 

advocate that Appellant started doing this to her when she was 

five years old. 

MM’s brother, CF, also testified at trial (after TL, MM, 

and LS) that Appellant frequently took MM into his (Appellant’s) 

bedroom or the study. CF said he was not permitted to enter the 

room, even if he knocked on the door. CF further testified that 

he heard MM crying when she was alone with Appellant, and that 

he sometimes saw a bottle of lotion in the room after MM and 

Appellant left. 

In addition to raping MM, Appellant was charged with 

soliciting a man (LC) to murder TL “by telling [LC] that he 

wanted his wife to disappear, providing [LC] a picture to 

identify the said [TL], and discussing how much it would cost to 

have [LC] make the said [TL] disappear.” LC testified that 

Appellant told him that he wanted TL to disappear. He further 

testified that Appellant gave him a picture of TL, her car keys, 

and discussed how much this would cost. 

After evidence was presented, the Government requested that 

the military judge instruct the members on the lesser-included 

offenses of the solicitation specification, including the 

lesser-included offense of soliciting a general disorder in 
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violation of Article 134. In response, the military judge 

proposed an instruction that would identify the following 

elements of the lesser-included offense: that “[Appellant] 

solicited [LC] to take some action to cause [TL] to disappear or 

to fail to appear in court[,]” and “that under the circumstances 

[Appellant’s] conduct . . . 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.” Appellant objected to this 

proposed instruction. Over this objection, the military judge 

instructed the members on the general disorder lesser-included 

offense, in pertinent part, as follows: 

[I]t must be proven beyond a reasonable doubt that the 

accused intended that [LC] commit every element of 

this offense. Those elements are as follows: first, 

that at the time and place alleged, the accused or 

[LC] engaged in a specific act for the purpose of 

wrongfully causing [TL] to be unable to appear at a 

scheduled proceeding in a criminal or civil trial; and 

second, 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. 

After deliberations, the members excepted out “murder” from 

the specification and found Appellant guilty of the “general 

disorder” of 

soliciting the commission of an offense to the 

prejudice of good order and discipline . . . in that 

[Appellant] . . . did . . . wrongfully solicit [LC] to 

cause [TL] to disappear or to wrongfully prevent her 

from appearing in a civil or criminal proceeding . . . 

by telling [LC] he wanted his wife to disappear, 

providing [LC] the keys to [TL’s] car, a picture to 
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identify the said [TL] and by discussing how much it 

would cost to make the said [TL] disappear. 

 

DISCUSSION

I. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE 

HEARSAY STATEMENTS MADE BY APPELLANT’S WIFE, MM, AND LC, 

AND BY EXCLUDING, AS HEARSAY, EXCULPATORY EVIDENCE OFFERED 

BY APPELLANT. 

Appellant claims that the military judge erred in 

admitting, under hearsay exception rules, hearsay contained in 

TL’s written statement and LS’s in-court testimony. Appellant 

also argues that the military judge erred in excluding, on 

hearsay grounds, exculpatory testimony from LC. 

Appellant’s first complaint concerns Prosecution Exhibit 

(PE) 12, consisting of a written statement made by TL to the Air 

Force Office of Special Investigations (AFOSI) on November 24, 

1998. In the statement TL described how she questioned MM about 

whether Appellant abused her, and claimed that MM responded that 

Appellant put his “private” in her “tushy.” TL also stated that 

when she asked CF if he ever observed Appellant display 

inappropriate behavior toward MM, CF responded that Appellant 

often took MM downstairs alone while CF had to remain upstairs. 

The exhibit was originally marked as Defense Exhibit I for 

identification, and was used in this form by the defense counsel 

to cross-examine TL. On redirect, trial counsel offered TL’s 

written statement as a PE 12 for his own use. This exhibit was 

generally consistent with TL’s affidavit furnished to the pre-
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trial investigator, originally marked DE J for identification 

and subsequently admitted as PE 13. Appellant did not object to 

the admission of PE 13. Appellant did object to PE 12, claiming 

it contained uncharged misconduct and hearsay statements. 

Regarding the hearsay objection, the judge extensively discussed 

the statements’ admissibility under Military Rule of Evidence 

801(d)(1)(B) [hereinafter M.R.E.] , as prior consistent 

statements. Over defense objection, the military judge admitted 

PE 12 under M.R.E. 801(d)(1)(B). In summarizing her ruling on 

PE 12 for the record, the judge noted, in the alternative, that 

the statements in PE 12 would also qualify as residual hearsay 

under M.R.E. 807: 

With regard to Prosecution Exhibit 12, I’m 

overruling the defense objection to Prosecution 

Exhibit 12 under 80 – Military Rule of Evidence 

801(d)(1), and should I be mistaken that 801(d)(1) 

actually applies, I find there are also sufficient 

circumstantial guarantees of trustworthiness in that 

the witness has taken the stand and has been subjected 

to cross-examination on the statement under oath, and 

therefore, I would find that it is also admissible 

under Military Rule of Evidence 807, should I be 

mistaken in my analysis under 801(d)(1). 

M.R.E. 807 provides as follows: 

 A statement not specifically covered by Rule 803 

or 804 [which describe exceptions to the hearsay rule] 

but having equivalent circumstantial guarantees of 

trustworthiness, is not excluded by the hearsay rule, 

if the court determines that (A) the statement is 

offered as evidence of a material fact; (B) the 

statement is more probative on the point for which it 

is offered than other evidence which the proponent can 

procure through reasonable efforts; and (C) the 
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general purposes of these rules and the interests of 

justice will best be served by admission of the 

statement into evidence. 

Defense counsel did not object to the judge’s alternative 

conclusion as to the admissibility of PE 12 under M.R.E. 807.

 Appellant also challenges portions of LS’s in-court 

testimony -- which occurred after MM’s trial testimony -- 

regarding her October 25 conversation with MM, during which she 

claimed MM stated that Appellant “put his private in her tush” 

and touched her “tee-tee.” At trial, defense counsel objected 

to this testimony on hearsay grounds, generally noting its prior 

argument based on M.R.E. 807, which Appellant had earlier 

advanced regarding hearsay statements contained in TL’s in-court 

testimony. Trial counsel countered the objection by referring 

to its own earlier arguments on residual hearsay. The judge 

then summarily overruled defense counsel’s objection, without 

explanation. During the previous residual hearsay discussion to 

which both counsel referred, the military judge had articulated 

that MM’s hearsay statements contained in TL’s in-court 

testimony were material and more probative on the point for 

which they were offered than any other evidence the proponent 

could procure through reasonable efforts. 

Appellant finally argues that LC offered exculpatory 

testimony, which the military judge erroneously excluded on 

hearsay grounds. At trial, the Government asked LC how he 
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obtained the job he was currently holding, whether he knew a 

friend of TL’s, whether he was ever threatened regarding his 

testimony at Appellant’s court-martial, and whether he 

threatened anyone else. On cross-examination, defense counsel 

asked LC whether Appellant told him that he ”didn’t want any 

harm to come to his wife.” Trial counsel objected on hearsay 

grounds. An Article 39(a) session was called, the members were 

excused, and LC testified that he could not recall if Appellant 

told him he did not want TL physically harmed. Defense counsel 

argued that the statement was not offered for the truth of the 

matter asserted, but rather to show whether LC actually felt 

that Appellant was serious about having TL murdered, and that 

therefore the statement fell within the state-of-mind exception 

to the hearsay rule, under M.R.E. 803(3). The military judge 

sustained trial counsel’s objection and refused to allow defense 

counsel to inquire further as to the meaning of Appellant’s 

solicitation request. 

 We hold that even assuming the judge erred in receiving the 

hearsay statements within PE 12 into evidence, in overruling 

defense counsel’s objection to LS’s hearsay testimony, and in 

not permitting defense counsel to question LC about whether 

Appellant did not want TL harmed, any such errors were harmless. 

See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2002) (“A finding 

or sentence of court-martial may not be held incorrect on the 
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ground of an error of law unless the error materially prejudices 

the substantial rights of the accused.”). 

 Regarding MM’s hearsay statement in PE 12, TL had already 

testified about the statement -- without defense objection -- 

during direct examination. Moreover, before PE 12 was offered 

by the Government, the defense used it as its own exhibit, 

admitted for identification, to cross-examine TL about MM’s 

statement to her. The same statement was also contained in PE 

13 -- the summary of TL’s testimony in a proceeding pursuant to 

Article 32, UCMJ, 10 U.S.C. § 832 (2000) -- which was admitted 

without objection by the defense, and was also used by the 

defense to cross-examine TL, as an exhibit admitted for 

identification. As to CF’s hearsay statement in PE 12, although 

CF had not yet testified at the time PE 12 was admitted, he 

testified and was cross-examined shortly thereafter, in a manner 

consistent with his statement in PE 12. Regarding MM’s hearsay 

statement contained in LS’s in-court testimony, by the time LS 

testified at trial, the court members already had this evidence 

before them through MM’s own trial testimony. 

 In sum, Appellant suffered no prejudice from the admission 

of hearsay statements contained in PE 12 and LS’s trial 

testimony. The hearsay statements were addressed without 

defense objection during TL’s direct examination, were used by 

the defense to cross-examine TL, were consistent with and 
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cumulative of the declarants’ own in-court testimony, and were 

contained in PE 13, which was admitted without defense 

objection. See United States v. Gunkle, 55 M.J. 26, 30 

(C.A.A.F. 2001)(noting this Court’s reluctance to find 

reversible error where the challenged information is simply 

cumulative of the victim’s own in-court testimony). 

 Finally, the judge’s failure to permit defense counsel to 

question LC regarding Appellant’s exact intentions was harmless. 

Indeed, the court members ultimately found that Appellant did 

not solicit LC to murder TL -- but rather only to commit an act 

prejudicial to good order and discipline. In sum, counsel’s 

inability to probe LC to show that he did not solicit murder 

could not have been prejudicial to Appellant. 

Thus, we affirm the decision of the CCA as to Issue I, 

holding in agreement with the CCA that any errors on the part of 

the military judge were harmless. 

II. WHETHER APPELLANT’S CONVICTION FOR SOLICITATION SHOULD BE 

SET ASIDE BECAUSE (1) IT FAILS TO STATE AN OFFENSE, (2) IT 

IS NOT A LESSER INCLUDED OFFENSE OF SOLICITATION TO COMMIT 

MURDER, OR (3) THERE IS A FATAL VARIANCE BETWEEN THE 

CHARGED SPECIFICATION AND THE FINDINGS. 

Appellant was charged, in part, with soliciting LC to 

murder TL, for telling LC that he wanted TL to disappear, for 

providing LC with a picture of TL, and for discussing with LC 

how much it would cost to have TL disappear. The members 
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excepted out “murder” from the specification and found Appellant 

guilty of the “general disorder” of 

soliciting the commission of an offense to the 

prejudice of good order and discipline . . . in that 

[Appellant] . . . did . . . wrongfully solicit [LC] to 

cause [TL] to disappear or to wrongfully prevent her 

from appearing in a civil or criminal proceeding . . . 

by telling [LC] he wanted his wife to disappear, 

providing [LC] the keys to [TL’s] car, a picture to 

identify the said [TL] and by discussing how much it 

would cost to have [LC] make the said [TL] disappear. 

Appellant now argues that this variance between the charge 

and findings was significant enough to have prevented him from 

adequately preparing a defense. In essence, Appellant claims 

that defending against a charge of soliciting murder is not the 

same as defending against a charge of soliciting the commission 

of a general disorder. Appellant avers that because of this 

difference, he was not “on notice” -- and therefore not prepared 

-- to defend against the offense of which he was convicted. We 

agree with Appellant, and hold that there was a fatal variance 

between the charged specification and the findings. 

“A variance between pleadings and proof exists when 

evidence at trial establishes the commission of a criminal 

offense by the accused, but the proof does not conform strictly 

with the offense alleged in the charge.” United States v. 

Allen, 50 M.J. 84, 86 (C.A.A.F. 1999). Nevertheless, the Rules 

for Courts-Martial authorize findings by exceptions and 

substitutions, with the caveat that they “may not be used to 
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substantially change the nature of the offense or to increase 

the seriousness of the offense or the maximum punishment for 

it.” Rule for Courts-Martial 918(a)(1). See also United States 

v. Wray, 17 M.J. 375, 376 (C.M.A. 1984). 

Minor variances that do not change the nature of the 

offense are not necessarily fatal. See United States v. Hunt, 

37 M.J. 344, 347-48 (C.M.A. 1993)(date of rape charged as “on or 

about”); United States v. Willis, 50 M.J. 841 (A. Ct. Crim. App. 

1999)(change in language alleged to be false under Article 107 

violation not material). “Where, however, an appellant can 

demonstrate that a variance is material and that he or she was 

prejudiced, the variance is fatal and the findings thereon can 

not stand.” United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 

2003)(concluding that the variation between the charge of 

violating a general order by providing alcohol to a recruit and 

the findings that the accused wrongfully engaged in and 

encouraged a nonprofessional, personal relationship with the 

recruit was material because it deprived the accused of the 

opportunity to defend against the charge). 

Prejudice can arise from a material variance in several 

ways: 

An appellant may show that the variance puts him at 

risk of another prosecution for the same conduct. An 

appellant may [alternatively] show that his due 

process protections have been violated where he was 

“misled to the extent that he has been unable 
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adequately to prepare for trial,” or where the 

variance at issue changes the nature or identity of 

the offense and he has been denied the opportunity to 

defend against the charge. 

Id. at 67 (quoting United States v. Lee, 1 M.J. 15, 16 (C.M.A. 

1975))(other citations omitted). We hold that the soliciting 

murder charge did not put Appellant on notice to defend against 

a lesser-included offense of soliciting the commission of 

obstruction of justice. Consequently, there was a fatal 

variance between the specification as charged and the members’ 

ultimate findings. 

The original specification for solicitation to commit 

murder read as follows: 

[D]id, at or near Sumter, South Carolina, between on 

or about 24 November 1998 and on or about 19 January 

1999, wrongfully solicit [LC] to murder [TL], by 

telling [LC] that he wanted his wife to disappear, 

providing [LC] a picture to identify the said [TL], 

and discussing how much it would cost to have [LC] 

make the said [TL] disappear. 

Court-Martial Order at 1 (emphasis added). The members’ 

findings on the above specification -- establishing Appellant’s 

solicitation conviction -- were returned as follows: 

Not Guilty, but guilty of the lesser included offense 

of soliciting the commission of an offense to the 

prejudice of good order and discipline in the armed 

forces as follows: in that [Appellant] did, at or near 

Sumter, South Carolina, between on or about 24 

November 1998 and on or about 19 January 1999, 

wrongfully solicit [LC] to cause [TL] to disappear or 

to wrongfully prevent her from appearing in a civil or 

criminal proceeding pending before a duly authorized 

court of the United States by telling [LC] that he 
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wanted his wife to disappear, providing [LC] the keys 

to [TL]’s car, a picture to identify the said [TL], 

and discussing how much it would cost to make the said 

[TL] disappear. 

(Emphasis added.) In essence, Appellant was convicted of 

soliciting the commission of obstruction of justice. 

 The offense of murder under Article 118, with which 

Appellant was originally charged with soliciting, is as follows: 

Any person subject to this chapter who, without 

justification or excuse, unlawfully kills a human 

being, when he -- 

 (1) has a premeditated design to kill; 

 (2) intends to kill or inflict great bodily harm; 

 (3) is engaged in an act that is inherently 

dangerous to another an evinces a wanton disregard of 

human life; or 

 (4) is engaged in the perpetration or attempted 

perpetration of burglary, sodomy, rape, robbery, or 

aggravated arson; is guilty of murder, and shall 

suffer such punishment as a court-martial may direct, 

except that if found guilty under clause (1) or (4), 

he shall suffer death or imprisonment for life as a 

court-martial may direct. 

Appellant’s original charge suggested a violation of clause (1), 

in that “telling LC that he wanted his wife to disappear, 

providing LC a picture to identify the said TL, and discussing 

how much it would cost to have LC the said TL disappear” imply 

premeditation on Appellant’s part, and Appellant’s specific 

intent that such murder be committed. Upon receiving this 

charge, Appellant’s defense team channeled its efforts in the 

direction of solicitation of premeditated murder, in order to 

defeat the Government’s attempt to prove premeditated murder 
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beyond a reasonable doubt. Indeed, assembling such a defense is 

what the charge put counsel “on notice” to do. 

Given the explicit language of the charge, Appellant could 

not have anticipated conviction for a lesser-included offense of 

soliciting a person to wrongfully prevent her from appearing in 

a judicial proceeding. Because he lacked notice to prepare an 

adequate defense, there was a fatal variance between the precise 

specification as charged, and the general findings as returned 

by the members. 

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed as to Charges I and III and their 

specifications, and set aside as to Charge II and the sentence. 

The case is returned to the Judge Advocate General for remand to 

the Court of Criminal Appeals, which may reassess the sentence 

or order a sentence rehearing.