## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and LEVIN 1 Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant LEROY STRAKER, JR.

United States Army, Appellant

ARMY 20160476

Headquarters, United States Army Alaska Sean F. Mangan, Militar y Judge (arraignment) Kenneth W. Shahan, Milit ary Judge (trial)
Lieutenant Colonel Rana D. Wi ggins, Acting Staff Judge Advocate (pretrial)
Colonel Roseanne M. B ennett, Staff Judge Adv ocate (post-trial)

For Appellant: Lieutenant Colo nel Tiffany M. Chapman, JA; Capt ain Benjamin A. Accinelli, JA (on brief); Lieuten ant Colonel Tiffany M. Chapman , JA; Captain Patrick G. Hoffman, JA; Captain Benjamin A. Accinelli, JA (on r eply brief).

For Appellee: Colonel Tania M. M artin, JA; Major Cormac M. Smi th, JA; Captain Cassandra M. Repos o, JA (on brief).

24 August 2018

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

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

LEVIN, Judge:

A military judge sitti ng as a general court-martial convicted appellant, contrary to his pleas, of one sp ecification of conspiring to co mmit prostitution and one specification of a general disorder for assisting another i n engaging in sexual intercourse with another for hire, in violation of Articles 81 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 881, 93 4 (2012). The military judge sentenced appellant t o a bad-conduct dischar ge, eight months co nfinement, and
reduction to the grade of E-1. The milit ary judge granted appel lant 261 day s credit against confinement pursuan t to Article 13, UCMJ, and United States v. Allen , 17

1 Judge Levin decide d this case while on active duty.STRAKER—ARMY 20160476

2 M.J. 126 (C.M.A. 1984) . The convening authority approved seven months of
confinement and otherwi se approved the sent ence as adjudged.

This case comes before us for review und er Article 66, UCMJ. F irst, appellant asserts that the mi litary judge erred, creating a fat al variance by excepting and substituting words in the Ar ticle 134 offense. We disagree , but we grant relief on other grounds. Appel lant’s second assignment of error, chal lenging the legal and factual sufficiency of t he conspiracy offense, deserves discuss ion but not relief. 2

BACKGROUND

A. Sergeant Straker’s Misconduct

Between about March 2014 and ab out July 201 4, appellant conspir ed with LM to engage in prostitution. Am ong other things, a ppellant provi ded security and handled finances for LM while she worked as a prostitute. On o ne occasion in April 2014, LM met a client in a Fairba nks hotel. The client was LM’ s ex-boyfriend, CC,
and he made unwanted sexual contact with L M before she called a ppellant for assistance. Appellant ran to the room and confronted CC with a gun in his waistband. Appellant a nd CC struggled, and the gun fired once in the hotel hallway
before an off-du ty police officer stoppe d the altercation and h eld both parties at gunpoint until Alaska State Troopers arr ived at the scene. 3

B. Sergeant Straker’s Court-Martial

On 6 July 2016, appell ant proceeded to tri al on a charge of, am ong others, pandering by procu ring an act of prostitution:

[In that he] “did, a t or near Fairbanks, Alaska, between on
or about 20 March 2014 and 30 July 20 14, wrongfully procure Ms. [LM] to engage in acts of sexual intercourse
for hire and reward with persons to be directed to her by

the accused , such conduct b eing to the prej udice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces, ” (emphasis added).

2 We have reviewed the matters pe rsonally raised b y appellant pu rsuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), a nd find they mer it no relief.

3 Appellant was charged with wro ngful discharge of a firearm, ne gligent discharge of a firearm, and assault with a d angerous weapon. The military ju dge acquitted appellant of these charges.STRAKER—ARMY 20160476

3 At trial, appellant maintained t hat he was LM’s boyfriend, not her panderer, and his financial support and pro tection were par t of his dutie s as a suitor. At the conclusion of the government’s c ase, appellant moved for a find ing of not guilty to several of the charges pursuant to Rule for Court-Martial (R.C. M.) 917. Relevant to this appeal, the milit ary judge partially granted appellant’s R .C.M. 917 motion to the pandering charge, fin ding appellant not gu ilty of the language “with persons to be directed to her by the accused.”

Later, the military judge announ ced findings, substituting the words “assist [LM] in engaging,” for the excepted words “ procure Ms. [LM] to engage in,” as
shown below:

[In that he] “did, at or near Fairbanks, Ala ska, between or on about 20 March 2014 and 30 July 2 014, wrongfully procure Ms. L.M. to engage in assist LM in engaging in acts of sexual intercourse for hire and reward w ith persons to be directed to her by the accus ed, such conduct being to the pr ejudice of good order and discipline in the armed forces and of a nature to bri ng discredit upon the armed forces,” (emphasis added to s how substitutions).

The military judge an nounced that he consid ered the revised off ense to be that of a general disorde r and neglect offense under Article 134.

LAW AND DISCUSSION

A. Fatal Variance and Failur e to State an Offense

The Rules for Courts-Martial authorize findings by exceptions a nd substitutions. “Minor variances that do not change the nature of the offense are not necessarily fatal.” United States v. Lovett, 59 M.J. 230, 235 (C.A.A.F. 2004) (citing United States v. Hunt, 37 M.J. 344, 347-48 (C.M. A. 1993). However, a variance “may not be used to substantially change th e nature of the offense.” R.C.M. 918(a)(1) . If it does so, such a v ariance is material. United States v. Finch

, 64 M.J. 118, 121 (C .A.A.F. 2006).

When, as here, defense counsel does not object t o the exceptio ns and substitutions at trial, appellant must show that the variance w as material and that it substantially prejudiced him. Hunt , 37 M.J. at 347. We review whether there was a
fatal variance de novo

. United States v. Treat , 73 M.J. 331, 335 (C.A.A.F. 2014).

In Lovett, our superior co urt found a fatal variance when the court membe rs, by exceptions and substitutions, found the appellant guilty of a “general disorder” offense, und er Article 134, UCMJ. Lovett had been ch arged with wrongfully soliciting, under Ar ticle 134, UCMJ, the murder of h is wife in violation of Article 118, UCMJ, to prevent her from testifyi ng against hi m. Lovett , 59 M.J. atSTRAKER—ARMY 20160476

4 236. Our superior court found the appellant’s d efense team “ch anneled its efforts in
the direction of solicitation of premeditated mur der” and the a ppellant “could not have anticipated conviction for a lesser-included offense of so liciting a person to wrongfully preven t [his wife] from appear ing in a judicial proc eeding.” Id.

Appellant argues the f inding by exceptions a nd substitutions re sulted in his being convicted of a d ifferent offense involving a different th eory than that described in the spe cification upon which he was arraigned. Ap pellant was charged with pandering by procuring, whic h, as he points out, contempla tes wrongful actions by a principal. He was convict ed of assisting, w hich involves the actions of an accomplice. Accordingl y, the defense channe led its efforts at trial to raise doubt about any busines s arrangement wherein ap pellant pers uaded othe rs to have sexual
intercourse with LM.

The excepted and subs tituted finding did not increase the serio usness of
the offense and did not increase the maximum punishment. 4 Appellant’s conviction for assisting ano ther in prostitution was , however, a convictio n of a crime different from that agains t which he defended. The charged offense alleg ed that ap pellant persuaded others to pay for the services of a prostitute. The offense of which appellant was convicted, however , only alleged he otherwise ass isted the prostitute.
We conclude the findi ngs by exceptions and substitutions consti tuted a material
variance.

“Even where there is a variance in fact, t he critical question is one of prejudice.” United States v. Lee , 1 M.J. 15, 16 (C.M. A. 1975) (citing United States v. Craig , 8 U.S.C.M.A. 218, 24 C.M.R. 28 (1957); United States v. Hopf , 1 U.S.C.M.A. 584, 5 C.M.R. 12 (1952 )). Prejudice from a material variance can arise by “(1) putting ‘[the a ppellant] at risk of a nother prosecution for the same conduct,’ (2) misleading him ‘t o the extent that he ha s been unable adequ ately to prepare for trial,’ or (3) denying him ‘the opportunity to defend against t he charge.’” United

States v. Marshall , 67 M.J. 418, 420 (C.A.A.F. 2009 ) (quoting United States v. Teffeau , 58 M.J. 62, 67 (C.A.A.F. 2002)). Under the framework articul ated in

Marshall , the variance in this case di d not prejudic e appellant.

First, there is no risk that ap pellant will be prosecuted again for the same offense. The double je opardy protection ha s attached to the of fense involving prostitution. See Article 44(c), UCMJ, 10 U.S.C. § 844(c); United States v. Easton

, 71 M.J. 168, 170 (C .A.A.F.2012).

4 Appellant’s maximum punishment for the general d isorder offens e included four months of confinement, whereas the maximum punishment for pande ring by procuring an act of prosecution included confinement for five y ears and a dishonorable discharge.STRAKER—ARMY 20160476

5 Second, appellan t was able to prepare adequately for trial on t he general
disorder offense of a ssisting LM in engagi ng in sexual acts for hire and reward. Appellant was also cha rged—and convicted—of conspirac y to engag e in prostitution. This charge necessarily put appellant on notice prior to trial that he needed to prepare for allegations involving an agreement with LM to engag e in prostit ution.

Third, the record reveals appella nt’s defense theory included a n innocent explanation for appellant’s act ions, which were those of a boyf riend rather than
someone involved in sexual acts for hire. Appellant’s defense necessarily included defending against the allegations that he had an agreement with LM to engage in
sexual acts for hire and reward and further defending against a n overt act in furtherance of that agreement.

Our discussion, however, does no t end with our fi nding no preju dice from the variance. Though not raised by ei ther party, the Government ma y not charge a
“novel” offense if the offense is otherwise listed as an Articl e 134, UCMJ, offense.

United States v. Reese , 76 M.J. 297, 30 2 (C.A.A.F. 2017). In other words, if an offense is “already listed inside [Article 134’s] framework,” i t may not be charged as a “novel” general d isorder that reduces the government’s bur den of proof. Id

. See

also United States v. Guardado , 77 M.J. 90, 95 (C.A.A .F. 2017). Here, the specification of which appellant w as convicted required a lower burden of proof than
that with which he was originally charged.

The elements of pandering by procu ring an act of prostitution a re as follows:

(a) That the accus ed . . . procu red a certain person to engage in an act of sexual inte rcourse for hi re and reward with a person to be directed t o said person by the accused;

(b) That this . . . procu ring was wrongful; and

(c) That, under the circumst ances, the conduct of the accused was to the p rejudice of good ord er and discipline
in the armed forces or was of a nature to bri ng discredit upon the armed forces.

Manual for Courts-Martial

, United States (2012 ed.) [ MCM ], pt. IV, ¶ 97.b.(3).

As discussed above, the charged offense alleged that appellant wrongfully persuaded someone to engage in a s exual act. The general disor der offense of which appellant was co nvicted involved on ly an allegation that he ass isted someone who was engaging in such c onduct. The novel offe nse lessened the g overnment’s burden
and involved conduct t hat is already listed inside the article’ s framework. Consequently, the offense is barred from prosecution. See Guardado , 77 M.J. at 95.STRAKER—ARMY 20160476

6 We therefore conclude that Spec ification 1 of Charge III fails to state an offense under the UCMJ and must be dismissed.

B. Factual and Le gal Sufficiency

Next, appellant conte nds that the evidence was factually and le gally insufficient to prove that his conduct wa s prejudicial to good order and discipline. 5 As a remedy, appellant requests that we str ike the of fending la nguage from the specification and reassess his s entence. Notwithstanding the G overnment’s concession to the first request, we decline to do either.

The military judge fo und appellant guilty of conspiracy to comm it prostitution in violation of Article 81, UCMJ. Specifically, the court foun d that appellant:

Did, at or near Fairbanks, A laska, between on or about 20
March 2014 and 30 Ju ly 2014, conspire w ith Ms. L.M. to commit an offense under the Uniform Code of Military Justice, to wit: prostitution, and in order to effect the object of the conspiracy[,] Ms . [LM] did procure persons to engage in sexual intercou rse with Ms. [LM] for money, such conduct being to the pre judice of good order and discipline in the armed force s and of a nature to bring discredit upon th e armed forces.

The test for factual sufficiency is “whether, after weighing th e evidence in the
record of trial and m aking allowances for not having personally observed the
witnesses” we are “convinced of th e accused’s guil t beyond a re asonable doubt.”

United States v. Turner , 25 M.J. 324, 3 25 (C.M.A. 1987)

.

The test for legal sufficiency i s “whether consid ering the evid ence in the light
most favorable t o the prosecutio n, a reason able fact finder cou ld have found all the essential elements bey ond a reasonabl e doubt.” United States v. Humphreys , 57 M.J. 83, 94 (C.A.A.F. 2002) ( citations and intern al quotation marks omitted). Weighing questions of legal su fficiency, this court is “bound to draw ev ery reasonable inference from the evidence of record in favor of the prosecuti on.” United States v.

Barner , 56 M.J. 131, 134 (C.A.A.F. 2001 ) (citations omitted).

Here, the government c harged appellant wit h conspiracy. A crim inal conspiracy pled under Article 81, UCMJ, requires: “[t]hat, whil e the agreement continued to exist, and while the accused remained a party to t he agreement, the

5 In light of the relie f granted to appella nt in his first assig nment of error, we address this issue only with respect to the Article 81 offense.STRAKER—ARMY 20160476

7 accused or at least one of the c onspirators perf ormed an overt act for the purpose of bringing abou t the object of the conspiracy.” MCM , pt. IV, ¶ 5.b.(2).

Although the Governme nt need not have char ged the terminal ele ment, it did
so here. See United States v. Norwood , 71 M.J. 204, 205 (C.A .A.F.2012) (“ in order
to state the elements of an inch oate offense under Articles 80 and 81, UCMJ, a specification is not re quired to expressly allege each element of the predicate offense.”). Consequently, appellant frames th is issue as a ch allenge to the factual and legal sufficiency of his conv iction, arguing that the evide nce failed to prove that his conduct was to the prejudi ce of good order and discipline.

“The crux of the issue is whethe r a fact constitutes an elemen t of the crime charged, or a method of committing it.” United States v. Brown , 65 M.J. 356, 358- 59 (C.A.A.F. 2007). If a fact is a theor y of liability and not an element, then general
verdicts are allowe d when multiple theorie s of liability are al leged:

With minor exceptions for capital cases, a ‘court-martial panel, like a civilian jury, returns a general verdict and does not specify how t he law appli es to the facts, nor does the panel otherwise explain th e reasons for it s decision to convict or acquit.’ In returning such a general verdict, a court-martial panel resolves t he issue presen ted to it: did
the accused commit the offense charged, or a valid lesser included offense, b eyond a reasona ble doubt? A factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long
as the evidence su pports at least one of the means beyond
a reasonab le doubt.

Brown

, 65 M.J. at 359 (quoting United States v. Hardy , 46 M.J. 67, 73 (C.A.A.F. 1997) (other internal citation omitted).

To determine whether a general verdict on a specification alleg ing multiple theories of liability is proper, we must fir st determine if the relevant statute creates separate elements, or merely different theories of liability. In United States v.

Medina , our superior court held that the three clauses of Article 134 , UCMJ’s
terminal element are alternativ e theories of cri minality. 66 M. J. 21, 26-28 (C.A.A.F. 2008).

In this case, therefore, a gener al finding of gu ilty under Arti cle 81 was not dependent on the milit ary judge finding the appellant guilty un der both theories, but
rather at leas t one theory. See

, e.g. United States v. Williams , __ M.J. __ (Army Ct. Crim. App. 21 Aug. 2018). It was n ot necessary f or the militar y judge to return a verdict as to only those theories of liability proven beyond a reasonable doubt, asSTRAKER—ARMY 20160476

8 long as the Government proved all of the elements of the offense. See United States

v. Vidal , 23 M.J. 319, 32 5 (C.M.A. 1987).

This court, of course, is bound to review th e facts of this cas e not just for legal sufficiency, but also for factual sufficiency under Artic le 66(c), UCMJ. In this case, while there was overwhelming evidence that appellant’s co nduct was service discrediting, we agree that there is insuff icient evi dence that appellant’s conduct was prejudicial to go od order and discipline.

This does not cha nge the form of the verdict, however. “A fact finder may enter a general verdict of guilt even when the charge could hav e been committed by

two or more means, as long as the evidence supports at least on e of the means beyond a reaso nable doubt.” Brown

, 65 M.J. at 359. Accordi ngly, we affirm the trial court’s general verdict as it stands. 6

CONCLUSION

Appellant’s convicti on of Specification 1 o f Charge I II and Cha rge III are SET ASIDE. Specification 1 of C harge III and Cha rge III are DI SMISSED. The finding of guilty as to Charge IV and its speci fication is AFFI RMED.

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 circums tances presented by appellant’s case and i n accordance with the principles articula ted by our superior
court in United States v. Sales , 22 M.J. 305 (C. M.A. 1986) and United States v.

Winckelmann , 73 M.J. 11, 1 5-16 (C.A.A.F. 2013).

Appellant faced a maximum sent ence of sixteen months confineme nt, total forfeiture of all pay and allowa nces, reduction to the grade of E-1, and a dishonorable discharge . In evaluating the Winckelmann factors, we first find no significant change in the penalty landscape that might cause us pause in reassessing appellant’s sentence, as the potential maximum sentence include s one year confinement and a dishonorable di scharge, a sentence greater th an that which the military judge i mposed, and greater still than that w hich the c onvening authority approved. Second, we note appellant elected to be tried by a m ilitary judg e sitting alone, so we are confident the sentence would not have changed had appellant been found not guilty of Spe cification 1 of Charge III and Charge II I. Third, we find the remaining offense captures the gravamen of appellant’s criminal conduct. Finally, based on our experienc e as judges on this court, we are familia r with the remaining

6 The general verdict neither exa ggerates nor misrepresents appe llant’s criminality. Appellant is guilty of conspir acy to commit prostitution. The theory under which appellant was found guilty is irrelevant to the general verdict , so long as at least one valid theory was charg ed and at least one valid theory charged was proven.STRAKER—ARMY 20160476

9 offense so that we may reliably determine what s entence would h ave been imposed
at trial.

Having conducted this reassessme nt, we AFFIRM the sentence as a pproved. All rights, privileges , and property, of whi ch appellant has be en deprived by virtue of that portion of the findings set aside by this decision are ordered restored. See UCMJ arts. 58a(b), 5 8b(c), and 75(a).

Senior Judge MULLIGAN an d Judge FEBBO concur.

FOR THE COURT:

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