United States v. Master Sergeant RAYMOND J. REYNARD ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
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. Borcherding, Staff Judge Advocate
For Appellant: Captain Matthew T. Grady, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura R. Kesler, JA; Major
Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief).
For Appellee: Captain Kenneth W. Borgnino, JA (argued); Major Amber J.
Williams, JA; Major Katherine S. Gowel, JA; Captain Kenneth W. Borgnino, JA (on
brief).
27 November 2012
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SUMMARY DISPOSITION ON REMAND
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Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of two specifications of rape of a child, and one specification
of indecent assault, in violation 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 specification of rape, but was convicted of
the lesser included offense of carnal knowledge, in violation of Article 120, UCMJ.
Appellant was sentenced to a dishonorable discharge and confinement for seven
years. The convening authority dismissed the carnal knowledge specification and
approved the remaining findings of guilt and the adjudged sentence.
This case was previously submitted to this court for review pursuant to Article
66, UCMJ. On 21 February 2012, we issued a summary disposition decision in this
case, affirming the findings of guilty and the sentence. United States v. Reynard,
ARMY 20100351 (Army Ct. Crim. App. 21 Feb. 2012). On 8 August 2012, our
REYNARD — ARMY 20100351
superior court reversed our decision as to Charge II and its Specification, indecent
assault, in violation of Article 134, UCMJ, and as to the sentence; affirmed our
decision as to the other specifications and charges; and returned the record of trial to
The Judge Advocate General of the Army for remand to this court for further
consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
United States v. Reynard, 71 M.J. 378 (C.A.A.F. 2012). Consequently, appellant’s
case is again before this court for review under Article 66, UCMJ.
DISCUSSION
The elements of a crime under clause 1 or 2 of Article 134, UCMJ are that (1)
the accused engaged in certain conduct, and (2) that the conduct was prejudicial to
good order and discipline or service discrediting. See Manual for Courts-Martial,
United States, (2008 ed.) [hereinafter MCM], pt. IV, ¶ 66.b(1)(e).
“The Government must allege every element expressly or by necessary
implication, including the terminal element.” United States v. Fosler, 70 M.J. 225,
232 (C.A.A.F. 2011). Pursuant to Humphries, even if this specification does not
allege the terminal elements by necessary implication, the question remains whether
the defect resulted in material prejudice to appellant’s substantial right to notice.
This question is answered by a close review of the record to determine if “notice of
the missing element is somewhere extant in the trial record, or whether the element
is ‘essentially uncontroverted.’” Humphries, 71 M.J. at 215-216 (citing United
States v. Cotton, 535 U.S. 625, 633 (2002)).
In view of Humphries, we are compelled to disapprove the finding of guilty as
to the Article 134, UCMJ, offense previously affirmed. The specification does not
contain allegations of terminal elements under Article 134, UCMJ, and there is
nothing in the record to satisfactorily establish notice of the need to defend against a
terminal element as required under Humphries. Therefore, we now set aside
appellant’s conviction for indecent assault and the defective specification in light of
Fosler.
However, because the specification at issue * did allege every element of an
assault consummated by a battery in violation of Article 128, UCMJ we find the
evidence to be factually and legally sufficient to affirm that offense. “In order to
determine whether an indictment charges an offense against the United States,
designation by the pleader of the statute under which he purported to lay the charge
is immaterial. He may have conceived the charge under one statute which would not
sustain the indictment but it may nevertheless come within the terms of another
*
The specification alleged, “In that [appellant] did, at or near Lineville, Alabama,
between on or about 1 May 2007 and 30 September 2007, commit an indecent assault
upon [LK], a person not his wife by touching her buttocks, with intent to gratify his
sexual desires.”
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REYNARD — ARMY 20100351
statute.” United States v. Hutcheson, 312 U.S. 219, 229 (1941). See United States
v. Rauscher, 71 M.J. 225, 226, n.1 (C.A.A.F. 2012). In this case, every element of
the offense of assault consummated by a battery is alleged in the specification.
Accordingly, the “specification clearly placed [A]ppellant on notice of that against
which he had to defend.” Id. at 226–27.
“The elements for an assault consummated by a battery are: ‘(1) that the
accused did bodily harm to a certain person, and (2) that the bodily harm was done
with unlawful force or violence.’” United States v. Morris, ARMY 20091169 (Army
Ct. Crim. App. 20 Sep. 2012) (citing United States v. Bonner, 70 M.J. 1, 3 (C.A.A.F.
2011)), see MCM, 2008, pt. IV, ¶ 54.b(2). Bodily harm is defined as “any offensive
touching of another, however slight.” MCM, Part IV, ¶ 54.c.(1)(a). Each of the
elements of assault consummated by a battery are contained in the elements of
indecent assault. MCM, 2008, Part IV, ¶ 66.b(1)-(2). See United States v. Moses,
ARMY 20090247 (Army Ct. Crim. App. 27 May 2011).
Accordingly, we affirm appellant’s conviction of the Specification of Charge
II and Charge II for the offense of assault consummated by a battery in violation of
Article 128, UCMJ. We affirm only so much of the finding of guilty of the
Specification of Charge II and Charge II, as finds that appellant:
Did, at or near Lineville, Alabama, between on or about 1 May 2007
and 30 September 2007, commit an assault upon [LK], a person not his
wife by touching her buttocks.
CONCLUSION
On consideration of the entire record and the briefs submitted by the parties,
and in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), the
findings of guilty of Charge II and its Specification are set aside. We affirm the
finding of guilty for the offense of assault consummated by a battery for that same
charge and specification. Reassessing the sentence on the basis of the error noted,
the entire record, and in accordance with the principles of United States v. Sales, 22
M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006),
to include the factors identified by Judge Baker in his concurring opinion in Moffeit,
the court affirms the sentence as approved by the convening authority.
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES JR.
Clerk of Court
Clerk of Court
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