IN THE CASE OF
UNITED STATES, Appellee
David R. THOMPSON, Sergeant First Class
Crim. App. No. 20000342
EFFRON, J., delivered the opinion of the Court, in which GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed a dissenting opinion.
For Appellant: William E. Cassara, Esq. (argued); Colonel Robert D. Teetsel and Captain Lonnie J. McAllister, II (on brief); Lieutenant Colonel E. Allen Chandler, Jr. and Major Sean S. Park.
For Appellee: Captain Janine Felsman (argued); Colonel Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines and Major Natalie A. Kolb (on brief).
Military Judge: K. H. Clevenger
This opinion is subject to editorial correction before final publication.
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted members, Appellant was convicted, contrary to his pleas, of indecent acts or liberties with a child, in violation of Article 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 934 (2000). He was sentenced to confinement for four years and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Criminal Appeals affirmed in an unpublished opinion.
We granted Appellant’s petition for review under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3)(2000).1 For the reasons set forth below, we hold that the military judge committed prejudicial error in his rulings related to the applicable statute of limitations.
Appellant was charged with one specification of rape. The panel at Appellant’s court-martial determined that he was not guilty of rape, but was guilty of a lesser-included offense, indecent acts with a child.
the time of Appellant’s trial, the
offense of rape could be tried at any time without limitation, while
offense of indecent acts was subject to a five-year statute of
43, UCMJ, 10 U.S.C. § 843 (2000); Willenbring
v. Neurauter, 48 M.J. 152 (C.A.A.F.
1. Preferral and referral of charges
The charge sheet in the present case contained a single
alleging that Appellant “did, at or near Glattbach,
Germany, Fort Irwin, California, and Fort Knox, Kentucky, on divers
on or between 1 September 1992 and
2. Trial on the merits
stepdaughter, Ms. B, who was 20 years old at the time of trial,
Appellant had abused her sexually from age 5 through age
15. She stated that Appellant began
touching her sexually in October 1985, about a year after her mother
Appellant. At that time, the family
was transferred to
and his family subsequently relocated to
Three and one-half years later, in September 1999, Ms. B reported Appellant’s actions to law enforcement authorities. According to her testimony at a pretrial hearing in the present case, she decided to make the September 1999 report because she feared that her younger brother might be subjected to the same abuse.
evidence presented by the
prosecution included the testimony of Ms. B’s former boyfriend, to whom
revealed the alleged sexual abuse in 1996, and an expert witness who
that Ms. B’s description of the alleged sexual abuse that she suffered
consistent with cases of similar child sexual abuse.
The prosecution also introduced the
deposition testimony of Ms. B’s younger sister, Ms. NT, concerning an
when they lived at
defense position was that the alleged
abuse did not occur, and that Ms. B’s promiscuity served both as a
lie and as an explanation for her knowledge of sexual conduct. Appellant’s wife and his mother-in-law each
testified that Appellant had not sexually abused Ms. B.
The defense also presented witnesses who
testified to Appellant’s good character, reputation, and performance in
line of duty. In closing argument, trial
defense counsel stressed that there was no corroboration for Ms. B’s
allegations and suggested that her promiscuity provided a motive to
accusations against Appellant.
3. Instructions on findings
As the presentation of evidence drew to a close, the military judge discussed proposed instructions with the parties in a session under Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000). The Government requested that the military judge instruct the members that they could consider two lesser-included offenses, carnal knowledge under Article 120 and indecent acts with a child under Article 134. The defense objected. With respect to the Article 134 offense, the defense argued that the rape charge did not put the defense on notice that they would have to defend against the facts elicited by the Government pertinent to the specific offense of indecent acts with a child. The defense also contended that the Government had not introduced any evidence on the element under Article 134 that the alleged lesser-included offense was prejudicial to good order and discipline. The military judge rejected the defense objection.
counsel for both parties concluded their closing arguments on findings,
military judge instructed the members as to the elements of the rape
the two lesser-included offenses. With
respect to indecent acts with a child, the instructions included the
Now, the court is further advised that the offense of indecent acts or liberties with a child is also a lesser-included offense in this case. In this instance it’s a lesser-included offense of carnal knowledge.
. . . .
. . . And in order to find the accused guilty of this lesser-included offense, that is, indecent acts with a child, you must be convinced by legal and competent evidence beyond a reasonable doubt of the following . . . elements.
. . . .
That at or near Glattbach, Germany, Fort Irwin, California, and Fort Knox, Kentucky, on divers occasions, on or between the 1st of September 1992 and 1st of March 1996, the accused committed certain acts upon the body of [Ms. B], by touching her private parts.
. . . .
That at the time of the alleged acts . . . [Ms. B] was a female under the age of 16 years.
. . . .
That the acts of the accused were indecent . . . .
. . . .
That [Ms. B] was a person not the spouse of the accused . . . .
. . . .
That the accused committed the acts with intent to arouse or gratify the lust or sexual desires of the accused and [Ms B].
. . . .
[And] [t]hat 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.
concerning the statute of limitations
After the military judge completed his instructions, the members began their deliberations on findings. While the members were deliberating, the military judge held a number of conferences with the parties under Rule for Courts-Martial 802 [hereinafter R.C.M.], and Article 39(a). During one conference pursuant to R.C.M. 802, the trial counsel notified the military judge of concerns about the statute of limitations with respect to the lesser included offenses. This led to several highly technical discussions as the military judge belatedly encountered a series of complexities resulting from the failure to address the statute of limitations prior to instructing the panel on findings.
first Article 39(a) session that
considered the statute of limitations included the following
between the military judge, trial counsel and civilian defense counsel:
MJ: Now, then, before we came back on the record we had an 802 conference and we talked about two issues.
The first was a concern raised by the Government, quite properly, and that is; if there is a lesser-included offense finding, that is, a finding as to an offense other than rape, there could be a statute of limitations problem.
And the issue is, obviously, that under Article 43, the statute is [tolled] as to the death penalty offense of rape, and not as to the lesser-included offense of carnal knowledge and indecent acts. And, my calculation would be the -- the [tolling] point would be the 2nd of January 1995; because the charges were received by the summary court-martial convening authority on the 3rd of January 2000. So that would mark the five-year time period that the statute would bar offenses committed before the 2nd of January 1995.
had suggested to the parties that it would be an appropriate defense to
raise against that, and the timing of it
would be very
awkward. And, the Government, apparently
would not resist that in any way, and that the proper solution would
if the members returned a finding of a lesser-included offense, that
time period before 1 --
Excuse me. --before
after that date, up until the charged date of
As near as I know, I haven't -- I don't recall seeing that in the law, but I see no reason why that would be an inappropriate process. Is that both a fair summary of what we talked about as to that matter, and would there be any objection to proceeding that way should it become necessary; Government?
TC: That is a fair summary, Your Honor, and there would be no objection.
Defense, I will give you a full opportunity to both consider and research the question if you'd like. I don't require you to answer immediately. But, if you have any ideas about it, I would be glad to listen.
CDC: (A), we concur it's a fair summary; and (B), the only -- We are confident that it is possible and proper to do this since we are aware of case law allowing the military judge to enter findings after the panel has returned, in cases where there are inconsistent findings or otherwise, and we see it as being a similar analysis. The only penny-pinching we would do is whether it's the 2nd, or the 3rd, the 4th of January, and we'll look into that, Your Honor.
MJ: Absolutely. Mine was the first cut on the timing. Somebody with a calendar can do a lot better, and I have not made any decision about that. We will await the event. But, at least we know what we are talking about should it occur.
the military judge and the parties
engaged in these discussions, the members continued their closed
deliberations. The members
subsequently interrupted their
deliberations and returned to the courtroom on three separate occasions. The first interruption occurred when the
judge, in response to an inquiry from the members, provided
instructions on the
distinction between rape and carnal knowledge.
At that time, the military judge also gave the members further
instructions on the offense of indecent acts.
Later, the members asked to rehear Ms. NT’s testimony about the
she witnessed at
5. Conclusion of the panel’s deliberations and announcement of findings
deliberations, which began in the early
afternoon, were concluded in the evening.
When the court-martial reconvened that evening, the military
the president of the court-martial whether the members had reached a
and whether the finding was reflected on the findings worksheets. After receiving an affirmative response, the
military judge then asked the president to read the findings. The president announced that the
court-martial found Appellant “Not Guilty of Rape, but Guilty of
or liberties with a child.” The findings
worksheet set forth the following description of the offense:
In that Sergeant First Class David R. Thompson, United States Army, did, at or near Glattbach, Germany, Fort Irwin, California, and Fort Knox, Kentucky, on divers occasions on or between 1 September 1992 and 1 March 1996, commit indecent acts upon the body of [Ms. B], a female . . . under 16 years of age, not the wife of the accused, by touching her private parts with intent to arouse the sexual desires of the accused and [Ms. B].
6. Proceedings following announcement of the findings
The military judge informed the members that because they “entered a finding of guilty to a lesser-included offense,” the court-martial would “go forward with sentencing.” He also advised the members that he would first need “to take a short recess with counsel, outside of your presence, to conduct a little bit of business.”
the ensuing Article 39(a) session, the
military judge stated that “the most significant thing is,
we do now face the issue of the statute of limitations on the
offense finding.” Both parties agreed
that the five-year limitations period should be based on receipt of
the summary court-martial convening authority on
hearing from both parties on the
calculation of the period, the military judge said:
And so therefore the specification would have to be corrected to state: On divers occasions, on or between
The prosecution agreed. The defense disagreed, and moved for a finding of not guilty “because we cannot determine if any of the offenses found occurred within the five-year statute.” In support of its position, the defense cited United States v. Glenn, 29 M.J. 696 (A.C.M.R. 1989).
The military judge observed that the matter raised by the defense was “a close issue,” that Glenn was distinguishable, and that the relevant test was “whether the record is sufficiently clear that the acts occurred within the statutory time period.” He stated that he was “satisfied that the record is sufficiently clear, that on at least one occasion, that there was in fact a touching of her private parts by the accused while at Fort Knox, that would be sufficiently clear to indicate that the offense of indecent acts with a child had occurred within the statutory time period, as the evidence in this case suggests.”
defense disagreed. After noting that the
only evidence involving
MJ: You are speculating, counsel.
CDC: I think it’s fair comment, Your Honor. Clearly within the power of the panel, given the amount of time they took and the questions they asked, and the distinctions they drew. Further ---
MJ: But we don’t know. We can’t know. Their deliberations are secret.
CDC: That is the whole point, Your Honor, of the argument.
defense also noted that the majority of
the members’ questions dealt with the incident described by Ms. NT,
that if that incident occurred, the evidence showed that it occurred
the statutory period “in the 1993-94 time frame.” The defense urged the judge to dismiss the
charge, contending “that the court is substituting its belief of the
rather than that of the panel.” The
military judge responded that, in his view, the legal test was whether
find evidence to support the finding:
They have made a finding. Is there evidence which suggests all the elements of this offense could have been found within the statutory time period, is that evidence in the record? If I say, as I do, yes, I believe it is, I am not trying to justify the finding. I am simply trying to determine whether or not Glenn is a bar to allowing the conviction to stand. I understand your argument though, sir.
military judge formally rejected the
defense motion on the grounds that the record contained sufficient
an offense not barred by the statute of limitations:
[F]or the purposes of resolving the defense motion, I am going to conclude that the Glenn case is not controlling, and that our record does contain sufficient evidence to support a finding, within the statutory time period; [and] that the accused did commit indecent acts upon the body of [Ms. B].
Based on that ruling, the military judge announced that he would amend the findings of the court-martial panel:
order to clarify the issue as to whether the statute of limitations
am going to direct that the finding of the court be amended such that
further stated that he would give the court-martial panel an
evaluate the validity of his amendment of the panel’s verdict:
I will so direct the court-martial panel members, if they find that incompatible, they may very well say that to us - but for our purposes, that will be the nature of the offense for which sentencing evidence is being heard.
And, defense, your point is well taken and the court is willing to reconsider its ruling in light of further legal research or analysis, and it’s my belief if you prevail, the accused will not be irreparably damaged by the hearing of one sentencing witness this evening.
When the members returned for the sentencing hearing, the military judge informed them that he was modifying the specification, and stated:
It’s therefore important for you to recognize that the offense for which you have convicted the accused is as follows:
[“]In that, Sergeant First Class David R. Thompson, U.S. Army, did, at or near Fort Irwin, California, and Fort Knox, Kentucky, on divers occasions between – on or between 3 January 1995 and 1 March 1996, commit indecent acts upon the body of [Ms. B], a female under 16 years of age, not the wife of the accused, by touching her private parts with intent to arouse the sexual desires of the accused and [Ms. B].[“]
If that does violence to your verdict and your views, I need you to tell me that when we reconvene, or if you know that now, I would hear that now as well.
the military judge began to conduct
the sentencing proceedings, the President of the panel interrupted him
stated that “[t]here may be a question . . . on the change.” The military judge then informed the
President of the panel --
[L]et me make one thing very clear to you. In discussing this, what we must not do, is reveal the vote or opinion of any particular members. And, so, what I am really interested in is whether or not you need to say, well, as a matter of fact, based on what we were talking about in our discussions, it would appear that the changes I’ve made, would not reflect what you actually believe that you found beyond a reasonable doubt.
The President of the panel asked the military judge to allow the members to discuss the amendment to the findings. The military judge advised the members that such a discussion would be appropriate, adding that “you are talking among yourselves on providing an answer to my question. You are not reconsidering.”
the members had discussed the matter,
the President of the panel informed the military judge that if the
specification “includes a portion of the period at
When the court-martial reconvened two days later, defense counsel proposed a question for the military judge to pose to the members in response to these events: “Would knowing the approximate date or probable year of the incident about which [Ms. NT] spoke of as occurring ‘at the house with no grass’ possibly affect your finding of guilty now that the dates of the specification have been modified to encompass the time period 3 January 1995 to 1 March 1996?” The Government objected to the proposed question, and the military judge did not make any further inquiries of the members or rule on defense counsel’s proposed question at that time.
The discussion then turned again to the defense motion to dismiss the finding, and the Government contended that the defense had waived the statute of limitations. The military judge rejected the Government’s position, stating “[t]here is no waiver in this case.”
advising the parties that he had
engaged in further research, the military judge ruled against the
motion to propound a further question to the members, and he also
defense motion to dismiss the finding.
The military judge offered the following explanation for
findings that had been returned by the members:
Here, when the period in place of the finding, was in my mind, clarified to avoid the statute of limitations bar, and I did that because, number one, I didn’t believe the accused could properly stand convicted of an offense, a portion of which was within the statute of limitations, and I didn’t believe it was appropriate to allow sentencing to go forward in consideration of an element of an offense, that was in my view barred by the statue of limitations.
did determine at that time, and I adhere to my earlier conclusion that
evidence in the record of trial supports the conclusion that the panel
concerning the indecent act, of which [Appellant] has been convicted. I believe that [Ms. B] had testified to a
period at which such an indecent acts [sic] occurred at
military judge provided the following
explanation for his discussion with the members regarding modification
I believe I acted properly to confirm that with the court members, in accordance with R.C.M. 922 [announcement of findings]; that is to say to, in effect, discuss an ambiguous finding with the court members. Once they recognized that I had modified the findings, they clearly said, hey, we think there is some concern about this, let us think about it. They were given an opportunity to think about it. They came back and were clearly not yet satisfied. I went further and made sure they understood that the modification left in a portion of the time period at
I did not have any member testify under M.R.E. 606 [competency of court member as witness], and I don’t believe the verdict was impeached under R.C.M. 923 [impeachment of findings] in any way by the clarification of that ambiguity, an ambiguity admittedly interjected into the trial by trial judge.
the evidence reasonably raises issues
concerning a lesser-included offense or the statute of limitations, the
military judge is charged with specific affirmative responsibilities. If the evidence at trial reasonably raises a
offense, the military judge has an affirmative duty to include in the
instructions a “description of the elements of each lesser included
issue, unless trial of a lesser included offense is barred by the
limitations (Article 43) and the accused refuses to waive the bar.” R.C.M. 920(e)(2). See also R.C.M. 907(b)(2)(B)
discussion; United States v. Davis, 53 M.J.
202, 205 (C.A.A.F. 2000). The military
judge has an affirmative obligation to advise an accused of the right
the statute of limitations, and must determine that any waiver of the
of limitations bar is both knowing and voluntary. R.C.M.
In the present case, the military judge appropriately noted that evidence at trial reasonably raised two lesser-included offenses, carnal knowledge and indecent acts. He also provided appropriate instructions as to the elements of each offense.
Before giving those instructions, however, the military judge was required to draw the attention of the Appellant to the fact that a substantial portion of the time period set forth in the proposed instructions included dates in which prosecution of the lesser-included offenses was barred by the statute of limitations. In the present case, the military judge erred by failing to engage in these discussions with Appellant prior to instructing the members.
The military judge had a timely opportunity to correct this error after the court was closed for deliberations. At that point, when the problem was called to his attention by the trial counsel, the military judge could have conducted the required inquiry of Appellant to ensure that Appellant understood the import of the statute of limitations in this case. If the military judge had made such an inquiry, and if Appellant had responded in a manner demonstrating a knowing and voluntary waiver, no further instructions would have been required. If, on the other hand, the military judge had determined that Appellant would not waive the statute of limitations, the military judge would have been obligated to modify the instructions as to the lesser included offenses to include only the period that was not time-barred. See R.C.M. 920(b).
It is possible that Appellant, had he been advised properly by the military judge, might have decided to waive the statute of limitations for tactical reasons. The military judge, however, did not ascertain whether Appellant wished to do so. Instead, the military judge engaged in a highly technical discussion with counsel for the parties as to the legal implications of the statute of limitations -- a discussion that was devoid of any attention to the subject of waiver. In that regard, it is noteworthy that when the trial counsel subsequently asserted that defense counsel’s actions amounted to waiver, the military judge expressly rejected the suggestion that Appellant had waived the statute of limitations.
the panel announced its findings in
open court, those findings were final and were not subject to
by the members. See R.C.M.
922(a), 924(a); United States v. Walters, 58 M.J. 391, 396 n.5 (C.A.A.F. 2003); see also R.C.M.
(prohibition on polling of members). To
the extent that a military judge may clarify an ambiguous finding, see
R.C.M. 922(b) discussion, any such authority is not applicable in the
case. The military judge had instructed
the members that they could return a verdict of guilty to the
offense of indecent acts with a child.
He also had instructed them that they could find Appellant
they determined that these acts occurred at any time between
problem was not that the military judge
permitted an ambiguous verdict. The
problem was that, absent waiver, the military judge was required to
members with instructions that focused their deliberations on a much
period of time --
In summary, the military judge’s instructions, although erroneous, were not ambiguous. The panel’s findings, which reflected those instructions, likewise were not ambiguous. In those circumstances, the military judge was not authorized to modify the findings, irrespective of any subsequent discussions with the members. The failure to conduct a statute of limitations waiver inquiry with Appellant, the erroneous inclusion of the time-barred period in the instructions to the members, and the post-announcement modification of the findings constituted a series of errors materially prejudicial to the substantial rights of Appellant. See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
The decision of the United States Army Court of Criminal Appeals is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.
1 We granted review of three issues:
I. WHETHER THE MILITARY JUDGE ERRED AS A MATTER OF LAW WHEN HE REFUSED TO DISMISS THE CHARGE AND ITS SPECIFICATIONS AS BEING OUTSIDE THE STATUTE OF LIMITATIONS.
II. WHETHER THE MILITARY JUDGE ERRED AS A MATTER OF LAW WHEN HE REFUSED TO POLL THE MEMBERS AS TO WHETHER IT WOULD BE HELPFUL FOR THEM TO KNOW THE APPROXIMATE DATE THAT THE ALLEGED INDECENT ACT OCCURRED.
III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE REFUSED TO STRIKE THE PRESIDENT OF THE PANEL AFTER IT WAS REVEALED THAT THE PRESIDENT WAS PASSING NOTES TO A JUNIOR MEMBER THAT DEMONSTRATED THE PRESIDENT’S INHERENT BIAS AGAINST APPELLANT.
2 The subsequent
amendment of Article 43(b) in the National Defense Authorization Act
Year 2004, Pub. L. No. 108-136, § 551, 117 Stat. 1392 (2003)
the statute of limitations for certain child abuse offenses) is not at
the present appeal. Cf.
CRAWFORD, Chief Judge (dissenting):
majority finds prejudicial error in the military judge’s “failure to
statute of limitations waiver inquiry with Appellant, the erroneous
of the time-barred period in the instructions to the members, and the
post-announcement modification of the findings[.]” ___ M.J. (25)
disagree. In my view, because the
constitutional policy behind the statute of limitations was otherwise
this case, no portion of the time period set forth in the
instructions included dates in which prosecution of the lesser-included
offenses was barred by the statute of limitations.
Furthermore, even assuming error, Appellant
suffered no prejudice to his substantial rights, as there is
evidence that the indecent acts described in the findings occurred
modified time period. Accordingly, I
would affirm Appellant’s conviction and sentence.
A. The Statute of Limitations did not Bar Prosecution for any Applicable Lesser-Included Offenses in this Case
Fifth Amendment ensures that “[n]o person shall be held to answer for a
. . .
crime . . . without due process of law.”
The Sixth Amendment guarantees that “[i]n
criminal prosecutions, the accused shall enjoy the right . . . to be
of the nature and cause of the accusation.”
Statutes of limitation exist precisely to protect these
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials to promptly investigate suspected criminal activity.
v. United States, 397
these same rights, military justice requires a charge and its
“to be sufficiently specific to inform the accused of the conduct
enable the accused to prepare a defense, and to protect the accused
Thus, the precise reason why a court-martial may convict an accused of an uncharged lesser-included offense is because inherent in the principal specification is notice of the lesser-included offense. This notice implicitly provides the accused with the basic facts and information needed to defend against the lesser-included offense. In so doing, the constitutional rights of due process and information of the nature and cause of an accusation are guaranteed as to a necessarily-included lesser-included offense.
In the case at bar, Appellant’s conviction of indecent acts with a minor arose from the same basic facts that led to his initial rape charge. In the same pattern of sustained sexual abuse based on which the Government charged Appellant with rape, the members found sufficient evidence of indecent acts with a minor. In other words, the arsenal of basic facts Appellant addressed to defend his rape charge was the same arsenal of basic facts Appellant would have needed to defend a charge of indecent acts with a minor. In facing the rape charge for a specific victim on specific dates at specific locations, Appellant was adequately prepared to defend a charge of indecent acts with the same victim on the same dates in the same locations. Because due process, and information of the nature and cause of the accusation, remained secure as to the lesser-included offense, the statute of limitations did not bar prosecution for a lesser-included offense committed outside the modified time period.
this vein, several state courts have held that the running of the
limitations on the underlying felony is irrelevant to a prosecution for
murder. See State v. Dennison,
801 P.2d 193, 202 (Wash. 1990)(finding that
with the underlying felony’s statute of limitations is not a
prerequisite to prosecuting someone for felony murder); People v.
250 Cal. Rptr. 345, 351 n.15 (Cal. Ct.
1988)(noting that a felony murder charge could be based on attempted
though the statute of limitations had run on attempted rape); Jackson
State, 513 So. 2d 1093, 1094-95 (Fla. Dist. Ct. App. 1987)(concluding
that the predicate or threshold crime is statutorily distinct from the
felony murder); People v. Lilliock,
71 Cal. Rptr. 434, 442 (Cal. Ct. App.
instruction on felony murder may be given in a prosecution for murder
though a prosecution for the underlying felony would be barred by the
of limitations); People v. Harvin,
N.Y.S.2d 883, 886 (N.Y. Sup. Ct. 1965)(holding that a charge of felony
may not be separated into its component parts so that if the statute of
limitations were a bar to the prosecution of one of the elements of the
the major crime, the felony murder charge, would also fall). The relationship of felony murder to felony
is analogous to the relationship between a principal offense and its
lesser-included offense. Indeed,
commission of felony murder encompasses as a lesser offense commission
underlying felony. This analogy leads me
to conclude that the running of the statute of limitations for indecent
does not preclude prosecution for rape, or a subsequent conviction on
lesser-included offense of indecent acts.
B. Appellant Suffered no Prejudice
“A finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000). Even assuming the military judge erred, Appellant clearly suffered no prejudice to his substantial rights. Indeed, there was overwhelming evidence that the indecent acts described in the findings occurred within the modified time period, and therefore not within the period allegedly barred by the statute of limitations.
Ms. B’s testimony revealed a sustained pattern of horrendous sexual
The pattern of abuse about which Ms. B testified overwhelmingly supports a finding of indecent acts during the modified time period, which encompassed
one of the members indicated that the panel based its findings in large
acts that occurred at
after the members presented their findings, the military judge
the members understood the dates during which Appellant’s indecent acts
have occurred, in order to convict him for the offense.
The military judge clarified that the members
understood where Appellant was stationed during the applicable dates. The military judge clarified that the members
had sufficient time to digest the change in the specification’s dates,
indeed the members took a recess to discuss the change and make certain
findings were still valid in light of it.
In the absence of evidence to the contrary, this Court will
members followed the judge’s instructions.
these reasons, I respectfully dissent from the lead opinion.