IN THE CASE OF
UNITED
STATES, Appellee
v.
David R.
THOMPSON, Sergeant First Class
No.
03-0361
Crim. App.
No.
20000342
Argued
Decided
EFFRON,
J., delivered the opinion of the Court, in which GIERKE, BAKER, and
ERDMANN,
JJ., joined. CRAWFORD, C.J., filed a
dissenting opinion.
Counsel
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unpublished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.
I.
BACKGROUND
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.
At
the time of Appellant’s trial, the
offense of rape could be tried at any time without limitation, while
the
offense of indecent acts was subject to a five-year statute of
limitations. Article
43, UCMJ, 10 U.S.C. § 843 (2000); Willenbring
v. Neurauter, 48 M.J. 152 (C.A.A.F.
1998);
1. Preferral
and referral of charges
The
charge sheet in the present case
contained a single
specification
alleging that Appellant “did, at or near Glattbach,
Germany, Fort Irwin, California, and Fort Knox, Kentucky, on divers
occasions
on or between 1 September 1992 and
2. Trial
on the merits
Appellant’s
stepdaughter, Ms. B, who was 20 years old at the time of trial,
testified that
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
married
Appellant. At that time, the family
resided in
Appellant
was transferred to
Appellant
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.
Additional
evidence presented by the
prosecution included the testimony of Ms. B’s former boyfriend, to whom
she
revealed the alleged sexual abuse in 1996, and an expert witness who
testified
that Ms. B’s description of the alleged sexual abuse that she suffered
was
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
incident
when they lived at
The
defense position was that the alleged
abuse did not occur, and that Ms. B’s promiscuity served both as a
motive to
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
the
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
fabricate
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.
After
counsel for both parties concluded their closing arguments on findings,
the
military judge instructed the members as to the elements of the rape
charge and
the two lesser-included offenses. With
respect to indecent acts with a child, the instructions included the
following:
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.
4. Developments
during deliberations
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.
The
first Article 39(a) session that
considered the statute of limitations included the following
interchange
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.
I
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
be, that
if the members returned a finding of a lesser-included offense, that
included a
time period before 1 --
Excuse me. --before
But,
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.
MJ:
Okay.
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.
While
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
military
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
incident
she witnessed at
5. Conclusion of the
panel’s deliberations
and announcement of
findings
The
deliberations, which began in the early
afternoon, were concluded in the evening.
When the court-martial reconvened that evening, the military
judge asked
the president of the court-martial whether the members had reached a
finding
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
indecent acts
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.”
At
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
lesser-included
offense finding.” Both parties agreed
that the five-year limitations period should be based on receipt of
charges by
the summary court-martial convening authority on
After
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.”
The
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.
The
defense also noted that the majority of
the members’ questions dealt with the incident described by Ms. NT,
arguing
that if that incident occurred, the evidence showed that it occurred
outside
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
evidence,
rather than that of the panel.” The
military judge responded that, in his view, the legal test was whether
he could
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.
The
military judge formally rejected the
defense motion on the grounds that the record contained sufficient
evidence of
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:
[I]n
order to clarify the issue as to whether the statute of limitations
applies, I
am going to direct that the finding of the court be amended such that
the date,
“
He
further stated that he would give the court-martial panel an
opportunity to
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.
When
the military judge began to conduct
the sentencing proceedings, the President of the panel interrupted him
and
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.”
After
the members had discussed the matter,
the President of the panel informed the military judge that if the
amended
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.”
After
advising the parties that he had
engaged in further research, the military judge ruled against the
defense
motion to propound a further question to the members, and he also
rejected the
defense motion to dismiss the finding.
The military judge offered the following explanation for
altering the
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.
I
did determine at that time, and I adhere to my earlier conclusion that
the
evidence in the record of trial supports the conclusion that the panel
made
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
The
military judge provided the following
explanation for his discussion with the members regarding modification
of the
findings:
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.
II. DISCUSSION
When
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
lesser-included
offense, the military judge has an affirmative duty to include in the
instructions a “description of the elements of each lesser included
offense in
issue, unless trial of a lesser included offense is barred by the
statute of
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
to assert
the statute of limitations, and must determine that any waiver of the
statute
of limitations bar is both knowing and voluntary. R.C.M.
907(b)(2)(B);
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.
When
the panel announced its findings in
open court, those findings were final and were not subject to
reconsideration
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.
922(e)
(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
present
case. The military judge had instructed
the members that they could return a verdict of guilty to the
lesser-included
offense of indecent acts with a child.
He also had instructed them that they could find Appellant
guilty if
they determined that these acts occurred at any time between
The
problem was not that the military judge
permitted an ambiguous verdict. The
problem was that, absent waiver, the military judge was required to
provide the
members with instructions that focused their deliberations on a much
narrower
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).
III. DECISION
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
for Fiscal
Year 2004, Pub. L. No. 108-136, § 551, 117 Stat. 1392 (2003)
(extending
the statute of limitations for certain child abuse offenses) is not at
issue in
the present appeal. Cf.
Stogner v.
CRAWFORD, Chief
Judge (dissenting):
The
majority finds prejudicial error in the military judge’s “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[.]” ___ M.J. (25)
I respectfully
disagree. In my view, because the
constitutional policy behind the statute of limitations was otherwise
served in
this case, no 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.
Furthermore, even assuming error, Appellant
suffered no prejudice to his substantial rights, as there is
overwhelming
evidence that the indecent acts described in the findings occurred
within the
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
The
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
all
criminal prosecutions, the accused shall enjoy the right . . . to be
informed
of the nature and cause of the accusation.”
Statutes of limitation exist precisely to protect these
constitutional
provisions.
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.
Toussie
v. United States, 397
Invoking
these same rights, military justice requires a charge and its
specifications
“to be sufficiently specific to inform the accused of the conduct
charged, to
enable the accused to prepare a defense, and to protect the accused
against
double jeopardy.”
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.
In
this vein, several state courts have held that the running of the
statute of
limitations on the underlying felony is irrelevant to a prosecution for
felony
murder. See State v. Dennison,
801 P.2d 193, 202 (Wash. 1990)(finding that
complying
with the underlying felony’s statute of limitations is not a
jurisdictional
prerequisite to prosecuting someone for felony murder); People v.
Sellers,
250 Cal. Rptr. 345, 351 n.15 (Cal. Ct.
App.
1988)(noting that a felony murder charge could be based on attempted
rape even
though the statute of limitations had run on attempted rape); Jackson
v.
State, 513 So. 2d 1093, 1094-95 (Fla. Dist. Ct. App. 1987)(concluding
that the predicate or threshold crime is statutorily distinct from the
crime of
felony murder); People v. Lilliock,
71 Cal. Rptr. 434, 442 (Cal. Ct. App.
1968)(holding that
instruction on felony murder may be given in a prosecution for murder
even
though a prosecution for the underlying felony would be barred by the
statute
of limitations); People v. Harvin,
259
N.Y.S.2d 883, 886 (N.Y. Sup. Ct. 1965)(holding that a charge of felony
murder
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
crime,
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
of the
underlying felony. This analogy leads me
to conclude that the running of the statute of limitations for indecent
acts
does not preclude prosecution for rape, or a subsequent conviction on
the
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.
First,
Ms. B’s testimony revealed a sustained pattern of horrendous sexual
abuse, as
follows:
Glattbach
Fort Polk
Grandmother’s
Fort Irwin
Fort Knox
The pattern of abuse about which Ms. B
testified overwhelmingly supports a finding of indecent acts during the
modified
time period, which encompassed
Moreover,
one of the members indicated that the panel based its findings in large
part on
acts that occurred at
Finally,
after the members presented their findings, the military judge
clarified that
the members understood the dates during which Appellant’s indecent acts
must
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,
and
indeed the members took a recess to discuss the change and make certain
the
findings were still valid in light of it.
In the absence of evidence to the contrary, this Court will
presume the
members followed the judge’s instructions.
For
these reasons, I respectfully dissent from the lead opinion.