UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                          CAMPANELLA, HERRING, and PENLAND
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                          Sergeant KORTNEY R. MARBURY
                            United States Army, Appellant

                                     ARMY 20140023

                       Headquarters, United States Army Alaska
                   Timothy Grammel, Military Judge (arraignment)
                        Jeffery D. Lippert, Military Judge (trial)
                Colonel Tyler J. Harder, Staff Judge Advocate (pretrial)
             Colonel Erik L. Christiansen, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather Tregle,
JA; Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief).

                                    29 November 2016

                                ----------------------------------
                                 SUMMARY DISPOSITION
                                ----------------------------------

PENLAND, Judge:

       Appellant was charged with one specification of sexual assault, 1 to which he
pleaded not guilty. The military judge, contrary to appellant’s plea, found him
guilty of abusive sexual contact in violation of Article 120, Uniform Code of
Military Justice, 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The military judge


1
    The Charge and its Specification alleged the following sexual assault:

               In that [appellant], United States Army, did, at or near
               Joint Base Elmendorf-Richardson, Alaska, on or about 16
               February 2013, commit a sexual act upon Specialist (E-4)
               [SLH], to wit: penetrating Specialist (E-4) [SLH’s] vulva
               with his penis, when [appellant] knew or reasonably
               should have known that Specialist (E-4) [SLH] was
               unaware that the sexual act was occurring.
MARBURY – ARMY 20140023

sentenced appellant to reduction to E-1, two months hard labor without confinement,
and a bad-conduct discharge. The convening authority approved all but the hard
labor portion of the sentence.

        We review this case under Article 66, UCMJ. Appellant assigns three errors:
the military judge erred in finding abusive sexual contact is a lesser-included
offense of sexual assault; the military judge’s finding of guilty is ambiguous, thus
precluding this court from conducting a factual sufficiency review; and, the military
judge created a fatal variance when, through special findings, he substantially
changed the nature of the offense. The first assigned error merits discussion and
relief, rendering the second and third moot.

                                       FACTS

       Specialist (SPC) SLH testified she passed out at a fellow soldier’s home after
a night of excessive alcohol consumption. She testified appellant woke her up by
shaking her and calling her name. Finally, she said she became upset when she
noticed appellant was simultaneously engaged in sexual intercourse with her. After
reporting appellant’s misconduct, SPC SLH underwent a Sexual Assault Nurse
Examination (SANE). A government expert forensic biologist testified she
examined a swab taken from SPC SLH’s breast and detected amylase thereon. The
expert was able to extract a mixture of deoxyribonucleic acid (DNA) profiles from
the amylase; one of the profiles was consistent with appellant’s DNA.

       After hearing evidence and deliberating on the verdict, the military judge
found appellant “Not Guilty of sexual assault, but guilty of abusive sexual contact.”
Before appellant presented his pre-sentencing case, the military judge acknowledged
potential confusion which may have resulted from his “finding that [appellant] was
guilty of a lesser-included offense . . . .” The military judge, sua sponte, announced
special findings:

             The Court finds that...[appellant] committed sexual
             contact upon [SPC SLH], to wit: touching areas of her
             body, including her bare breast or breasts, with some part
             or parts of his body, with the intent to gratify his sexual
             desires and that [appellant] did so when he knew or
             reasonably should have known that [SPC SLH] was asleep,
             unconscious, or otherwise unaware that sexual contact was
             occurring.

             The Court finds there is insufficient evidence to find,
             beyond a reasonable doubt, that [appellant’s] penis
             penetrated [SPC SLH’s] vulva, anus, or mouth.




                                          2
MARBURY – ARMY 20140023

                               LAW AND DISCUSSION

       After reviewing the matter de novo and applying the elements test, 2 we find
that abusive sexual contact is not a lesser-included offense of sexual assault under
the facts and circumstances of this case. The elements of abusive sexual contact
include specific intent, which is not an element of the penetrative sexual assault as
charged. Additionally, the specified elements here described appellant’s penetrating
another soldier’s vulva with his penis; the specification did not encompass a
scenario in which appellant touched another soldier’s breast with an unknown part or
parts of his body.

       A charge and specification serve a crucial constitutional purpose, informing a
soldier of the legal and factual ground on which he may prepare to defend.
Convicted of a crime that the military judge erroneously perceived as “included” in
the charged offense, appellant was denied his right to due process. 3 The government
has not met its burden to prove beyond a reasonable doubt that this constitutional
error was harmless. See United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011).

                                    CONCLUSION

       The findings of guilty and the sentence are set aside. The Charge and its
Specification are DISMISSED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of his sentence set aside by this
decision, are ordered restored. See UCMJ arts. 58b(c) and 75(a).

         Senior Judge CAMPANELLA and Judge HERRING concur.

                                         FORTHE
                                        FOR  THECOURT:
                                                 COURT:




                                        MALCOLM
                                         MALCOLMH.   H.SQUIRES,
                                                        SQUIRES JR.
                                                                JR.
                                        Clerk of Court
                                         Clerk of Court




2
    United States v. Riggins, 75 M.J. 78, 82-83 (C.A.A.F. 2016).
3
 The following from Riggins concisely states the problem: “This lack of notice was
exacerbated in the instant case by the fact that the military judge developed and
applied what was, in essence, a new legal theory—one that was never charged or
argued by the Government—in the middle of his own deliberations in this case.”
Riggins, 75 M.J. at 84.


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