       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
              Robert L. HONEA III, Captain
              United States Air Force, Appellant
                          No. 17-0347
                      Crim. App. No. 38905
      Argued December 6, 2017—Decided February 1, 2018
   Military Judges: Lynn Watkins (arraignment and motions)
             and Shaun S. Speranza (court-martial)
   For Appellant: Brian L. Mizer, Esq. (argued); Captain Pa-
   tricia Encarnación Miranda (on brief); Major Johnathan
   D. Legg and Major Lauren A. Shure.
   For Appellee: Captain Tyler B. Musselman (argued); Colo-
   nel Katherine E. Oler and Major Mary Ellen Payne (on
   brief); Major Meredith L. Steer.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, Judges RYAN and
   SPARKS, and Senior Judge EFFRON, joined.
                    _______________

   Judge OHLSON delivered the opinion of the Court.

    Contrary to Appellant’s plea, a military judge sitting as a
general court-martial convicted Appellant of one specifica-
tion of assault consummated by a battery in violation of Ar-
ticle 128, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 928 (2006). He then sentenced Appellant to con-
finement for one month and dismissal from the service. The
convening authority approved this sentence. Upon appellate
review, the United States Air Force Court of Criminal Ap-
peals (CCA) affirmed the findings and sentence.
   We granted review of the following issues:
      I. Immediately before the defense rested its
         case, the military judge invited the parties’
         attention to R.C.M. 910, and directed the de-
         fense to provide the military judge with a
         draft specification of assault consummated
             United States v. Honea, No. 17-0347/AF
                      Opinion of the Court

         by a battery. Did the lower court err when it
         held that the defense’s compliance with the
         military judge’s directive constituted a de
         facto defense request to modify the specifica-
         tion pursuant to R.C.M. 603 where there is
         no evidence that either the defense or the
         convening authority were aware the charge
         was being amended pursuant to R.C.M. 603?
       II. The military judge dismissed Specification 2
           of Charge II, abusive sexual contact by
           causing bodily harm, for failure to state an
           offense, but she allowed the Government to
           proceed to trial on the purported lesser in-
           cluded offense of assault consummated by a
           battery. Did the military judge err?
    We conclude that we cannot conduct a proper review of
this case under Article 67, UCMJ, 10 U.S.C. § 867 (2012),
because the record fails to adequately demonstrate the
charge of which Appellant was convicted. Accordingly, we
reverse the CCA’s decision affirming Appellant’s conviction.
The charge and specification are set aside and dismissed.
                          I. Background
    The tortuous procedural facts of this case are as follows.
In May of 2014, the Government preferred the following Ar-
ticle 120, UCMJ, 10 U.S.C. § 920 (2006), abusive sexual con-
tact offense against Appellant:
   In that CAPTAIN ROBERT L. HONEA III, United
   States Air Force, 1st Air Force, Tyndall Air Force
   Base, Florida, did, at or near Dover Air Force Base,
   Delaware, between on or about 1 February 2011 and
   on or about 30 April 2011, engage in sexual contact,
   to wit: touching [RSV’s] vulva with his penis, by caus-
   ing bodily harm upon her, to wit: touching [RSV’s]
   vulva with his penis.
(Emphasis added.)1
   During the subsequent Article 32, UCMJ, 10 U.S.C. §
832 (2012), hearing, RSV testified that she “was awoken by
[Appellant] thrusting his penis against her pubic area.”

   1  The Government also preferred additional charges and speci-
fications against Appellant that are not relevant to this appeal.



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            United States v. Honea, No. 17-0347/AF
                     Opinion of the Court

(Emphasis added.) Based on RSV’s testimony, the investi-
gating officer recommended that “either: (1) the specification
be changed by replacing the word ‘vulva’ with a broader de-
scription of the anatomical area, or (2) that the specification
not be referred to trial.” The Staff Judge Advocate then rec-
ommended to the convening authority that the specification
be modified to read “pelvic region” rather than “vulva.” The
convening authority agreed with this recommendation. The
Government then made a pen and ink change to the specifi-
cation by replacing the first reference to “vulva” with the
term “pelvic region.” However, the Government did not
change the second reference to “vulva.” Thus, the amended
Article 120, UCMJ, specification read as follows:
   In that CAPTAIN ROBERT L. HONEA III, United
   States Air Force, 1st Air Force, Tyndall Air Force
   Base, Florida, did, at or near Dover Air Force Base,
   Delaware, between on or about 1 February 2011 and
   on or about 30 April 2011, engage in sexual contact,
   to wit: touching [RSV’s] pelvic region with his penis,
   by causing bodily harm upon her, to wit: touching
   [RSV’s] vulva with his penis.
(Emphasis added.) The charge was then referred to general
court-martial.
    Prior to trial, defense counsel filed a motion to dismiss
the specification on two alternative grounds: (1) the specifi-
cation failed to state an offense; and (2) the replacement of
“vulva” with “pelvic region” constituted a major change to
the specification. The military judge agreed with trial de-
fense counsel that the specification did not state an offense.
In a written ruling, the military judge outlined her reason-
ing as follows:
   The first element of [the] offense requires sexual
   contact…. “[S]exual contact” means “the intentional
   touching, either directly or through the clothing, of
   the genitalia, anus, groin, breast, inner thigh, or
   buttocks of another person….” These terms are very
   specific in nature. The term “pelvic region” is not
   included in that definition and is a generalized area
   of anatomy and is ambiguous …. This presents a
   notice issue to the Accused as the defense must be
   placed on notice as to where the alleged sexual
   contact occurred. The term “pelvic region” [is] too


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             United States v. Honea, No. 17-0347/AF
                      Opinion of the Court

   ambiguous and therefore the offenses fail to allege
   sexual contact.2
(Second ellipsis in original.)
   Instead of dismissing the charge and specification, how-
ever, the military judge found that assault consummated by
a battery is a lesser included offense (LIO) of abusive sexual
contact.3 She then ruled that the court-martial could go for-
ward on the LIO of assault consummated by a battery, but
stated that “although the term ‘pelvic region’ still exists, it is
narrowed down to touching of the ‘vulva.’ ” The Government
did not make any amendments to the charge sheet after the
military judge’s ruling. Subsequently, before a different mili-
tary judge, Appellant pleaded not guilty to the LIO of as-
sault consummated by a battery.
    Shortly before the end of the defense’s findings case, the
second military judge announced that he had “advised the
parties to refer to Rule for Courts-Martial [(R.C.M.)] 910
with respect to [Appellant’s] plea to a lesser included offense
of assault consummated by a battery,” and that the defense
counsel had provided a draft specification for the LIO. The
Discussion section of R.C.M. 910(a)(1) states: “When the plea
is to a lesser included offense without the use of exceptions
and substitutions, the defense counsel should provide a writ-
ten revised specification accurately reflecting the plea.”
However, it is clear from the context of this provision that it
applies to an accused’s entry of a guilty plea to a lesser in-
cluded offense. When an accused pleads not guilty to an of-
fense, it is the Government’s responsibility to identify the
charges against the accused. See Article 30, UCMJ, 10
U.S.C. § 830 (2012).
   The draft specification provided by defense counsel read:
   In that CAPTAIN ROBERT L. HONEA III, United
   States Air Force, 1st Air Force, Tyndall Air Force

   2  The military judge ruled that because the original specifica-
tion failed to state an offense, the issue of whether the pen and ink
change to the specification was a major change was moot.
   3 Because we do not reach the substantive merits of this case,
we do not address the issue of whether assault consummated by a
battery actually is an LIO of abusive sexual contact.



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            United States v. Honea, No. 17-0347/AF
                     Opinion of the Court

   Base, Florida, did, at or near Dover Air Force Base,
   Delaware, between on or about 1 February 2011 and
   on or about 30 April 2011, unlawfully touch [RSV] on
   the pelvic region with his penis.
(Emphasis added.) The Government then agreed with the
military judge that “that’s what the lesser included offense
specification would look like, or is.” However, Appellant nev-
er entered a plea to this modified specification. Neverthe-
less, the military judge found Appellant not guilty of the
charged Article 120, UCMJ, offense, but guilty “[o]f the less-
er included offense of Specification 2 of Charge II, assault
consummated by a battery.” The military judge made no ref-
erence to the terms “vulva” or “pelvic region,” and he did not
use any exceptions or substitutions to implement the draft
specification.
    Despite the fact that the LIO drafted by defense counsel
stated that Appellant “did … unlawfully touch [RSV] on the
pelvic region with his penis,” the promulgating order signed
by the convening authority listed the specification as follows:
   Did, at or near Dove [sic] Air Force Base, Delaware,
   on or about 1 February 2011 and on about 30 April
   2011, engage in sexual contact, to wit: touching
   [RSV’s] pelvic region with his penis, by causing bodily
   harm upon her, to wit: touching [RSV’s] vulva with
   his penis. Plea: NG to the LIO of assault consummat-
   ed by a battery. Finding: G of the remaining LIO of
   assault consummated by battery in violation of Art
   128, UCMJ (greater Art 120 offense dismissed by Mil-
   itary Judge after defense motion for failure to state
   an offense.)
(Emphasis added.)
    Upon appeal to the CCA, Government appellate counsel
initially argued in their briefs that Appellant had been
found guilty of touching RSV’s vulva. However, mere days
before oral argument, Government appellate counsel
changed course and argued that the draft specification “only
required the United States to prove contact between the Ap-
pellant’s penis and the victim’s ‘pelvic region’” and that “was




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             United States v. Honea, No. 17-0347/AF
                      Opinion of the Court

what the military judge used to determine Appellant’s
guilt.”4 (Emphasis added.)
                            II. Analysis
    The mere recitation of these convoluted procedural facts
is sufficient to demonstrate the fundamental—and ultimate-
ly fatal—flaw with this case. Namely, the record fails to de-
finitively identify what offense Appellant was convicted of.
To be sure, there are a number of various possibilities as re-
flected in the charge sheet, the first military judge’s com-
ment about the putative LIO, Appellant’s not guilty plea to
an unspecified LIO, the defense-drafted LIO, the second mil-
itary judge’s verdict, and the promulgating order. However,
this multitude of options simply serves to prove the point
that there is no conclusive answer. As Government appellate
counsel admirably and appropriately conceded during oral
argument before this Court, this case is “a mess.”5
    Indeed, the record before us is such a tangled morass
that we are precluded from conducting an appropriate Arti-
cle 67, UCMJ, review of this case. This Court is authorized
to “act only with respect to the findings and sentence as ap-
proved by the convening authority and as affirmed or set
aside as incorrect in law by the Court of Criminal Appeals.”
Article 67(c), UCMJ. Due to the Government’s actions—
which were exacerbated by the military judges’ decisions—
the record does not establish with certainty what the find-
ings were in this case. As a consequence, Appellant’s convic-
tion must be reversed. In addition, in regard to whether this
Court should authorize a rehearing, we note the following
two points.



   4 The Government appeared to concede at trial that the facts
were not sufficient to demonstrate that Appellant touched RSV’s
vulva. Specifically, in closing argument trial counsel stated that
RSV “woke up on her side, he[r] legs together, the accused trying
to manage himself, trying to manage her, couldn’t figure out a way
to get her legs separated to get to her vulva, but, it certainly
wasn’t for lack of trying.”
   5  We wish to note that it is always commendable and construc-
tive to have appellate counsel concede the obvious in briefs and at
oral argument.



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             United States v. Honea, No. 17-0347/AF
                      Opinion of the Court

    First, it is impossible to discern from the record before us
whether a material variance occurred between the pleadings
and proof in this case. See United States v. Teffeau, 58 M.J.
62, 66 (C.A.A.F. 2003) (“A variance between pleadings and
proof exists when evidence at trial establishes the commis-
sion of a criminal offense by the accused, but the proof does
not conform strictly with the offense alleged in the charge.”
(internal quotation marks omitted) (quoting United States v.
Allen, 50 M.J. 84, 86 (C.A.A.F. 1999)). This Court cannot au-
thorize a rehearing on a charge or specification where a “ma-
terial variance deprives an accused of the fundamental right
to due process.” Id. at 67 (dismissing charge where material
variance prejudiced accused by changing “the very nature of
the offense in issue” and limited “accused’s ability to defend
against the charge against him”).
    Second, the inability to discern what offense Appellant
was convicted of prevents this Court from determining
which variation of the specification should be analyzed in
determining whether Appellant’s conviction was an LIO of
Article 120, UCMJ. When an appellant’s conviction is not an
LIO of the greater charged offense, this Court has repeated-
ly declined to authorize a rehearing. See United States v.
Girouard, 70 M.J. 5, 10–12 (C.A.A.F. 2011) (setting aside
and dismissing conviction of negligent homicide when it was
not an LIO of the charged offense); United States v.
McMurrin, 70 M.J. 15, 18–20 (C.A.A.F. 2011) (affirming de-
cision of the CCA to set aside and dismiss a conviction of an
offense that was not an LIO of the greater offense); United
States v. Miller, 67 M.J. 385, 389 (C.A.A.F. 2009) (reversing
where the CCA was not authorized to affirm a finding of
guilt to an offense that was not an LIO of the greater of-
fense).6
    As can be seen, the record before us is so irredeemably
muddled that it is impossible to ensure that these constitu-
tional rights of Appellant were observed at trial. According-
ly, based on the particular and peculiar circumstances of

   6 We further note that Appellant’s due process right to receive
proper and timely notice of the offense he was defending against,
as well as his right to know the offense of which he was convicted,
were implicated.



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            United States v. Honea, No. 17-0347/AF
                     Opinion of the Court

this case, we not only reverse Appellant’s conviction, we also
decline to authorize a rehearing.
                          III. Decision
   The decision of the United States Air Force Court of
Criminal Appeals is reversed. The findings and sentence are
set aside and the charge and specification are dismissed
with prejudice.




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