UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               KERN, YOB, and ALDYKIEWICZ
                                  Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                           Staff Sergeant KIRBY B. MOSES
                            United States Army, Appellant

                                        ARMY 20090247

   Headquarters, United States Army Air Defense Artillery Center and Fort Bliss
                        Michael J. Hargis, Military Judge
      Lieutenant Colonel Newt Hill, Acting Staff Judge Advocate (pretrial)
         Colonel Michael J. Benjamin, Staff Judge Advocate (post-trial)


For Appellant: William E. Cassara, Esquire; Captain Todd Lindquist, JA (on brief).

For Appellee: Major Christopher B. Burgess, JA; Major Kirsten M. Dowdy, JA;
Captain Stephen E. Latino, JA (on brief).


                                        23 January 2012

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                     MEMORANDUM OPINION ON FURTHER REVIEW
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    This opinion is issued as an unpublished opinion, as such, does not serve as precedent.

Per Curiam:

       On 27 May 2011, this court issued a memorandum opinion pertaining to this
case, which set aside the finding of guilty for the offense of indecent assault in the
Specification of Charge II, but affirmed a finding of guilty of assault consumated by
battery for that same specification. This court also affirmed the remaining findings
of guilty, and upon reassessment, affirmed the sentence. On 21 September 2011, our
superior court vacated our decision and returned the record of trial to The Judge
Advocate General of the Army for remand to this court for consideration in light of
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). Consequently, appellant’s
case is once again before this court for review under Article 66, UCMJ, 10 U.S.C. §
866 [hereinafter UCMJ].

      A general court-martial composed of officer members convicted appellant,
contrary to his pleas, of aggravated sexual abuse of a child, simple assault (two
MOSES—ARMY 20090247

specifications), burglary, 1 indecent assault, 2 and indecent acts with a child, 3 in
violation of Articles 120, 128, 129, and 134, UCMJ, 10 U.S.C. § § 920, 928, 929,
and 934. The panel sentenced appellant to a dishonorable discharge, confinement
for seventeen years and reduction to E1. The convening authority approved the
adjudged sentence and credited the appellant with 213 days of confinement credit
against the sentence to confinement. The convening authority approved the
adjudged sentence and credited the appellant with 213 days of confinement credit.

       In addition to our review of this case in light Fosler, we have also reviewed
appellant’s single assignment of error alleging the evidence was legally and
factually insufficient to support findings of guilty of various charges and
specifications upon which he was convicted. We find this assignment of error
without merit. However, we also agree with the opinion of Judge Hoffman and our
predecessor panel (as set out immediately below) that although not raised as an
assignment of error, the findings for the Specification of Charge II and Charge II
must be set aside because indecent assault was not a lesser included offense (LIO) of
rape:

                                        FACTS

      In this officer member case, the appellant was charged, inter alia, with
      the rape of his step-daughter, V.I., under the version of Article 120,
      UCMJ in effect prior to 1 October 2007. The appellant was also
      charged under Article 134 with having committed indecent acts upon
      V.I. by placing his hands on her private parts during the same periods
      applicable to the rape charge.




1
  In the Specification of Charge V, appellant was charged with burglary with intent
to commit rape. The panel convicted appellant of burglary with intent to commit
assault.
2
 In the Specification of Charge II, appellant was charged with rape on divers
occasions between 1 January 2003 and 30 September 2007 under the version of
Article 120, UCMJ that was in effect during that time period. See Manual for
Courts-Martial, United States (2005 ed.) [hereinafter MCM, 2005]. The panel found
appellant Not Guilty of rape but Guilty of indecent assault under Article 134, UCMJ.
3
  In Specification 1 of Charge VI, appellant was charged with indecent acts or
liberties with a child between on or about 3 October 2003 and on or about 30
September 2007, under the then existing provision of Article 134, a provision now
covered by Article 120, UCMJ. See MCM 2005, Part IV, para. 87b, deleted by Exec.
Order No. 13447. 72 Fed. Reg. 56179 (Sep. 28, 2007).


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MOSES—ARMY 20090247

    V.I. was born 18 June 1997 and was under the age of 11 during the
    period of the misconduct enumerated in Charge II. She testified that
    while they lived at Fort Irwin the appellant “touched me where I don’t
    like to be touched,” indicating her private area. She then drew a stick
    figure of herself and circled the figure’s groin in red marker to show
    where she had been touched. Later in her testimony she said that, while
    still living at Fort Irwin, appellant also poked her in her front private
    part with his private part. V.I. went on to draw a green circle around
    the figure’s groin to identify where appellant’s private part was
    located. Her testimony continued by saying appellant touched her
    private part with his private part at their house, when no other adults
    were present, and that it happened about two times when they lived in
    California. V.I.’s testimony about further molestation after she moved
    to Fort Bliss, Texas, involved appellant touching her private parts with
    his hands. That misconduct was charged as an indecent act in the
    specification of Charge VI.

    During the 39a session the parties discussed proposed instructions on
    the lesser included offenses to Charge II, Article 120 rape. The
    military judge said the evidence raised the LIO of indecent assault
    under Article 134, UCMJ. Defense Counsel agreed with the analysis of
    the military judge with regard to that LIO, and the panel was so
    instructed.

                                     LAW

    Though the elements of indecent assault are not all common to the
    elements of rape, the MCM provision in effect at the time of the
    charged misconduct lists indecent assault as a lesser included offense
    of rape. MCM, 2005, Part IV, para. 45.d.(1)(c). Despite its listing in
    the MCM, we find indecent assault is not a lesser included offense of
    rape and set aside the findings of the specification of Charge II.

          Article 79, UCMJ, defines a lesser included offense as an
          offense “necessarily included” in the offense charged.
          United States v. Medina, 66 M.J. 21, 24 (C.A.A.F. 2008)
          explained that to determine whether a lesser offense is
          necessarily included in the offense charged, military
          courts must utilize the "elements test" derived from the
          United States Supreme Court's decision in Schmuck v.
          United States, 489 U.S. 705, 716-717 (1989). The Medina
          court noted,




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MOSES—ARMY 20090247

                 Since offenses are statutorily defined, that
                 comparison is appropriately conducted by
                 reference to the statutory elements of the
                 offenses in question, and not, as the inherent
                 relationship approach would mandate, by
                 reference to conduct proved at trial
                 regardless of the statutory definitions. One
                 offense is not ‘necessarily included’ in
                 another unless the elements of the lesser
                 offense are a subset of the elements of the
                 charged offense.

          Id. at 24-25.

          The Court of Appeals for the Armed Forces (CAAF)
          elaborated on this concept in United States v. Miller, 67
          M.J. 385, 388 (C.A.A.F. 2009) wherein it reiterated that
          an accused should not have to look further than his charge
          sheet to know what he is expected to defend against.
          “[T]he principle of fair notice mandates that an accused
          has a right to know to what offense and under what legal
          theory he will be convicted and that a lesser included
          offense meets this notice requirement if it is a subset of
          the greater offense alleged.” Id. at 389.

    United States v. Honeycutt, ARMY 20080589 (Army Ct. Crim. App. 1
    Sept. 2010) (unpub.).

    In United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010), the court
    held the Article 134 offense of indecent acts is not a lesser included
    offense of the Article 120 offense of rape. Indecent assault, like
    indecent acts, is an Article 134 offense. The elements of rape do not
    include all of the elements of indecent assault. Specifically, the offense
    of rape does not include the element from Article 134 that requires the
    government to prove that “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.” See
    generally Article 134, UCMJ. Though it is listed as a lesser included
    offense in the MCM, indecent assault does not qualify as a lesser
    included offense under the elements set out in Schmuck, and reiterated
    in Medina, Miller, and Jones. See United States v. Honeycutt, ARMY
    20080589 (Army Ct. Crim. App. 1 Sept. 2010) (unpub.).




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MOSES—ARMY 20090247

             Having found that the offense of indecent assault is not a lesser
      included offense of rape, the finding of guilty of the offense of
      indecent assault in the Specification of Charge II is set aside. We
      further find the evidence to be factually and legally sufficient to affirm
      the lesser included offense of assault consummated by a battery.
      Assault consummated by a battery is a named lesser included offense of
      rape. MCM, 2005, Part IV, para. 45.d.(1)(a). The elements test in
      United States v. Schmuck does not require that for an offense to be a
      lesser included offense that the LIO employ identical language from the
      greater offense, but instead apply normal principles of statutory
      construction. United States v. Alston, 69 M.J. 214, 216 (CAAF 2010)
      (citing Carter v. United States, 530 U.S. 255, 263 (2000)). The
      elements of assault consummated by a battery under Article 128 are
      “[t]hat the accused did bodily harm to a certain person; and that the
      bodily harm was done with unlawful force or violence.” MCM, 2005,
      Part IV, para.54.b.(2). Bodily harm is defined in the Manual as “any
      offensive touching of another, however slight.” MCM, 2005, Part IV,
      para. 54.c.(1) (a). Each of the elements of assault consummated by a
      battery are contained in the elements of rape which includes the act of
      sexual intercourse done by force and without consent. MCM, 2005,
      Part IV, para. 45.b.(1)(b). Simply put, the force used to engage in
      sexual intercourse by force and without consent includes bodily harm
      done with unlawful force. Assault consummated by a battery is
      therefore a lesser included offense of rape. Both elements of that
      offense are supported by evidence admitted at trial. Therefore, a
      finding of guilty to the lesser included offense is both factually and
      legally sufficient.

       Accordingly, under the rationale set forth by Judge Hoffman and our
predecessor panel, we affirm appellant’s conviction of the specification of Charge II
for the lesser included offense of assault consummated by a battery in violation of
Article 128, UCMJ. We affirm only so much of the finding of guilty of the
Specification of Charge II and Charge II, as finds that appellant:

         Did between on or about 1 January 2003 and 30 September 2007,
         at or near Fort Irwin, California on divers occasions, unlawfully
         touch Miss V.I., a child under the age of 16 years, on her front
         private part with his private part.

      As to Charge II, we affirm a finding of guilty of Article 128, UCMJ.




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MOSES—ARMY 20090247

                                     Fosler Issue

       We have also considered and find, in light of our superior court’s decision in
Fosler, that the remaining Article 134, UCMJ, charge and its specification are not so
defective as to warrant dismissal. Appellant did not object to the language of
Specification 1 of Charge VI, which specification did not expressly allege the
terminal elements of committing an indecent act upon the body of a female under 16
years of age. “[A] charge and specification challenged for the first time on appeal is
liberally construed and will not be held invalid absent a clear showing of substantial
prejudice to the accused-such as a showing that the indictment is so obviously
defective that by no reasonable construction can it be said to charge the offense for
which conviction was had.” United States v. Roberts, 70 M.J. 550, 553 (Army Ct. of
Crim. App. 14 Oct. 2011)(quoting United States v. Watkins, 21 M.J. 208, 209-210
(C.M.A. 1986)(internal quotations omitted)). Cf. Fosler, 70 M.J. at 230. Facially,
the language of Specification 1 of Charge VI in this case necessarily implies service
discrediting conduct by alleging appellant wrongfully committed an indecent act
upon the body of Miss V.I., a female under 16 years of age, not the wife of appellant
[the same victim alleged in three Article 120, UCMJ specifications], by placing his
hands upon her breasts and private parts, with intent to arouse and gratify the lust
and sexual desires of appellant, in violation of Article 134, UCMJ. This textual
relationship, when liberally construed, establishes that appellant was on notice of the
charge and specification against him and the factual allegations within the
specification, along with the record of trial, sufficiently protect him against double
jeopardy.

       On consideration of the entire record, in addition to the modification of the
Specification of Charge II and Charge II, as noted above, we also affirm the
remaining findings of guilty. Furthermore, in light of the modification to the
findings, we reassess the sentence. Based upon the entire record, and applying the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Moffeit, including Judge Baker’s concurring opinion, 63 M.J. 40, 42 (C.A.A.F.
2006), the court affirms the sentence.

                                        FOR
                                         FORTHE
                                             THECOURT:
                                                 COURT:




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




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