UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                          COOK, GALLAGHER, and HAIGHT
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                     Second Lieutenant JAMES O. MORRIS
                         United States Army, Appellant

                                    ARMY 20081169

                             Headquarters, Fort Lewis
                John M. Head and Donna Wright, Military Judges
           Colonel Jeffrey C. McKitrick, Staff Judge Advocate (pretrial)
          Colonel Mitchell R. Chitwood, Staff Judge Advocate (post-trial)


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Peter Kageleiry, Jr., JA; Captain Barbara A. Snow-Martone, JA
(on brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA;
Major Ellen S. Jennings, JA; Captain Edward J. Whitford, JA (on brief).


                                   20 September 2012
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                        SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A panel of officers sitting as a general court-martial convicted appellant,
contrary to his pleas, of rape and conduct unbecoming an officer and gentleman, in
violation of Articles 120 and 133, Uniform Code of Military Justice, 10 U.S.C. §§
920, 933 (2000) [hereinafter UCMJ]. Appellant was also convicted, contrary to his
plea, of assault consummated by a battery in violation of Article 128, UCMJ, as a
lesser included offense of indecent assault in violation of Article 134, UCMJ. The
panel sentenced appellant to a dismissal from service, two years of confinement, and
forfeiture of all pay and allowances. The convening authority approved the adjudged
sentence and credited appellant with twenty days of confinement against his
sentence to confinement.
MORRIS—ARMY 20081169

       On 3 October 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. On 10 July 2012, our superior court reversed
our decision as to Charge IV, its specification, and the sentence and returned the
record of trial to The Judge Advocate General of the Army for remand to this court
for further consideration in light of United States v. Rauscher, 71 M.J. 225
(C.A.A.F. 2012). Our decision as to the remaining charges and specifications was
affirmed. United States v. Morris, 71 M.J. ___ (C.A.A.F. 10 July 2012).
Consequently, appellant’s case is again before this court for review under Article 66,
UCMJ.

       The indecent assault specification, with which appellant was charged but not
convicted, failed to allege the terminal element of Article 134, UCMJ; namely, that
appellant’s conduct was to the prejudice of good order and discipline or of a nature
to bring discredit on the armed forces. Assuming, arguendo, the specification was
defective in alleging an indecent assault under Article 134, UCMJ, the specification
at issue did allege every element of an assault consummated by battery in violation
of Article 128,UCMJ, the offense of which appellant was ultimately convicted. *

      “The elements for an assault consummated by a battery are: ‘(1) that the
accused did bodily harm to a certain person, and (2) that the bodily harm was done
with unlawful force or violence.’” United States v. Bonner, 70 M.J. 1, 3 (C.A.A.F.
2011) (citation omitted), see MCM, 2008, pt. IV, ¶ 54(b)(2). The military judge
correctly listed, defined, and instructed the members on those above elements.

       “In order to determine whether an indictment charges an offense against the
United States, designation by the pleader of the statute under which he purported to
lay the charge is immaterial. He may have conceived the charge under one statute
which would not sustain the indictment but it may nevertheless come within the
terms of another statute.” United States v. Hutcheson, 312 U.S. 219, 229 (1941).
See Rauscher, 71 M.J. at 226, n.1. In this case, every element of the offense of
assault consummated by battery is alleged in the specification. Accordingly, the
“specification clearly placed Appellant on notice of that against which he had to
defend.” Id. at 226–27.




*
  The specification alleged, “In that Second Lieutenant (O-1) James O. Morris, U.S.
Army, did, at or near Spanaway, Washington, on or about 14 May 2004, commit an
indecent assault upon Ms. JB, a person not his wife by touching her breasts and
buttocks, with intent to gratify his lust and sexual desires.”




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MORRIS—ARMY 20081169

                                 CONCLUSION

       On consideration of the entire record, and in light of United States v.
Rauscher, 71 M.J. 225 (C.A.A.F. 2012), we hold the findings of guilty to the
Specification of Charge IV and Charge IV correct in law and fact. Accordingly,
those findings of guilty and the sentence are again AFFIRMED.


                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




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




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