UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              MULLIGAN, FEBBO, and WOLFE
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                          Specialist MARTELO C. NELSON
                           United States Army, Appellant

                                      ARMY 20140758

                              Headquarters, Fort Stewart
                          John T. Rothwell, Military Judge
                     Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Ryan T. Yoder,
JA (on brief).

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


                                      31 October 2016
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

WOLFE, Judge:

      A panel with enlisted representation, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of one specification each of false official
statement and sexual assault by causing bodily harm in violation of Articles 107 and
120, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920 (2012) [hereinafter
UCMJ]. The panel sentenced appellant to a dishonorable discharge, six years
confinement, forfeiture of all pay and allowances, and reduction to E-1. The
convening authority approved only so much of the sentence that provided for a
dishonorable discharge, confinement for six years, and reduction to the grade of E-1.
NELSON - ARMY 20140758

       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant counsel raises one error which merits discussion but not relief. 1 The
appellant challenges the legal and factual sufficiency of his conviction for false
official statement.

          LEGAL SUFFICIENCY OF FALSE OFFICIAL STATEMENT

       The evidence of appellant’s false official statement at trial did not exactly
match the words of the statement as alleged in the specification. Appellant alleges
that this variance calls into question the legal sufficiency of the specification.

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

       The false official statement specification alleged that appellant had made an
official statement, to wit:

             that he had not had physical contact with [Private First
             Class (PFC) IMH] during his visit to her barracks room on
             or about 18 August 2013, except possibly to accidentally
             brush her with his elbow, or words to that effect, which
             statement was totally false . . .

(emphasis added).

       The evidence introduced at trial to support this allegation was the videotaped
interview of appellant. In the videotaped interview, when appellant was asked if he
touched PFC IMH in any way appellant stated, “maybe [put] my arm around her.”
When asked by Criminal Investigation Command (CID) Special Agent (SA) RGW if



1
 We have also reviewed the matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they do not merit relief.
                                          2
NELSON - ARMY 20140758

appellant had more physical contact with PFC IMH such as touching or kissing her,
appellant stated “No” and shook his head in the negative.

       The material contents of both statements is the same: appellant denied sexual
contact with PFC IMH. The difference between the statements is the qualification.
The specification provided for the exception “except possibly to accidentally brush
her with his elbow” whereas in the videotape appellant in fact stated “maybe” he put
“his arm around her.”

      This discrepancy was noticed at trial and the military judge gave the panel a
variance instruction. However, the panel convicted appellant as charged.

       The UCMJ provides for notice pleading. Rule for Courts-Martial [hereinafter
R.C.M.] 307(c)(3). In that vein, the specification specifically alleged “or words to
that effect.” It is expected that the evidence at trial will not always match word for
word the specification alleged. 2 We find no material difference between the
specification as alleged and the evidence as it was introduced at trial. Both denied
sexual contact with the victim. Both admitted the possibility of non-sexual contact
with appellant’s arm. Although the phrasing is different, appellant was certainly on
notice of what he was charged with and what he must defend himself against. See
United States v. Willis, 50 M.J. 841 (Army Ct. Crim. App. 1999), pet. denied, 52
M.J. 412 (C.A.A.F. 1999).

       Accordingly, we find appellant’s conviction for false official statement to be
correct both in law and fact.

                                   CONCLUSION

      The findings and sentence are AFFIRMED.

      Senior Judge MULLIGAN concurs.




2
  Here, the record reveals that the only reason for the discrepancy was the sloppiness
of government counsel, who drafted the specification based on the CID agent’s notes
not from watching the actual evidence. However, we find no legal relevance as to
why the discrepancy occurred. Our focus is on what was the charge as alleged and
what evidence was introduced at trial. Whether it was caused by sloppiness or by
the innate nature of changing witness memories, the focus is whether the evidence
matches the specification – not on the pretrial actions by the trial participants.
                                            3
NELSON - ARMY 20140758

FEBBO, Judge, concurring in part and dissenting in part.

      I concur that appellant’s conviction for sexual assault by causing bodily harm
should be affirmed. I disagree with my fellow judges on the factual sufficiency of
the Specification of Charge II, which alleged:

             In that [appellant], did, at or near Fort Stewart, Georgia,
             on or about 21 August 2013, with intent to deceive, make
             to [SA RGW] an official statement, to wit: that he had not
             had physical contact with [PFC IMH] during his visit to
             her barracks room on or about 18 August 2013, except
             possibly to accidentally brush her with his elbow, or
             words to that effect, which statement was totally false, and
             was known by the [appellant] to be so false.

(emphasis added).

      The interrogation in question went as follows:

             SA RGW: Did you touch her in any way?

             Appellant: Uh, maybe my arm was around her.

             SA RGW: No, I’m talking about more than that.

             Appellant: [Shakes head indicating no.]

             SA RGW: I’m talking about, you touch or kiss her?

             Appellant: Nah [no].

             SA RGW: None of that never happened?

             Appellant: No.

             SA RGW: Nothing like that?

             Appellant: No. [Shakes head no.]

(emphasis added).

      After review of the entire record, I am not convinced beyond a reasonable
doubt as to one of the elements of appellant’s conviction for false official statement.
The evidence introduced at trial to support this allegation was the testimony of CID

                                           4
NELSON - ARMY 20140758

SA RGW and the videotaped interview of appellant. During the videotaped
interview, appellant never stated that he may have accidentally brushed her with his
elbow. During cross-examination by trial defense counsel, SA RGW stated that the
appellant never made the statement “except possibly to accidentally brush her with
his elbow.” Special Agent RGW indicated he may have been confused with another
case when he summarized appellant’s testimony in the CID investigation report.
Special Agent RGW stated that appellant did admit to some physical contact with
PFC IMH by putting his arm around her.

       At the conclusion of the government’s case, the trial defense counsel moved
to dismiss Charge II and its Specification under R.C.M. 917. The military judge
denied the motion to dismiss. Instead, the military judge gave a variance instruction
to the panel that they could make “minor modifications” to Charge II. See Dep’t of
Army Pam. 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook], para. 7-15 (10 Sep. 2014). After deliberations, the panel did not make
any exceptions or substitutions and found appellant guilty of the charge as drafted.

       “A variance between pleadings and proof exists when evidence at trial
establishes the commission of a criminal offense by the accused, but the proof does
not conform strictly with the offense alleged in the charge.” United States v.
Lubasky, 68 M.J. 260, 264 (C.A.A.F 2010) (quoting United States v. Teffeau, 58
M.J. 62, 66 (C.A.A.F. 2003). Similar to Lubasky, the panel made no exceptions and
substitutions. Absent exceptions and substitutions by the fact-finder, the court must
determine if the change has a fatal variance between the pleadings and the proof.
See United States v. Marshall, 67 M.J. 418, 420-21 (C.A.A.F. 2009) (holding the
exceptions and substitutions produced a fatal variance because the change was both
material and substantially prejudicial). A material variance is one that substantially
changes the nature of the offense, increases the seriousness of the offense, or
increases the punishment for the offense. United States v. Marshall, 67 M.J. 418,
420 (C.A.A.F. 2009). “Whether there was a fatal variance is a question of law
reviewed de novo.” United States v. Treat, 73 M.J. 331, 335 (C.A.A.F. 2014).

       I believe a variance supported by the majority substantially changes the nature
of the offense charged, and that variance is material and fatal. In appellant’s case
the government’s proof for the false official statement did not match the allegations
on the charge sheet. Appellant never made a false official statement about denying
physical contact except accidentally brushing PFC IMC with his elbow. Although
R.C.M 307(c)(3) provides for notice pleading and the specification included “words
to that effect,” the words charged were not even the appellant’s and likely came
from a completely unrelated CID investigation.

      We must balance notice pleading with fair notice. United States v. Tunstall,
72 M.J. 191 (C.A.A.F. 2012) (“[A]n accused has a right to know what offense and
under what legal theory he will be convicted.” (quoting United States v. Jones, 68

                                          5
NELSON - ARMY 20140758

M.J. 465, 468 (C.A.A.F. 2009))). Appellant was not charged with a false official
statement that he did not have physical contact of a sexual nature with PFC IMH as
the majority infers. Instead, the government charged appellant with making a totally
false statement to SA RGH when he stated that “he had not had physical contact with
PFC IMH,” or words to that effect. However, the evidence at trial established that
appellant actually stated “maybe my arm was around [PFC IMH].” Certainly in the
interrogation, appellant minimized his contact with PFC IMH, but he did not deny
any physical contact. The progression of the interview and the agent’s use of the
pronoun “that” without any antecedent show that the agent was clearly interested in
sexual contact. Physical contact is substantially different than sexual contact. In
fact our punitive articles share this important delineation. See Articles 120 and 128,
UCMJ. To find appellant guilty of false official statement based on his ambiguous
statements would blur this distinction. “When dealing with ambiguous statements,
we have held ‘that doubts as to the meaning of allegedly false testimony should be
resolved in favor of truthfulness.’” United States v. Evans, 37 M.J. 468, 472 (C.M.A
1993) (quoting United States v. Purgess, 33 C.M.R. 97 (C.M.A. 1963)).

       The statement to SA RGW did not have to be totally false to support a
conviction of false official statement. United States v. Wright, 65 M.J. 373, 374
(C.A.A.F. 2007). However, in considering the circumstances unique to this case,
there is not sufficient evidence to find beyond a reasonable doubt that the appellant
is guilty of making an official statement that was totally false. The mistake in
drafting the specification that potentially included a statement from another CID
investigation was not a harmless error and it prejudiced the appellant. I am not
aware of a case where an appellant, without variance, was found guilty of making a
false official statement that someone else made to a CID agent.

       The majority’s reliance on Willis is misplaced. In Willis, appellant’s alleged
false official statement was “I possess a valid license as a practical nurse, or words
to that effect” Id. at 843. The military judge found, by exceptions and substitutions,
Willis guilty of false official statement to wit: “I have a copy at home of my license
which was turned into my unit, or words to that effect.” Id. Although this court
upheld such an exception and substitution, the meaning of both statements was
clear—Willis was a licensed nurse. Without appellant’s own words in the
specification to fill the gap, the distinction between physical contact and physical
contact of a sexual nature is a bridge too far.

       The trial defense counsel’s strategy was based on impeaching SA RGW and
establishing that appellant did not actually make the charged statement or a totally
false statement to SA RGW. See Evans, 37 M.J. at 472. (The prosecution has the
burden of “negativing any reasonable interpretation” that appellant’s statement was
factually correct and there was error in exceptions and substitution of an Article 107
offense when the defense theory focused on the ambiguity of the statement and that
it was not “wholly false.”). The defense was prejudiced in its ability to defend

                                          6
NELSON - ARMY 20140758

against the charge as drafted. For these reasons, I respectfully dissent as I would set
aside the finding of guilty to the Specification of Charge II and Charge II, and would
reassess the sentence.

                                        FOR THE COURT:




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




                                          7
