       This opinion is subject to revision before publication



         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                Luke D. ENGLISH, Specialist
                United States Army, Appellant
                          No. 19-0050
                    Crim. App. No. 20160510
          Argued May 21, 2019—Decided July 30, 2019
      Military Judges: Michael J. Hargis and Kurt J. Bohn
   For Appellant: Captain Heather M. Martin (argued); Lieu-
   tenant Colonel Christopher Daniel Carrier, Lieutenant
   Colonel Tiffany D. Pond, Lieutenant Colonel Todd W.
   Simpson, and Captain Joseph C. Borland (on brief).
   For Appellee: Major Sandra L. Ahinga (argued); Colonel
   Steven P. Haight, Lieutenant Colonel Eric K. Stafford,
   Lieutenant Colonel Wayne H. Williams, and Captain KJ
   Harris (on brief).
   Judge RYAN delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges OHLSON,
   SPARKS, and MAGGS, joined.
                    _______________

   Judge RYAN delivered the opinion of the Court.

   A military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of one
specification of attempted rape, four specifications of rape,
one specification of sexual assault, six specifications of
assault consummated by battery, one specification of
kidnapping, one specification of communicating a threat,
and two specifications of obstruction of justice in violation of
Articles 80, 120, 128, and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 880, 920, 928, and 934 (2012).
He was sentenced to confinement for twenty-three years, a
dishonorable discharge, and reduction to E-1. The convening
authority approved the sentence as adjudged. The United
States Army Court of Criminal Appeals (ACCA) dismissed
             United States v. English, No. 19-0050/AR
                      Opinion of the Court

four of the assault consummated by battery specifications, 1
affirmed all other charges and specifications, reduced the
sentence to twenty-two years, and affirmed both the
dishonorable discharge and the reduction to E-1.
    However, as relevant to the instant appeal, the ACCA
found that the evidence in the record did not support the
charged language for Specification 6 of Charge I, Article 120,
UCMJ. Rather than dismiss the charge, it affirmed the con-
viction by excepting the words “to wit: grabbing her head
with his hands” from Specification 6 of Charge I. English, 78
M.J. at 576–77. We granted review of the following issue re-
lated to the language in Specification 6 of Charge I:
       Whether the Army Court of Criminal Appeals can
       find the unlawful force, as alleged, factually insuffi-
       cient and still affirm the finding based on a theory
       of criminality not presented at trial.

    The answer is clearly no. As the Government concedes,
exceptions and substitutions under Rule for Courts-Martial
(R.C.M.) 918(a)(1) (2016 ed.), may not be made at the appel-
late level, see United States v. Lubasky, 68 M.J. 260, 261
(C.A.A.F. 2010), and, relatedly, reviewing courts may not
“revise the basis on which a defendant is convicted simply
because the same result would likely obtain on retrial.”
Dunn v. United States, 442 U.S. 100, 107 (1979). The deci-
sion of the ACCA as to that specification is reversed. 2
               I. Facts and Procedural History

   Appellant was charged with myriad offenses arising from
a brutal and protracted sexual altercation with his ex-wife
(DE) on September 18, 2015, in which he violently raped and
sexually assaulted her multiple times. Ultimately, DE es-
caped to safety and reported the events to the police.




   1 These specifications were dismissed due to an evidentiary er-
ror unrelated to this appeal. United States v. English, 78 M.J. 569,
572–76 (A. Ct. Crim. App. 2018).
   2 We otherwise affirm the lower court’s findings on all other
charges.




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            United States v. English, No. 19-0050/AR
                     Opinion of the Court

    The language of Specification 6 of Charge I provides the
basis for this appeal. At trial, the specification read in perti-
nent part: “[Appellant], did, commit a sexual act upon Ms.
D.E., to wit: penetrating her mouth with his penis, by un-
lawful force to wit: grabbing her head with his hands” (em-
phasis added). On direct examination, DE testified that,
while her hands were fastened with duct tape, “[Appellant]
forced . . . his penis into my mouth.” Government counsel
sought the following clarification:
       [TC:] Okay, and how did he place his penis in your
       mouth?
       [DE:] Just kind of shoved it in my mouth honestly.
       [TC:] Did he grab you at all to do that?
       [DE:] I can’t remember the exact details.

    Before closing argument, the Government moved to dis-
miss certain specifications and to delete language from other
specifications, but it did not seek to except language from or
otherwise amend Specification 6 of Charge I. At closing,
Government counsel repeatedly emphasized that Appellant
accomplished the penetration by grabbing the victim’s head
with his hands. Defense counsel argued against this charac-
terization of the incident:
       I asked [the victim,] “did he grab your
       head . . . ?” . . . And she says, “No, he just put it in
       my mouth.” And that’s actually not the way the
       government charged it either. They charged it that
       he grabbed her head and placed his penis in her
       mouth . . . . [I]t’s clear to the defense that there was
       some type of altercation that took place . . . but it
       didn’t happen the way the government is alleging.

The military judge found Appellant guilty of Specification 6 of
Charge I.
    In the course of its Article 66 (c), UCMJ, 10 U.S.C.
§ 866(c) (2012), review, the ACCA addressed Appellant’s
claim that Specification 6 of Charge I was factually insuffi-
cient and determined that, “[n]otwithstanding the credit we
give to DE’s version of events, the evidence still has to sup-
port the charging language.” English, 78 M.J. at 576. It con-
cluded that, though “there was sufficient evidence to prove


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            United States v. English, No. 19-0050/AR
                     Opinion of the Court

appellant committed the sexual act by unlawful force, there
[wa]s no evidence that he did so by ‘grabbing her head with
his hands.’ ” Id. Rather than dismissing the specification as
factually insufficient when confronted with this discrepancy
between the offense as charged and the evidence, the ACCA
excepted the words “to wit: grabbing her head with his
hands” from the charge sheet and affirmed Appellant’s con-
viction based on the remaining language of Specification 6 of
Charge 1. Id. at 577.
                         II. Discussion

    This is a straightforward case. While a violation of Arti-
cle 120, UCMJ, based on the theory of criminality charged
by the Government requires “unlawful force,” Article
120(a)(1), UCMJ, the Government was not required to draft
the specification alleging a particular type of force, i.e., that
Appellant committed this particular offense by “grabbing
her head with his hands.” Cf. United States v. Fosler, 70
M.J. 225, 229 (C.A.A.F. 2011) (observing that “[t]he military
is a notice pleading jurisdiction”). But when it narrowed the
scope of the charged offense by alleging the particular type
of force, it was required to prove the facts as alleged. See
United States v. Reese, 76 M.J. 297, 300–01 (C.A.A.F. 2017);
see also United States v. Morton, 69 M.J. 12, 16 (C.A.A.F.
2010). As the Government concedes in its brief, once that
charging decision was made, it was bound to abide by it. See
Morton, 69 M.J. at 16.
    In performing its review under Article 66(c), UCMJ, a
Court of Criminal Appeals (CCA) may narrow the scope of
an appellant’s conviction to that conduct it deems legally
and factually sufficient. 3 United States v. Piolunek, 74 M.J.
107, 122 (C.A.A.F. 2015) (upholding the CCA’s determina-
tion that only nineteen of twenty-two charged images of
child pornography were legally sufficient to support a con-
viction); United States v. Rodriguez, 66 M.J. 201, 203
(C.A.A.F. 2008) (upholding the CCA’s decision to strike “on
divers occasions” from the specification at issue and affirm
only one instance of the offense). But in this case, when the

   3 Pursuant to Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2012),
it may also affirm a lesser included offense.




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            United States v. English, No. 19-0050/AR
                     Opinion of the Court

ACCA excepted language from the specification, it changed
the scope of the offense from the specific force alleged and
litigated at Appellant’s court-martial to a generic, and thus
broader, charge that was not presented at trial. This action
both exceeded the ACCA’s appellate authority, Lubasky, 68
M.J. at 265, and violated Appellant’s constitutional due pro-
cess rights. See Dunn¸ 442 U.S. at 106–07; United States v.
Riley, 50 M.J. 410, 415–16 (C.A.A.F. 1999).
                              A.

    It is the government’s responsibility, by virtue of its con-
trol of the charge sheet, to place the accused on notice of the
offense he must defend against. See Morton, 69 M.J. at 16.
Here, the charge sheet indicated that the Government in-
tended to demonstrate that Appellant acted with unlawful
force by “grabbing [DE’s] head with his hands,” and proceed-
ed on that theory at trial. Appellant was entitled to rely on
the specifications in the charge sheet as drafted. Reese, 76
M.J. at 300–01; see also Morton, 69 M.J. at 16; United States
v. Medina¸ 66 M.J. 21, 26–27 (C.A.A.F. 2008). And, in this
case, the fulcrum of the defense theory with respect to this
offense was that the Government failed to prove the unlaw-
ful force alleged.
    Even though DE’s testimony did not strictly conform
with Specification 6 of Charge I as drafted, the Government
argued it did, and did not seek a finding of guilty by
exceptions and substitutions at Appellant’s court-martial. “
‘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.’ ” Lubasky, 68
M.J. at 264 (quoting United States v. Teffeau, 58 M.J. 62, 66
(C.A.A.F. 2003)). Where a variance exists, R.C.M. 918(a)(1)
permits a factfinder to enter findings of guilty with
exceptions and substitutions, so long as the “[e]xceptions
and substitutions [are] not . . . used to substantially change
the nature of the offense.”
   But as the Government acknowledges, exceptions and
substitutions pursuant to R.C.M. 918 may only “be made by
the factfinder at the findings portion of the trial.” Lubasky,
68 M.J. at 265. It nonetheless argues that the ACCA’s “ex-



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            United States v. English, No. 19-0050/AR
                     Opinion of the Court

ception” was not a substantial variance. Given that excep-
tions and substitutions may not be made at the appellate
level, id.; United States v. Johnson, No. ARMY 20131075,
2016 CCA LEXIS 215, at *14, 2016 WL 1311423, at *4 (A.
Ct. Crim. App. Mar. 31, 2016), “variance,” here, is a misno-
mer. Moreover, there was no “variance” between the specifi-
cation and the theory on which the case was “tried and sub-
mitted to the [members].” Dunn, 442 U.S. at 106.
                               B.

    The scope of an appellate court’s authority is a legal
question this Court reviews de novo. See United States v.
Bennitt, 74 M.J. 125, 128–29 (C.A.A.F. 2015); Lubasky, 68
M.J. at 264–65; Rodriguez, 66 M.J. at 203. Although the
ACCA has broad discretion when it reviews the record of tri-
al under Article 66, UCMJ, that discretion is not unlimited.
United States v. Swift, 76 M.J. 210, 216 (C.A.A.F. 2017).
    Article 66(c), UCMJ, requires a service court to conduct a
plenary review of the record and affirm so much of the
findings and sentence “as it finds correct in law and fact and
determines, on the basis of the entire record, should be
approved.” Relatedly, Article 59(b), UCMJ, grants a
reviewing court the discretion to “affirm, instead, so much of
the finding as includes a lesser included offense.” But there
is no authority, statutory or otherwise, that permits the
ACCA to except language from a specification in such a way
that creates a broader or different offense than the offense
charged at trial. See Dunn, 442 U.S. at 107 (“[A]ppellate
courts are not free to revise the basis on which a defendant
is convicted simply because the same result would likely
obtain on retrial.”).
    When conducting a review for factual sufficiency, the
ACCA considers “whether, after weighing the evidence in
the record of trial . . . [it is] convinced of the accused’s guilt
beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324, 325 (C.M.A. 1987). Here, the ACCA found DE’s version
of the events credible but determined that her testimony did
not support a conviction under Specification 6 of Charge I as
drafted. English, 78 M.J. at 576. By finding the evidence did
not support the facts as charged, the ACCA effectively con-
cluded that Appellant was not guilty of the specification. Cf.



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            United States v. English, No. 19-0050/AR
                     Opinion of the Court

United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002) (“The court may affirm a conviction only if it con-
cludes, as a matter of factual sufficiency, that the evidence
proves appellant’s guilt beyond a reasonable doubt.” (em-
phasis added)).
    The ACCA had two options: (1) set aside the findings as
to Specification 6 of Charge I as the finding was not “correct
in . . . fact,” Article 66(c), UCMJ; or (2) affirm a lesser
included offense, Article 59(b), UCMJ. What the ACCA could
not do was strike the charged language regarding specific
unlawful force and affirm Specification 6 of Charge I simply
because “there was sufficient evidence to prove appellant
committed the sexual act by unlawful force.” English, 78
M.J. at 576.
    The ACCA itself has observed this limitation in the past.
In an unpublished decision, Johnson, 2016 CCA LEXIS 215,
2016 WL 1311423, it considered a case that closely resem-
bles the scenario presented by this appeal. There, the appel-
lant was charged with assault by “pointing” a loaded firearm
at the victim, but the testimony and evidence introduced at
the court-martial only indicated that he placed two firearms
on the table and asked the victim whether “this [was] what
it [wa]s going to come to?” Id. at *12, 2016 WL 1311423, at
*4. Faced with the discrepancy between the proof and the
charges, the ACCA concluded that it could not “affirm a con-
viction in a circumstance where the evidence necessary to
sustain the conviction requires a variance from the specifica-
tion alleged.” Id. at *14, 2016 WL 1311423, at *4. Citing
Lubasky, the court noted that it could not, on appeal, base
its review on anything other than “the findings of the court-
martial.” Id. at *14, 2016 WL 1311423, at *4.
   To permit the ACCA’s revision of the charge sheet in this
case would convict Appellant, on appeal, of an offense met by
a more expansive (and undefined) 4 set of facts than those
charged and litigated at trial. While Article 66, UCMJ, pro-

   4   While finding “sufficient evidence to prove that appellant
committed the sexual act by unlawful force,” there is no indication
in the ACCA opinion as to the specific method of force it relied on
to affirm the conviction. English, 78 M.J. at 576.




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             United States v. English, No. 19-0050/AR
                      Opinion of the Court

vides extensive powers of appellate review to service courts
of criminal appeal, it does not permit after-the-fact revisions
to the charge sheet that sweep more broadly than what was
alleged, and what an appellant was convicted of, at trial. 5
                                C.

    Expanding the scope of the specification on appeal be-
yond that which was presented to the trier of fact is akin to
the violation of due process that occurs when an appellate
court affirms a conviction based on a different legal theory
than was presented at trial. See Dunn¸ 442 U.S. at 106–07;
Bennitt, 74 M.J. at 128; United States v. McCracken, 67 M.J.
467, 467–68 (C.A.A.F. 2009); Riley, 50 M.J. at 415–16; see
also Chiarella v. United States, 445 U.S. 222, 236 (1980)
(holding that “[an appellate court] cannot affirm a criminal
conviction on the basis of a theory not presented to the ju-
ry”). Given the Government’s decision to allege a specific
type of unlawful force, it is a fundamental tenet of due pro-
cess that an appellate court may not affirm a conviction
based on a more generalized and generic theory of force not
submitted to the trier of fact. Riley, 50 M.J. at 415–16.
    While we do not doubt that multiple methods of force
were readily available for the Government to present at tri-
al, absent a finding by exceptions and substitutions under
R.C.M. 918 at trial, those alternatives were precluded by the
specific language included in Specification 6 of Charge I. 6
The ACCA, through exception to the specification on appeal,
affirmed a charge with a broader factual basis than the the-

   5  We specifically note that this holding does not call into
question our decisions that permit a CCA to narrow the scope of
language in a specification to affirm only so much as is correct in
law and fact. See supra p. 6. Where the CCA narrows the charging
language rather than broadening it, such a change does not run
afoul of the due process concerns implicated here. See infra
Section C.
   6 And even if “variance” were the proper framework for analyz-
ing the issue, in this case, the placement of Appellant’s hands dur-
ing the sexual assault was a substantial fact. Cf. Reese, 76 M.J. at
300–01 (amending the specification from “licking the penis” to
“touching the penis [with his hand]” constituted a major change
under R.C.M. 603(a) (internal quotation marks omitted)).




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             United States v. English, No. 19-0050/AR
                      Opinion of the Court

ory the Government originally charged and proceeded on at
trial. Such post hoc modification is an error of constitutional
magnitude that “offends the most basic notions of due pro-
cess.” Dunn, 442 U.S. at 106.
                         III. Conclusion

    The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed in part and reversed in part. The
finding as to Specification 6 of Charge I and the sentence are
set aside, and this specification is dismissed. 7 We affirm the
lower court with respect to all other findings. The record of
trial is returned to the Judge Advocate General of the Army
for remand to the Army Court of Criminal Appeals for reas-
sessment of the sentence.




   7  While Article 59, UCMJ, permits affirmance of a lesser in-
cluded offense, given the ACCA’s determination that the force al-
leged is factually insufficient, English, 78 M.J. at 576, there is no
lesser included offense to affirm.




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