    UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               TOZZI, CELTNIEKS, and BURTON
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                            v.
                          Specialist D’ANTHONY J. WILLIAMS
                              United States Army, Appellant

                                        ARMY 20140604

                               United States Army Central
                            Deidra J. Fleming, Military Judge
                    Colonel Brendan M. Donahoe, Staff Judge Advocate

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L. Tregle, JA;
Captain Matthew D. Bernstein, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA;
Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief).


                                     21 March 2017
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

BURTON, Judge:

       In this appeal, we address appellant’s claim that his conviction for assault
consummated by battery, as set forth in Specification 2 of Charge IV, is legally and
factually insufficient because the offense could not have occurred at the location
alleged. 1,2 Seeing this, rather, as an issue of a material variance, and finding no
prejudice to appellant, we affirm appellant’s conviction.

1
  Appellant’s other assigned error--that the military judge abused her discretion in
failing to merge various specifications for findings—merits neither discussion nor
relief.
2
  In an unsworn submission pursuant to United States v. Grostefon, 12 M.J. 431
 (C.M.A. 1982), appellant personally asserts, inter alia, that his trial defense counsel
“failed to prepare him to testify” or prepare him for cross-examination. However,

                                                                        (continued . . .)
WILLIAMS – ARMY 20140604

       A military judge sitting as a general court-martial convicted appellant of two
specifications of aggravated sexual contact, three specifications of abusive sexual
contact, indecent exposure, forcible sodomy and two specifications of assault, in
violation of Articles 120, 120c, 125, and 128, Uniform Code of Military Justice, 10
U.S.C. §§ 920, 920c, 925, 928 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge, confinement for eight years, and a
reduction to the grade of E-1, and credited appellant with 176 days of pretrial
confinement. The convening authority approved the sentence and, in addition,
granted appellant an additional 45 days of confinement credit for post-trial
processing delays.

      This case is before us for review under Article 66(b), UCMJ.

                                  BACKGROUND

      At trial, appellant was found guilty of various offenses against five separate
victims, all committed from May to November 2013, while appellant was deployed
to Camp Buehring, Kuwait. All of the specifications--save one--alleged the charged
offense occurred at or near Camp Buehring, Kuwait. The sole specification that

(. . . continued)
appellant failed to submit an affidavit, unsworn declaration made under penalty of
perjury, or any signed statement detailing how a supposed lack of preparation
negatively impacted his testimony. See United States v. Cade, 75 M.J. 923, 929
(Army Ct. Crim. App. 2016). See also United States v. Ellis, 47 M.J. 20, 22
(C.A.A.F. 1997); United States v. Gunderman, 67 M.J. 683, 686-88 (Army Ct. Crim.
App. 2009). In his trial testimony, appellant asserted his contacts with each of the
victims was consensual and, in some instances, relied on prior consensual encounters
to bolster his claims. Appellant has failed to articulate any specifics on what his
counsel could have done in preparation to somehow make his testimony stronger or
more credible.

Under the circumstances of this case, we see no need to order affidavits from
counsel or a fact-finding hearing pursuant to United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967). First, the facts in appellant’s statement—even if true—
“would not result in relief[.]” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997). He based his defense on a claim the victims consented to the activity
underlying each charge. The military judge chose not to believe his testimony.
Second, appellant’s statement contains only “conclusory observations” about his
counsel’s ineffectiveness. Id. He doesn’t articulate how he was unprepared to
testify. Third, the record as a whole compellingly demonstrates the improbability of
appellant’s claim that he was not prepared to testify concerning the charges he
faced. Applying the first, second, and fourth Ginn principles to appellant’s unsworn
and unsigned submission, we reject appellant’s ineffective assistance claim.

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WILLIAMS – ARMY 20140604

differed as to location, Specification 2 of Charge IV, alleged appellant, on or about 1
August 2013, at or near Camp Arifjan, Kuwait, assaulted Specialist (SPC) SA by
grabbing her arm and pulling her towards him without her consent.

      Camp Buehring is located in northern Kuwait. Camp Arifjan is located in
southeastern Kuwait.

       Specialist (SPC) SA was deployed to Kuwait from April to December 2013.
She knew appellant prior to her deployment. She testified that in August of 2013,
she stopped by appellant’s office to visit and get her mail. While there, appellant
put a piece of fruit in his mouth in an attempt to get SPC SA to kiss him. During
this interaction, appellant grabbed her arm. Specialist SA backed away from
appellant and eventually left his office. At no time during her testimony did SPC
indicate where in Kuwait she deployed or on what installation appellant’s office was
located.

       Appellant’s testimony on findings, as well as other evidence, established his
office during his deployment was located on Camp Buehring, Kuwait. As for SPC
SA, appellant testified SPC SA stopped by his office in August 2013. While she was
there, appellant put a piece of dried apple in his mouth and invited her to take a bite.
SPC SA declined his offer. He testified he “. . . leaned in to give her a kiss on the
cheek like I always do and she was like uh-huh.” Appellant denied he ever
knowingly touched SPC SA without her consent.

                              LAW AND DISCUSSION

       As an initial matter, we find the evidence legally and factually sufficient to
establish that appellant assaulted SPC SA. We agree with appellate government
counsel that the real issue here involves a variance as to the location of the assault.
Appellant was found guilty of assaulting SPC SA at Camp Arifjan, Kuwait, which is
located a significant distance away from Camp Buehring, Kuwait, where the assault
actually occurred.

       “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. Allen,
50 M.J. 84, 86 (C.A.A.F. 1999). “[T]o prevail on a fatal variance claim, an
appellant must show both that the variance was material and that he was
substantially prejudiced thereby.” United States v. Marshall, 67 M.J. 418, 420
(C.A.A.F. 2009) (citations omitted). “A variance that is ‘material’ is one that, for
instance, substantially changes the nature of the offense, increases the seriousness of
the offense, or increases the punishment of the offense.” Id. (quoting United States
v. Finch, 64 M.J. 118, 121 (C.A.A.F. 1999)). “A variance can prejudice an appellant
by (1) putting ‘him at risk of another prosecution for the same conduct,’ (2)
misleading him ‘to the extent that he has been unable adequately to prepare for
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WILLIAMS – ARMY 20140604

trial,’ or (3) denying him ‘the opportunity to defend against the charge.’” Id. (citing
United States v. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003).

       We are convinced the variance between the alleged location of appellant’s
assault, Camp Arifjan, Kuwait, and the actual location of the assault, Camp
Buehring, Kuwait, represents a material variance under the facts of this case.

      Though we find this variance material, we see no possible prejudice to the
appellant.

       First, the variance in this case does not put appellant at risk for another
prosecution for the same conduct. “[P]rotection against double jeopardy can be
predicated upon the evidence in the record of the prior prosecution.” United States
v. Lee, 1 M.J. 15, 16 (C.M.A. 1975). The record here clearly establishes appellant
was convicted for an assault he perpetrated at Camp Buehring, Kuwait. The
similarity of SPC SA’s and appellant’s testimony and the circumstances surrounding
the assault leave no other plausible conclusion.

       Second, appellant was not mislead or left flat-footed in the preparation of his
defense against this assault specification. Indeed, appellant met the charge head-on
during his testimony. He acknowledged he had an encounter with SPC SA in August
2013 and provided detailed testimony concerning the event. Appellant evinced no
confusion that he was defending against a claimed assault that occurred at his
deployed location. His trial defense counsel did not move for a bill of particulars or
discovery for events that occurred at Camp Arifjan. For that matter, trial defense
counsel did not make a motion for a finding of not guilty as to this specification
when the government rested. In short, neither appellant nor his counsel suffered in
this regard from the variance.

      Third, the variance did not deny appellant the opportunity to defend against
the charge. Appellant, through his testimony, claimed his encounter with SPC SA
was consensual. The military judge simply did not believe him.

                                   CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                        FOR THE COURT:




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

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