UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                             JOHNSON, KRAUSS, and BURTON
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                          Specialist ROBERT O. BOZEMAN
                            United States Army, Appellant

                                     ARMY 20080711

                         Headquarters, III Corps and Fort Hood
                            Gregory A. Gross, Military Judge
                       Colonel Mark Cremin, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene Jamison,
JA; Major Laura Kesler, JA; Lieutenant Colonel Jonathan F. Potter, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain
Christopher B. Witwer, JA (on brief).

                                    27 December 2011
                                ----------------------------------
                                 SUMMARY DISPOSITION
                                ----------------------------------

BURTON, Judge:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of two specifications of willfully
disobeying a superior commissioned officer and one specification of engaging in an
indecent liberty with a child as a lesser-included offense of attempted abusive sexual
contact with a child, in violation of Articles 90 and 120, Uniform Code of Military
Justice, 10 U.S.C. §§ 890 and 920 (2007) [hereinafter UCMJ]. Appellant was also
convicted, contrary to his pleas, of two adultery specifications, see Manual for
Courts-Martial, United States (2008 ed.) [hereinafter MCM], Part IV, para. 62, and
one specification alleging an indecent act with a child, see Manual for Courts-
Martial, United States (2002 ed.) [hereinafter MCM, 2002], Part IV, para. 87,
deleted by Exec. Order No. 13447, 72 Fed. Reg. 56179 (Sep. 28, 2007), both in
violation of Article 134, UCMJ. * The convening authority approved the adjudged

*
    Appellant was found not guilty of one adultery specification.
BOZEMAN—ARMY 20080711

sentence to a bad-conduct discharge and confinement for three years, and credited
appellant with 127 days of confinement against the approved sentence to
confinement. Appellant’s case is now before this court for review under Article 66,
UCMJ, and he has raised three assignments of error. In addition, it is evident that
the three specifications of Charge III, setting forth violations of Article 134, UCMJ,
do not expressly allege a terminal element.

                              LAW AND DISCUSSION
                 Erroneous Instruction on a Lesser-Included Offense

       On defense motion under Rule for Courts-Martial [hereinafter R.C.M.] 917,
the military judge found appellant not guilty of the charged attempted abusive sexual
contact with a child in violation of Article 80, UCMJ. Over defense objection, the
judge instructed on what he deemed a lesser included offense of that attempt—
indecent liberties with a child in violation of Article 120. The court-martial
convicted appellant on those instructions. Appellant here complains that the judge
erred in providing such instruction, and we agree.

       While one might imagine an allegation of attempted abusive sexual contact
including specification of an overt act that amounts to an indecent liberty, this is not
that case. Indeed, because no overt act was alleged in the attempt charge, and the
lesser included offense was derived solely from the evidence adduced at trial, the
appellant cannot be held to have been on notice to defend against any such charge
under the circumstances. Absent allegation of an overt act that constitutes an
indecent liberty as a matter of statutory definition, it is inappropriate to entertain
whether the offense of indecent liberty with a child is necessarily included in a
charged attempted abusive sexual contact with a child. See United States v. Alston,
69 M.J. 214 (2010).

             The Charge III Specifications State an Article 134 Offense

       Whether a charge and specification state an offense is a question of law that is
reviewed de novo. United States v. Roberts, __ M.J. ___, slip op. at 4 (Army Ct.
Crim. App. 14 Oct. 2011). Together, the charge and specification must “allege every
element of the offense either expressly or by necessary implication, so as to give the
accused notice and protect him against double jeopardy.” Id. (quoting United States
v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)). R.C.M. 307(c)(3). Here, appellant
pleaded not guilty to the charges of adultery and indecent acts with a child—which
in this case do not expressly allege that appellant’s conduct was of a nature to bring
discredit upon the armed forces. However, appellant did not object to the language
of the charge and specifications at trial, nor did he object in his post-trial matters to
the convening authority, or in his appeal to this court. See United States v. Hoskins,
17 M.J. 134, 136 (C.M.A. 1984) (listing factors that directly impact the ultimate
decision of whether a charge and specification necessarily imply an element).
Where a charge and specification are not challenged at trial, their language is to be

                                           2
BOZEMAN—ARMY 20080711

liberally construed. Roberts, __ M.J. at ___, slip op. at 4 (citing United States v.
Watkins, 21 M.J. 208, 209–10 (C.M.A. 1986)). Cf. Fosler, 70 M.J. at 230. This
liberal rule of interpretation is applicable even where an appellant does not plead
guilty. United States v. Fox, 34 M.J. 99, 102 (C.M.A. 1992); Roberts, __ M.J. at
___, slip op. at 5; United States v. Berner, 32 M.J. 570, 572 (A.C.M.R. 1991).

        In the absence of an objection at trial, we will not set aside a charge and
specification unless it is “so obviously defective that it could not be reasonably
construed to embrace [a] terminal element.” Roberts, __ M.J. at ___, slip op. at 5;
United States v. Watkins, 21 M.J. 208, 209–10 (C.M.A. 1986). First, we hold that
the indecent acts charge and specification can be so construed, and, therefore, state
an offense. The indecent acts charge and specification allege that appellant placed
“his penis on the private parts of his daughter,” a child under sixteen years of age,
with the intent to gratify his sexual desires, all of which is in violation of Article
134, UCMJ. This allegation clearly embraces conduct that is of a nature to bring
discredit upon the armed forces, thus implying this terminal element. And second,
we hold that the adultery charge and specifications also imply this terminal element.
Although the adultery charges at issue in both Fosler and this case are similar, the
procedural posture of the parties is different. In this case, appellant did not object at
trial; therefore, his standing to challenge the charge and specifications is
circumscribed. Roberts, __ M.J. at ___, slip op. at 4. Cf. Fosler, 70 M.J. at 230.
Accordingly, the allegation that appellant wrongfully engaged in sexual intercourse
with a woman other than his spouse in violation of Article 134, UCMJ, necessarily
implies that appellant’s conduct was service discrediting.

       Furthermore, this textual relationship of necessary implication provided
appellant with fair notice. The charge sets forth a violation of Article, 134, UCMJ,
and each specification states the date, location, and, when applicable, the victim of
the offense. See, e.g., United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)
(holding a maltreatment specification provided notice because “it set[] forth the
Article of the Code, name of the victim, the time frame of the offense, and the
comments alleged to have been made by appellant”). In addition, the panel was
instructed in open court, without comment from appellant or his defense counsel,
that each of the Article 134 offenses contained terminal elements and required proof
of the same. Buttressed by the presumption of the defense counsel’s competence, we
conclude that appellant was not misled about the nature of the charges leveled
against him. See MCM, Part IV, paras. 60.c.(6)(a), and 62.b.; MCM, 2002, Part IV,
paras. 60.c.(6)(a), and 87.b. Finally, the factual allegations in each specification
combined with the record of trial sufficiently protect appellant against double
jeopardy.

                                    CONCLUSION
       The findings of guilty of the Specification of Charge I and Charge I are set
aside and dismissed. The remaining findings of guilty are affirmed. The dismissal
of Charge I does not dramatically change the sentencing landscape. Reassessing the

                                           3
BOZEMAN—ARMY 20080711

sentence on the basis of the error noted, the entire record, and in accordance with the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v.
Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker
in his concurring opinion in Moffeit, the court affirms the sentence as approved by
the convening authority.

      Senior Judge JOHNSON concurs.

KRAUSS, Judge, concurring in part and dissenting in part and in the result:

       I am unable to join my friends in affirming the conviction for indecent act
with a child, in Charge III, Specification 1, a conviction based on residual hearsay
where the declarant was available, demonstrably capable of competently responding
to relevant questions, and let off the witness stand without ever being asked those
questions necessary to elicit the salient facts essential for the government to prove
its case.

       In the case at hand, MB, appellant’s daughter, made a number of out-of-court
statements at the age of four that implicated her father in a number of acts of sexual
molestation. These statements included reference to private parts, her father’s
privates touching her privates, and so forth. Some of these statements were obtained
during a forensic interview with a child protection worker where MB correctly
identified her and her father’s private parts. Indeed, at the age of four, MB is asked
directly whether her father touched her privates with his privates and she responds
intelligently.

       However, when called to testify two years later, at the age of six, neither the
government nor the military judge posed any such questions. Instead the
government asked whether the child remembered anything happening on a couch,
whether she ever told her grandmother something occurred on the couch, whether
she recalled aspects of drawings she rendered when she was four and whether the
drawings scared her and questions along those lines. The military judge asked the
child to offer an example of the truth, among others geared more toward competence
and perhaps laying a foundation for those questions necessary to establish
recantation without actually establishing any recantation. 1 Based upon responses
that convinced the judge she had been coaxed to recant, he admitted the residual
hearsay that convicted appellant on the charge of an indecent act with a child.
Appellant objected to their admission.



1
 Nor does the record offer any evidence to establish that the witness recanted out of
court or expressed an intent to recant if called as a witness.




                                          4
BOZEMAN—ARMY 20080711

       The military judge’s ruling to admit residual hearsay under Military Rule of
Evidence [hereinafter Mil. R. Evid.] 807 is reviewed for abuse of discretion. United
States v. Czachorowski, 66 M.J. 432, 434 (C.A.A.F. 2008). “Findings of fact are
affirmed unless they are clearly erroneous; conclusions of law are reviewed de
novo.” Id. Under Mil. R. Evid. 807(B), the proponent of residual hearsay must
show that more probative evidence could not be obtained despite “reasonable
efforts.” Czachorowski, 66 M.J. at 435. In this case, then, the government was
required to establish that it could not procure more probative testimony through
reasonable means before the judge was allowed to admit MB’s out-of-court
statements. If a child witness is available to testify, the requirement under Mil. R.
Evid. 807(B) cannot be met unless the witness either recants her previous statements
or demonstrates that she cannot remember the facts that formed the basis of those
statements. Czachorowski, 66 M.J. at 436. See, e.g., United States v. O’Rourke, 57
M.J. 636, 643 (Army Ct. Crim. App. 2002) (citing United States v. Ureta, 44 M.J.
290, 296–97 (C.A.A.F. 1996) and United States v. Giambra, 33 M.J. 331, 334
(C.M.A. 1991)); United States v. Peneaux, 432 F.3d 882, 893 (8th Cir. 2005).

       There is no dispute that the child witness was available to testify. Indeed, she
did testify on the merits until stopped to take up the question of residual hearsay in
an Article 39(a) session. She remained available to testify after the judge ruled such
hearsay statements admissible. 2 However, never did either the government or
military judge ask the witness whether her father, the accused, touched her or
whether she ever said that he touched her in the manner alleged in the charges for
which appellant stands convicted. We cannot know whether the witness would have
recanted or failed to remember because she was never asked. The standard is not
whether the government has established that the witness might recant or whether the
witness is likely to recant but whether the witness has actually recanted. See, e.g.,
United States v. Haner, 49 M.J. 72, 75 (1998). There is no good explanation for the
failure to ask the witness those questions that would establish whether she would
actually recant. This is especially true in light of the fact that she was asked those
very questions out of court years before and the answers to those questions were
used to convict appellant.

      A witness cannot recant testimony about which she was never asked.
Respecting the judge’s impression that the witness had been coaxed to recant or that
she would recant, that impression was based on vague, indirect and ambiguous
questions relative to the truth and similarly indirect questions relative to recollection
of whether something had happened. The failure of the government or the judge to
2
  The judge’s declaration that the Confrontation Clause is not implicated because the
witness remained available is rather empty in light of his permission for the
government to prove its case with residual hearsay. It is unnecessary to resolve
whether the error is constitutional, under the circumstances, because application of
the nonconstitutional test in this case requires relief.



                                           5
BOZEMAN—ARMY 20080711

simply ask the witness whether she had been improperly touched or whether she ever
stated such when that witness was available to testify about such matters serves to
negate any credible finding of necessity for the admission of those out-of-court
statements. See Czachorowski, 66 M.J. at 436–37; United States v. Taylor, 792 F.2d
1019, 1027 (11th Cir. 1986). Their admission therefore constitutes an abuse of
discretion. Czachorowski, 66 M.J. at 437. Because admission of the residual
hearsay had substantial influence on the finding of guilty to Charge III,
Specification 1, 3 that finding should be disapproved. Pablo, 53 M.J. at 359.

       In light of our reversal of the indecent liberty conviction, because the
indecent act with a child offense was the most serious faced by the accused, and
because there is a reasonable likelihood of a different sentence if the evidence had
been excluded, United States v. George, 52 M.J. 259, 262 (C.A.A.F. 2000), the
sentence should also be disapproved and the case returned for a rehearing.




                                        FOR THE COURT:
                                        JOANNE P. TETR
                                        Acting Clerk of Cou

                                        JOANNE P. TETREAULT ELDRIDGE
                                        Deputy Clerk of Court




3
  Despite the fact that the civilian defense counsel admitted Defense Exhibit A
(including one such statement), he seems to have maintained his previous objection
and apparently offered the exhibit only as illustration of his cross-examination of
MB’s grandmother and not as substantive evidence. Also, the judge ultimately
provided an instruction that categorically rejects any reasonable conclusion that
Defense Exhibit A could be considered as substantive evidence. In any event, the
number and quality of additional residual hearsay statements admitted on the charge
and the impossibility of reasonably determining whether, in retrospect, the
admission of Defense Exhibit A makes the error harmless warrants reversal of the
finding before this court. See, e.g., United States v. Pablo, 53 M.J. 356, 359
(C.A.A.F. 2000).




                                          6
