This opinion is subject to administrative correction before final disposition.




                                Before
                 CRISFIELD, HITESMAN, and GASTON,
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                         Joshua P. Hill
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant

                             No. 201800161

                         Decided: 18 October 2019.

 Appeal from the United States Navy-Marine Corps Trial Judiciary.
 Military Judges: Lieutenant Colonel Mark P. Sameit, USMC (ar-
 raignment and motions); Major John Ferriter, USMC (motions and
 trial). Sentence adjudged 2 February 2018 by a general court-martial
 convened at Marine Corps Base Camp Pendleton, California, consist-
 ing of a military judge sitting alone. Sentence approved by convening
 authority: forfeiture of all pay and allowances, reduction to pay grade
 E-1, confinement for two years, and a dishonorable discharge.

 For Appellant: Captain Nicholas S. Mote, USMC.

 For Appellee: Lieutenant Jonathan Todd, JAGC, USN; Captain Brian
 L. Farrell, USMC.

 Chief Judge CRISFIELD delivered the opinion of the Court, in which
 Senior Judge HITESMAN and Judge GASTON joined.

                        _________________________
                     United States v. Hill, No. 201800161


         This opinion does not serve as binding precedent, but
              may be cited as persuasive authority under
               NMCCA Rule of Appellate Procedure 30.2.

                          _________________________

CRISFIELD, Chief Judge:
    Appellant was found guilty by a military judge, pursuant to his pleas, of
one specification of abusive sexual contact in violation of Article 120(d), Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 920(d) (2016). He was
found guilty by the military judge, contrary to his pleas, of one specification
of sexual assault, one specification of abusive sexual contact, and one specifi-
cation of indecent visual recording, in violation of Articles 120(b), 120(d), and
120c(a), UCMJ, 10 U.S.C. §§ 920(b), 920(d), and 920c(a), respectively.
    Appellant asserts four assignments of error: (1) Specification 1 of Charge
III, alleging sexual assault by causing bodily harm, fails to state an offense
because it does not specifically describe the bodily harm alleged; (2) Appellant
did not receive effective assistance of counsel because his defense counsel
failed to object to the lack of specificity in Specification 1 of Charge III;
(3) this Court cannot conduct an adequate factual sufficiency review of Appel-
lant’s conviction of Specification 1 of Charge III due to the lack of specificity
and the fact that the military judge found Appellant not guilty of certain acts
alleged in another specification; and (4) the promulgating order is deficient
since it fails to reflect all the charges and specifications on which he was
arraigned and fails to reflect the consolidation of Specifications 3 and 4 of
Charge III. We find no error prejudicial to the rights of Appellant but agree
that the promulgating order contains errors that must be corrected.

                               I. BACKGROUND

    On 3 December 2016, Appellant attended a party with other Marines at
his barracks at Marine Corps Base Camp Pendleton, California. One of the
attendees at the party was a civilian female, B.J.M. She had been brought to
the barracks by Lance Corporal (LCpl) Price, whom she had recently met on
Tinder, a dating app. Appellant, LCpl Price, B.J.M., and some other Marines
gathered in LCpl Price’s barracks room and consumed alcohol. B.J.M. and
LCpl Price soon became intoxicated. At some point in the evening, everyone
except B.J.M. and LCpl Price left the room to attend a party in another room.
Once alone, LCpl Price and B.J.M. had sexual intercourse on his bed. They
both fell asleep. LCpl Price woke shortly afterwards, left B.J.M. asleep in his
room, and went to the other party where he bragged about having sex with
her.


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                        United States v. Hill, No. 201800161


   LCpl Price became obnoxious at the other party, so his roommate,
LCpl Halerz, escorted him out of the party and back to their room. When they
entered the room, they found Appellant standing next to B.J.M., who was
naked, lying on the bed, and convulsing. 1 After B.J.M. stopped convulsing,
Appellant and other Marines dressed her, got her into a car, and drove her
back to her apartment.
    The next day, 4 December 2016, B.J.M., believing that she had been sex-
ually assaulted in the barracks, went to a hospital and underwent a sexual
assault forensic examination. She also made a statement to the Naval Crimi-
nal Investigative Service (NCIS) about the events.
    Agents of NCIS interviewed Appellant later that day. He confessed to in-
serting his finger into B.J.M.’s vulva and touching her breast with his hand.
He also confessed to taking pictures of B.J.M. without her consent while she
was naked on the bed. While still in the interrogation room, Appellant called
his father and informed him that he had “fingered” a young woman while she
was passed out. 2 Appellant then went to a hospital to undergo a forensic
examination. A test revealed that Appellant’s finger had B.J.M.’s DNA on it.
    Appellant pleaded guilty by exceptions to Specification 4 of Charge III, 3
abusive sexual contact by touching B.J.M.’s breast with his hand with an
intent to gratify his own sexual desire when he knew or reasonably should
have known that the victim was asleep, unconscious, and otherwise unaware
that the sexual contact was occurring. He pleaded not guilty to the remaining
language, charges, and specifications. The Government proceeded to trial on
the remaining language, charges, and specifications.
    At trial, B.J.M. testified that while she was lying on the bed naked with
the lights off, she was briefly awakened by a flash, as from a camera phone.
She next remembered waking up find someone at the foot of the bed inserting
his finger into her vagina. She testified that the person who did it looked
similar to Appellant. She later awoke to discover that someone was touching
her breasts. She testified that she did not consent to any of those acts.
   At the conclusion of the trial on the merits the military judge acquitted
Appellant of making a false official statement (Charge II); breaking and



   1 Ms. B.J.M. testified to having a history of seizures after consuming alcohol.
Record at 312-13.
   2   Prosecution Exhibit 12 at 48-49.
   3 The Appellant excepted the following language from his guilty plea: “touching
the breast of B.J.M. with his tongue and touching the neck of B.J.M. with his mouth.”




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                      United States v. Hill, No. 201800161


entering into the room where B.J.M. was asleep (Charge V); and sexual as-
sault by digitally penetrating B.J.M. when he knew or reasonably should
have known that she was asleep, unconscious, and otherwise unaware that
the sexual act was occurring (Specification 2 of Charge III).
    The military judge found Appellant guilty of sexual assault by digitally
penetrating B.J.M.’s vulva by causing bodily harm (Specification 1 of Charge
III); abusive sexual contact by touching her breasts with his mouth by caus-
ing bodily harm (Specification 3 of Charge III); 4 and indecent visual recording
(Charge IV). He also found Appellant guilty of some language that was ex-
cepted from Specification 4 of Charge III when Appellant pleaded guilty to
that specification before trial on the merits. 5
   The military judge found that Specifications 3 and 4 of Charge III consti-
tuted an unreasonable multiplication of charges and consolidated them for
the purposes of findings.
    Additional facts necessary to resolution of the issues are contained in the
discussion.

                                II. DISCUSSION

A. Specification 1 of Charge III States an Offense
    For the first time on appeal Appellant asserts that Specification 1 of
Charge III fails to state an offense because its description of the bodily harm
as “an offensive touching” is too general.
   “The military is a notice pleading jurisdiction.” United States v. Fosler, 70
M.J. 225, 229 (C.A.A.F. 2011) (citation omitted). Encompassing the notice
requirement, the rules of procedure provide that, “[a] specification is a plain,
concise, and definite statement of the essential facts constituting the offense
charged. A specification is sufficient if it alleges every element of the charged



   4 The military judge excepted the words “touching the breast of B.J.M. with his
tongue, and touching the neck of B.J.M. with his mouth,” and substituted the words,
“and touching the breasts of B.J.M. with his mouth.” Record at 570-71.
   5 The military judge excepted the words “touching the breast of B.J.M. with his
tongue, and touching the neck of B.J.M. with his mouth” and substituted the words,
“and touching the breasts of B.J.M. with his mouth.” He also excepted the words “or
reasonably should have known” and substituted “and reasonably should have
known.” Finally, he excepted the words “unconscious, and otherwise unaware that
the sexual contact was occurring” and substituted the words “and unconscious.”
Record at 571.




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                      United States v. Hill, No. 201800161


offense expressly or by necessary implication . . . .” RULE FOR COURTS-
MARTIAL (R.C.M.) 307(c)(3), MANUAL FOR COURTS-MARTIAL (MCM), UNITED
STATES (2016 ed.). A specification is sufficient if it “contains the elements of
the offense charged and fairly informs a defendant of the charge against
which he must defend” and “enables him to plead an acquittal or conviction
in bar of future prosecutions for the same offense.” Hamling v. United States,
418 U.S. 87, 117 (1974).
    The Government argues that Appellant waived his claim that the specifi-
cation fails to state an offense because he did not raise the issue at trial. We
review whether an accused has waived an issue de novo. United States v.
Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). Waiver is the “intentional relin-
quishment or abandonment of a known right,” whereas “forfeiture is the
failure to make the timely assertion of a right.” United States v. Gladue, 67
M.J. 311, 313 (C.A.A.F. 2009) (internal quotation marks and citations omit-
ted). Failure to state an offense is a waivable ground for dismissal of a speci-
fication that the rules contemplate will be brought and decided “before the
final adjournment of the court-martial.” R.C.M. 907(b)(2)(E). However, while
failure to raise other non-jurisdictional motions before adjournment “shall
constitute waiver,” a motion to dismiss for failure to state an offense is specif-
ically excluded from such automatic waiver. R.C.M. 905(e). As we do not find
evidence in the record that Appellant intentionally relinquished this known
right, we will consider Appellant’s failure to raise this issue at trial as forfei-
ture and apply plain error review. See United States v. Ballan, 71 M.J. 28, 34
(C.A.A.F. 2012) (explaining that “error alone does not warrant dismissal” and
that charges that fail to allege an element of an offense, if not objected to at
trial, are tested for plain error).
    When a challenge to a specification as defective is raised for the first time
on appeal, Appellant has the “burden of demonstrating that: (1) there was
error; (2) the error was plain or obvious; and (3) the error materially preju-
diced a substantial right,” specifically, his right to notice. United States v.
Humphries, 71 M.J. 209, 214-15 (C.A.A.F. 2012) (internal quotation marks
and citations omitted). Thus, “in the plain error context [a] defective specifi-
cation alone is insufficient to constitute substantial prejudice to a material
right.” Id. at 215.
    For the specification at issue here, we find neither error nor prejudice to
the right of notice to Appellant, who made no motion at trial to dismiss the
specification or to compel the Government to produce a bill of particulars.
Appellant first complains that the specification fails to plead essential words
of criminality. We find that the phrase “offensive touching” in the context of a
specification alleging that Appellant penetrated B.J.M.’s vulva with his finger
is sufficient to allege criminality. It serves to notify an accused that his acts,
which under other circumstances might be lawful, constitute criminal acts

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                     United States v. Hill, No. 201800161


under the circumstances. “Offensive touching” clearly signals criminality in
such a specification, much as “wrongfully,” “unlawfully,” or “without authori-
ty” would do in other contexts. See generally R.C.M. 307(c)(3), Discussion
(G)(ii).
    Appellant also asserts that the specification fails to state an offense be-
cause it fails to expressly or impliedly allege all the elements of the offense as
required by R.C.M. 307(c)(3). The statutory elements of sexual assault involv-
ing penetration of the vulva by any part of the body by causing bodily harm
are: (1) the accused committed a sexual act upon another person by causing
penetration, however slight, of the vulva by any part of the body; (2) that the
accused did so by causing bodily harm to that person; and (3) that the ac-
cused did so with an intent to arouse or gratify the sexual desire of any per-
son. 10 U.S.C. § 920(b)(1)(B). Specification 1 of Charge III alleges each of
those statutory elements. While the specification’s description of the bodily
harm is general and could provide more specific notice of the specific bodily
harm alleged, such an issue is appropriately addressed as necessary through
a bill of particulars, not dismissal. See R.C.M. 906(b)(6).
    Appellant also claims that the specification does not provide adequate no-
tice of the charge, and does not provide adequate double jeopardy protections.
Based on the evidence presented at the court-martial and the closing argu-
ments of counsel, it is clear to us, as it was before the court below, that the
bodily harm and offensive touching involved in the specification was Appel-
lant’s nonconsensual penetration of the victim’s vulva with his finger. The
UCMJ specifically contemplates such a theory of criminal liability and it is
common in charging this type of offense. Article 120(g)(3), UCMJ, 10 U.S.C.
§ 920(g)(3) (2016) (“The term ‘bodily harm’ means any offensive touching . . .
including any nonconsensual act or nonconsensual sexual contact.”). The
evidence clearly supported and substantiated that theory in this case. Based
on the record before us, Appellant’s claim of a defective specification that
deprived him of adequate notice is without merit.

B. The Appellant Received Effective Assistance of Counsel
    Appellant claims that he did not receive effective assistance of counsel be-
cause his trial defense counsel did not move to dismiss Specification 1 of
Charge III for failure to state an offense and did not request a bill of particu-
lars.
    We review claims of ineffective assistance of counsel de novo. United
States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018). In order to prevail on a
claim of ineffective assistance of counsel, an appellant must demonstrate
both (1) that his counsel’s performance was deficient, and (2) that this defi-




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                     United States v. Hill, No. 201800161


ciency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984).
    With respect to Strickland’s first prong, counsel are presumed to be com-
petent and our inquiry into an attorney’s representation is “highly deferen-
tial[.]” Id. at 689. We employ “a strong presumption that counsel’s conduct
falls within the wide range of professionally competent assistance.” Id. Appel-
lant has the heavy burden of establishing a factual foundation for a claim of
ineffective representation. See United States v. Grigoruk, 52 M.J. 312, 315
(C.A.A.F. 2000) (“sweeping, generalized accusations” will not satisfy an appel-
lant’s foundational burden). In order to show prejudice under Strickland,
“[t]he defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” 466 U.S. at 694. “Moreover, a verdict or
conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.” Id. at 696.
    We will not second-guess strategic or tactical decisions made by the trial
defense counsel unless Appellant can show specific defects in counsel’s per-
formance that were unreasonable under prevailing professional norms.
United States v. Mazza, 67 M.J. 470, 475 (C.A.A.F. 2009). We do not believe
that Appellant has shown any here. Based on our finding that Specification 1
of Charge III does not fail to state an offense, we conclude that any motion to
dismiss on that basis would not have prevailed and at most would have re-
sulted in the production of a bill of particulars that the trial defense counsel
did not appear to need.

C. This Court Can Conduct a Factual Sufficiency Review of Specifi-
cation 1 of Charge III
    Appellant asserts that this Court cannot conduct a factual sufficiency re-
view of Specification 1 of Charge III because the “offensive touching” is not
specifically described and the military judge found Appellant not guilty of two
acts that could have constituted such offensive touching. He argues that this
Court cannot find that the “offensive touching” alleged in Specification 1 of
Charge III is touching B.J.M.’s breast with his tongue or her neck with his
mouth because the military judge, in his announcement of findings, specifi-
cally excepted that language from Specifications 3 and 4 of Charge III. We
agree with Appellant on this point, but neither of those acts constitute the
offensive touching that we find was proven in Specification 1.
   Notwithstanding the failure to specifically describe the bodily harm by
which Appellant caused the sexual act alleged in Specification 1 of Charge




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                      United States v. Hill, No. 201800161


III, we feel confident in our ability to conduct a factual sufficiency review of
Appellant’s convictions.
   From the evidence adduced at trial and the closing arguments to the mili-
tary judge, it is obvious to us that the bodily harm involved in Specification 1
was the nonconsensual sexual act itself: Appellant’s penetration of B.J.M.’s
vulva with his finger. B.J.M. did not consent to the sexual act and we need
not search any further for bodily harm.
    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, [this court is] convinced of Appellant’s guilt beyond a reasona-
ble doubt.” United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (cita-
tion, internal quotation marks, and emphasis omitted). In conducting this
unique appellate function, we take “a fresh, impartial look at the evidence,”
applying “neither a presumption of innocence nor a presumption of guilt” to
“make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.” Unit-
ed States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Proof beyond a
reasonable doubt does not mean, however, that the evidence must be free
from conflict. United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App.
2001). Having carefully considered the evidence in the record of trial and
making suitable allowances for not having personally observed the witnesses,
we are convinced of Appellant’s guilt beyond a reasonable doubt.

D. The Promulgating Order Contains errors
    Appellant correctly notes that the convening authority’s action contains
two errors. It fails to reflect that Appellant was arraigned on Charge I, which
was subsequently withdrawn before Appellant entered pleas. It also fails to
reflect that the military judge consolidated Specifications 3 and 4 of Charge
III for findings. 6 We find no prejudice to Appellant in these errors, but he is
entitled to accurate post-trial documents. United States v. Crumpley, 49 M.J.
538, 539 (N-M. Ct. Crim. App. 1998). We order correction to the promulgating
order in our decretal paragraph.




   6 We also note that the Staff Judge Advocate’s Recommendation includes an in-
complete copy of the Results of Trial report and thus fails to properly advise the
convening authority of the court-martial’s findings. However, based on the correctly
stated portions of the promulgating order and the record as a whole, we find no
prejudice to Appellant in this error.




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                     United States v. Hill, No. 201800161


                              III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. Arts. 59 and 66, UCMJ. Accordingly, the findings and
sentence as approved by the convening authority are AFFIRMED. The sup-
plemental court-martial order will correctly indicate Appellant’s arraignment
on Charge I and the consolidation of Specifications 3 and 4 of Charge III into
the following specification for findings:
       In that Lance Corporal Joshua P. Hill, U.S. Marine Corps, on
       active duty, did, at or near Marine Corps Base Camp Pend-
       leton, California, on or about 3 December 2016, touch directly
       B.J.M., to wit: touching the breast of B.J.M. with his hand and
       mouth:
       -   by causing bodily harm to B.J.M., to wit: an offensive touch-
           ing, however slight, and
       -   when he knew and reasonably should have known that
           B.J.M. was asleep and unconscious,
       with an intent to gratify the sexual desire of the said Lance
       Corporal Hill.
   Senior Judge HITESMAN and Judge GASTON concur. .


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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