UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            BURTON, HAGLER, and FLEMING
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Staff Sergeant KYLE J. BAKER
                           United States Army, Appellant

                                   ARMY 20170438

               Headquarters, U.S. Army Special Operations Command
                         Jeffery R. Nance, Military Judge
                 Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Captain Heather M. Martin,
JA (on brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Jeremy S. Watford, JA; Captain Natanyah Ganz, JA (on brief).


                                      10 April 2019

                               ---------------------------------
                                SUMMARY DISPOSITION
                               ---------------------------------

FLEMING, Judge:

       In this opinion, we discuss appellant’s claim that his conviction for sexual
assault should be dismissed because the specification failed to state an offense.
More specifically, appellant asserts the specification “violates the accused’s right to
notice because it fails to allege [a] mens rea and therefore fails to state an offense.”
As outlined below, and for the reasons annotated by our sister court in Hohenstein,
we disagree. 1




1
 See United States v. Hohenstein, ACM 37965, 2014 CCA LEXIS 179, at *18-21
(A.F. Ct. Crim. App. 20 Mar. 2014), aff’d in part, rev’d in part on other grounds, 73
M.J. 473 (C.A.A.F. 2014).
BAKER—ARMY 20170438

      A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. § 920 [UCMJ]. 2 The convening
authority approved the adjudged sentence of a dishonorable discharge and
confinement for five months.

      We review this case under Article 66, UCMJ. Appellant raises two
assignments of error: one merits discussion, but not relief. 3

                                   BACKGROUND

      Appellant was charged with numerous offenses. For purposes of appellant’s
assignment of error, the relevant specification of sexual assault stated:

             In that [appellant], U.S. Army, did, at or near Tucson,
             Arizona, on or about 27 February 2016, commit a sexual
             act upon Staff Sergeant [JRD], to wit: penetrating the
             vulva of Staff Sergeant [JRD] with his tongue, by causing
             bodily harm to her, to wit: penetrating the vulva of Staff
             Sergeant [JRD] with his tongue without her consent.

       At trial, defense counsel moved to dismiss for failure to state an offense, as
the government did not include a specific intent within the specification. 4 Among
other things, trial defense counsel asserted “[the] reality is that intent element is
what separates these from assaults,” “[i]t’s really just a straight notice issue,” and
“there are scenarios for anything other than a penis that requires a specific intent
element, which is the mens rea, which again hasn’t been alleged.” In response to the
defense motion, the government argued the specification provided the necessary
intent “by reasonable implication.”



2
 Appellant was acquitted of one specification of sexual assault, three specifications
of abusive sexual contact, and one specification of assault consummated by battery.
3
  We have considered appellant’s other assignment of error that the evidence is
factually insufficient, as well as the matters personally asserted by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find they
merit neither discussion nor relief.
4
 This motion also covered numerous specifications for which appellant was
subsequently acquitted. We limit our analysis to the lone specification of which
appellant was convicted.




                                           2
BAKER—ARMY 20170438

       Following argument by both parties (and after conducting further research on
the issue), the military judge denied the defense motion. Within his ruling, the
military judge concluded, “The bottom line is because of the element of [sexual act],
and the way [that term is] defined, the accused is on notice of what he has to defend
against.” The military judge further explained that the term “sexual act . . . includes
the specific intent to either abuse, humiliate, degrade, or gratify the sexual desires of
any person,” “[t]he accused . . . has been on notice of what he had to defend
against,” and “the specific intent is pled by reasonable and fair implication.” 5

                              LAW AND DISCUSSION

       Whether a specification states an offense is a question of law we review de
novo. United States v. Sutton, 68 M.J. 455, 457 (C.A.A.F. 2010). 6 “A specification
is sufficient if it alleges every element of the charged offense expressly or by
implication.” Rule for Courts-Martial 307(c)(3). Put most simply, “the military is a
notice pleading jurisdiction.” United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F.
2011) (citation omitted).

        Our superior court has explained that a “charge and specification will be
found sufficient if they, ‘first, contain[ ] the elements of the offense charged and
fairly inform[ ] a defendant of the charge against which he must defend, and second,
enable[ ] him to plead an acquittal or conviction in bar of future prosecutions for the
same offense.’” Fosler, 70 M.J. at 229 (quoting Hamling v. United States, 418 U.S.
87, 117 (1974)) (alterations in original). A specification is likewise sufficient so
long as the elements “may be found by reasonable construction of other language in
the challenged specification.” United States v. Russell, 47 M.J. 412, 413 (C.A.A.F.
1998) (citations omitted).

       In Hohenstein, the Air Force Court of Criminal Appeals rejected a similar
claim related to two Article 120 offenses and concluded that “the phrases ‘sexual
act’ and ‘sexual contact’ . . . are sufficiently definite in legal meaning to have put
the appellant on notice of the charges against him.” 2014 CCA LEXIS 179 at *19
(citation omitted). We agree.


5
  We note this case does not involve penile penetration. When penetration of a vulva
occurs with any part of the body other than a penis, an “intent to abuse, humiliate,
harass, or degrade any person or to arouse or gratify the sexual desire of any person”
is required by Article 120(g)(1)(B), UCMJ.
6
 In this context, “[s]pecifications which are challenged immediately at trial will be
viewed in a more critical light than those which are challenged for the first time on
appeal.” United States v. French, 31 M.J. 57, 59 (C.M.A. 1990).




                                            3
BAKER—ARMY 20170438

       Based on the charged body parts, as the military judge and the Hohenstein
court noted, “appellant knew he had to defend against having [ ] penetrated the
genital opening of the victim with the intent to abuse, humiliate, harass, or degrade
the victim or to arouse or gratify the sexual desire of any person.” Id. at *20
(citations omitted). As such, we find the challenged specification “adequately
notified the appellant of the charged offense[] without specifically alleging specific
intent.” Id.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge BURTON and Judge HAGLER concur.

                                        FOR THE COURT:




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




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