UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                           BURTON, HAGLER, AND SCHASBERGER
                                 Appellate Military Judges

                              UNITED STATES, Appellee
                                            v.
                       Sergeant First Class ALVIN W. BRADLEY
                             United States Army, Appellant

                                        ARMY 20150752

            Headquarters, U.S. Army Fires Center of Excellence and Fort Sill
                           Wade N. Faulkner, Military Judge
                  Colonel David E. Mendelson, Staff Judge Advocate


For Appellant: Mr. William E. Cassara, Esquire (argued); Captain Ryan T. Yoder,
JA; Mr. William E. Cassara (on brief); Lieutenant Colonel Christopher D. Carrier,
JA; Mr. William E. Cassara (on reply brief).

For Appellee: Captain K.J. Harris, JA (argued); Lieutenant Colonel Erik. K.
Stafford, JA; Major Virginia Tinsley, JA; Captain K.J. Harris, JA (on brief).


                                        29 January 2018
                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

       Sergeant First Class Alvin W. Bradley, appeals his convictions of several
sexual offenses involving his stepdaughter. Appellant raises six assignments of
error, of which two merit discussion. 1 First, we address whether the military judge
created an ambiguous verdict as to one of the specifications which would preclude
this court from reviewing that finding. We conclude that the finding as to that
specification was ambiguous and give relief in our decretal paragraph. Second, we
examine whether the military judge committed an error by considering improper
propensity evidence. We conclude that, though the military judge committed error,

1
 Appellant also raises one matter pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), which, after due consideration, merits no discussion or relief.
BRADLEY—ARMY 20150752

the error was waived and, in any event, did not result in a material prejudice to a
substantial right.

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of three specifications of committing a lewd act on a child and
three specifications of sexual assault of a child, in violation of Article 120b,
Uniform Code of Military Justice, 10 U.S.C. 920b (2012) [UCMJ]. The military
judge acquitted appellant of one specification of committing a lewd act on a child
and a charge of providing alcohol to a minor. The court sentenced appellant to a
dishonorable discharge, confinement for twenty-three years, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence.

                                  BACKGROUND

       From December 2013 to August of 2014, when the circumstances giving rise
to this case occurred, AF was the 14 year-old stepdaughter of appellant. AF lived
with her mother JB, appellant, and her two younger half-sisters.

       At a church event in September 2014, PW (the church’s youth pastor) noticed
that AF appeared to have been cutting herself. PW asked AF what was going on and
she disclosed that she had been sexually assaulted by her stepfather. PW brought
over his wife and a social worker to talk with AF. That evening, AF told JB what
she had told PW. JB told AF she needed to fix this. JB called PW and told him her
daughter was lying and asked him not to report the disclosure. PW believed he had a
mandatory duty to report and called the police.

        During the course of the investigation AF told the police, case workers and
PW’s wife that she had lied when she told PW about being assaulted. AF testified at
trial that she recanted because of pressure from her family.

       During trial, AF testified about several distinct incidents where her stepfather
committed sexual acts and assaulted her. The first was around December 2013,
when appellant winked at her and pinched her butt while she was washing dishes.
After that, in January or February 2014, appellant called her over and said he would
teach her some self-defense. He instructed her to sit on his lap and after showing
her a self-defense move he told her she could also stun someone with a kiss. He had
her practice the stun-by-kiss move. Appellant then touched her inner thigh and her
vagina over her clothes. This escalated to “wrestling” on the floor, during which
time appellant penetrated her vagina with his penis.

       AF described another occasion, in March 2014, where appellant again asked
her to sit on his lap so he could show her some pictures. AF testified:




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BRADLEY—ARMY 20150752

             [A]nd he had rubbed his hands kind of feeling up my body
             to my chest. And he said he noticed that my nipples were
             hard but it was a little bit cold outside. . . . And he slipped
             one of his hands underneath my shirt that I was wearing
             and started feeling my bare breast. . . .

AF then testified that appellant bent her over the coffee table, pulled her shorts
down and put his penis in her anus. AF described that it hurt and she cried.
Appellant then stopped and calmed her down.

      The trial counsel asked a follow up question:

             TC: While you were sitting on your stepfather’s lap, you
             said that he was touching your breasts. Was that over the
             clothes or under?

             AF: The first time was over and then the second time
             when he moved his hand under is when he touched under
             the clothes.

       AF also detailed an occasion where she was crying in her room and appellant
came in and asked her what was wrong. Appellant told her he knew how to make her
feel better. AF testified that appellant digitally penetrated her vagina and then using
a condom inserted his penis in her vagina.

       The final assault occurred at the end of August 2014. AF and appellant were
hanging out in the garage drinking. AF’s mother had gone to bed. AF described
how appellant bent her over a stool and penetrated her anus with his penis. Upon
hearing the outer door open appellant lay on the floor and pretended to be passed
out. JB testified that she came into the garage and her husband was passed out on
the floor and AF was attempting to perform fellatio on her passed-out husband.
AF’s reaction was to say “I’m sorry,” and, according to JB, acted guilty.

       In a pretrial motion, the government sought to introduce evidence of each
child molestation charge under Military Rule of Evidence [M.R.E.] 414 to
demonstrate appellant’s propensity to commit other sexual misconduct. Trial
Defense counsel did not file a response to the government motion. During the
Article 39a hearing prior to arraignment the military judge stated:

             MJ: Appellate Exhibit 1 is a government motion
             regarding admissibility of M.R.E. 414 evidence. I did not
             receive a defense response. I guess before we get to the
             motions let me summarize the 802 session. Prior to trial
             this morning I conducted an R.C.M. 802 session, present



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BRADLEY—ARMY 20150752

            at which were both trial counsel, defense counsel, and
            myself and we discussed the following issues: the first
            was with respect to the government’s 414 motion. The
            defense did not submit a response and they indicated in
            the 802 that they conceded the merits of the motion.
            Given the defense’s concession, provided the government
            meets the requirements under the law for consideration of
            414 evidence I will make the necessary findings at the
            conclusion of the evidence since the government is only
            asking for 414 evidence of charged offenses. If the
            government meets the standard I’ll make the required
            findings at the close of evidence and will instruct the
            members on how they can consider that type of
            evidence . . . . So thus far does either side disagree with
            my characterization of the 802 session? Would either side
            like to add anything?

            DC: No, Your Honor.

            TC: No, Your Honor.

The trial counsel did not mention the motion, propensity evidence, or M.R.E. 414
again. The government did not argue it in the opening statement. At the close of the
defense’s case the MJ stated:

            MJ: As it relates to the 414 issue--it is always kind of
            weird when the offenses are just the charged offenses but
            the court finds the accused is charged with an act of child
            molestation as defined by M.R.E. 414. The evidence has
            been proffered today as it relates to all those charged
            offenses is evidence of the accused’s commission of other
            offenses of child molestation; and the court finds the
            evidence relevant under M.R.E. 401 and M.R.E. 402. And
            I have conducted a prejudice analysis under M.R.E. 403[.]
            I do not find that the probative value is substantially
            outweighed by the danger of unfair prejudice or confusion
            of the issue. Therefore, when I get to findings I will
            consider the evidence for the proper purposes as allowed
            by M.R.E. 414.

The defense counsel did not object. The government did not mention propensity in
the closing argument.




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BRADLEY—ARMY 20150752

       The defense theory of the case was that AF was a liar, there was no
corroboration of any of AF’s claims, and several witnesses impeached AF’s
credibility. The defense argued AF could not be telling the truth because she could
not identify a very visible wart on appellant’s penis. The Defense also argued AF
victimized appellant when she attempted to perform oral sex on appellant as he laid
passed out on the garage floor.

                              LAW and DISCUSSION

       A. Exception of “divers occasions” from Specification 4 of Charge I

    Specification 4 of Charge 1 alleged appellant touched AF’s breast on divers
occasions between 1 February 2014 and 1 May 2014. In finding appellant guilty of
this offense, the military judge excepted the language “on divers occasions” and
narrowed the time frame from 1 March 2014 through 31 March 2014. Appellant
argues that this created an ambiguous verdict which would preclude the court of
conducting a review pursuant to Article 66(c), UCMJ.

       In United States v. Walters, our superior court held that a Court of Criminal
Appeals could not review a conviction for factual sufficiency under Article 66,
UCMJ, when the appellant was charged with committing an illegal act “on divers
occasions,” but was found guilty at trial by exceptions and substitutions to a single
unspecified act. 58 M.J. 391, 396-97 (C.A.A.F. 2003). Our authority to conduct a
factual review is only for things of which the appellant has been found guilty; we do
not have the authority to review an acquitted specification for factual sufficiency.
United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017).

             [A]ny findings by exceptions and substitutions that
             remove the ‘divers occasions’ language must clearly
             reflect the specific instance of conduct upon which [the
             trial court’s] modified findings are based. That can
             generally be accomplished through reference in the
             substituted language to a relevant date or other facts in
             evidence that will clearly put the accused and the
             reviewing courts on notice of what conduct served as the
             basis for the findings.

Walters, 58 M.J. at 396.

        Appellant argues that the evidence shows two separate times where AF
testified he touched her breast. One touching over the clothes and one under the
shirt. Both of these instances were within the relevant March 2014 time period. If
these are two separate incidents, appellant would be correct and we would be unable
to distinguish which one was the offense of which the military judge found the



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BRADLEY—ARMY 20150752

appellant guilty. If however, as the government contends, the under the shirt
touching and over the shirt touching were part of one offense, then the findings are
not ambiguous.

       Therefore, the question we are presented is whether, as a matter of law, these
facts constitute one offense or two offenses. If one offense, we may affirm; if two
offenses, we must set aside the conviction. There are two ways allegations of two
touchings would constitute one offense: the first would occur if one of the alleged
touchings was factually or legally insufficient to independently sustain a conviction
for committing a lewd act on a child; the second would occur if the unit of
prosecution for committing a lewd act encompasses acts that are connected in some
way (for example, close in time, circumstance and impulse). Is a lewd act upon a
child a continuous-course-of-conduct-type offense or is it a discrete-act offense?

       To determine the appropriate unit of prosecution one looks to see “whether
conduct constitutes one or several violations of a single statutory provision.”
Callanan v. United States, 364 U.S. 587, 597 (1961). This determination is one of
congressional intent, permission, and allowance. See United States v. Collins, 16
U.S.C.M.A. 167, 36 C.M.R. 323 (1966). To find the congressional intent one first
looks to the words of the statute. Are there words within the statute which indicate
what exact act was intended to be criminalized? “In this context, the course of each
crime or intended unit of prosecution is best gauged by the duration of the specific
intent required for commission of the offense.” United States v. Flynn, 28 M.J. 218,
221 (C.M.A. 1989) (citing United States v. Universal C.I.T. Credit Corp., 344 U.S.
218, 225, (1952)).

       The Court of Appeals for the Armed Forces (CAAF) has addressed the unit of
prosecution for many offenses, to include assault, conspiracy, damage to property,
drunken driving resulting in injury, robbery, and obstruction of justice. See Flynn,
28 M.J. at 221; United States v. Pereira, 53 M.J. 183, 184 (C.A.A.F. 2000); Collins,
16 U.S.C.M.A. at 169, 36 C.M.R. at 325; United States v. Scranton, 30 M.J. 322,
326 (C.M.A. 1990); United States v. Szentmiklosi, 55 M.J. 487, 491 (C.A.A.F.
2001); United States v. Guerrero, 28 M.J. 223, 227 (C.M.A. 1989). In each case, the
determination turned on intent as seen through the actus reus. “[A] distinction is
laid down in adjudged cases and in textwriters between an offence continuous in its
character [. . .] and a case where the statute is aimed at an offence that can be
committed uno ictu.” United States v. Neblock, 45 M.J. 191, 198 (C.M.A. 1996)
(citing Blockburger v. United States, 284 US 299, 302 (1932)).

      Article 120b provides, “any person subject to this chapter who commits a
lewd act upon a child is guilty of sexual abuse of a child[.]” UCMJ art 120b(c). A
“lewd act” is “any sexual contact with a child.” UCMJ Art 120b(h)(5)(A). “Sexual
contact” is touching or causing to touch, either directly or through the clothing any
body part of any person, if done with intent to arouse or gratify the sexual desire of



                                           6
BRADLEY—ARMY 20150752

any person. 2 UCMJ art. 120b(h)(1); UCMJ art. 120(g)(2)(B). The use of the
singular in the statute’s text (a lewd act) and the definition of a lewd act (any sexual
contact) imply that a single sexual contact (e.g. touching the breast of a child)
establishes the offense. The requirement that the touching must be done with “intent
to arouse or gratify the sexual desire of any person” is another indicator that this is a
single-act-type offense. The specific mens rea needed to separate unlawful conduct
from lawful conduct connects the event of the touching with a moment in time and
not a duration of time.

       Further, though a case of first impression for this specific article under the
UCMJ, similar crimes have been found to be discrete-act crimes. The Court of
Appeals for the Armed Forces (CAAF) found in Neblock that “committing ‘indecent
acts or taking liberties with a child’ is not a continuous-conduct crime as a matter of
military substantive law.” 45 MJ at 198. This court has also concluded that “the
unit of prosecution for sexual assault is each assault.” United States v Schupp, 2017
CCA LEXIS 466, at *3 (Army Ct. Crim. App. 12 Jul. 2017), pet. denied , __ M.J. __,
2017 CAAF LEXIS 1003 (C.A.A.F. 25 Sept. 2017).

       The government has argued that the lewd act, or touching, charged in this case
is akin to assault 3 and therefore a continuous-course-of-conduct offense. The
analogy fails; simple assault is a general intent crime and, as our superior court in
United States v. Flynn distinguished aggravated assault from simple assault because
of the heightened mens rea requirement, the specification in this case is also a
specific intent crime. 28 M.J. 218, 221 (C.M.A. 1989).

       Under the facts and circumstances in this case, where there was evidence of a
touching of the breast over the shirt and one under the shirt, either of which could
form the basis for a unique specification of sexual abuse of a child by committing a
lewd act, we are unable to conclude which touching constituted the military judge’s
finding of guilty. Acknowledging both touches occurred on the same day, there is
no time span in the record for us to determine the time between the two touches.

2
 Alternatively, it is also a sexual contact if the touching is to the genitalia, anus,
groin, breast, inner thigh, or buttocks, with the intent to abuse, humiliate, or degrade
any person. UCMJ 120(g)(2)(A).
3
  The government is correct that the CAAF has repeatedly held that assault is a
continuous-course-of-conduct-type offense and that each blow in a single altercation
should not be the basis of a separate finding of guilty. United States v. Morris, 18
M.J. 450, 451 (C.M.A. 1984); United States v. Rushing, 11 M.J. 95, 98 (C.M.A.
1981). Though the government cites United States v. Clarke for this proposition, the
government ignores the language in that same case that distinguishes the unit of
prosecution for assault charged under Article 128, UCMJ, with the “specialized
assaults charged under Article 120 or 134.” 74 M.J. 627, 628 (Army Ct. Crim. App.
2015).


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BRADLEY—ARMY 20150752

Instead, the evidence shows there was a first touch and a second touch that could
have happened within seconds, minutes, or hours. We cannot speculate about the
time between the touches. Therefore we cannot conduct our review under Art 66 and
must dismiss Specification 4 of Charge 1.

                 B. Military Rule of Evidence 414 and Propensity

       In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), our superior court
ruled the use of charged misconduct and propensity evidence to prove other charged
misconduct pursuant to Mil. R. Evid. 413 was improper. Although Hills involved an
improper instruction, the CAAF in United States v. Hukill extended the reasoning of
Hills to military judge alone cases. 76 M.J. 219, 222 (C.A.A.F. 2017). In United
States v. Hoffman this court examined what happens when defense waives the error
by stating no objection to the Mil R. Evid. 414 instruction at trial. 76 M.J. 758, 764-
67 (Army Ct. Crim. App. 2017). As Hoffman discusses waiver in a members case
applying Hills, we are left with how waiver impacts the issue of a military judge
alone case.

                                      1. Waiver

       In general, a waived error cannot be actioned on appeal. “Waiver” is the
“intentional relinquishment or abandonment of a known right,” which would
preclude appellate review of an issue. United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009) (citations omitted). By contrast a forfeited issue is reviewed for
plain error. Id.

        Based on the facts in this case, appellant waived his objection to the military
judge’s consideration of evidence under Mil. R. Evid. 414. The government filed a
motion to introduce evidence of each child molestation charge under M.R.E. 414 to
demonstrate appellant’s propensity to commit other sexual misconduct. Appellant’s
trial defense counsel did not file a response to the government motion. The military
judge discussed the lack of a response and on the record stated that the defense
counsel had conceded the motion during a Rule for Court-Martial [R.C.M.] 802
session. The military judge gave the defense counsel an opportunity to correct him
if that was wrong or to add anything he overlooked. The trial defense counsel
declined to add anything, nor did he object to the military judge’s characterization
that the defense conceded the motion. This constitutes waiver.

                                    2. Plain Error

       Even if the waiver was converted to forfeiture–either because the law was
considered settled or the concession of the motion by defense at the R.C.M. 802
session is not considered waiver–appellant cannot establish that he can meet all of
the prongs of the plain error analysis. When an appellant “fail[s] to object to the



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BRADLEY—ARMY 20150752

military judge’s propensity instruction at trial, we review for plain error.” United
States v. Guardado, 77 M.J. __, 2017 CAAF LEXIS 1142, at *7 (C.A.A.F. 12 Dec.
2017) (citing United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017). Under plain
error review, we grant relief where appellant has demonstrated: “(1) there was error;
(2) the error was plain and obvious; and (3) the error materially prejudiced a
substantial right of the accused. United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F.
2011) (citation omitted). "[F]ailure to establish any one of the prongs is fatal to a
plain error claim." United States v. Oliver, 76 M.J. 271, 275, (C.A.A.F. 2017)
(quoting United States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)). The CAAF
has found that using propensity evidence of other charged conduct under M.R.E. 414
is an error of a constitutional dimension. Hills, 75 MJ at 356; Hukill, 76 M.J. at 222
(“The same constitutional concerns exist if, in a military judge-alone trial, a military
judge uses charged conduct as propensity evidence under M.R.E. 413.”). “Once
[appellant] meets his burden of establishing plain error, the burden shifts to the
Government to convince us that this constitutional error was harmless beyond a
reasonable doubt.” United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 2009)
(quoting United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)). 4

       Here, assuming waiver does not apply, a plain error analysis would apply to
the military judge’s admission of evidence under Mil. R. Evid. 414. Under this
analysis, we would find the error was plain and obvious. To show the error
materially prejudiced a substantial right of the accused appellant must demonstrate
“a reasonable probability that, but for [the error claimed], the result of the
proceeding would have been different.” United States v. Dominguez Benitez, 542
U.S. 74, 81-82 (2004) (citation omitted); see Hills, 75 M.J. at 357-58 (citations
omitted). Appellant has not met this hurdle for a number of reasons.

       First, the government, despite moving prior to entry of pleas to allow for
consideration of propensity evidence under Mil. R. Evid. 414, did not make use of
propensity evidence a centerpiece of its case. The military judge deferred his
decision on the admissibility and use of Mil. R. Evid. 414 evidence until the close of
evidence. At that close of evidence, the military judge stated that he would
“consider the evidence for the proper purposes as allowed by M.R.E. 414” without
further elaboration. During closing argument, the government did not ask the
military judge to use propensity evidence for any specification in considering any
other specification. In short, propensity did not play a role in the government’s
presentation of its case.



4
  This case is distinguishable from both Hills and Hukill in that both of those cases
involve preserved error. When constitutional error is preserved, an appellate court
tests to see if the error was harmless beyond a reasonable doubt. Hills, 75 M.J. at
352.



                                           9
BRADLEY—ARMY 20150752

       Second, the government’s case was strong without any use or mention of
propensity. The evidence showed an escalating course of behavior by appellant
against AF. AF acted out as a result of this sexual abuse by cutting herself. AF had
no motive to fabricate the allegations. Though the case hinged on the testimony of
AF, several aspects of her testimony were corroborated by other evidence. For
example, as to the last incident, appellant’s wife confirmed appellant was passed
out, corroborating AF’s claim that appellant “passed out” and fell to the floor when
he heard JB approaching the garage. JB’s testimony thus corroborated that some
form of sexual activity was taking place between appellant and AF in the garage. JB
also testified that AF stated, soon after this discovery, that this was not the first such
incident with appellant and, on one occasion, appellant had approached AF with a
condom. In addition, the government established the time, opportunity and location
of each the incidents. The incident in the garage also appellant’s opportunity to be
alone with AF. Likewise, testimony from AF and appellant established that
appellant was in the home during the day, at times where AF was home schooled.

       Third, the defense case was weak. The defense attacked AF’s credibility with
prior inconsistent statements, character evidence, and the theory (which we find
implausible under the facts here) that fourteen-year-old AF was the sexual aggressor
taking advantage of her passed-out stepfather during the incident in the garage.
These avenues of attacking AF were not particularly effective as they did not
establish a motive for AF to fabricate the allegations. By contrast, appellant and his
wife had a significant motive to fabricate given the consequences if appellant were
to be found guilty of the offenses.

       JB acknowledged appellant was the primary earner in the family and the loss
of his income would be difficult. JB testified she told AF to “fix this” by contacting
PW to say the allegations were untrue. JB later begged PW to not report AF’s
allegations to authorities based on JB’s belief AF was lying. Rather than bolstering
appellant’s case, JB’s testimony corroborated AF’s testimony that she was put under
pressure to recant her allegations.

        Appellant elected to testify, thus providing the military judge the opportunity
to weigh the appellant’s credibility against that of AF and other witnesses.
Appellant denied any inappropriate conduct ever occurred with AF. As to the last
incident in the garage—the only incident witnessed by a third party (JB)—appellant
testified he was passed out and had no memory of seeing AF. On cross-examination,
he acknowledged his belief that AF assaulted him and that it was upsetting to him
that he “allow[ed] his daughter to take advantage of me while [I was] passed out.”
As our superior court has recognized, an accused who testifies does so at his own
peril. See United States v. Pleasant, 71 M.J. 709, 712-13 (C.A.A.F. 2012). “When a
defendant chooses to testify, he runs the risk that if disbelieved the jury might
conclude the opposite of his testimony is true.” Id. (citing United States v.
Williams, 390 F.3d 1319, 1325 (11th Cir. 2004)). Here, the military judge obviously



                                           10
BRADLEY—ARMY 20150752

disbelieved appellant’s denial of doing anything inappropriate in the garage. In this
context, appellant’s general denials of any other inappropriate conduct could easily
be dismissed by the factfinder.

       Upon a review of the entire record, appellant fails to establish that there was a
reasonable probability the results would have been different in the absence of the
military judge consideration of evidence under Mil. R. Evid. 414.

       Though the appellant cannot demonstrate plain error, we are convinced that in
this case the use of charged conduct as propensity evidence by the military judge
was harmless beyond a reasonable doubt. Considering the overwhelming strength of
the government’s case and the weak defense case, the propensity evidence did not
contribute to the findings of guilty or appellant’s sentence, and any error was
harmless beyond a reasonable doubt.

                                   CONCLUSION

      Upon consideration of the entire record, the finding of guilty of Specification
4 of Charge I is SET ASIDE and DISMISSED.

      The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the amended
findings, 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. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013), we AFFIRM only so much of the sentence as provides for a
dishonorable discharge, confinement for twenty-two years, and a reduction to the
grade of E-1. All rights, privileges, and property of which appellant has been
deprived by virtue of that portion of the findings and sentence set aside by this
decision, are ordered to be restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge BURTON concurs.

HAGLER, Judge, dissenting in part and concurring in part:

      I respectfully dissent from the majority’s decision to set aside Specification 4
of Charge I. Contrary to the lead opinion, I do not believe this court must find lewd
acts with a child to be a “continuous-course-of-conduct” offense to identify what
conduct served as the basis for appellant’s conviction.

       The central question here is whether the military judge’s findings “clearly
reflect the specific instance of conduct upon which [his] modified findings are
based” and “put the accused and the reviewing courts on notice of what conduct
served as the basis for the findings.” United States v. Walters, 58 M.J. 391, 396
(C.A.A.F. 2003). In Walters, the CAAF was concerned with the impact of an


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BRADLEY—ARMY 20150752

ambiguous finding on two issues: first, the service court’s ability to review a
conviction for factual sufficiency; and second, an accused’s double jeopardy
protections. Id. at 397. I conclude the military judge’s modified findings satisfies
the CAAF’s concerns in both regards and would therefore affirm the military judge’s
finding of guilt as to this specification.

       Relying on Walters, appellant asserts that: 1) evidence was admitted of two
separate instances of him touching his stepdaughter’s breast–once over her shirt and
once under her shirt–and that by excepting “divers occasions,” the judge acquitted
appellant of one of these touchings; and 2) it is impossible for this court to
determine of what conduct appellant was found guilty. It is important to note how
the instant case differs from the “narrow circumstance” presented by Walters, both
in their underlying facts and in how the factfinder modified the findings in each
case.

       In Walters, evidence was admitted on potentially six separate instances of
conduct on varying dates and times, and the panel found the accused guilty of only
one instance. Here, there was no testimony about appellant committing multiple,
factually distinct acts of breast-touching over several months. The record is clear
that appellant touched his stepdaughter’s breast while she was sitting on his lap in
the family’s garage in March 2014. As there was no evidence appellant did so on
any other distinct occasion, we have no need to speculate–as an appellate court
would have done in Walters–about the conduct of which the appellant was found
guilty or not guilty.

       Also the panel in Walters simply substituted “one occasion” for “divers
occasions,” without further clarifying which of the six separate instances was the
“one occasion.” Id. at 394. Here, the military judge excepted “divers occasions”
and, as instructed by Walters, narrowed his finding to include only 1 through 31
March 2014, thereby excluding February, April, and 1 May 2014. This effect of this
modification is twofold.

       First, it focuses our review solely on the occasion that served as the basis for
the military judge’s finding of guilt. It is unambiguous from the record that the
military judge found appellant guilty of his conduct on the occasion when his
stepdaughter was sitting on his lap in the garage in March 2014.

       Second, the modification tends to show the military judge had no intent to
acquit appellant of any touching in March 2014. There is no indication in the record
that the military judge considered these acts to be two separate offenses. As noted
above, they were not factually distinct in time or location, as was the case in
Walters. Both acts occurred on the same occasion–literally in one sitting. Rather,
the judge’s removal of “divers occasions” follows logically from the fact that there
was no evidence offered of separate acts over an extended or considerable period of
time, a conclusion consistent with the R.C.M. 307’s discussion of “divers


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occasions.” 5 Appellant’s position requires us to read ambiguity into the modified
finding, even though the judge specifically narrowed the timeframe of the
specification to include only the month of March. This modification lends clarity,
not ambiguity, to his finding.

       In reviewing the case under Article 66, we are not required to determine
whether the military judge found appellant guilty of touching AF’s breast over her
clothes or under her clothes. Despite appellant’s invitation, we should not speculate
whether the military judge intended to do so. That fact was not an element of the
offense as charged. The evidence in the record supports beyond a reasonable doubt
that he did both, during March 2014, and the military judge’s modified findings are
entirely consistent with this conclusion. I find no basis in the record to support
appellant’s assertion that the military judge intended to find appellant not guilty of
any touching of his stepdaughter’s breast in March 2014.

       Regarding the concern expressed in Walters over double jeopardy, the
military judge’s modified finding provides adequate protection to the appellant. He
is protected against subsequent prosecution for touching his stepdaughter’s breast in
March 2014, conduct for which he was convicted. He is also protected against
further prosecution for any alleged touching in February, April, or on 1 May 2014,
of which he was acquitted.

        I do not believe we must categorically treat lewd acts with a child as a
continuous-course-of-conduct-type offense to determine, in this case, what conduct
served as the basis for appellant’s conviction. We have sufficient information from
the record and from the military judge’s modified findings. Therefore, I dissent on
this issue, and for the reasons listed above, would affirm the findings of guilty as
well as the sentence as adjudged and approved.



                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




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



5
 See R.C.M. 307(c)(3) discussion (In alleging an offense, “[w]hen the acts specified
extend(s) over a considerable period of time it is proper to allege it (or them) as
having occurred, for example, ‘from about 15 June 1983 to about 4 November 1983,’
or ‘did on divers occasions between 15 June 1983 and 4 November 1983.’”).


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