UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             COOK, GALLAGHER, and HAIGHT
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                            Specialist EDWARD J. SMITH
                            United States Army, Appellant

                                      ARMY 20110418

                Headquarters, 3rd Infantry Division and Fort Stewart
                          Tiernan P. Dolan, Military Judge
             Colonel Jonathan C. Guden, Staff Judge Advocate (pretrial)
            Colonel Randall J. Bagwell, Staff Judge Advocate (post -trial)


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA; Captain Matthew R. Laird, JA (on specified issue); Colonel Patricia A.
Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA;
Major Meghan M. Poirer, JA (on original brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Daniel D. Maurer, JA;
Captain T. Campbell Warner, JA (on specified issue); Lieutenant Colonel Amber J.
Roach, JA; Major Katherine S. Gowel, JA; Captain T. Campbell Warner, JA (on
brief).


                                         30 July 2013
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

       A panel composed of officers and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of two specifications of rape by
force, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920
SMITH—ARMY 20110418

(2006) [hereinafter UCMJ]. 1 The panel sentenced appellant to a dishonorable
discharge, confinement for ten years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved only so much of
the sentence as provided for a dishonorable discharge, confinement for ten years,
and reduction to the grade of E-1.

      This case is before us for review under Article 66, UCMJ. Appellate defense
counsel raised two assignments of error to this court 2 and appellant personally raised
matters to this court pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). Neither the assignments of error nor the matters personally raised by
appellant merit discussion or relief.

         On 29 March 2013 this court specified the following additional issue:

               DID THE PANEL RECEIVE SUFFICIENT
               INSTRUCTIONS SO THAT THEY WERE ABLE TO
               DISTINGUISH WHICH DISTINCT RAPE
               ALLEGATIONS WERE ASSOCIATED WITH
               SPECIFICATIONS 1 AND 2 OF REDESIGNATED

1
 The panel acquitted appellant of willfully disobeying his superior commissio ned
officer, aggravated sexual assault, and assault consummated by a battery in violation
of Articles 90, 120, and 128, UCMJ, 10 U.S.C. §§ 890, 920, 928 (2006).
2
    Appellant raised the following assignments of error to this court:

                                             I.

               THE MILITARY JUDGE ABUSED HIS DISCRETION
               WHEN HE DENIED THE DEFENSE REQUEST FOR AN
               EXPERT   CONSULTANT   IN  THE   FIELD  OF
               PSYCHOLOGY AND FALSE CONFESSIONS BASED
               ON DEFENSE COUNSEL’S ABILITY TO ARGUE
               TRADITIONAL VOLUNTARINESS FACTORS SUCH AS
               FATIGUE AND HUNGER.

                                            II.

               THE RECORD OF TRIAL FAILS TO SHOW THAT
               APPELLANT MADE A PERSONAL ELECTION OF
               FORUM     IN   THIS   CASE,  CREATING    A
               JURISDICTIONAL ERROR REQUIRING REVERSAL.




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SMITH—ARMY 20110418

             CHARGE I, RESPECTIVELY? IF NOT, WAS THE
             APPELLANT MATERIALLY PREJUDICED AS A
             RESULT OF THE INSTRUCTIONS GIVEN BY THE
             MILITARY JUDGE ON THIS MATTER?

       Having now received briefs from appellant and government counsel, this
specified issue warrants further discussion, but ultimately no relief.

                                  BACKGROUND

       The underlying facts supporting appellant’s rape convictions were primarily
established by appellant’s own pretrial statement, entered into evidence as
Prosecution Exhibit (Pros. Ex.) 2, and CS’s (the victim) testimony at trial. On 28
September 2010, a friend told appellant that he had just seen appellant’s wife, CS,
hugging another man at a local gas station. Later that evening, appellant and his
friend confronted CS. CS testified she told appellant she had not hugged another
man that day. To the contrary, in his statement, appellant alleged CS did not dispute
that she had been hugging another man. Regardless of the truth surrounding the
alleged hugging incident, it served as a trigger for appellant’s rape of his wife.

       Pursuant to appellant’s statement, on the night of 28 September 2010 , “he
wanted to have sex with [CS] because I wanted to see if she had a lo ose [vagina]
from just having sex with that man.” According to his statement, and as
corroborated by CS at trial, on the night of 28 September 2010 at around 2100 ,
appellant raped CS by using force. Specifically, although CS had rebuffed
appellant’s request to have sex, he pushed her onto the bed, got on top of her and
held her down by both arms while engaging in sexual intercourse. When appellant
placed his penis inside his wife’s vagina, CS “was yelling and crying for [appellant]
to stop and she was telling [appellant] no.” CS struggled against her husband, but
appellant continued to rape her for twenty to thirty minutes and only stopped after
he ejaculated.

       CS then got off the bed and left the room to attend to the couple’s son. She
next went to the bathroom and then returned to bed. Appellant, while lying in bed,
told CS he wanted to engage in additional sexual intercourse. CS informed appellant
her vagina was sore and that she was not int erested in sexual intercourse. Appellant,
despite the protestations, raped his wife again by using force, once again by holding
her down as she struggled, in a fashion similar to the first rape. Appellant continued
to rape CS for twenty to thirty minutes and only stopped, once again, after he
ejaculated.

      Two convictions for two separate rapes are supported based on a review o f the
record. The issue this court specified was aimed at the government’s decision to
charge appellant with identical language and then prosecute those two separate



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SMITH—ARMY 20110418

instances without identifying which instance correlated with a particular
specification. Specifically, the first two specifications of re -numbered Charge I
[hereinafter Charge I] state:

             SPECIFICATION 1: In that [appellant], U.S. Army, did,
             at or near Fort Stewart, Georgia, on or about 28 September
             2010, cause [CS] to engage in a sexual act, to wit: sexual
             intercourse by penetrating her vulva with his penis, by
             using strength and power sufficient that she could not
             avoid or escape the sexual act.

             SPECIFICATION 2: In that [appellant], U.S. Army, did, at
             or near Fort Stewart, Georgia, on or about 28 September
             2010, cause [CS] to engage in a sexual act, to wit: sexual
             intercourse by penetrating her vulva with his penis, by
             using strength and power sufficient that she could not
             avoid or escape the sexual act.

       Until this court raised the issue, at no juncture, to include pretrial, trial, and
post-trial stages, had appellant or his counsel expressed any confusion over the
government’s charging decision concerning these two specifications. Defense
counsel did not request a bill of particulars to clarify what specification was linked
to which rape allegation. Likewise, defense counsel never filed a motion
challenging these two identical specifi cations based on multiplicity. To the
contrary, defense counsel, in a pretrial motion , (Appellate Exhibit VIII), argued it
was impermissible for the government to charge appellant with three specifications
alleging sexual assault on 28 September 2010 when it appeared “that no more tha n
two assaults” had occurred on 28 September 2010. This motion did not challenge
the two rape specifications, but rather the third specification, which contained an
alternative theory that charged appellant with an a ggravated sexual assault of CS by
causing her to have sexual intercourse with appellant on 28 September 2010 by
threatening not to pay the bills and thereby harming the family.

       Trial counsel, in his opening statement, made it clear that appellant had twice
raped his wife on 28 September 2010 stating, “[a]nd so the relationship continued
and so did the abuse. It culminated on the 28 th of September 2010 when the accused
raped [CS] twice on the same night in their residence at Fort Stewart . . . .” As
captured above, both CS’s trial testimony and appellant’s pretrial statement
supported two separate rapes, using the same type of force, using the same victim,
on the same day, and in the same location. At no time during trial did defense
counsel object to these two specifications and neither d efense counsel nor
government counsel requested a specific instruction be given to the panel in order to
clarify what specification was linked to a particular rape allegation. The military
judge did not sua sponte give an instruction to the panel clarifyi ng which



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SMITH—ARMY 20110418

specification of Charge I was associated with which rape allegation. Despite all of
the above, there is no evidence in the record, however, that reflects the panel was
confused regarding what conduct was covered by each specification.

       Appellant’s defense counsel did not raise an issue about these specifications
in matters submitted pursuant to Rules for Courts-Martial [hereinafter R.C.M.] 1105
and 1106. Neither appellate defense counsel nor appellant assigned this issue as
error before this court.

                               LAW AND DISCUSSION

       As a preliminary matter, as both parties identify in their briefs to this court, if
the appellant had been found not guilty of either Specification 1 or 2 of Charge I, we
would be faced with an issue similar to that found in United States v. Walters, 58
M.J. 391 (C.A.A.F. 2003). Specifically, because the specifications are identical and
no overt distinction was made as to which specification was associated with a
particular rape, we would have had to assess the record to determine whether it was
possible to discern of which rape appellant had been found guilty and of which rape
appellant had been acquitted. As such, we would be remiss if we did not echo the
language used in Walters that “[b]oth trial practitioners and military j udges need to
be aware of the potential for ambiguous findings” and “take appropriate steps
through instruction and pre-announcement review of findings to ensure that no
ambiguity occurs.” 58 M.J. at 396.

       While we caution military judges to formulate instructions in a manner to
avoid any ambiguity, we are ultimately able to distinguish this case from Walters
and affirm the convictions. Here, appellant was convicted, not acquitted, of
identical rape specifications. In answering the first question we posed to appellate
counsel, we find the military judge did not clarify for t he panel or this court which
rape allegation was associated with a particular specification. However, we find this
does not amount to error and did not materially prejudice appell ant.

       In reviewing the military judge’s instructions, we note that except for
mandatory instructions, a military judge’s decision whether to give an instruction is
reviewed for an abuse of discretion. United States v. Brown, 50 M.J. 262, 266
(1999); United States v. Poole, 47 M.J. 17, 18-19 (1997). In addition, a military
judge is afforded “considerable discretion” in tailoring instruc tions to the evidence
and law. United States v. Hopkins, 56 M.J. 393, 395 (2002). Here, in reviewing the
instructions the military judge gave in regards to Specification s 1 and 2 of Charge I,
we ultimately find they were proper. He first covered the requisite elements of the
charged rape by force for the first specification and then defined relevant terms such
as “sexual act” and “force.” He then further instructed the panel concerning the
lesser-included offense (LIO) of aggravated sexual assault.




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SMITH—ARMY 20110418

       Next, the military judge covered the requisite elements of the charged rape by
force for the second specification. He also stated the same definitions he had used
to describe “sexual act” and “force” should be applied to this charged offense and no
members wished to have those definitions repeated. The military judge again
instructed the panel concerning the LIO of aggrava ted sexual assault that applied to
this charge.

       After instructing the panel in regards to Specification 3 of Charge I, the
military judge explained to the panel that the evidence had raised the defense of
consent as to Specifications 1 and 2 of Charge I, the LIO associated with those
specifications and also Specification 3, Charge I. The military judge then provided a
definition of consent to the panel. The military judge further explained to the panel
the evidence had raised the defense of mistake of fact as to consent in regards to
Specifications 1 and 2 of Charge I, their LIOs, and Specification 3 of Charge I.
Both parties agreed to these instructions. There is no evidence in the record that the
panel was confused by these instructions. Therefore, we ultimately conclude that
these circumstances could lead to an ambiguous finding, but here they did not.

       In reviewing these identical specifications, we have also determined that these
specifications are not multiplicious and did not subject appell ant to double jeopardy.
Multiplicity “not only prohibits successive trials for the same offense, it also
prohibits separate convictions for the same offense at the same trial.” United States
vs. Whitehorn, 2002 WL 341580 (A.F. Ct. Crim. App. 5 Feb. 2002) (citing United
States vs. Ball, 470 U.S. 856 (1985); United States vs. Britton, 47 M.J. 195 (1997)).
As explained above, Specifications 1 and 2 of Charge I, although identical, were
treated as covering separate rapes and not identical conduct. Appellant , on the same
date, at the same place, and using the same type of force, twice raped CS. His
actions were not charged, treated, or challenged as one continuous act of forced
sexual intercourse. The conclusion that both parties clearly understood that
identical specifications covered separate rapes is reflected by defense counsel
neither seeking a bill of particulars nor filing a motion alleging these two
specifications were multiplicious.

       Pursuant to our statutory review authority under Article 66(c), UCMJ, we may
affirm:
             only such findings of guilty and the sentence, as [we find]
             correct in law and fact and determine[], on the basis of the
             entire record, should be approved. In considering the
             record, [we] may weigh the evidence, judge the credibilit y
             of issues, and determine controverted questions of fact,
             recognizing that the trial court saw and heard th e
             witnesses.

UCMJ art. 66(c).



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SMITH—ARMY 20110418

        The evidence in this case supports affirming two separate convictions for
rape.

                                    CONCLUSION

       On consideration of the entire record, the submissions of the parties, and
those matters personally raised by appellant pursuant to Grostefon, we hold the
findings of guilty and the sentence as approved by the convening authority are
correct in law and fact.

        Accordingly, the findings of guilty and the sentence are AFFIRMED.

        Judge GALLAGHER and Judge HAIGHT concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




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