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

                           UNITED STATES, Appellee
                                        v.
                          Sergeant DAVID W. ST. JOHN
                          United States Army, Appellant

                                   ARMY 20110779

                             Headquarters, Fort Bliss
                        David H. Robertson, Military Judge
                   Colonel Francis P. King, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Stephen J. Rueter, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA;
Captain Bradley M. Endicott, JA (on brief).


                                      24 June 2013

                              -----------------------------------
                                OPINION OF THE COURT
                              -----------------------------------

HAIGHT, Judge:

       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of making a false official statement, indecent liberties with a
child, and indecent exposure, in violation of Articles 107, 120(j), and 120(n),
Uniform Code of Military Justice, 10 U.S.C. §§ 907, 920(j), 920(n) (2006 & Supp. V
2011), amended by 10 U.S.C. § 920 (2012) [hereinafter UCMJ], respectively. The
convening authority approved the adjudged sentence to a bad-conduct discharge and
five months of confinement and credited appellant with three days of confinement.

       Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant argues that his convictions for indecent liberties with a child and indecent
exposure are both multiplicious and an unreasonable multiplication of charges. The
government concedes that these specifications are facially duplicative and one must
be set aside. For the reasons set forth below, we agree with both parties that the
indecent exposure conviction must be set aside.
ST. JOHN—ARMY 20110779

                                   BACKGROUND

       Specification 1 of Charge II charged appellant with taking indecent liberties
with a child:

             In that [appellant], U.S. Army, did, at or near Fort Bliss,
             Texas, between on or about 1 May 2011 and 1 June 2011,
             take indecent liberties in the physical presence of Ms.
             [KB], a female under 16 years of age, by exposing one’s
             private parts, to wit: holding his exposed penis in his
             hand and getting Ms. [KB’s] attention resulting in her
             seeing [appellant’s] exposed penis, while [appellant] had
             the intent to arouse, appeal to, and gratify the sexual
             desire of himself or Ms. [KB].

Similarly, Specification 2 of Charge II charged appellant with indecently exposing
himself to the same Ms. KB:

             In that [appellant], U.S. Army, did, at or near Fort Bliss,
             Texas, between on or about 1 May 2011 and 1 June 2011,
             intentionally expose in an indecent manner his penis while
             in the doorway to a residence in a manner so a female in
             front of the residence could see his exposed penis.

       At trial, appellant pleaded guilty to both specifications pursuant to a pretrial
agreement. In relation to both the indecent liberties and indecent exposure
specifications, appellant admitted the following:

             On the 27th of May I awoke and went to my front door
             and opened it where I noticed Ms. [KB] outside. I
             knocked on the glass door to get her attention. Once I had
             her attention I showed her my exposed penis. The act was
             committed in a place where it could be visibly seen by
             anyone who walked by. I was in the doorway and there
             was a sidewalk. The act was intended to gratify my own
             sexual desires. It was indecent and obscene. It was
             offensive to the neighborhood’s . . . -- socially
             unacceptable to the community standards of decency and
             morality. The acts were totally unbecoming of a
             noncommissioned officer. At the time I could tell the
             victim was not fully mature and developed as an adult
             should be. She was wearing a school uniform and did not
             have the appearance of a fully developed adult female.




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ST. JOHN—ARMY 20110779

Following this account, the military judge questioned appellant. It was patently
clear that appellant exposed himself on a single occasion to a single person, that
person being Ms. KB, a child. Indicative that the indecent liberties and indecent
exposure related to the same conduct, after discussing the former offense, the
military judge explained:

             MJ: Does counsel for either side believe any further
             inquiry is required?

             DC: Yes, Your Honor. There is still the indecent exposure
             offense.

             MJ: Well I covered that in I think what I – well, I think I
             hit all of the elements. A lot of what he told me on the
             exposure, indecent exposure to the child, I took those
             same facts and applied them to the indecent exposure.

There was no further discussion or separate inquiry regarding the indecent exposure
specification.

                              LAW AND DISCUSSION

      “[A]ppellate consideration of multiplicity claims is effectively waived by
unconditional guilty pleas, except where the record shows that the challenged
offenses are ‘facially duplicative.’” 1 United States v. Lloyd, 46 M.J. 19, 23
(C.A.A.F. 1997). See also United States v. Craig, 68 M.J. 399, 400 (C.A.A.F.
2010); United States v. Campbell, 68 M.J. 217, 219 (C.A.A.F. 2009). Facially
duplicative means the factual components of the charged offenses are the same.
Lloyd, 46 M.J. at 23 (citing United States v. Broce and Broce Construction Co., Inc,
488 U.S. 563 (1989)).

      In beginning our analysis, we recognize the pleadings show facially
duplicative charging, in potential violation of the Fifth Amendment. Accordingly,
although the pretrial agreement only addressed merging the specifications for
sentencing, the issue of multiplicity is not forfeited when the pleadings reflect

1
  We interpret this to mean that an unconditional guilty plea, without an affirmative
waiver, results in a forfeiture of multiplicity issues absent plain error. An appellant
may show plain error and overcome forfeiture by proving the specifications are
facially duplicative. See United States v. Harcrow, 66 M.J. 154, 156 n.1 (C.A.A.F.
2008) (noting military courts consistently failed to distinguish between the terms
“waiver” and “forfeiture”).




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ST. JOHN—ARMY 20110779

facially duplicative specifications. Thus, this issue is appropriate for our
consideration on appeal. As charged in this case and as conceded by the
government, the two offenses address the same criminal conduct, cover the same
time period at the same location, and involve the same victim.

      The Fifth Amendment protection against double jeopardy provides that an
accused cannot be convicted of both an offense and a lesser-included offense. See
Blockburger v. United States, 284 U.S. 299 (1932); United States v. Teters, 37 M.J.
370 (C.M.A. 1993). Charges reflecting both an offense and a lesser- included
offense are impermissibly multiplicious. See Brown v. Ohio, 432 U.S. 161, 165–66
(1977). “Whether an offense is a lesser-included offense is a question of law we
review de novo.” United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F.2011).

       This court applies the elements test to determine whether one offense is a
lesser-included offense of another. United States v. Jones, 68 M.J. 465, 468
(C.A.A.F. 2010). Under the elements test, one compares the elements of each
offense:

             If all of the elements of offense X are also elements of
             offense Y, then X is an LIO of offense Y. Offense Y is
             called the greater offense because it contains all of the
             elements of offense X along with one or more additional
             elements.

Id. at 470. The elements test does not require that the “offenses at issue employ
identical statutory language.” United States v. Alston, 69 M.J. 214, 216 (C.A.A.F.
2010). ”Rather, after applying normal rules of statutory interpretation and
construction, this court will determine whether the elements of the lesser-included
offense would necessarily be proven by proving the elements of the greater offense.”
United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012) (citing Alston, 69 M.J. at
216). Further, while “federal crimes are solely creatures of statute,” we are
compelled to look at the specification to determine if an offense is necessarily
included in another, in accordance with the factual context delineated on the charge
sheet, because “what is general is made specific through the language of a given
specification.” Jones, 68 M.J. at 471; see also Wilkins, 71 M.J. at 414. “The charge
sheet itself gives content to that general language, thus providing the required notice
of what an accused must defend against.” Jones, 68 M.J. at 472. We recognize the
preceding language addressed general article 134, but its logic is equally applicable
to any element which can be satisfied in multiple fashions, regardless of the punitive
article to which the element pertains. See United States v. Morgan, __ M.J. ___
(C.A.A.F. 2013) (summary disposition analyzing lesser-included offenses of Article
120 specifications but citing to an article 133 case, United States v. Palager, 56 M.J.
294 (C.A.A.F. 2002)).




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ST. JOHN—ARMY 20110779

       However, before conducting the elements test, we must first consider whether
Congress has expressed its intent regarding convictions for both indecent liberties
with a child and indecent exposure when the offenses arise from the same criminal
act. See Teters, 37 M.J. at 377 (holding the first question for purposes of a double
jeopardy analysis is whether Congress expressed its intent concerning multiple
convictions at a single trial for different statutory violations arising from the same
act or transaction). The very statutory language of Article 120, UCMJ, evinces a
congressional intent that a singular indecent exposure to one person should result in
but one conviction. If the victim was an adult at the time of the exposure, then the
crime committed was indecent exposure. See UCMJ art. 120(n). On the other hand,
if the victim was a child, then the crime committed was indecent liberties with a
child. See UCMJ, art. 120(j).

        The statute is explicit: “[t]he term ‘indecent liberties’ means indecent conduct
but physical contact is not required. It includes one who with the requisite intent
exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child.”
UCMJ art 120(t)(11) (emphasis added). Where the indecent liberty charged is the
indecent exposure of the accused’s genitalia, we would be hard-pressed to find that
an indecent exposure charge is not necessarily included within a charge of taking
indecent liberties with a child. “[I]ncluded” is precisely how the statute describes
the relationship between those two offenses under these circumstances. See Teters,
37 M.J. at 377 n.6 (citing Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (noting
that if Congress has expressly indicated an intent contrary to the Blockburger rule,
congressional intent controls)). Furthermore, regardless of whether the appropriate
unit of prosecution for a crime of exposure is the number of exposures or the number
of victims, under these facts, it is but one. Yet, the accused stands convicted twice
for a singular criminal exposure to one person. Compare United States v. Neblock,
45 M.J. 191 (C.A.A.F. 1996) (holding the proper unit of prosecution for indecent
liberties is the number of discrete acts), with United States v. Lacy, 53 M.J. 509
(N.M. Ct. Crim. App. 2000) (finding the proper unit of prosecution for indecent
liberties is the number of victims).

       Even assuming congressional intent was not expressly evident from the
statute, by conducting the elements test we find that Congress did not intend for
multiple convictions for this singular act because, as charged here, indecent
exposure is a lesser-included offense of indecent liberties with a child. See Teters,
37 M.J. at 370 (finding that absent an overt expression of legislative intent, the
intent of Congress can also be determined based on the elements of the violated
statutes). As it is charged, indecent liberties with a child “piggybacks” the
definition of indecent exposure because indecent liberties with a child “includes one
who with the requisite intent exposes one’s genitalia . . . to a child.” UCMJ art.
120(t)(11); Wilkins, 71 M.J. at 412. As charged, all of the elements of the two
offenses necessarily line up, except the indecent liberties offense requires the
additional element that the exposure be to a person who had not attained the age of



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ST. JOHN—ARMY 20110779

sixteen years. 2 In other words, under the circumstances of this case, the indecent
exposure required no proof beyond that necessary to prove the indecent liberties
specification. Also, in order to commit the charged indecent liberties offense,
appellant necessarily committed the separately charged indecent exposure. Wilkins,
71 M.J. at 412 (citing Alston, 69 M.J. at 216). As such, indecent exposure stood as a
lesser- included offense to the charged indecent liberties. Thus, it was prejudicial
error to convict appellant of both the greater and lesser-included offense. Therefore,
the indecent exposure conviction must be set aside. See Ball v. United States, 470
U.S. 856, 864 (1985) (finding the only remedy consistent with congressional intent
is to vacate one of the underlying convictions).

                                   CONCLUSION

       The finding of guilty of Specification 2 of Charge II is set aside and that
specification is dismissed. The remaining findings are AFFIRMED. Reassessing the
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 approved sentence is AFFIRMED. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by this decision, are ordered restored. See
UCMJ art. 75(a).

      Senior Judge COOK and Judge GALLAGHER concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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

2
  The definition of “indecent” utilized in Article 120, UCMJ, consolidated the
definitions of “indecent” used in the former indecency offenses under Article 134,
UCMJ. See UCMJ art. 120 analysis in the Manual for Courts-Martial (MCM),
United States, (2008 ed.), A23-15 (“the application of the single definition of
‘indecent’ to the offenses of ‘indecent liberties with a child,’ indecent act,’ and
‘indecent exposure’ is consistent with the construction given to the former Article
134, UCMJ, offenses in the 2005 Manual that were consolidated into Article 120,
UCMJ”).




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