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

                           UNITED STATES, Appellee
                                       v.
                    Master Sergeant RAYMOND J. REYNARD
                         United States Army, Appellant

                                   ARMY 20100351

                             Headquarters, Fort Riley
                          John Saunders, Military Judge
          Lieutenant Colonel Robert A. Borcherding, Staff Judge Advocate


For Appellant: Captain Matthew T. Grady, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura R. Kesler, JA; Major
Richard E. Gorini, JA; Captain Matthew T. Grady, JA (on brief).

For Appellee: Captain Kenneth W. Borgnino, JA (argued); Major Amber J.
Williams, JA; Major Katherine S. Gowel, JA; Captain Kenneth W. Borgnino, JA (on
brief).


                                   21 February 2012
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                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of two specifications of rape of a child, and one specification
of indecent assault, in violation of Articles 120 and 134, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 920 and 934 [2005]. Pursuant to his pleas
appellant was found not guilty of a third specification of rape, but was convicted of
the lesser included offense of carnal knowledge, in violation of Article 120, UCMJ
(2005). Appellant was sentenced to a dishonorable discharge and confinement for
seven years. The convening authority dismissed the carnal knowledge specification
and approved the remaining findings of guilt and the adjudged sentence.
REYNARD — ARMY 20010351

        This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises three assignments of error, listing multiple sub-issues under these
assignments. After considering the record of trial, appellant’s assignments of error,
the government’s answer, matters submitted by appellant, and oral argument, we find
that one of the sub-issues under Assignment of Error I merits discussion, but no
relief.

                                  LAW AND DISCUSSION

        Military Rule of Evidence [hereinafter Mil. R. Evid.] 414 states, in relevant
part:

              (a) In a court-martial in which the accused is charged with an
              offense of child molestation, evidence of the accused’s
              commission of one or more offenses of child molestation is
              admissible . . . . .

              (d) For purposes of this rule, “child” means a person below the
              age of sixteen . . . .

       The victim in this case, LK, was born on 8 May 1990 and was no longer
considered a child for Mil. R. Evid. 414 purposes as of 8 May 2006, when she
reached the age of sixteen. In response to a defense motion to suppress evidence,
the military judge erred in finding Charge II to be a child molestation offense.
During the time period alleged in the specification, between on or about 1 May 2007
and 30 September 2007, LK was over the age of sixteen. Pursuant to Mil. R. Evid.
414, Charge II was not a child molestation offense because the alleged victim was
not below sixteen. Similarly, the military judge erred in concluding appellant’s
alleged digital penetration of LK in 2007 was an act of child molestation and
admissible under Mil. R. Evid. 414 because LK was not under sixteen at the time of
the incident and therefore not a child.

       The government concedes the military judge erred in both instances, but
argues the military judge also correctly admitted the allegation concerning the 2007
digital penetration pursuant to Mil. R. Evid. 404(b). We agree.

        The military judge found this incident was relevant to the appellant’s “intent
when he hugged [LK] and touched her bottom [the conduct alleged in] (Charge II).
It is also relevant to show absence of mistake and indicates the [appellant’s]
intention to resume their sexual relationship.” The military judge concluded his
analysis on this issue by stating “the probative value outweighs its prejudicial
effect.”




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REYNARD — ARMY 20010351

       Because we find the military judge properly admitted this incident under Mil.
R. Evid. 404(b) as proof of appellant’s intent and absence of mistake, we will not
disturb this conviction. One of the elements the government was required to prove
in regards to Charge II was that appellant committed the assault with the intent to
gratify his lust or sexual desires. An incident involving appellant digitally
penetrating LK contemporaneously with the allegation contained in Charge II would
clearly be illustrative of appellant’s intent to re-engage in a sexual relationship with
LK.

                                                               CONCLUSION

       On consideration of the entire record and the submissions of the parties, to
include those matters raised personally by the appellant in his affidavit and pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), we hold the findings of
guilty and the sentence as approved by the convening authority to be correct in law
and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED. *


                                                                  FOR THE COURT:
                                                                 FOR THE COURT: 




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




                                                            
*
 Appellant pleaded not guilty, without objection, to the Specification of Charge II
which did not expressly allege the terminal elements of indecent assault in violation
of Article 134, UCMJ. "[A] charge and specification challenged for the first time on
appeal is liberally construed and will not be held invalid absent a clear showing of
substantial prejudice to the accused -- such as a showing that the indictment is so
obviously defective that by no reasonable construction can it be said to charge the
offense for which conviction was had." United States v. Roberts, 70 M.J. 550, 553
(Army Ct. Crim. App. 2011) (quoting United States v. Watkins, 21 M.J. 208, 209-10
(C.M.A. 1986)) (internal quotation marks omitted). Cf. United States v. Fosler, 70
M.J. at 225, 230 (C.A.A.F. 2011). The specification and charge can be reasonably
construed to imply that appellant’s conduct was to the prejudice of good order and
discipline and of a nature to bring discredit upon the armed forces. Appellant was
on notice of the charge against him and is protected against double jeopardy.
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