United States v. Private First Class VALDEZ R. DEAR

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before CONN, HOFFMAN, and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Private First Class VALDEZ R. DEAR United States Army, Appellant ARMY 20080786 Headquarters, V Corps Edward J. O’Brien, Military Judge Colonel Flora D. Darpino, Staff Judge Advocate For Appellant: Captain William Jeremy Stephens, JA (argued); Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Bradley Voorhees, JA; Captain William Jeremy Stephens, JA (on brief). For Appellee: Captain Madeline F. Yanford, JA (argued); Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Christopher B. Burgess, JA; Captain Madeline F. Yanford, JA (on brief). 26 April 2010 ----------------------------------- SUMMARY DISPOSITION ----------------------------------- Per Curiam: Appellant entered mixed pleas. A panel of officer and enlisted members, sitting as a general court-martial, convicted appellant, contrary to his pleas, of indecent acts with another in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. 934 [hereinafter UCMJ]. A military judge sitting as general court-martial convicted appellant, pursuant to his pleas, of desertion and fleeing apprehension, in violation of Articles 85 and 95, UCMJ, 10 U.S.C. §§ and 885 and 895. The convening authority approved the adjudged sentence to a bad-conduct discharge, confinement for twenty-seven months, forfeiture of all pay and allowances, and reduction to Private E1. This case is before this court for review pursuant to Article 66, UCMJ. Appellant alleges inter alia the military judge erred when he instructed the panel on the offense of indecent acts, which appellant asserts is not a lesser-included offense of rape. Appellant was charged with rape, in violation of Article 120. During an instructions conference, the military judge asked both parties whether any lesser-included offenses were raised by the evidence, and he specifically asked, “Does either side request the lesser-included offense instruction on indecent acts?” The government responded, “Yes, Sir,” while the defense opposed the instruction. The military judge explained he was going to give the instruction despite the defense’s opposition. The members subsequently acquitted appellant of the rape charge, but convicted him of the Article 134 indecent acts offense. Article 79, UCMJ reads, “An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.” In Schmuck v. United States, the Supreme Court called for a textual comparison of elements to determine if one offense’s elements are a subset of the elements of the charged offense, in which case it would be a lesser- included offense. 489 U.S. 705 (1989). To determine whether a lesser offense is necessarily included in the offense charged, we apply the "elements test" derived from Schmuck. United States v. Medina, 66 M.J. 21, 25 (C.A.A.F. 2008). We look to the statutory elements of the offenses in question, and not to conduct proved at trial in determining if one offense is included in another. Id. In oral argument, the government relied on United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994) for the holding that indecent acts is a lesser-included offense of rape, though the elements of indecent acts are not a subset of the elements of rape. That case, however, relied on United States v. Foster for the proposition that the “service discrediting” or “prejudicial to good order and discipline” elements required for indecent acts, which are not included in the offense of rape, are included in all enumerated offenses by implication. 40 M.J. 140, 143 (C.M.A. 1994) (“The enumerated articles are rooted in the principle that such conduct per se is either prejudicial to good order and discipline or brings discredit to the armed forces; these elements are implicit in the enumerated articles.”). This holding from Foster, however, was overruled by United States v. Miller, 67 M.J. 385, 388-89 (C.A.A.F. 2009). The continuing viability of Schoolfield was called into question by Medina and Miller, and recently, in the case of United States v. Jones, __ M.J. __, 2010 WL 1607838 (C.A.A.F. 19 Apr. 2010), our superior court explicitly overruled Schoolfield. In Jones, on facts nearly identical to the case at bar, our superior court found the military judge erred by finding that indecent acts was a lesser-included offense of rape, and erred when he instructed on the indecent acts offense. We similarly find that the elements of indecent acts do not survive the Schmuck textual analysis; the offense contains elements not included in the charged offense of rape. Indecent acts, an Article 134 offense, contains the following elements: (1) the accused committed a certain wrongful act with a certain person; (2) the act was indecent; and (3) under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Manual for Courts-Martial, United States (2005 ed.) Part IV, para. 90.b. None of these elements is contained in the offense of rape. Thus, we find it was error for the military judge to instruct the panel on indecent acts. The Specification of Charge I is therefore set aside and dismissed. Our holding moots appellant’s second assignment of error, that there was a fatal variance between the charged specification and the findings. Appellant’s third assignment of error is without merit. We have considered those matters personally submitted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. The remaining findings of guilty are affirmed. Because of our action on the findings, we must reassess the sentence in accordance with the principals set forth in United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors Judge Baker identified in his concurring opinion, United States v. Cook, 48 M.J. 434, 438, (C.A.A.F. 1998), and United States v. Sales, 22 M.J. 305, 307-09 (C.M.A. 1986). We reassess the sentence and find that absent the error, appellant would have at least received a sentence to a bad-conduct discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to Private E1. We are satisfied beyond reasonable doubt that our sentence reassessment cures the error. While the maximum punishment for indecent acts exceeds the maximum punishment for desertion, desertion is a very serious offense. This court has reviewed the records of a substantial number of courts-martial involving convictions for desertion and has extensive experience with the level of sentences imposed for such offense under various circumstances. The maximum sentence for those charges remaining is reduction to E1, forfeiture of all pay and allowances, four years confinement and a dishonorable discharge. Our reassessment is well below that maximum. The sentence, as reassessed, is affirmed. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court