United States v. Page

43 M.J. 804, 1995 CCA LEXIS 297, 1995 WL 694976
CourtUnited States Air Force Court of Criminal Appeals
DecidedNovember 3, 1995
DocketACM 31409
StatusPublished
Cited by1 cases

This text of 43 M.J. 804 (United States v. Page) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Page, 43 M.J. 804, 1995 CCA LEXIS 297, 1995 WL 694976 (afcca 1995).

Opinion

OPINION OF THE COURT

PEARSON, Senior Judge:

A general court-martial sitting with members convicted appellant of engaging in conduct unbecoming an officer by having a close [803]*803personal relationship, to include hugging and kissing, with an enlisted female who was married to another enlisted member. Article 133, UCMJ, 10 U.S.C. § 933. The court acquitted him of a separate charge of fraternizing on terms of military equality with the same enlisted female. Article 134, UCMJ, 10 U.S.C. § 934. The court sentenced appellant to dismissal from the service, which the convening authority approved.

Before us, appellant contends the specification alleging the conduct unbecoming offense was improperly amended before trial and the evidence is legally and factually insufficient to prove his guilt. We find the amendment lawful and the evidence sufficient.

FACTS

Appellant met Senior Airman Tracy Davis (then named Dirksen) at her duty location in the personnel office at Grand Forks Air Force Base, North Dakota, when he processed into the base in July or August 1992. She helped him with some personnel matters incident to his assignment orders before he left for temporary duty in September 1992. While away, he sent Airman Davis a postcard.

Appellant returned to Grand Forks in February 1993. Sometime during the spring, he ran into Airman Davis at a local lumber store, and she introduced him to her husband. Later that same evening, Airman Davis telephoned appellant and invited him to dine and play cards with her, her husband, and another airman friend. Appellant accepted.

During the card game, appellant played as Airman Davis’ partner, and she occasionally referred to him as “Al.” All went well until Airman Davis’ husband, Senior Airman Dirk-sen, dropped a card on the floor. When he went to pick it up, he saw Airman Davis’ bare foot resting on the seat of appellant’s chair between his legs. Upset, Airman Dirk-sen stopped the game.

Appellant also visited and telephoned Airman Davis at work. Senior Airman Bielinski, a co-worker and friend of Airman Davis, recalled that appellant and Airman Davis talked on the phone at least every other day. Airman Bielinski overheard Airman Davis refer to appellant “affectionately” during some calls and end them by saying she “loved him.” In June or July 1993, Airman Bielinski went with Davis to appellant’s residence. Appellant was not home, but they went inside because Davis had a key. When appellant arrived, he hugged Davis and kissed her on the lips. As Bielinski and Davis left, appellant gave Davis an “open-mouth” kiss and “both said that they loved each other.”

Sometime between the card game and November 1993, Airman Davis and Airman Dirksen separated due to marital difficulties. She stored personal property at appellant’s quarters and spent the night there on at least two occasions. In November 1993, Airman Davis and her husband briefly reconciled, and he went with her to appellant’s residence to retrieve some personal items and furniture.

Several officers testified they routinely saw Airman Davis at appellant’s apartment, sometimes late at night. Second Lieutenant Waller, one of appellant’s friends, became concerned about the relationship. He told appellant that “he would probably be better off if he went and talked to somebody” about it because he wasn’t sure if appellant was “going beyond the scope of fraternization or what the perceived policy of fraternization was.”

Appellant put a different spin on the facts. He contended Airman Davis was a “platonic” friend whom he “comforted” during marital problems before her divorce on January 6, 1994. He denied any romantic activity, and said she spent the night at his residence once because of a blizzard and a second time due to car problems.

AMENDMENT TO THE SPECIFICATION

As charged and referred to trial, the specification pleading the conduct unbecoming offense alleged that on “divers occasions” appellant did “from on or about 1 August 1992 to on or about 15 March 1994, wrongfully and dishonorably have a close personal relationship to include hugging and kissing with Senior Airman Tracy L. Davis.” The specifi[804]*804cation alleging the fraternization offense referred to the same relationship, but alleged appellant associated with her “on terms of military equality5’ in violation of a custom of the service.

Before trial, the prosecutor, at the convening authority’s direction, amended the conduct unbecoming specification to (1) shorten the ending date to “6 January 1994,” (2) add that the relationship was displayed “openly,” and (3) describe Airman Davis’ marital status. At trial, appellant moved to dismiss the “openly” and marital status amendments as improper “major” changes because they changed the nature of the offense from a “fraternization type” offense to another form of conduct unbecoming offense. Although the record is not clear when appellant learned of the amendment, he did not claim surprise or request a delay to revise his defense strategy.

The prosecutor countered that the government always saw that appellant’s conduct raised two different offenses: one for fraternization based on appellant’s relationship with an enlisted member, and another for conduct unbecoming an officer, based on his relationship with a female enlisted member who was married to another enlisted member. The prosecutor explained that the “6 January” date reflected Airman Davis’ date of divorce, and the other amendments were “minor” changes which would merely narrow the court’s focus on the distinction between the two offenses. The military judge agreed and denied relief.

The Law

Before arraignment, a prosecutor may make “minor” changes to specifications without restriction. R.C.M. 603(b). However, a prosecutor may not make “major” changes, over an accused’s objection, without re-preferring the offense. R.C.M. 603(d). “Minor” changes include those that do not add (1) a party, (2) an offense, or (3) substantial matter not included in the charged offense, or (4) are likely to mislead the accused. R.C.M. 603(a). See also United States v. Sullivan, 42 M.J. 360 (1995).

For instance, an amendment is a major change when it converts a specification which did not allege an offense into one that does. United States v. Garrett, 17 M.J. 907 (A.F.C.M.R.1984) (before amendment, adultery specification under Article 134, UCMJ, failed to allege that one of the participants was married to another). Likewise, an amendment is major when it alleges an entirely new means, or way, that the offense was committed or increases the maximum punishment. United States v. Murray, 43 M.J. 507 (A.F.Ct.Crim.App.1995) (aggravated assault specification amended from using gun only as a club to using it as a firearm); United States v. Longmire, 39 M.J. 536 (A.C.M.R.1994) (amendment to specification alleging disobedience of orders changed date of order and identity of issuer).

Discussion

We conclude the amendments to the specification were minor changes. First, we are satisfied that a specification which alleges that a male officer wrongfully and dishonorably had a close personal relationship with a female enlisted member states an offense under military law. See United States v.

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Bluebook (online)
43 M.J. 804, 1995 CCA LEXIS 297, 1995 WL 694976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-page-afcca-1995.