United States v. Rath

27 M.J. 600, 1988 CMR LEXIS 756, 1988 WL 114633
U.S. Army Court of Military Review·Decided October 27, 1988·No. ACMR 8601290·Published·Cited by 17 cases

Opinion

OPINION OF THE COURT

DeFORD, Senior Judge:

Contrary to his pleas, the appellant was convicted by a general court-martial of sodomy upon a child under the age of sixteen years and assault and battery (three speci[604] fications) in violation of Articles 125 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 928 (1982) [hereinafter UCMJ]. His approved sentence included a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances, and reduction to the grade of Private El.

On appeal, the appellant raises a number of assignments of error, three of which warrant discussion.

I

Sufficiency of the Evidence

The appellant argues that the evidence of record is factually insufficient to support his conviction because the government’s witnesses are “inherently incredible” and unworthy of belief. He further argues that the evidence of record is legally insufficient to support his conviction because the government failed to establish the dates of the offenses as alleged.

In testing for the legal sufficiency of the evidence of record, we must determine whether a rational factfinder could find the essential elements of the offense when the evidence of record is considered in the light most favorable to the prosecution. United States v. Turner, 25 M.J. 324 (C.M.A.1987) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In testing for the factual sufficiency of the evidence, this court must weigh the evidence of record making allowance for not having seen and heard the witnesses and determine for ourselves whether an accused is guilty beyond reasonable doubt of the offenses with which he is charged. Id. at 325, 99 S.Ct. at 2792.

A

The specification of Charge I alleges that the appellant committed sodomy upon his daughter, a child under the age of sixteen, by placing his penis in her mouth at Fort Polk, Louisiana, “between on or about January 1984 and on or about July 1984.” The appellant argues simply that the evidence of record “unequivocally” establishes that the act occurred between September 1983 and December 1983 “if the act occurred at all.” The appellant concludes that the evidence thus fails to support the essential element that the offense occurred between January 1984 and July 1984.

At trial, D.R., the appellant’s daughter, testified that, during the summer of 1984, she was living with her family — to include the appellant — at Fort Polk, Louisiana. In testifying with regard to several of the charged specifications, she stated that she was eleven or twelve years of age during this time and that the appellant fondled her breasts and vagina and that he placed his mouth on her vagina. She also testified that the appellant committed these acts “whenever he felt like it” and that she could not remember how many times such acts occurred. Finally, she testified that the appellant had committed oral sodomy upon her during most of her life. As to the offense alleged within the specification, she testified that, during the period that her mother was working at a local department store, she had performed the alleged act of oral sodomy upon her father. Collateral evidence established that D.R.’s mother was employed by the department store from September 1983 through December 1983.

While the government was somewhat less than precise in establishing the time frame during which the crime was committed, there is sufficient evidence to establish the appellant’s guilt of the offense both as a matter of law and as a mattes of fact. However, the appellant misunderstands the legal significance of the conflict which exists between the pleading and the proof: such a conflict raises the legal issue of variance rather than one of the sufficiency of the evidence.

A variance between pleading and proof exists when the evidence adduced at trial establishes the commission of a criminal offense by the accused but this proof does not conform strictly with the criminal offense alleged within the specification of the charge. When confronted with such an issue we must test for prejudice. United States v. Lee, 1 M.J. 15, 16 (C.M.A.1975). [605] To determine whether an accused has been prejudiced by a variance between pleadings and proof, a two prong test is applied: first, we must determine whether the accused was misled “to the extent that he has been unable adequately to prepare for trial”; second, we must determine whether the accused is fully protected against another prosecution for the same offense. Id. In effect, we must ensure that the appellant was afforded the opportunity to defend against the charge of which he was convicted, United States v. Wray, 17 M.J. 375, 376 (C.M.A.1984), and that he is protected against subsequent punishment on convictions for the same conduct, United States v. Freeman, 23 M.J. 531, 537 (A.C.M.R.1986), petition denied, 26 M.J. 290 (C.M.A.1988).

In the case at bar, the substantive offense proved at trial and alleged in the specification are not only “substantially similar,” they are identical with respect to the victim, the place and the overt act alleged. Cf. United States v. Collier, 14 M.J. 377, 380 (C.M.A.1983) (affirming a conviction for conspiracy where the overt act proved at trial differed from that alleged); United States v. Freeman, 23 M.J. at 538 (evidence adduced at trial established the offense, place and person as alleged). Consequently, the variance in the date is the sole basis upon which the appellant may predicate an assertion of prejudice.

The appellant’s ability to prepare for trial was not impaired by the variance in date. The summarized record of D.R.’s testimony at the Article 32, UCMJ, contains the following statement:

I know about the statement I made about the incidents occurring between June 1983 and July 1984. Specifically they happened in our quarters at Fort Polk between January 1984 and June 1984.

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United States v. Rath, 27 M.J. 600, 1988 CMR LEXIS 756, 1988 WL 114633 (usarmymilrev 1988).

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