UNITED STATES, Appellee

                                        v.

                    Joshua P. LOVETT, Staff Sergeant
                        U.S. Air Force, Appellant

                                  No. 03-0072

                            Crim. App. No. 33947

       United States Court of Appeals for the Armed Forces

                       Argued       October 21, 2003
                       Decided      February 3, 2004

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.


                                    Counsel

For Appellant: Mr. Norman R. Zamboni, Esq. (argued); Colonel
Beverly B. Knott, Major Karen L. Hecker, Major Andrew S.
Williams, and Captain James M. Winner (on brief); Major Terry L.
McElyea.

For Appellee: Major John C. Johnson (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Robert B. Combs, and Captain Kevin
P. Stiens (on brief); Colonel Anthony P. Datillo, Lieutenant
Colonel Lance B. Sigmon, and Major Linette I. Romer.

Military Judge: B. T. Brown and L. S. Murnane.



     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Lovett, No. 03-0072/AF


    Chief Judge CRAWFORD delivered the opinion of the Court.

     On May 12 and July 12-17, 1999, Appellant was tried by

general court-martial at Shaw Air Force Base (AFB), South

Carolina.   Contrary to his pleas, Appellant was convicted of

wrongful possession of Percocet, rape, and soliciting the

commission of an offense to the prejudice of good order and

discipline, in violation of Articles 112a, 120, and 134, Uniform

Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 912a,

920, and 934 (2000), respectively.

     Appellant was sentenced to a dishonorable discharge,

confinement for 15 years, total forfeiture of all pay and

allowances, and reduction to pay grade E-1.   The convening

authority approved the sentence as adjudged and waived the

forfeitures for six months for the benefit of Appellant’s

family.

     On September 9, 2002, the Air Force Court of Criminal

Appeals (CCA) affirmed the findings and sentence in an

unpublished opinion.   United States v. Lovett, ACM No. 33947

(A.F. Ct. Crim. App. Sept. 9, 2002).   This Court has granted

review of the following issues:

     I.     WHETHER THE MILITARY JUDGE ERRED BY ADMITTING
            INTO EVIDENCE HEARSAY STATEMENTS MADE BY
            APPELLANT’S WIFE, MM, AND LC, AND BY EXCLUDING,
            AS HEARSAY, EXCULPATORY EVIDENCE OFFERED BY
            APPELLANT.




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     II.   WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING
           THE PANEL THAT THE MAXIMUM SENTENCE WAS LIFE
           WITHOUT PAROLE WHEN THAT PUNISHMENT WAS NOT AN
           AUTHORIZED SENTENCE AS ITS IMPLEMENTATION HAD NOT
           YET BEEN ORDERED BY THE PRESIDENT, OR, IN THE
           ALTERNATIVE, WHERE INSUFFICIENT EVIDENCE WAS
           PRESENTED AT TRIAL TO PROVE THAT ANY ALLEGED ACTS
           OF RAPE HAD OCCURRED AFTER 19 NOVEMBER 1997.

     III. WHETHER APPELLANT’S CONVICTION FOR SOLICITATION
          SHOULD BE SET ASIDE BECAUSE (1) IT FAILS TO STATE
          AN OFFENSE, (2) IT IS NOT A LESSER INCLUDED
          OFFENSE OF SOLICITATION TO COMMIT MURDER, OR (3)
          THERE IS A FATAL VARIANCE BETWEEN THE CHARGED
          SPECIFICATION AND THE FINDINGS.

For the reasons set forth below, we affirm as to Issue I and

reverse as to Issue III.   Because we grant Appellant relief on

Issue III, we need not address Issue II.

                               FACTS

     Appellant and his wife (TL) married in 1994.     TL had a son

(CF) and daughter (MM) from previous relationships.    TL

testified that in the spring of 1997, when MM was five years

old, MM told TL that Appellant was “touching” her.    When TL

confronted Appellant with this accusation, he denied that this

ever occurred.

     During the following school year (1997-98), MM developed a

friendship with another little girl (DI) in her kindergarten

class.   The girls played together and occasionally they would

sleep at each other’s homes.   On one occasion, DI’s mother

observed MM pulling up her dress and dropping her underwear.

Later, DI told her mother that MM had been showing boys her


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“privates” and telling a boy at school that he should be kissing

DI’s “privates.”   DI’s mother relayed the incident to TL.

Around October 24, 1998, DI’s mother again observed MM engage in

overtly sexual behavior.   During a sleepover at DI’s house, the

girls went to DI’s bedroom and locked the door.   When they

became very quiet, DI’s mother unlocked the door and discovered

MM lying on the bed with her nightgown pulled up and DI

pretending to give her a shot in the genital area with a toy

hypodermic needle.   The next morning, DI’s mother told TL about

the incident and suggested that she find out why MM had been

behaving in such a sexual manner.

       Following TL’s conversation with DI’s mother, TL questioned

MM about her behavior, asking whether anyone had ever touched

her.   MM first responded that the doctor had touched her, but

after further questioning from TL, MM eventually admitted that

“Daddy put his private in [my] tushy.”    TL immediately called a

friend, LS, who came to the house and asked MM to tell her what

she had told her mother.   MM revealed additional information to

LS, who then took MM to the emergency room at Shaw AFB.   There,

the pediatric nurse practitioner who examined MM found a defect

in her hymen that was consistent with some form of penetration.

       At trial, MM testified (after TL, but before LS) that

Appellant on many occasions “stuck his private up my private”

while the two were in Appellant’s bedroom and study.   MM also


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testified that it hurt when Appellant did this, that Appellant

used a bottle of lotion during these acts, and that Appellant

told her not to tell anyone.   MM had previously told a victim’s

advocate that Appellant started doing this to her when she was

five years old.

     MM’s brother, CF, also testified at trial (after TL, MM,

and LS) that Appellant frequently took MM into his (Appellant’s)

bedroom or the study.   CF said he was not permitted to enter the

room, even if he knocked on the door.   CF further testified that

he heard MM crying when she was alone with Appellant, and that

he sometimes saw a bottle of lotion in the room after MM and

Appellant left.

     In addition to raping MM, Appellant was charged with

soliciting a man (LC) to murder TL “by telling [LC] that he

wanted his wife to disappear, providing [LC] a picture to

identify the said [TL], and discussing how much it would cost to

have [LC] make the said [TL] disappear.”   LC testified that

Appellant told him that he wanted TL to disappear.   He further

testified that Appellant gave him a picture of TL, her car keys,

and discussed how much this would cost.

     After evidence was presented, the Government requested that

the military judge instruct the members on the lesser-included

offenses of the solicitation specification, including the

lesser-included offense of soliciting a general disorder in


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United States v. Lovett, No. 03-0072/AF


violation of Article 134.   In response, the military judge

proposed an instruction that would identify the following

elements of the lesser-included offense: that “[Appellant]

solicited [LC] to take some action to cause [TL] to disappear or

to fail to appear in court[,]” and “that under the circumstances

[Appellant’s] conduct . . . 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.”    Appellant objected to this

proposed instruction.   Over this objection, the military judge

instructed the members on the general disorder lesser-included

offense, in pertinent part, as follows:

     [I]t must be proven beyond a reasonable doubt that the
     accused intended that [LC] commit every element of
     this offense. Those elements are as follows: first,
     that at the time and place alleged, the accused or
     [LC] engaged in a specific act for the purpose of
     wrongfully causing [TL] to be unable to appear at a
     scheduled proceeding in a criminal or civil trial; and
     second, that, 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.

     After deliberations, the members excepted out “murder” from

the specification and found Appellant guilty of the “general

disorder” of

     soliciting the commission of an offense to the
     prejudice of good order and discipline . . . in that
     [Appellant] . . . did . . . wrongfully solicit [LC] to
     cause [TL] to disappear or to wrongfully prevent her
     from appearing in a civil or criminal proceeding . . .
     by telling [LC] he wanted his wife to disappear,
     providing [LC] the keys to [TL’s] car, a picture to


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United States v. Lovett, No. 03-0072/AF


        identify the said [TL] and by discussing how much it
        would cost to make the said [TL] disappear.

                              DISCUSSION

I.      WHETHER THE MILITARY JUDGE ERRED BY ADMITTING INTO EVIDENCE
        HEARSAY STATEMENTS MADE BY APPELLANT’S WIFE, MM, AND LC,
        AND BY EXCLUDING, AS HEARSAY, EXCULPATORY EVIDENCE OFFERED
        BY APPELLANT.

        Appellant claims that the military judge erred in

admitting, under hearsay exception rules, hearsay contained in

TL’s written statement and LS’s in-court testimony.    Appellant

also argues that the military judge erred in excluding, on

hearsay grounds, exculpatory testimony from LC.

        Appellant’s first complaint concerns Prosecution Exhibit

(PE) 12, consisting of a written statement made by TL to the Air

Force Office of Special Investigations (AFOSI) on November 24,

1998.    In the statement TL described how she questioned MM about

whether Appellant abused her, and claimed that MM responded that

Appellant put his “private” in her “tushy.”    TL also stated that

when she asked CF if he ever observed Appellant display

inappropriate behavior toward MM, CF responded that Appellant

often took MM downstairs alone while CF had to remain upstairs.

        The exhibit was originally marked as Defense Exhibit I for

identification, and was used in this form by the defense counsel

to cross-examine TL.    On redirect, trial counsel offered TL’s

written statement as a PE 12 for his own use.    This exhibit was

generally consistent with TL’s affidavit furnished to the pre-


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United States v. Lovett, No. 03-0072/AF


trial investigator, originally marked DE J for identification

and subsequently admitted as PE 13.      Appellant did not object to

the admission of PE 13.   Appellant did object to PE 12, claiming

it contained uncharged misconduct and hearsay statements.

Regarding the hearsay objection, the judge extensively discussed

the statements’ admissibility under Military Rule of Evidence

801(d)(1)(B) [hereinafter M.R.E.] , as prior consistent

statements.   Over defense objection, the military judge admitted

PE 12 under M.R.E. 801(d)(1)(B).       In summarizing her ruling on

PE 12 for the record, the judge noted, in the alternative, that

the statements in PE 12 would also qualify as residual hearsay

under M.R.E. 807:

          With regard to Prosecution Exhibit 12, I’m
     overruling the defense objection to Prosecution
     Exhibit 12 under 80 – Military Rule of Evidence
     801(d)(1), and should I be mistaken that 801(d)(1)
     actually applies, I find there are also sufficient
     circumstantial guarantees of trustworthiness in that
     the witness has taken the stand and has been subjected
     to cross-examination on the statement under oath, and
     therefore, I would find that it is also admissible
     under Military Rule of Evidence 807, should I be
     mistaken in my analysis under 801(d)(1).

M.R.E. 807 provides as follows:

          A statement not specifically covered by Rule 803
     or 804 [which describe exceptions to the hearsay rule]
     but having equivalent circumstantial guarantees of
     trustworthiness, is not excluded by the hearsay rule,
     if the court determines that (A) the statement is
     offered as evidence of a material fact; (B) the
     statement is more probative on the point for which it
     is offered than other evidence which the proponent can
     procure through reasonable efforts; and (C) the


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United States v. Lovett, No. 03-0072/AF


     general purposes of these rules and the interests of
     justice will best be served by admission of the
     statement into evidence.

Defense counsel did not object to the judge’s alternative

conclusion as to the admissibility of PE 12 under M.R.E. 807.

     Appellant also challenges portions of LS’s in-court

testimony -- which occurred after MM’s trial testimony --

regarding her October 25 conversation with MM, during which she

claimed MM stated that Appellant “put his private in her tush”

and touched her “tee-tee.”   At trial, defense counsel objected

to this testimony on hearsay grounds, generally noting its prior

argument based on M.R.E. 807, which Appellant had earlier

advanced regarding hearsay statements contained in TL’s in-court

testimony.   Trial counsel countered the objection by referring

to its own earlier arguments on residual hearsay.   The judge

then summarily overruled defense counsel’s objection, without

explanation.   During the previous residual hearsay discussion to

which both counsel referred, the military judge had articulated

that MM’s hearsay statements contained in TL’s in-court

testimony were material and more probative on the point for

which they were offered than any other evidence the proponent

could procure through reasonable efforts.

     Appellant finally argues that LC offered exculpatory

testimony, which the military judge erroneously excluded on

hearsay grounds.   At trial, the Government asked LC how he


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United States v. Lovett, No. 03-0072/AF


obtained the job he was currently holding, whether he knew a

friend of TL’s, whether he was ever threatened regarding his

testimony at Appellant’s court-martial, and whether he

threatened anyone else.   On cross-examination, defense counsel

asked LC whether Appellant told him that he ”didn’t want any

harm to come to his wife.”   Trial counsel objected on hearsay

grounds.   An Article 39(a) session was called, the members were

excused, and LC testified that he could not recall if Appellant

told him he did not want TL physically harmed.   Defense counsel

argued that the statement was not offered for the truth of the

matter asserted, but rather to show whether LC actually felt

that Appellant was serious about having TL murdered, and that

therefore the statement fell within the state-of-mind exception

to the hearsay rule, under M.R.E. 803(3).   The military judge

sustained trial counsel’s objection and refused to allow defense

counsel to inquire further as to the meaning of Appellant’s

solicitation request.

     We hold that even assuming the judge erred in receiving the

hearsay statements within PE 12 into evidence, in overruling

defense counsel’s objection to LS’s hearsay testimony, and in

not permitting defense counsel to question LC about whether

Appellant did not want TL harmed, any such errors were harmless.

See Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2002) (“A finding

or sentence of court-martial may not be held incorrect on the


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United States v. Lovett, No. 03-0072/AF


ground of an error of law unless the error materially prejudices

the substantial rights of the accused.”).

     Regarding MM’s hearsay statement in PE 12, TL had already

testified about the statement -- without defense objection --

during direct examination.   Moreover, before PE 12 was offered

by the Government, the defense used it as its own exhibit,

admitted for identification, to cross-examine TL about MM’s

statement to her.   The same statement was also contained in PE

13 -- the summary of TL’s testimony in a proceeding pursuant to

Article 32, UCMJ, 10 U.S.C. § 832 (2000) -- which was admitted

without objection by the defense, and was also used by the

defense to cross-examine TL, as an exhibit admitted for

identification.   As to CF’s hearsay statement in PE 12, although

CF had not yet testified at the time PE 12 was admitted, he

testified and was cross-examined shortly thereafter, in a manner

consistent with his statement in PE 12.   Regarding MM’s hearsay

statement contained in LS’s in-court testimony, by the time LS

testified at trial, the court members already had this evidence

before them through MM’s own trial testimony.

     In sum, Appellant suffered no prejudice from the admission

of hearsay statements contained in PE 12 and LS’s trial

testimony.   The hearsay statements were addressed without

defense objection during TL’s direct examination, were used by

the defense to cross-examine TL, were consistent with and


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United States v. Lovett, No. 03-0072/AF


cumulative of the declarants’ own in-court testimony, and were

contained in PE 13, which was admitted without defense

objection.   See United States v. Gunkle, 

, 30

(C.A.A.F. 2001)(noting this Court’s reluctance to find

reversible error where the challenged information is simply

cumulative of the victim’s own in-court testimony).

      Finally, the judge’s failure to permit defense counsel to

question LC regarding Appellant’s exact intentions was harmless.

Indeed, the court members ultimately found that Appellant did

not solicit LC to murder TL -- but rather only to commit an act

prejudicial to good order and discipline.   In sum, counsel’s

inability to probe LC to show that he did not solicit murder

could not have been prejudicial to Appellant.

      Thus, we affirm the decision of the CCA as to Issue I,

holding in agreement with the CCA that any errors on the part of

the military judge were harmless.

II.   WHETHER APPELLANT’S CONVICTION FOR SOLICITATION SHOULD BE
      SET ASIDE BECAUSE (1) IT FAILS TO STATE AN OFFENSE, (2) IT
      IS NOT A LESSER INCLUDED OFFENSE OF SOLICITATION TO COMMIT
      MURDER, OR (3) THERE IS A FATAL VARIANCE BETWEEN THE
      CHARGED SPECIFICATION AND THE FINDINGS.

      Appellant was charged, in part, with soliciting LC to

murder TL, for telling LC that he wanted TL to disappear, for

providing LC with a picture of TL, and for discussing with LC

how much it would cost to have TL disappear.    The members




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United States v. Lovett, No. 03-0072/AF


excepted out “murder” from the specification and found Appellant

guilty of the “general disorder” of

     soliciting the commission of an offense to the
     prejudice of good order and discipline . . . in that
     [Appellant] . . . did . . . wrongfully solicit [LC] to
     cause [TL] to disappear or to wrongfully prevent her
     from appearing in a civil or criminal proceeding . . .
     by telling [LC] he wanted his wife to disappear,
     providing [LC] the keys to [TL’s] car, a picture to
     identify the said [TL] and by discussing how much it
     would cost to have [LC] make the said [TL] disappear.

     Appellant now argues that this variance between the charge

and findings was significant enough to have prevented him from

adequately preparing a defense.    In essence, Appellant claims

that defending against a charge of soliciting murder is not the

same as defending against a charge of soliciting the commission

of a general disorder.   Appellant avers that because of this

difference, he was not “on notice” -- and therefore not prepared

-- to defend against the offense of which he was convicted.     We

agree with Appellant, and hold that there was a fatal variance

between the charged specification and the findings.

     “A variance between pleadings and proof exists when

evidence at trial establishes the commission of a criminal

offense by the accused, but the proof does not conform strictly

with the offense alleged in the charge.”    United States v.

Allen, 

, 86 (C.A.A.F. 1999).     Nevertheless, the Rules

for Courts-Martial authorize findings by exceptions and

substitutions, with the caveat that they “may not be used to


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United States v. Lovett, No. 03-0072/AF


substantially change the nature of the offense or to increase

the seriousness of the offense or the maximum punishment for

it.”    Rule for Courts-Martial 918(a)(1).   See also United States

v. Wray, 

, 376 (C.M.A. 1984).

        Minor variances that do not change the nature of the

offense are not necessarily fatal.     See United States v. Hunt,

, 347-48 (C.M.A. 1993)(date of rape charged as “on or

about”); United States v. Willis, 

1 (A. Ct. Crim. App.

1999)(change in language alleged to be false under Article 107

violation not material).    “Where, however, an appellant can

demonstrate that a variance is material and that he or she was

prejudiced, the variance is fatal and the findings thereon can

not stand.”    United States v. Teffeau, 

, 66 (C.A.A.F.

2003)(concluding that the variation between the charge of

violating a general order by providing alcohol to a recruit and

the findings that the accused wrongfully engaged in and

encouraged a nonprofessional, personal relationship with the

recruit was material because it deprived the accused of the

opportunity to defend against the charge).

        Prejudice can arise from a material variance in several

ways:

        An appellant may show that the variance puts him at
        risk of another prosecution for the same conduct. An
        appellant may [alternatively] show that his due
        process protections have been violated where he was
        “misled to the extent that he has been unable


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United States v. Lovett, No. 03-0072/AF


     adequately to prepare for trial,” or where the
     variance at issue changes the nature or identity of
     the offense and he has been denied the opportunity to
     defend against the charge.

United States v. Lee, 

, 16 (C.M.A.

1975))(other citations omitted).     We hold that the soliciting

murder charge did not put Appellant on notice to defend against

a lesser-included offense of soliciting the commission of

obstruction of justice.   Consequently, there was a fatal

variance between the specification as charged and the members’

ultimate findings.

     The original specification for solicitation to commit

murder read as follows:

     [D]id, at or near Sumter, South Carolina, between on
     or about 24 November 1998 and on or about 19 January
     1999, wrongfully solicit [LC] to murder [TL], by
     telling [LC] that he wanted his wife to disappear,
     providing [LC] a picture to identify the said [TL],
     and discussing how much it would cost to have [LC]
     make the said [TL] disappear.

Court-Martial Order at 1 (emphasis added).    The members’

findings on the above specification -- establishing Appellant’s

solicitation conviction -- were returned as follows:

     Not Guilty, but guilty of the lesser included offense
     of soliciting the commission of an offense to the
     prejudice of good order and discipline in the armed
     forces as follows: in that [Appellant] did, at or near
     Sumter, South Carolina, between on or about 24
     November 1998 and on or about 19 January 1999,
     wrongfully solicit [LC] to cause [TL] to disappear or
     to wrongfully prevent her from appearing in a civil or
     criminal proceeding pending before a duly authorized
     court of the United States by telling [LC] that he


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United States v. Lovett, No. 03-0072/AF


     wanted his wife to disappear, providing [LC] the keys
     to [TL]’s car, a picture to identify the said [TL],
     and discussing how much it would cost to make the said
     [TL] disappear.

(Emphasis added.)   In essence, Appellant was convicted of

soliciting the commission of obstruction of justice.

     The offense of murder under Article 118, with which

Appellant was originally charged with soliciting, is as follows:

          Any person subject to this chapter who, without
     justification or excuse, unlawfully kills a human
     being, when he --
          (1) has a premeditated design to kill;
          (2) intends to kill or inflict great bodily harm;
          (3) is engaged in an act that is inherently
     dangerous to another an evinces a wanton disregard of
     human life; or
          (4) is engaged in the perpetration or attempted
     perpetration of burglary, sodomy, rape, robbery, or
     aggravated arson; is guilty of murder, and shall
     suffer such punishment as a court-martial may direct,
     except that if found guilty under clause (1) or (4),
     he shall suffer death or imprisonment for life as a
     court-martial may direct.

Appellant’s original charge suggested a violation of clause (1),

in that “telling LC that he wanted his wife to disappear,

providing LC a picture to identify the said TL, and discussing

how much it would cost to have LC the said TL disappear” imply

premeditation on Appellant’s part, and Appellant’s specific

intent that such murder be committed.   Upon receiving this

charge, Appellant’s defense team channeled its efforts in the

direction of solicitation of premeditated murder, in order to

defeat the Government’s attempt to prove premeditated murder



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United States v. Lovett, No. 03-0072/AF


beyond a reasonable doubt.   Indeed, assembling such a defense is

what the charge put counsel “on notice” to do.

     Given the explicit language of the charge, Appellant could

not have anticipated conviction for a lesser-included offense of

soliciting a person to wrongfully prevent her from appearing in

a judicial proceeding.   Because he lacked notice to prepare an

adequate defense, there was a fatal variance between the precise

specification as charged, and the general findings as returned

by the members.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed as to Charges I and III and their

specifications, and set aside as to Charge II and the sentence.

The case is returned to the Judge Advocate General for remand to

the Court of Criminal Appeals, which may reassess the sentence

or order a sentence rehearing.




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