United States v. Brown

OPINION OF THE COURT

Pursuant to his pleas before a military judge sitting as a general court-martial, appellant was convicted of assault and battery on a child under 16 years of age, and false swearing in violation of Articles 128 and 134, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. §§ 928 and 934 (1982), respectively. The military judge sentenced appellant to a dishonorable discharge, confinement for two years, and reduction to Private E-l. The convening authority approved the sentence.

Appellant contends that the military judge erred by failing to dismiss Charge I and its Specification (assault and battery upon a child under 16) [hereinafter referred to as the amended charge]1 because, the amended charge constituted a major modification of the original charge2 (indecent assault upon a child under 16), requiring preferral anew and reswearing. More specifically, appellant asserts that a major change resulted because the amended charge was a “new charge” and raised a substantial question as to the applicable statute of limitations. We find these assertions to be without merit.

The staff judge advocate recommended in his pretrial advice that the convening authority refer the amended charge to trial in lieu of the original charge, since the statute of limitations had expired as to the latter3 but had not as to the lesser included amended charge.4 The convening authority approved the recommendation of the staff judge advocate. Thereafter, and pri- or to trial, the original charge sheet was changed by deleting the original charge and substituting the amended charge by attached overflap.

Article 34, UCMJ, 10 U.S.C. § 834 (1982), in addition to requiring that the staff judge advocate prepare a pretrial advice before any charge may be directed to trial by general court-martial, provides authority to correct charges and specifications which are not formally correct or make changes necessary to conform them to the evi*967dence.5 Significantly, Congress contemplated that Article 34, among other things, would provide authority to make changes in charges and specifications “without requiring that the new charge be drawn and sworn to.” Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Sub-comm. of the House Comm, on Armed Services, 81st Cong., 1st Sess. [hereinafter referred to as Hearings] 1006 (1949). Case law is true to legislative intent on this point. United States v. Lee, 19 M.J. 587, 594 (N.M.C.M.R. 1984) (when an original charge has been properly sworn, “a lesser offense conformed by amendment is necessarily also a sworn charge”). Moreover, Rule for Courts-Martial 6036 allows changes to charges and specifications if the changed charge or specification does not result “(1) in a different offense or in the allegation of an additional or more serious offense, (2) in raising a substantial question as to the statute of limitations, or (3) in misleading the accused.” United States v. Arbic, 36 C.M.R. 448, 450 (C.M.A. 1966) (emphasis added).

Initially, we conclude that the amended charge is neither more serious than the original, nor is it misleading. Appellant concedes these matters, and we concur in his assessment. In particular, the amended charge is a lesser included offense of the original, United States v. Thacker, 37 C.M.R. 28, 32 (C.M.A. 1966) (assault and battery is a lesser included offense of indecent assault). As such, it cannot be more serious than the greater offense. United States v. Arbic, 36 C.M.R. at 451. Cf. Morris v. Mathews, — U.S. ---, ---, 106 S.Ct. 1032, 1037, 89 L.Ed.2d 187 (1986) (conviction of greater offense necessarily results in conviction of lesser offense). Likewise, the amended charge cannot reasonably be considered an additional charge. United States v. Lee, 19 M.J. at 594. Finally, since the amended charge is the lesser of the original, since the amendment did not modify in any manner the time averment contained in the original charge to the detriment of appellant,7 and since the record of trial is devoid of any evidence of prejudice, we are confident that the appellant was neither subjected to a new charge nor was he misled. United States v. Brown, 16 C.M.R. 257, 262 (C.M.A. 1954).

Further, we conclude that the amendment undertaken in the instant circumstances occasioned no fair question as to the applicable statute of limitations. Receipt of the original charge by the officer exercising summary court-martial jurisdiction in the command tolled the statute of limitations as to the original charge and any lesser offense therein. Article 43(c), *968UCMJ, 10 U.S.C. § 843(c) (1982); cf. United States v. Lee, 19 M.J. at 594. Further, the fact that the original charge was amended on the face of the original charge sheet, rather than on a new charge sheet, precluded any doubt which may have arisen as to the date the statute was tolled if there had been repreferral at a later time. United States v. Arsneault, 6 M.J. 182, 183 (C.M.A. 1979), citing United States v. Rogers, 24 C.M.R. 36, 40-41 (C.M.A. 1957) (correction of charges and specifications by preparing a new charge sheet after the statute of limitations has been tolled in lieu of minor amendments on the face of an original charge sheet is impermissible because doing so may create an issue as to when the statute of limitations was tolled). But see United States v. Whitt, 21 M.J. 658, 661 (A.C.M.R. 1985) to the extent that it holds that backdating the commission date of an offense on the face of an original charge sheet raises a substantial question as to the governing statute of limitations when the change causes the offense to be subject to being barred from prosecution thereunder.

We are also persuaded, despite appellant’s implied urgings to the contrary, that statutes of limitation attaching to lesser included offenses can exceed those controlling the disposition of greater offenses.8 Article 43, UCMJ, 10 U.S.C. § 843 (1982), assigns time periods to bar prosecution of an offense on the basis of the offense charged alone. The legislative history pertinent to this issue, although scant, is nonetheless unequivocal.9 Since only the amended charge, alleging a violation of Article 128, was referred to trial, we find that a three-year limiting statute governed. Article 43(b), UCMJ, 10 U.S.C. § 843(b) (1982).

Accordingly, the modification of the original charge constituted a proper minor change, and preferral anew and reswearing which would have been required incident to a “major” change was not required.

The findings of guilty and the sentence are affirmed.