United States v. Sergeant RONALD L. GREEN ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, LIND, and KRAUSS*
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant RONALD L. GREEN
United States Army, Appellant
ARMY 20110286
Headquarters, United States Army Maneuver Support Center of Excellence
and Fort Leonard Wood
Susan Arnold and Charles Hayes, Military Judges
Colonel James R. Agar, II, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Captain Ian M. Guy, JA; Captain John
L. Schriver, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Daniel D. Maurer, JA;
Captain Sean P. Fitzgibbon, JA (on brief).
8 January 2014
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SUMMARY DISPOSITION
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YOB, Senior Judge:
A panel composed of enlisted members, sitting as a general court-martial,
convicted appellant contrary to his pleas of three specifications of aggravated sexual
assault; one specification of wrongful sexual contact; and one specification of
adultery in violation of Articles 120 and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 920, 934 (2006 & Supp. III) [hereinafter UCMJ]. The enlisted panel
sentenced appellant to a bad-conduct discharge and confinement for seven years.
The convening authority approved the adjudged sentence.
* Senior Judge YOB took final action on this case prior to his pe rmanent change of
duty station.
GREEN — ARMY 20110286
This case is before the court for review under Article 66, UCMJ. We have
considered the record of trial and the written briefs of the parties in which appellant
raises three assignments of error, one of which merits discussion and relief. We
have also considered the matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are without merit.
In his third assignment of error, appellant asserts this court is required to set
aside his conviction for adultery because the government failed to allege the
terminal element of Article 134, UCMJ, in the Specification of Charge II. We agree.
In light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) and
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), we are compelled to
disapprove the findings of guilt y of the Specification of Charge II and Charge II.
First, “[w]here, as here, a specification neither expressly alleges nor necessarily
implies the terminal element, the specification is defective.” United States v.
Gaskins, 72 M.J. 225, 231-32 (C.A.A.F. 2013) (citing Fosler, 70 M.J. at 229-30).
The specification in this case does not contain any allegation of the terminal element
under Article 134, UCMJ.
We note appellant did not object to the form of the specification at trial,
therefore, “where defects in a specification are raised for the first time on appeal,
dismissal of the affected charges or specifications will depend on whether there is
plain error—which, in most cases will turn on the question of prejudice.”
Humphries, 71 M.J. at 213-14 (citing United States v. Cotton, 535 U.S. 625, 631-32
(2002)). To prove prejudice, appellant must demonstrate “the Government ’s error in
failing to plead the terminal element of Article 134, UCMJ, resulted in m aterial
prejudice to [appellant’s] substantial, constitutional right to notice.” Id. at 215. See
also UCMJ art. 59(a). To assess prejudice, “we look to the record to determine
whether notice of the missing element is somewhere extant in the trial record, or
whether the element is ‘essentially uncontroverted.’” Id. at 215-16 (citing Cotton,
535 U.S. at 633; Johnson v. United States, 520 U.S. 461, 470 (1997)).
There is nothing in this record to satisfactorily establish notice of the
government’s theory as to which clause(s) of the terminal element of Article 134,
UCMJ, appellant violated. Therefore appellant’s substantial right to notice was
materially prejudiced by the government’s failure to allege the terminal element.
On consideration of the entire record, the assignment s of errors raised, and the
matters personally raised by appellant pursuant to Grostefon, we hold the findings of
guilty of Charge II and its specification are set aside and dismissed. The remaining
findings of guilty are affirmed. Reassessing the sentence on the basis of the error
noted, the entire record, and applying the principles of United States v. Sales,
22 M.J. 305 (C.M.A. 1986) and the factors set forth in United States v.
Winckelmann, M.J. , slip op. at 12-13 (C.A.A.F. 18 Dec. 2013), the court
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GREEN — ARMY 20110286
affirms the sentence. All rights, privileges, and property, of which a ppellant has
been deprived by virtue of the finding of guilty set aside by the decision, are ordered
restored.
Judge LIND and Judge KRAUSS concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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