United States v. Sergeant TIMOTHY J. RODRIGUEZ, SR ( 2015 )

                              COOK, TELLITOCCI, and HAIGHT
                                 Appellate Military Judges
                              UNITED STATES, Appellee
                        Sergeant TIMOTHY J. RODRIGUEZ, SR.
                             United States Army, Appellant
                                       ARMY 20140466
                     Headquarters, 1st Infantry Division and Fort Riley
                               Jeffery Nance, Military Judge
                      Colonel Craig E. Merutka, Staff Judge Advocate
    For Appellant: Major M. Patrick Gordon, JA; Captain Heather L. Tregle , JA (on
    For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie, III, JA; Captain
    Janae M. Lepir, JA; Captain Carrie L. Ward, JA (on brief).
                                         30 April 2015
                                   SUMMARY DISPOSITION
    HAIGHT, Judge:
           A military judge sitting as a general court -martial convicted appellant,
    pursuant to his pleas, of one specification of knowingly and wrongfully distributing
    child pornography and one specification of knowingly and wrongfully possessing
    child pornography, in violation of Article 134, Uniform Code of Military Justice, 10
    U.S.C. § 934 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-
    conduct discharge, confinement for three years, and reduction to the grade of E-1.
    The convening authority approved the sentence as adjudged.
           This case is before us for review pursuant to Article 66, UCMJ. Appellant
    raises one assignment of error which merits discussion and relief.
    RODRIGUEZ — ARMY 20140466
           Appellant claims the military judge failed to elicit a sufficient factual basis to
    establish that appellant’s misconduct was prejudicial to good order and discipline in
    the armed forces. We agree.
           During the providence inquiry, when asked by the military judge how his
    actions were prejudicial to good order and discipline, appellant responded that
    military members should act with honor and integrity and should always do what is
    right. While this nonresponsive answer may be laudable and accurate, it does not
    indicate how appellant’s particular behavior caused a “reasonably direct and
    palpable injury to good order and discipline.” United States v. Cendejas, 
    62 M.J. 334
    , 340 (C.A.A.F. 2005). Nor does the stipulation of fact, which, in relevant part,
    merely states appellant believed the “morally repugnant nature of [appellant’s]
    conduct would incite anger and physical violence amongst members of his unit.”
    There was no discussion as to whether these possible reactions actually occurred.
           We, therefore, dismiss the language “to the prejudice of good order and
    discipline in the armed forces and” from both specifications. The findings of guilty
    of Specifications 1 and 2 (as modified) and The Charge are AFFIRMED. After
    consideration of the principles set forth by our superior court in United States v.
    73 M.J. 11
     (C.A.A.F. 2013) and United States v. Sales, 
    22 M.J. 305
    (C.M.A. 1986), we are able to reassess the sentence and the approved sentence is
    AFFIRMED. All rights, privileges, and property of which appellant has been
    deprived by virtue of those findings set aside by this decision are hereby ordered
          Senior Judge COOK and Judge TELLITOCCI concur.
                                             FOR THE
                                             FOR THE COURT:
                                             MALCOLM H.  H. SQUIRES,
                                                            SQUIRES, JR.
                                             Clerk of Court
                                             Clerk of Court

Document Info

DocketNumber: ARMY 20140466

Filed Date: 4/30/2015

Precedential Status: Non-Precedential

Modified Date: 5/6/2015