United States v. Staff Sergeant LONNIE L. FOSTER ( 2009 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
GALLUP, TOZZI, and JOHNSON
Appellate Military Judges
UNITED STATES, Appellant
v.
Staff Sergeant LONNIE L. FOSTER
United States Army, Appellee
ARMY 20060930
Headquarters, Fort Hood
Charles S. Walters, Military Judge
Colonel Mark Cremin, Staff Judge Advocate
For Appellant: Mr. Gary R. Myers, Esquire; Captain Candace N. White Halverson, JA.
For Appellee: Colonel Denise R. Lind, JA; Lieutenant Colonel Francis C. Kiley, JA; Captain Michael D. Wallace, JA.
20 May 2009
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SUMMARY DISPOSITION
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Per Curiam:
A panel composed of officers and enlisted members, sitting as a general court-martial, convicted appellant, contrary to his pleas, of sodomy of a child under the age of 12 years, indecent acts upon a child under the age of 16 years, and taking indecent liberties with a child under the age of 16 years, in violation of Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934 [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement for fifteen (15) years, forfeiture of all pay and allowances, and reduction to E1. The convening authority approved the adjudged sentence.
This case is before the court for review under Article 66, UCMJ. We have considered the record of trial, appellant's assignments of error, including those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the government's reply thereto. We find that the approved Specification 3 of Charge II is factually insufficient because the evidence presented at trial only established that appellant showed the victim one pornographic image at or near Fort Gordon, Georgia. Therefore, we will amend the specification and reassess the sentence. We find appellant's other assertions of error, including those personally raised by appellant, to be without merit.
CONCLUSION
The court affirms only so much of the findings of guilty of Specification 3 of Charge II as finds that the appellant did, at or near Fort Gordon, Georgia, between on or about 10 April 2001 and 30 June 2003, take indecent liberties with V.F., a female under 16 years of age, not the wife of the said accused, by showing her a pornographic image, with the intent to arouse and/or appeal and/or gratify the sexual desires of the said accused. The remaining findings of guilty are affirmed. Reassessing the sentence on the basis of the modified findings, the entire record, and in accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion, we affirm the sentence.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court