United States v. Private E1 MICHAEL E. QUEENAN ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 MICHAEL E. QUEENAN
United States Army, Appellant
ARMY 20110423
Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell
Timothy Grammel, Military Judge
Lieutenant Colonel Joseph B. Morse, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA;
Major James A. Ewing, JA (on brief).
22 August 2012
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SUMMARY DISPOSITION
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Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification of absent without leave, three
specifications of engaging in sexual acts with a child who had attained the age of
twelve years but had not attained the age of sixteen, two specifications of sodomy
with a child who has attained the age of twelve but under the age of sixteen, and two
specifications of adultery in violation of Articles 86, 120b, 125 and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 886, 920b, 925, 934 (2006) [hereinafter
UCMJ]. See Manual for Courts-Martial, United States, (2008 ed.), pt. IV, ¶ 62.b.
Appellant was sentenced to a bad-conduct discharge, confinement for forty-two
months, and forfeiture of all pay and allowances. The convening authority approved
a bad-conduct discharge, confinement for thirty-six months, and forfeiture of all pay
and allowances. Appellant was credited with one hundred sixty-seven days of
confinement against the sentence of confinement.
QUEENAN—ARMY 20110423
In light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), we are
compelled to disapprove the findings of guilt as to Specifications 2 and 3 of Charge
IV in violation of Article 134, UCMJ. * The specifications do not contain allegations
of terminal elements under Article 134, UCMJ, and there is nothing in the record to
satisfactorily establish notice of the need to defend against a terminal element as
required under Humphries. Therefore, we now reverse appellant’s convictions for
adultery and dismiss the defective specifications which failed to state an offense in
light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
On consideration of the entire record, the findings of guilty of Specifications
2 and 3 of Charge IV 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 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 in Moffeit, the court
affirms the sentence as approved by the convening authority.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
*
The Military Judge changed appellant’s plea to Specification 1 of Charge IV to not
guilty prior to findings. Specification 4 of Charge IV was dismissed.
2