United States v. Private First Class TIMOTHY C. MARTUCCI ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class TIMOTHY C. MARTUCCI
United States Army, Appellant
ARMY 20090572
Headquarters, U.S. Army Field Artillery Center and Fort Sill
Timothy P. Hayes, Military Judge (arraignment)
Gregory A. Gross, Military Judge (trial)
Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
Colonel Jonathan A. Kent, Staff Judge Advocate (post-trial)
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain A. Jason Nef, JA (on brief); Major
Jacob D. Bashore, JA; Captain A. Jason Nef, JA (on reply brief).
For Appellee: Major Amber Williams, JA; Captain Chad M. Fisher, JA; Captain John
D. Riesenberg (on brief).
27 January 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 absence without leave, flight from apprehension, wrongful
appropriation, and carrying a concealed weapon, in violation of Articles 86, 95, 121,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 895, 921, and 934
[hereinafter UCMJ]. See Manual for Courts-Martial, United States, (2008 ed.)
[hereinafter MCM], Part IV, para. 112.b. The military judge also convicted
appellant, contrary to his pleas, of assault upon a noncommissioned officer, being
disrespectful in language toward a noncommissioned officer, and forgery, in
violation of Articles 91 and 123, UCMJ. The court-martial sentenced appellant to a
bad-conduct discharge, confinement for six months, and reduction to the grade of
Private E1. The military judge recommended the bad-conduct discharge be
suspended. The convening authority approved the sentence as adjudged.
MARTUCCI—ARMY 20090572
This case is before the court for review under Article 66, UCMJ. We have
considered the record of trial, appellant’s assignments of error, those matters
submitted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), the government’s answer and appellant’s reply brief. Appellant’s
assignments of error warrant brief discussion and partial relief.
Appellant first asserts that the evidence is legally insufficient to support a
finding of guilty to the forgery charge. The government concedes the error. We
agree and find the evidence legally insufficient to support appellant’s conviction for
forgery.
Second, appellant asserts that the military judge abused his discretion by
accepting his plea of guilty to the charge of wrongful appropriation. He argues that
the military judge failed to reconcile a factual inconsistency relative to the alleged
owner of the money appropriated and that the victim identified and accepted as such
by appellant could not actually have been the owner of the money appropriated. He
also argues that the record fails to sufficiently establish the fact of a false pretense
as method for the wrongful appropriation. The former claim here warrants brief
remark: we reject appellant’s assertion pursuant to United States v. Faircloth, 45
M.J. 172, 174 (C.A.A.F. 1996).
Third, appellant asserts, and we agree, that the military judge abused his
discretion by accepting his plea to flight from apprehension. Appellant did not
admit to facts sufficient to establish flight from apprehension but, rather, admitted to
facts that establish the offense of escape from custody. Because escape from
custody is not a lesser-included offense and because the closely-related offense
doctrine has been abrogated, we find a substantial basis in fact and law to
disapprove appellant’s conviction for flight from apprehension. United States v.
Morton, 69 M.J. 12, 16 (C.A.A.F 2010). See also United States v. Edwards, 69 M.J.
375 (C.A.A.F. 2011).
Lastly, appellant asserts that the military judge abused his discretion by
accepting his plea to carrying a concealed weapon because there was no evidence
that carrying a concealed weapon was unlawful under the circumstances and because
the terminal elements were not pled in the specification alleging the offense. The
former assertion is without merit. See Faircloth, 45 M.J. at 174; United States v.
Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995). As to the latter, before this court
appellant asserts for the first time that the specification alleging carrying of a
concealed weapon fails to state an offense because it does not contain reference to a
terminal element under Article 134, UCMJ. However, because appellant failed to
challenge the specification at trial, reference to Article 134 was properly made in the
relevant charge, and the specification otherwise properly alleged the offense for
which appellant was convicted, the terminal elements are implied and relief for any
defects in the specification is not warranted. See United States v. Fosler, 70 M.J.
225, 231 (C.A.A.F. 2011); United States v. Watkins, 21 M.J. 208, 209–10 (C.M.A.
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MARTUCCI—ARMY 20090572
1986); United States v. Roberts, 70 M.J. 550 (Army Ct. Crim. App. 2011). In
addition, the military judge properly described the elements to appellant during the
Care inquiry, appellant stipulated to the fact that his conduct was both prejudicial to
good order and discipline and service discrediting, and appellant acknowledged his
understanding of the terminal elements and satisfactorily discussed and admitted that
his conduct was service discrediting during his discussion about the offense with the
military judge. There is no reason to conclude that appellant was misled or that he
might otherwise suffer prosecution for this same offense twice. He enjoyed both
notice of the offenses against which he had to defend and now enjoys protection
against double jeopardy. Watkins, 21 M.J. at 209–10.
Therefore, on consideration of the entire record, the assigned errors, and the
matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), we disapprove the findings of guilty as to Charge I and
its Specification and the Second Additional Charge II and its Specification, and find
the remaining findings of guilty correct in law and fact. Accordingly, Charge I and
its Specification and the Second Additional Charge II and its Specification are
dismissed; the remaining findings of guilty are affirmed. Reassessing the sentence
on the basis of the errors 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 THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM
H. SQUIRES JR.
Clerk of Court
Clerk of Court
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