United States v. Sergeant MICHAEL G. WALKER ( 2017 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
BURTON, CELTNIEKS, and HAGLER
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant MICHAEL G. WALKER
United States Army, Appellant
ARMY 20160540
Headquarters, 8th Theater Sustainment Command
Mark A. Bridges, Military Judge
Lieutenant Colonel LaJohnne A.W. Morris, Acting Staff Judge Advocate (pretrial)
Lieutenant Colonel Ryan B. Dowdy, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Katherine L.
DePaul, JA (on brief).
For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Michael E. Korte, JA; Lieutenant Colonel Karen J. Borgerding, JA (on
brief).
26 December 2017
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court martial convicted appellant,
contrary to his pleas, of one specification of possessing child pornography, and
pursuant to his pleas, of three specifications of wrongfully soliciting payment for
sexual contact, all in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2012 & Supp. I 2014). The military judge sentenced appellant to a
dishonorable discharge, confinement for twenty-seven months, forfeiture of all pay
and allowances, and reduction to the grade of E-1. The convening authority
approved the adjudged sentence.
The case is before this court for review under Article 66, UCMJ. Appellant
raises one error: sufficient evidence was not admitted to find appellant’s conduct
was “to the prejudice of good order and discipline in the armed forces,” as charged.
Appellant asks that the language be dismissed from all four specifications. Appellee
concedes the lack of proof and concurs with appellant’s request to dismiss the
language from each specification.
WALKER—ARMY 20160540
Additionally, appellant personally raises three matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), which we have reviewed and do not
merit relief.
We find the evidence introduced at trial did not support a finding that
appellant’s conduct was prejudicial to good order and discipline. Despite the failure
of proof on this issue, we find the evidence is sufficient to conclude beyond a
reasonable doubt that appellant was guilty of each offense.
DISCUSSION
Appellant was charged with four specifications of violating Article 134,
UCMJ, each containing the terminal element, “such conduct being to the prejudice of
good order and discipline in the armed forces and of a nature to bring discredit upon
the armed forces.” Appellant entered a mixed plea: guilty to Specifications 2, 3, and
4 of The Charge for wrongful solicitation of sexual contact for money; but not guilty
to Specification 1 of The Charge for possession and viewing of child pornography.
Regarding Specifications 2, 3, and 4, appellant’s sworn testimony during the
providence inquiry showed his conduct—seeking payment for sexual services on a
public website—was service discrediting, satisfying the definition provided by the
military judge. In contrast, appellant’s responses to the military judge clearly
indicated he was not admitting his conduct was prejudicial to good order and
discipline, and the judge did not question appellant further on this issue. Likewise,
the stipulation of fact is silent on the issue of prejudice to good order and discipline,
although it contains ample evidence and appellant’s own acknowledgement that his
conduct was service discrediting. As a result, despite appellant’s pleas, this court
lacks a sufficient basis to affirm the “prejudice to good order and discipline”
language in these three specifications.
A similar situation emerged during the contested portion of trial on the first
specification. The government introduced sufficient evidence to find appellant’s
possession of child pornography was service discrediting, but it offered no direct
evidence and did not argue that this conduct was prejudicial to good order and
discipline. As a result, relying solely on the record, we find insufficient evidence
that the conduct for which appellant was convicted was prejudicial to good order and
discipline. *
The terminal element in each specification was alleged as both service
discrediting and prejudicial to good order and discipline. Although this court cannot
affirm the “prejudice to good order and discipline” language in any of the four
*
In Specification 1, appellant was charged with both possessing and viewing
pictures and videos of child pornography. The military judge found him guilty only
of possession.
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WALKER—ARMY 20160540
specifications, the evidence admitted at trial—through the government’s case-in-
chief, the providence inquiry, or the stipulation of fact—showed beyond a
reasonable doubt that appellant’s conduct was service discrediting.
CONCLUSION
The findings of guilty to The Charge and each specification, excepting the
words “to the prejudice of good order and discipline in the armed forces and” from
each specification, are AFFIRMED. The excepted words are set aside and
dismissed.
We are able to reassess the sentence on the basis of the error noted, the entire
record, and in accordance with the principals of United States v. Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013). Based on the entire record and appellant’s course
of conduct, we are confident that the military judge would have imposed a sentence
of at least that which was adjudged, and accordingly we AFFIRM the sentence.
FOR THE
FOR THE COURT:
COURT:
JOHN P. TAITT
JOHNClerk
Acting P. TAITT
of Court
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