United States v. Private E1 ROBERT L. CONRADY ( 2012 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, GALLAGHER, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E1 ROBERT L. CONRADY
United States Army, Appellant
ARMY 20080534
Headquarters, Joint Readiness Training Center and Fort Polk
Victor L. Horton, Military Judge
Colonel James D. Key, Staff Judge Advocate
For Appellant: William E. Cassara, Esquire (argued); Captain Sarah E. Wolf, JA;
William E. Cassara, Esquire (on brief); Captain Michael E. Korte, JA; William E.
Cassara, Esquire (on reply brief).
For Appellee: Captain Stephen E. Latino, JA (argued); Colonel Michael E.
Mulligan, JA; Lieutenant Colonel Martha L. Foss, JA; Major Christopher B.
Burgess, JA; Major Lynn I. Williams, JA (on brief).
21 December 2012
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SUMMARY DISPOSITION ON REMAND
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of rape of a child under the age of
twelve, one specification of sodomy with a child under the age of twelve, one
specification of assault consummated by a battery upon a child under the age of
sixteen, and three specifications of indecent acts with a child, in violation of
Articles 120, 125, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C.
§§ 920, 925, 928, and 934 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to thirty-five years of confinement and a dishonorable discharge. The
convening authority approved a sentence to confinement of thirty-four years and
nine months and a dishonorable discharge. The convening authority also credited
appellant with 304 days of credit toward the sentence to confinement.
CONRADY—ARMY 20080534
On 30 March 2011, this court issued an opinion of the court pertaining to this
case in which we found the military judge committed error in admitting an image of
child pornography under Military Rule of Evidence [hereinafter Mil. R. Evid. ]
414(d)(2). However, because we found the error was harmless, no relief was
warranted. Accordingly, we affirmed the findings of guilty and the sentence United
States v. Conrady, ARMY 20080534 (Army Ct. Crim. App. 30 Mar. 2011). On 7
October 2011, our superior court set aside and dismissed the guilty findings to the
words “on divers occasions” contained in both Specification 3 of Charge II (forcible
sodomy with a child under the age of twelve) and Specification 7 of Charge III
(indecent acts with a child under the age of sixteen). Our superior court then
vacated our original decision and returned the record of trial to The Judge Advocate
General of the Army for remand to this court for consideration in light of United
States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
On 28 February 2012, we issued an opinion in this case, affirming the
findings of guilty and the sentence. United States v. Conrady, ARMY 20080534
(Army Ct. Crim. App. 28 Feb. 2012). On 10 July 2012, our superior court reversed
our decision as to Specifications 2, 6, and 7 of Charge III (indecent acts with a child
under the age of sixteen) in violation of Article 134, UCMJ, and as to the sentence;
affirmed our decision as to the other specifications and charges; and returned the
record of trial to The Judge Advocate General of the Army for remand to this court
for further consideration in light of United States v. Humphries, 71 M.J. 209(C.A.A.F. 2012). United States v. Conrady, 71 M.J. 350 (C.A.A.F. 2012).
Consequently, appellant’s case is again before this court for review under Article 66,
UCMJ.
DISCUSSION
The elements of a crime under clause 1 or 2 of Article 134, UCMJ are that (1)
the accused engaged in certain conduct, and (2) that the conduct was prejudicial to
good order and discipline or service discrediting. See Manual for Courts-Martial,
United States (2008 ed.), pt. IV, ¶ 66.b(1)(e).
“The Government must allege every element expressly or by necessary
implication, including the terminal element.” Fosler, 70 M.J. at 232 (C.A.A.F.
2011). Pursuant to Humphries, even if a specification does not allege the terminal
element by necessary implication, the question remains whether the defect resulted
in material prejudice to appellant’s substantial right to notice. This question is
answered by a close review of the record to determine if “notice of the missing
element is somewhere extant in the trial record, or whether the element is
‘essentially uncontroverted.’” Humphries, 71 M.J. at 215-216 (citing United States
v. Cotton, 535 U.S. 625, 633 (2002)).
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CONRADY—ARMY 20080534
In view of Humphries, we are compelled to disapprove the finding of guilt as
to the Article 134, UCMJ, offenses of indecent acts with a child under the age of
sixteen previously affirmed. The specification does 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
indecent acts and dismiss the defective specifications which failed to state an
offense in light of Fosler.
CONCLUSION
On consideration of the entire record in light of United States v. Humphries,
71 M.J. 209 (C.A.A.F. 2012), the findings of guilty of Specifications 2, 6, and 7 of
Charge III are set aside and dismissed. 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
FOR THE
THE COURT:
COURT:
JOANNE P. TETREAULT ELDRIDGE
JOANNE
Deputy ClerkP.
of TETREAULT
Court E
Deputy Clerk of Court
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