United States v. Sergeant RANDY A. GIDDENS ( 2012 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    COOK, GALLAGHER, and HAIGHT
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Sergeant RANDY A. GIDDENS
    United States Army, Appellant
    ARMY 20090598
    82nd Airborne Division
    Gary J. Brockington, Military Judge
    Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate (pretrial)
    Major Jessica A. Golembiewski, Acting Staff Judge Advocate (post-trial)
    For Appellant: Captain Brandon Iriye, JA (argued); Colonel Mark Tellitocci, JA;
    Major Laura R. Kesler, JA; Captain Jennifer A. Parker, JA (on brief).
    For Appellee: Captain Daniel H. Karna, JA (argued); Major Ellen S. Jennings, JA;
    Major LaJohnne A. White, JA; Major Thomas E. Brzozowski, JA (on brief).
    13 December 2012
    ----------------------------------------------------
    SUMMARY DISPOSITION ON REMAND
    ----------------------------------------------------
    Per Curiam:
    A military judge sitting as a general court-martial convicted appellant,
    pursuant to his pleas, of failure to obey a lawful order and assault consummated by a
    battery in violation of Articles 92 and 128, Uniform Code of Military Justice, 
    10 U.S.C. §§ 892
     and 928 (2006) [hereinafter UCMJ]. An enlisted panel sitting as a
    general court-martial convicted appellant, contrary to his pleas, of attempted sodomy
    of a child, an indecent act, indecent exposure, aggravated sexual contact with a
    child, and unlawful entry, in violation of Articles 80, 120 and 134, UCMJ. The
    panel sentenced appellant to reduction to the grade of E-1, to forfeit all pay and
    allowances, to be confined for thirteen years, and to be dishonorably discharged.
    The convening authority approved the sentence as adjudged.
    This case was previously submitted to this court for review pursuant to Article
    66, UCMJ. On 20 January 2012, we issued a decision in this case, summarily
    affirming the findings of guilty and the sentence. United States v. Giddens, ARMY
    GIDDENS – ARMY 20090598
    20090598 (Army Ct. Crim. App. 20 Jan. 2012). On 10 July 2012, our superior court
    reversed our decision as to Charge VI and its Specification, unlawful entry, 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.
    Giddens, 
    71 M.J. 357
     (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.” United States v. Fosler, 
    70 M.J. 225
    ,
    232 (C.A.A.F. 2011). Pursuant to Humphries, even if this specification does not
    allege the terminal elements 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 215-16 (citing United States
    v. Cotton, 
    535 U.S. 625
    , 633 (2002)).
    In view of Humphries, we are compelled to disapprove the finding of guilt as
    to the Article 134, UCMJ, offense of unlawful entry 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 conviction for unlawful entry and dismiss the defective
    specification 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), and the matters personally raised by appellant
    pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), we find
    appellant’s Grostefon submission to be without merit. The findings of guilty of
    Charge VI and its Specification 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
    2
    GIDDENS – ARMY 20090598
    Judge Baker in his concurring opinion in Moffeit, the court affirms the sentence as
    approved by the convening authority.
    FOR
    FORTHE
    THECOURT:
    COURT:
    JOANNE P. TETREAULT ELDRIDGE
    Deputy Clerk of Court
    JOANNE P. TETREAULT E
    3
    

Document Info

Docket Number: ARMY ARMY 20090598

Filed Date: 12/13/2012

Precedential Status: Non-Precedential

Modified Date: 1/9/2015