United States v. Private First Class JONATHAN D. HOOK ( 2015 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, CAMPANELLA, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class JONATHAN D. HOOK
United States Army, Appellant
ARMY 20121115
Headquarters, United States Army Alaska
Stefan R. Wolfe, Military Judge
Lieutenant Colonel Keven J. Kercher, Acting Staff Judge Advocate
For Appellant: Captain Robert H. Meek, III, JA; Frank J. Spinner. Esq. (on brief).
For Appellee: Major A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief).
23 October 2015
-----------------------------------
SUMMARY DISPOSITION
-----------------------------------
PENLAND, Judge:
A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of wrongful possession and use of an
anabolic steroid, trenbolone acetate, one specification of aggravated assault by
intentionally inflicting grievous bodily harm upon a child under the age of sixteen
years, two specifications of aggravated assault with a means likely to produce death
or grievous bodily harm, two specifications of assault consummated by a battery
upon a child under the age of sixteen years, eight specifications of assault
consummated by a battery, one specification of child endangerment, and one
specification of communicating a threat, in violation of Articles 112a, 128, 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 912a, 928, 934 (2006; 2012)
[hereinafter UCMJ]. The panel sentenced appellant to a dishonorable discharge,
confinement for eighteen years, forfeiture of all pay and allowances, and reduction
to the grade of E-1. The convening authority approved the adjudged sentence and
credited appellant with 164 days against the confinement term.
HOOK — ARMY 20121115
We review this case under Article 66, UCMJ. Appellant raises three
assignments of error, none of which merit discussion or relief. We have also
considered matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982); our disposition of a matter not raised by
appellant renders them moot.
Appellant was convicted of two specifications under Article 112a, alleging his
wrongful possession and use, respectively, of “an Anabolic Steroid, Trenbolone
Acetate, a schedule III controlled substance.” NH testified that appellant used a
substance he described with no greater specificity than as anabolic steroids.
Investigator CR also testified that he seized from appellant’s refrigerator a container
labeled with, “Anabolic Research Labs.” The military judge ruled that any
additional words on the label purporting to identify its exact contents was
inadmissible hearsay, and the government offered no evidence to support the
allegation that the substance was trenbolone acetate.
The standard of review for legal sufficiency is whether, considering all
evidence in the light most favorable to the government, any reasonable fact-finder
could have found all of the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Tollinchi, 54
M.J. 80, 82 (C.A.A.F. 2000). Applying this standard to Charge I and its
specifications, we answer in the negative with respect to the specific identity of the
controlled substance as trenbolone acetate.
CONCLUSION
The findings of guilty of Charge I and its Specifications are set aside. The
affected Charge and its Specifications are DISMISSED.
The remaining findings of guilty are AFFIRMED.
Reassessing the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305, 308 (C.M.A. 1986), we are confident the panel would have adjudged the same
sentence absent the dismissed charge and its specifications. We recognize, based on
the government’s sentencing concessions at trial, that our disposition changes the
penalty landscape from 25 years and 6 months confinement to 20 years and 6 months
confinement. However, the nature of the remaining offenses captures the gravamen
of appellant’s crimes—multiple instances of aggravated assault and assault
consummated by a battery upon his wife and infant child, including strangling his
wife into unconsciousness and nearly cutting off his child’s tongue with a sharp
object. The admitted aggravation evidence remains relevant. The sentence is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.
2
HOOK — ARMY 20121115
Senior Judge HAIGHT and Judge CAMPANELLA concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN
Deputy P. TAITT
Clerk of Court
Deputy Clerk of Court
3