United States v. IngramPrivate E2 TIYEWHONNE M. DAVIS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 TIYEWHONNE M. DAVIS
United States Army, Appellant
ARMY 20101022
U.S. Army Combined Arms Support Command
Sustainment Center of Excellence and Fort Lee
Stephen R. Henley and Steven H. Levin, Military Judges
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Stephen J. Rueter, JA (on brief).
For Appellee: Major Amber J. Roach, JA; Major Ellen S. Jennings, JA; Captain
Bradley M. Endicott, JA (on brief).
29 August 2012
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SUMMARY DISPOSITION ON REMAND
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Per Curiam:
An enlisted panel, sitting as a general court–martial, convicted appellant,
contrary to his pleas, of failure to obey an order, assault consummated by a battery
upon a child under sixteen, and indecent language to a child under sixteen, in
violation of Articles 92, 128, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 892, 928, 934 (2006) [hereinafter UCMJ]. See Manual for Courts-Martial,
United States (2008 ed.), pt. IV, ¶ 89.b. The panel acquitted appellant of a separate
specification alleging failure to obey an order and of an allegation of abusive sexual
contact with a child, in violation of Articles 92 and 120, UCMJ. Previously, the
military judge had properly rejected appellant’s attempts to plead guilty to the two
specifications of failure to obey an order, described above, but convicted appellant,
pursuant to appellant’s plea, of a separate specification of dereliction of duty, in
violation of Article 92, UCMJ. The panel sentenced appellant to a bad–conduct
discharge, confinement for 179 days, and reduction to the grade of E–1. The
DAVIS—ARMY 20101022
convening authority approved the adjudged sentence and credited appellant with
ninety days of pretrial confinement credit against the sentence of confinement.
On 30 April 2012, we issued an opinion in this case, summarily affirming the
findings of guilty and the sentence. On 25 July 2012, our superior court reversed
our decision as to Charge IV and its Specification (alleging indecent language) and
as to the sentence, 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). Consequently, appellant’s case is again
before this court for review under Article 66, UCMJ.
In light of Humphries, we are compelled to disapprove the finding of guilt as
to Charge IV and its Specification in violation of Article 134, UCMJ. 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 indecent language and dismiss the
defective specification which failed to state an offense in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011).
On consideration of the entire record, the finding of guilty of Charge IV and
its Specification is set aside and dismissed. The remaining findings of guilty are
affirmed. 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
Deputy ClerkP.
JOANNE of Court
TETREAULT EL
ourt
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