Document Info

DocketNumber: ARMY 20100375

Filed Date: 5/23/2012

Status: Non-Precedential

Modified Date: 4/17/2021

  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    JOHNSON, KRAUSS, and BURTON
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private E1 MATTHEW R. DAVIS
    United States Army, Appellant
    ARMY 20100375
    Headquarters, 82d Airborne Division
    Gary J. Brockington, Military Judge
    Major Jessica A. Golembiewski, Acting Staff Judge Advocate
    For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
    Jamison, JA; Major Jacob D. Bashore, JA; Lieutenant Colonel Katherine A.
    Lehmann, JA (on brief).
    For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
    Daniel D. Maurer, JA (on brief).
    23 May 2012
    ---------------------------------
    SUMMARY DISPOSITION
    ---------------------------------
    BURTON, Judge:
    An enlisted panel sitting as a general court-martial convicted appellant,
    contrary to his pleas, of adultery in violation of Article 134, Uniform Code of
    Military Justice, 
    10 U.S.C. § 934
     (2006) [hereinafter UCMJ]. * See Manual for
    Courts-Martial, United States, (2008 ed.) [hereinafter MCM], Part IV, ¶ 62.b.   The
    convening authority approved the adjudged sentence to a bad-conduct discharge,
    restriction for thirty days, hard labor without confinement for thirty days, and
    forfeiture of $1447.20 pay per month for one month.
    This case is before the court for review under Article 66, UCMJ. The
    appellant contends that the evidence is legally and factually insufficient to support
    *
    Appellant was found not guilty of one specification of aggravated sexual assault
    and one specification of wrongful sexual contact both in violation of Article 120,
    UCMJ, 
    10 U.S.C. § 920
     (2006 & Supp. III 2009).
    DAVIS – ARMY 20100375
    the panel’s findings of guilty as to Charge II and its specification because the
    evidence fails to prove beyond a reasonable doubt that the alleged adultery was
    prejudicial to good order and discipline or service discrediting. We concur and will
    take corrective action in our decretal paragraph.
    BACKGROUND
    On 4 July 2009, appellant and Private (PV2) JR had both consumed alcohol
    and engaged in sexual intercourse in PV2 JR’s barracks room. No one else was
    present when this occurred. Appellant and PV2 JR had known each other for about
    two weeks and PV2 JR was dating someone else. At the time of the sexual tryst,
    appellant had been separated from his wife for some period of time and was
    attempting to obtain a divorce, but was having trouble locating his wife. This one
    time sexual encounter was the same event that led to the charges of aggravated
    sexual assault and wrongful sexual contact of which appellant was found not guilty.
    LAW AND DISCUSSION
    To establish guilt for adultery under Article 134, UCMJ, the government must
    prove each of the following elements beyond a reasonable doubt:
    (1) That the accused wrongfully had sexual intercourse with a certain
    person;
    (2) That, at the time, the accused or the other person was married to
    someone else; and
    (3) That, under the circumstances, the conduct of the accused was to
    the prejudice of good order and discipline in the armed forces or was of
    a nature to bring discredit upon the armed forces.
    MCM, Part IV, ¶ 62.b.
    Article 66, UCMJ, provides that a Court of Criminal Appeals “may affirm
    only such findings of guilty . . . as it finds correct in law and fact.” In performing
    our duty, we must conduct a de novo review of both the legal and factual sufficiency
    of appellant’s convictions. United States v. Washington, 
    57 M.J. 394
    , 399 (C.A.A.F.
    2002). The test for legal sufficiency is “whether, after viewing the evidence in the
    light most favorable to the prosecution, any rational trier of fact could have found
    the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
    
    443 U.S. 307
    , 319 (1979); United States v. Phillips, 
    70 M.J. 161
    , 166 (C.A.A.F.
    2011). The test for factual sufficiency, on the other hand, “involves a fresh,
    impartial look at the evidence, giving no deference to the decision of the trial court
    on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into
    2
    DAVIS – ARMY 20100375
    account the fact that the trial court saw and heard the witnesses.” Washington, 57
    M.J. at 399. We direct our attention to the third element.
    To constitute an offense under the UCMJ, the adulterous conduct must
    either be directly prejudicial to good order and discipline or service
    discrediting. Adulterous conduct that is directly prejudicial includes
    conduct that has an obvious, and measurably divisive effect on unit or
    organization discipline, morale, or cohesion, or is clearly detrimental to
    the authority or stature of or respect toward a servicemember.
    MCM, Part IV, ¶ 62.c.(2). Service discrediting include adulterous “conduct that has
    a tendency, because of its open or notorious nature, to bring the service into
    disrepute, make it subject to public ridicule, or lower it in public esteem.” MCM,
    Part IV, ¶ 62.c.(2). Under the facts of this case, we do not find that appellant’s
    conduct was prejudicial to good order and discipline or service discrediting.
    CONCLUSION
    The findings of guilty and the sentence are set aside. The charges are
    dismissed. All rights, privileges, and property of which appellant has been deprived
    by virtue of that portion of his sentence set aside by this decision are ordered
    restored.
    Senior Judge JOHNSON and Judge KRAUSS concur.
    FOR THE COURT:
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    Clerk of Court
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