United States v. Private E2 KHRISTOPHER R. WILLIS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 KHRISTOPHER R. WILLIS
United States Army, Appellant
ARMY 20110217
Headquarters, I Corps (Rear) (Provisional)
Kwasi L. Hawks, Military Judge
Colonel Walter M. Hudson, Staff Judge Advocate (pretrial)
Lieutenant Colonel Gregg A. Engler, Acting Staff Judge Advocate (recommendation)
Colonel Kurt A. Didier, Staff Judge Advocate (addendum)
For Appellant: Major Richard E. Gorini, JA; Colonel Edye U. Moran, JA (on brief).
For Appellee: Major Amber J. Williams, JA (on brief).
31 January 2012
---------------------------------
SUMMARY DISPOSITION
---------------------------------
Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of absence without leave, disrespect toward a superior
commissioned officer, disrespect toward a superior noncommissioned officer,
wrongful use of cocaine, wrongful use of marijuana, and wrongful distribution of
cocaine, in violation of Articles 86, 89, 91, and 112a, Uniform Code of Military
Justice, 10 U.S.C. §§ 886, 889, 891, and 912a [hereinafter UCMJ]. Contrary to his
pleas, the military judge found appellant not guilty of willful disobedience of a
superior commissioned officer and guilty of assault upon a superior commissioned
officer in violation of Article 91, UCMJ. The convening authority approved the
adjudged sentence to a bad-conduct discharge and confinement for sixty days.
Appellant was credited with 129 days of confinement credit against the sentence to
confinement.
This case is before the court for review under Article 66, UCMJ. Appellant’s
defense appellate counsel submitted the case for our review on its merits and
appellant personally raised matters pursuant to United States v. Grostefon, 12 M.J.
WILLIS—ARMY 20110217
431 (C.M.A. 1982). We have considered the record of trial and the matters
submitted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
We conclude that, in the context of the entire colloquy, appellant failed to
admit facts sufficient to establish that he was disrespectful toward a superior
commissioned officer in violation of Article 89, UCMJ, as that offense was pled in
Specification 2 of Additional Charge II. Therefore, we find a substantial basis in
fact to disapprove the finding of guilty to that offense. United States v. Inabinette,
66 M.J. 320 (C.A.A.F. 2008).
We also find the evidence factually insufficient to establish beyond a
reasonable doubt that appellant assaulted a noncommissioned officer as that offense
was alleged in Specification 1 of Additional Charge III in light of the circumstances
surrounding that event and the following testimony from the victim: “When I shoved
the door open, it hit Private Willis in the face. Private Willis obviously thought that
as an attack on him and he punched me in the face.” See United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (holding that factual sufficiency
review “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 account the fact that the trial court saw and heard the
witnesses”).
Therefore, on consideration of the entire record and the matters personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), the findings of guilty of Specification 2 of Additional Charge II and
Specification 1 of Additional Charge III are set aside and dismissed. The remaining
findings of guilty are affirmed. Reassessing the sentence on the basis of the errors
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 THE COURT:
FOR THE COURT:
JOANNE P. TETREAULT ELDRIDGE
Deputy ClerkP.
JOANNE of TETREAULT
Court
lerk of Court
2