United States v. Specialist DAVID K. ADAMS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
JOHNSON, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist DAVID K. ADAMS
United States Army, Appellant
ARMY 20100658
Headquarters, Fort Campbell Installation
Timothy Grammel, Military Judge
Lieutenant Colonel Joseph B. Morse, Staff Judge Advocate
For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain Matthew T. Grady, JA (on brief).
For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Edward J. Whitford, JA (on brief).
4 January 2012
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SUMMARY DISPOSITION
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Per Curiam:
A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of two specifications of attempted sexual intercourse, one
specification of disobeying a superior commissioned officer, two specifications of
rape, one specification of wrongful sexual contact, five specifications of assault,
three specifications of communicating a threat, and two specifications of child
endangerment, in violation of Articles 80, 90, 120, 128, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 80, 90, 120, 128, 134 (2008) [hereinafter UCMJ]. 1
See Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], Part
1
Appellant pled not guilty to four additional specifications of assault, and one
specification of possessing child pornography which was prejudicial to good order
and discipline or service-discrediting, in violation of Articles 128, and 134, UCMJ.
Appellant was found not guilty of these offenses.
ADAMS—ARMY 20100658
IV, paras. 68a.b. and 110.b. Appellant was sentenced to a dishonorable discharge,
confinement for nine years, and reduction to the grade of E1. In a second corrected
action, and pursuant to a pretrial agreement, the convening authority approved only
seventy-two months of the adjudged sentence to confinement but otherwise approved
the remainder of the sentence. 2
Appellant’s case is now before this court for review under Article 66, UCMJ.
Appellant raises one assignment of error, claiming that the Article 134 specifications
of which he was convicted do not state an offense. In light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011), and United States v. Roberts, 70 M.J. 550(Army Ct. Crim. App. 2011), we find the assigned error meritless. We have also
considered the timing of the second corrected action in this case, and we find the
convening authority properly assumed command prior to taking corrective action.
We “may act only with respect to the findings and sentence as approved by
the convening authority,” Article 66(c), and a commander may only take action as a
convening authority when he is in command of his or her respective unit. In this
case, the date stamped on the second corrected action precedes the date upon which
the convening authority, Major General (MG) Francis J. Wiercinski, assumed
command. However, we are convinced that this is not the actual date MG
Wiercinski took action. Although the second corrected action is dated 9 November
2010, this is the same date as that stamped on the initial action and the first
corrected action, both of which were by a different commander, MG Wiercinski’s
predecessor. It is implausible, to say the least, that two separate commanders took
action three times on the same date. In a post-trial affidavit, the staff judge
advocate explained that the actual date of MG Wiercinski’s second corrected action
was on or about 12 December 2010, and the stamped date of 9 November 2010 is
incorrect. Relying upon this affidavit and our Article 66, UCMJ, fact finding
powers, we find that MG Wiercinski took action on or about 12 December 2010.
This is well after MG Wiercinski assumed command on 20 November 2010;
therefore, his second corrected action was not in error.
Finally, before this court, appellant asserts for the first time that the
specifications alleging he communicated a threat and committed child endangerment
fail to state offenses because they do not contain reference to a terminal element
under Article 134, UCMJ. However, because appellant failed to challenge the
specification at trial, reference to Article 134 was properly made in the relevant
charge, and the specifications otherwise properly alleged the offenses for which
appellant was convicted, the terminal elements can be implied from the language of
2
Appellant’s reduction to E1 and automatic forfeitures were deferred until action.
Thereafter, appellant’s automatic forfeitures were waived for six months for the
benefit of appellant’s spouse. In addition, Appellant was credited with eighty-five
days of confinement credit against the approved sentence to confinement.
2
ADAMS—ARMY 20100658
each specification and relief for any defects in the specifications is not warranted.
Roberts, 70 M.J. at 553–54. See United States v. Watkins, 21 M.J. 208, 209–10
(C.M.A. 1986). Cf. Fosler, 70 M.J. at 230. Furthermore, the accused completed a
knowing, voluntary, and intelligent plea of guilty to each offense, including a proper
inquiry pursuant to United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247(1969). 3 There is no reason to conclude that appellant was misled or that he might
otherwise suffer prosecution for this same offense twice. He enjoyed both notice of
the offenses against which he had to defend and now enjoys protection against
double jeopardy.
On consideration of the entire record, and in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), we hold the findings of guilty and the sentence as
approved by the convening authority correct in law and fact. Accordingly, the
findings of guilty and the sentence are AFFIRMED.
FOR THE COURT:
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES JR.
Clerk of Court
3
During the providence inquiry, the military judge properly explained the terminal
elements to appellant; appellant understood that he was charged with offenses that
included that element as a matter of proof; admitted that he was guilty of those
offenses, including the terminal element; and offered sufficient facts and discussion,
including a stipulation of fact, to support a finding of guilt so that no substantial
basis in law or fact exists to disapprove the findings of guilty to each. E.g., United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
3