United States v. Sergeant GREGORY B. HARRIS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant GREGORY B. HARRIS
United States Army, Appellant
ARMY 20130310
Headquarters, United States Army Alaska
Stefan R. Wolfe, Military Judge
Colonel Tyler J. Harder, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Robert N. Michaels, JA; Captain
Patrick J. Scudieri, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Major Daniel
D. Derner, JA; Captain James P. Curtin, JA (on brief).
25 February 2015
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SUMMARY DISPOSITION
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Per curiam:
A panel of officer and enlisted members sitting as a special court-martial
convicted appellant, contrary to his pleas, of five specifications of cruelty and
maltreatment, and three specifications of assault consummated by a battery , in
violation of Articles 93 and 128, Uniform Code of Military J ustice, 10 U.S.C. §§
893, 928 (2006) [hereinafter UCMJ]. * The panel sentenced appellant to a bad-
*
The government failed to renumber the charges and specifications as ordered by the
military judge during the trial. We will renumber the Specifications of Charge III as
they appear on the Charge Sheet as the Specifications of Charge II. After findings,
the military judge stated that he would “merge” one specification of cruelty and
maltreatment (Specification 1 of Charge1) with one specification of assault
consummated by a battery (renumbered Specification 1 of Charge II) for the purpose
(continued . . .)
HARRIS—ARMY 20130310
conduct discharge, confinement for thirty days, and reduction to the grade of E-1.
The convening authority approved the sentence as adjudged.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
asserts two assignments of error, one of which merits discussion but no relief. One
issue not raised by appellant merits discussion and relief. The matters personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), do not warrant relief.
Appellant asserts that the promulgating order and record of trial are incorrect
in that they exaggerate the appellant’s criminality by including a charge th at was
dismissed. While it is apparent that the promulgating order, record of trial, and
result of trial all reflect that appellant was found guilty of Specification 1 of
renumbered Charge II (renumbered pursuant to this opinion) , these documents are
neither erroneous or misleading. Appellant was found guilty of Specification 1 of
renumbered Charge II by the panel, and this finding was modified by the military
judge after the announcement of findings. We order the promulgating order so
corrected. We are confident appellant was not prejudiced in the post -trial review of
his case by the documents reviewed by the convening authority.
The panel found appellant guilty of Specification 3 of Charge I, cruelty and
maltreatment, on divers occasions between on or about 1 May 2011 and on or about
31 January 2012, for maltreating Specialist SW by orally communicating certain
language, namely “hold my pants pocket” or words to that effect . Our examination
of the record finds evidence of only one occasion to support this allegation. In
particular, the victim testified appellant one time pul led out appellant’s pocket, told
the victim to hold it, and said, “Let’s go.” Consequently, we will not affirm the
words “on divers occasions” in Specification 3 of Charge I.
(. . . continued)
of findings and sentencing. The military judge’s use of the term “merge” is
potentially ambiguous. He did not definitively consolidate the specifications, nor
did he dismiss a specification as multiplicious or as an unreasonable multiplication
of charges. See United States v. Mayberry, 72 M.J. 467 (C.A.A.F. 2013) (summ.
disp.). To clarify any ambiguity, we dismiss Specification 1 of Charge II in our
decretal paragraph. In any event, the military judge treated the offenses as “one
offense for the purposes of sentencing.” Accordingly, appellant was not prejudiced
with regard to his sentence.
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HARRIS—ARMY 20130310
CONCLUSION
Upon consideration of the entire record, including the matters submitted
pursuant to Grostefon, the finding of guilty of Specification 1 of renumbered Charge
II is set aside and that specification is dismissed . We only affirm so much of
Specification 3 of Charge I as extends to:
In that [appellant], U.S. Army, at or near Forward
Operating Base (FOB) Sarkari Karez, Afghanistan,
between on or about 1 May 2011 and on or about 31
January 2012, did maltreat Specialist (E-4) SW, a person
subject to his orders, by orally communicating to
Specialist (E-4) SW certain language, to wit: “hold my
pants pockets,” or words to that effect.
The remaining findings are AFFIRMED.
We are able to reassess the sentence on the basis of the amended findings, and
do so after conducting a thorough analysis of the totality of circumstances presented
by appellant’s case and in accordance with the principles articulated in United States
v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22
M.J. 305 (C.M.A. 1986). In evaluating the Winckelmann factors, we first find no
change in the penalty landscape or the gravamen of appellant’s criminal conduct.
We are convinced that the panel would have adjudged the same sentence had they
only convicted appellant of the charges and specifications affirmed by this court.
The sentence is AFFIRMED.
FOR
FORTHE
THECOURT:
COURT:
MALCOLMH.
MALCOLM H.SQUIRES,
SQUIRES,JR.
JR.
Clerkof
Clerk ofCourt
Court
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