United States v. Wood

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
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Airman DUSTIN B. WOOD
United ``States Air Force
ACM 38792
22 September 2_016
Sentence adjudged 10 December 2014 by GCM convened at ShaW Air Force
Base, South Carolina. Military Judge: Shaun S. Speranza (sitting alone).
Approved Sentence: Dishonorable discharge, confinement for 35 years,
forfeiture of all pay and allowances, and reduction to E-l.
Appellate Counsel for Appellant: Maj or lsaac C. Kennen.
Appellate Counsel for the United States: Colonel Laura, J. l\/legan-Posch;.
Captain MattheW L. Tusing; Gerald R. _Bruce, Esquire. '
Before
DUBR_ISKE, HARDING, and C. BROWN
A_ppellate Mil_itary Judges
OPINION OF THE COURT
T-his opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
HARDING, Judge:
Upon review of the original record of trial, this court noted that Prosecution Exhibit
17 Was missing In light of the missing sentencing exhibit, Appellant requested this court
remand this case to the convening authority for the limited purpose of a rehearing as to
sentence The Government subsequently provided this exhibit by motion, Which Was
accepted by this court and added to the record of tri'al. Accordingly, any issue concerning
this omission has been rendered moot.| See Um``z‘ed States v. Lashley, 14 M.J. 7, 9 (C.M.A.
1982) (stating that the presumption of prejudice from substantial omissions may be
overcome by the retrieval of the missing material).
We also note the Court-Martial Order (CMO) misstates the result of trial in two
respects First, the CMO incorrectly reflects Specification 1 of Charge 11 in that it includes
~' 'theewords:~e‘iwas~to~theeprejudiceeofe goodeorderandediscipline in¢the armed forceswand.31 7
Following.arraignment, but prior to``Appellant’s entry of pleas, the convening authority
withdrew those words from Specification 1 of Charge 11 and the charge sheet was modified
accordingly. Thereafter, Appellant only pled guilty to and was only found guilty of a
specification of wrongful receipt of child pornography that was of a nature to bring
discredit upon the armed forces under Article 134, UCl\/U, 10 U.S.C. § 934-not to the
prejudice of good order and discipline in the\armed forces. We note this same error in the
Report of Result of Trial Memorandum
Second, the CMO incorrectly states the finding as to Specification 1 of Additional
Charge I, specifically with regard to the excepted words and figures “on or about 16 March
2011” by reflecting ~a finding of Not Guilty for the same. The military judge found as
follows for this specification and charge: “Of the Specification' of Additional Charge I:
Guilty, except the words and figures, ‘on or about 16 March 2011,’ substituting therefor
the words and figures, ‘29 August 2011:’ Of the substituted words: Guilty; Of Additional
Chargel: Guilty. ” The military judge did not enter any finding as to the excepted language
Instead the military judge sua sponte dismissed those words concluding that since
Appellant was not in an active duty status between 16 March 2011 and 29 August 2011,
there was no personal jurisdiction_over any offense for that period. We note this same error
in the Report of Result of Trial Memorandum.
We order promulgation of a corrected Cl\/lO to accurately reflect Appellant’s pleas
and the military judge’s findings as noted above.
The approved findings and sentence are correct in law and fact, and no error -
materially prejudicial to the substantial rights of Appellant occurred. Article 66(c), UCMJ,
10 U. S. C. § 866(0); Um'z‘ed Sraz‘es v. Reea’, 54 M. J. 37, 41 (C A. A F. 2000). Accordingly,
the approved findings and sentence are AFFIRMED.
FOR THE COURT
*'j//'~\\‘*'
, -.~/,é° KURTJ BR BAKER
"'¥$°Rw“" Clerk of the Court
2 ' ACM 38792 ``