United States v. Hohenstein

CCA 37965. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we conclude that the wrongful sexual contact offense (Specification 2 of Charge I) should be dismissed. The government conceded that the wrongful s.exual contact offense was charged for exigencies of proof in case the panel did not convict Appellant of rape (Specification 1 of Charge I). Because the panel returned guilty findings for both specifications and the government agreed that these specifications were charged for exigencies of proof, it was incumbent on the military judge to dismiss the wrongful sexual contact specification. See United States v. Elespuru, 73 M.J. 326, 329-30 (C.A.A.F. 2014). Because the military judge did not dismiss this specification, we dismiss and set aside the finding of guilty for the wrongful sexual contact specification. However, because the military judge merged Specifications 1 and 2 of Charge I as one offense for sentencing purposes and instructed the panel accordingly, we are convinced Appellant was not prejudiced for sentencing. See id. at 330. Accordingly, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER APPELLANT’S CONVICTION UNDER SPECIFICATION 2 OF CHARGE I SHOULD BE SET ASIDE AND THIS SPECIFICATION DISMISSED WHERE THE GOVERNMENT CONCEDED SPECIFICATION 2 WAS CHARGED FOR EXIGENCIES OF PROOF WITH SPECIFICATION 1.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specification 2 of Charge I, but is affirmed in all other respects. The finding of guilty as to Specification 2 of Charge I is set aside, and Specification 2 of Charge I is dismissed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]