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## A PPEALS

_______ _______ __________ No. ACM 38943 ( f rev )

_______ _______ __________ UNITED STATES Appellee

v.
Evan G. SMITH Captain ( O

- 3 )
, U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United States Air Force Trial Judiciary Upon Further Review

Decided 15 April 2019

_______ _______ __________ Military Judge: Mark W. Milam

. Approved sentence: No punishment

. For Appellant: Major Jarett Merk , USAF ; William E. Cassara, Esquire

. For Appellee: Capt ain Anne M. Delmare, USAF; Mary Ellen Payne , Esquire

. Before MAYBERRY, JOHNSON
, and POSCH, Appellate Military Judges

.

_______ _______ __________
This is an unpublished opinion and, as such, do es not serve as precedent under AFCCA Rule of Practice and Procedure 18.4.

_______ _______ __________

PER CURIAM : In 2015, a general court

- martial consisting of a military judge convicted Appellant
, c ontrary to his pleas, of one specification of assault consummated by a battery upon a child under 16 years of age; one specification of perjury by giving false testimony; and one specification of child endangerment by culpable negligence in violation of Articles 128, 131, and 134, Uniform Code of MilitaryUnited States v. Smith , No. ACM 38943 ( f rev )

2 Jus tice (UCMJ), 10 U.S.C. §§ 928, 931, 934 (2012)

. The military judge acquitted Appellant of one specification of damaging non

- military property; one specification of rape by using force; one specification of forcible sodomy; one specification of assault cons ummated by a battery; and one specification of assault consummated by a battery upon a child under 16 years of age in violation of Articles 109, 120, 125, and 128, UCMJ, 10 U.S.C. §§ 909, 920, 925, 928 (2012)

. The military judge sentenced Appellant to a di smissal. The convening authority approved the sentence as adjudged. Appellant initially raised three assignments of error, asserting his perjury conviction was legally and factually insufficient; his assault consummated by a battery upon a child under 16 y ears of age conviction was factually insufficient; and the military judge’s exception of the “divers occasions” language rendered his conviction for child endangerment ambiguous. In our original opinion, United States v. Smith
, No. ACM 38943, 2017 CCA LEXI S 474 (A.F. Ct. Crim. App. 14 Jul. 2017) (unpub. op.), we set aside and dismissed with prejudice the convictions for perjury and child endangerment, affirmed the conviction for assault consummated by a battery upon a child under the age of 16 years, set as ide the sentence
, and authorized a rehearing.On 8 December 2017, the convening authority ordered a rehearing on sentence. On 28 November 2018, the convening authority determined a rehearing was impracticable and imposed a sentence of no punishment.

The previously

- affirmed finding and newly

- approved sentence are correct in law and fact, and no error materially prejudicial to Appellant ’ s substantial rights occurred. Arti cles 59(a) and 66(c), UCMJ
, 10 U.S.C. §§ 859(a), 866(c) (2016) . Accordingly, the prev iously affirmed finding in Smith
, unpub. op., and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court