## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant RANDY A. GIDDENS United States Army, Appellant

ARMY 20090598

82nd Airborne Division Gary J. Brockingt on, Military Judge Lieutenant Colonel Jeffrey C. Hagl er, Staff Judge Advocate (pretrial) Major Jessica A. Golembie wski, Acting Staff Judge Advocate (post-trial)

For Appellant: Captain Brandon Iriye, JA (argued); Colonel Mark Tellitocci, JA; Major Laura R. Kesler, JA; Captain Jennifer A. Parker , JA (on brief).

For Appellee: Captain Daniel H. Karna, JA (argued); Major Ellen S. Jennings, JA; Major LaJohnne A. White, JA ; Major Thomas E. Brzo zowski, JA (on brief).

13 December 2012

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SUMMARY DISPOSITION ON REMAND

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of failure to ob ey a lawful order and as sault consummated by a battery in violation of Artic les 92 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 928 (2006) [hereinafter UCMJ]. An en listed panel sitting as a general court-martial co nvicted appellant, contrary to his pleas, of attempted sodomy of a child, an indecent ac t, indecent exposure, aggrav ated sexual contact with a child, and unlawful entry, in violation of Articles 80, 120 and 134, UCMJ. The panel sentenced appellant to reduction to the grade of E-1, to forfeit all pay and allowances, to be confined for thirteen y ears, and to be dish onorably discharged. The convening authority approved the sentence as adjudged.

This case was previously submitted to th is court for review pursuant to Article 66, UCMJ. On 20 Janua ry 2012, we issued a decision in th is case, summarily affirming the findings of guilty and the sentence. United States v. Giddens , ARMYGIDDENS – ARMY 20090598

2 20090598 (Army Ct. Crim. App. 20 Jan. 2012). On 10 July 2012, our superior court

reversed our decision as to Charge VI and its Specific ation, unlawful entry, in violation of Article 134, UCMJ , and as to the se ntence; affirmed ou r decision as to the other specifications and charges; and re turned the record of trial to The Judge Advocate General of the Army for remand to this court for further consideration in light of United States v. Humphries , 71 M.J. 209 (C .A.A.F. 2012). United States v.

Giddens , 71 M.J. 357 (C.A.A.F. 2012). Cons equently, appellant’s case is again

before this court for review under Ar ticle 66, UCMJ.

DISCUSSION

The elements of a crime unde r clause 1 or 2 of Article 134, UCMJ are that (1) the accused enga ged in certain conduct, and (2) that the conduct was prejudicial to good order and discipline or service discrediting. See Manual for Courts-Martial

, United States (2008 ed.), pt. IV, ¶ 66.b(1)(e).

“The Government must allege every element expressly or by necessary implication, including the terminal element.” United States v. Fosler , 70 M.J. 225, 232 (C.A.A.F. 2011). Pursuant to Humphries , even if this sp ecification does not allege the terminal elements by necessary impli cation, the questi on remains whether

the defect resulted in materi al prejudice to appellant’s su bstantial right to notice. This question is answer ed by a close review of the reco rd to determine if “notice of the missing element is somewh ere extant in the trial record, or wh ether the element is ‘essentially uncontroverted.’” Humphries , 71 M.J. at 215-16 (citing United States

v. Cotton , 535 U.S. 625, 633 (2002)).

In view of Humphries , we are compelled to disapprove the fi nding of guilt as to the Article 134, UCMJ, o ffense of unlawful entry pr eviously affirmed. The specification does not contain allegations of terminal elements under Article 134, UCMJ, and there is nothing in the record to satisfactorily es tablish notice of the need to defend against a terminal element as required under Humphries . Therefore, we now reverse appellant’s conviction for unlawful entr y and dismiss the defective specification which failed to st ate an offense in light of Fosler

.

CONCLUSION

On consideration of the entire record in light of United States v. Humphries

, 71 M.J. 209 (C.A.A.F. 2012), and the matters personal ly raised by appellant

pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), we find appellant’s Grostefon submission to be without meri t. The findings of guilty of Charge VI and its Specification are set aside and dismissed. Reassessing the sentence on the basis of the error noted, the entire record, and in accordance with the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006), to include the factor s identified byGIDDENS – ARMY 20090598

3 Judge Baker in his concurring opinion in Moffeit , the court affirms the sentence as approved by the c onvening authority.

FOR THE COURT:

JOANNE P. TETREAULT E JOANNE P. TETREAULT ELDRIDGE Deputy Clerk of Court FOR THE COURT: