UNITED STATES ARMY COURT 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. Brockington, Military Judge 

Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate (pretrial) 

Major Jessica A. Golembiewski, 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. Brzozowski, 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 obey a lawful order and assault consummated by a 

battery in violation of Articles 92 and 128, Uniform Code of Military Justice, 10 

U.S.C. §§ 892 and 928 (2006) [hereinafter UCMJ]. An enlisted panel sitting as a 

general court-martial convicted appellant, contrary to his pleas, of attempted sodomy 

of a child, an indecent act, indecent exposure, aggravated 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 years, and to be dishonorably discharged. 

The convening authority approved the sentence as adjudged. 

This case was previously submitted to this court for review pursuant to Article 

66, UCMJ. On 20 January 2012, we issued a decision in this case, summarily 

affirming the findings of guilty and the sentence. United States v. Giddens, ARMY 
GIDDENS – 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 Specification, unlawful entry, in 

violation of Article 134, UCMJ, and as to the sentence; affirmed our decision as to 

the other specifications and charges; and returned 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). Consequently, appellant’s case is again 

before this court for review under Article 66, UCMJ. 

DISCUSSION

The elements of a crime under clause 1 or 2 of Article 134, UCMJ are that (1) 

the accused engaged 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 specification does not 

allege the terminal elements by necessary implication, the question remains whether 

the defect resulted in material prejudice to appellant’s substantial right to notice. 

This question is answered by a close review of the record to determine if “notice of 

the missing element is somewhere extant in the trial record, or whether 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 finding of guilt as 

to the Article 134, UCMJ, offense of unlawful entry previously affirmed. The 

specification does not contain allegations of terminal elements under Article 134, 

UCMJ, and there is nothing in the record to satisfactorily establish notice of the 

need to defend against a terminal element as required under Humphries. Therefore, 

we now reverse appellant’s conviction for unlawful entry and dismiss the defective 

specification which failed to state 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 personally 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 merit. 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 factors identified by 
GIDDENS – ARMY 20090598 

3 

Judge Baker in his concurring opinion in Moffeit, the court affirms the sentence as 

approved by the convening authority. 

FOR THE COURT: 

 

JOANNE P. TETREAULT E 

 

JOANNE P. TETREAULT ELDRIDGE 

Deputy Clerk of Court 

FOR THE COURT: