## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
YOB, CAMPANELLA

, and KRAUSS Appellate Military Judges

UNITED STATES, Appellee

v. Specialist EDMOND D

. JONE S United States Army, Appellant

ARMY 20111011

Headquarters, U.S. Army Combined Arms Support Command

, Sustainment Center of Excellence and Fort Lee

Denis e R. Lind , Military J udge

Colonel Paul E. Kantwi ll , Staff Judge Advocate

For Appellant : Colonel Patricia A. Ham, JA; Major Jaired D. Stallard, JA; Captain James P. Curtin, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA; Captain Sean P. Fitzgibbon, JA (on brief).

31 October 20 1 3

-------------------------- -------- SUMMARY DISPOSITION

----------------- -------------- ---

YOB, Senior Judge :

A panel of officer and enlisted members sitting as a general court

- martial

convicted appellant

, contrary to his pleas

, of one specification of making a false

official statement and one specification of negligently discharging a firearm in

violation of Article s 107 and 134, Uniform Code of Military Justice, 10 U.S.C. § § 907 and 934 (2006) [hereinafter UCMJ]. 1 T he panel sentence d appellant to a bad

conduct discharge . The convening author ity approved the adjudged sentence.

1 Prior to arraignment, the military judge dismissed Charge II and its specification, alleged as a violation of Article 131, UCMJ, Perjury. After the government appealed this dismissal under Article 62, UCMJ, the military judge severed this charge from th e present court

- martial. What had been listed on appellant’s charge sheet as Charge III and Charge IV were then renumbered Charge II and Charge III,

(continued . . .)JONES

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2

This case is before the court for review under Article 66, UCMJ. Appellant

ass erts four assignments of error

, two of which merit discussion and relief

. Our

action in response to these two assignments of e rror render s it unnecessary to

address the remaining assigned errors or those matters personally raised by Appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982)

.

The charges that resulted in findings of guilt were based on two separate

incidents . In the first incident

, occurring in February 2009, a ppellant attended a

party at a private, off

- post residence during which he unintentionally discharged a round from his pistol while standing alone in the bedroom of the party ’s host. The

round entered the wall of the room without striking anyone.

In the second incident, occurring in November 2009, appellant was arguing with his wife in his apartment when she suggested she might kill herself. In

response, a ppellant slid his loaded pistol across th e counter to her and suggested she go ahead with her threat. Moments later, his wife picked up the pistol and shot

herself under her chin. Appellant summoned emergency help and his wife was rushed to a hospital where she received emergency medical treatment and survive d the shooting . Appellant subsequently lied about the events that led up to the shooting , telling a civilian police officer he left the gun and an ejected magazine on

his kitchen counter, which his wife retrieved and loaded before sho oting herself.

At the conclusion of the government’s case, defense counsel moved to dismiss Charge III and its specification , which alleged appellant made a false official

statement to the civilian police officer . Defense counsel argued appellant’s

state ment to the civilian police officer did not constitute an official statement. The parties at trial cited United States v. Teff e au , 58 M.J. 62, 68

- 69 (C.A.A.F. 2003), United States v. Day , 66 M.J. 172 (C.A.A.F. 2008) and United States v. Morgan

, 65 M.J. 61 6 (N.M. C t

. C rim

. A pp . 2007) and framed the issue as a question of whether a nexus existed between appellant’s statements and his military duties. The evidence clearly showed t hat when appellant made the statement in question

, the civilian police officer was not acting in support of or in concert with military authorities, and military authorities had not initiated any investigation into the

incident at that time . The government argued that a nexus was established because the military did ultimately open an investigation after the civilian authorities concluded their case and elected not to pursue any charges. Based on the se facts and

the existing case law at th e time of appellant’s trial , the military judge denied the motion and found there was a nexus between the statements and appellant’s military duty.

(. . . continued) respectively. The panel found appellant not guilty of all specifications of Charge I, as well as Specific ations 1

- 3 of the renumbered Charge II.JONES

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3

Subsequent to the conclusion of appellant ’ s case, in U nited States v. Spicer

, 71 M.J. 470, 473

- 75 (C.A.A. F. 2013), our superior court clarified the analysis used

to determine whether a statement to a civilian law enforcement officer is considered to be an official statement within the meaning of Article 107, UCMJ. In Spicer

, as in the present case, the appel lant’s statements were neither made in the line of duty nor related to appellant’s official military duties. 71 M.J. at 475. The court ultimately held that in cases such as this, statements made to civilian law enforcement agents are not “ official statem ents” for purposes of Article 107, UCMJ, if the civilian agents “ were not conducting any military function at the time the statements were made, ” even if the statements ultimately affected on

- base person nel performing official military functions. Id. Appellant cites the holding in Spicer as grounds for dismissal of the false official statement charge. Government appellate counsel concede that dismissal is appropriate in light of Spicer and we concur.

Likewise, the government concedes to appellant’ s argument that this court

must dismiss the finding of guilt of S pecification 4 of Charge II ( negligent discharge ) under the holding of United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011)

and United States v. Humphries , 71 M.J. 209 (C.A.A.F. 201 2 ). We co ncur. The government failed to alleg e the “terminal element” of the Article 134, UCMJ,

offense in this charge. 2 Further, nothing in the record of trial provides any notice of the terminal element prior to the military judge’s instructions to the members, which

occurred after the close of evidence and therefore “did not alert the appell[ant] to the Government’s theory of guilt.” Id. at 21 6 (citing Fosler , 70 M.J. at 230). Based on a totality of the circumstances, we are not convinced appellant was placed on sufficient notice of the g overnment’s theory as to which clause(s) of the terminal

element he violated. As a result, the g overnment’s failure to allege the terminal element in specification 4 of Charge II, constituted material prejudice t o appellant’s substantial right to notice. See id. at 215

- 17; UCMJ a rt . 59a.

Therefore, on consideration of the entire record and the briefs submitted by the parties , the finding s of guilty of Specification 4 of Charge II and Charge II and the Specification of Char ge III and Charge III are set aside

. The sentence is set

aside. Charge III and its specification are dismissed. The same or a different convening authority may order a rehearing on Specification 4 of Charge II and Charge II

. All rights, privileges, and property of which appellant has been deprived by virtue of the findings of guilty and the sentence set aside by this decision are

ordered restored. See UCMJ art. 75(a).

2 The terminal element for this offense requires proof that appellant’s conduct was either of a nature to bring discredit upon the armed forces or to the prejudice of good order and discipline in the armed forces. UCMJ art. 134.JONES

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4

Judge CAMPANELLA and Judge KRAUSS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR. FOR THE COURT: