UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

YOB, CAMPANELLA, and KRAUSS

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist EDMOND D. JONES

United States Army, Appellant

ARMY 20111011

Headquarters, U.S. Army Combined Arms Support Command,

Sustainment Center of Excellence and Fort Lee

Denise R. Lind, Military Judge

Colonel Paul E. Kantwill, 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 2013

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SUMMARY DISPOSITION

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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 Articles 107 and 134, Uniform Code of Military Justice, 10 U.S.C. 

§§ 907 and 934 (2006) [hereinafter UCMJ].1 The panel sentenced appellant to a badconduct discharge. The convening authority 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 the 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 — ARMY 20111101

2

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

asserts four assignments of error, two of which merit discussion and relief. Our 

action in response to these two assignments of error renders 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, appellant 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, appellant slid his loaded pistol across the 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 survived

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 shooting 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 

statement to the civilian police officer did not constitute an official statement. The 

parties at trial cited United States v. Teffeau, 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. 616 (N.M. Ct. Crim. App. 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 that 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 these facts and 

the existing case law at the 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 Specifications 1-3 of the renumbered Charge II. 
JONES — ARMY 20111101

3

Subsequent to the conclusion of appellant’s case, in United 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 appellant’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 statements” 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 personnel

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 Specification 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. 2012). We concur. The 

government failed to allege 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 216 (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 government’s theory as to which clause(s) of the terminal 

element he violated. As a result, the government’s failure to allege the terminal 

element in specification 4 of Charge II, constituted material prejudice to appellant’s

substantial right to notice. See id. at 215-17; UCMJ art. 59a. 

Therefore, on consideration of the entire record and the briefs submitted by 

the parties, the findings of guilty of Specification 4 of Charge II and Charge II and 

the Specification of Charge 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 — ARMY 20111101

4

Judge CAMPANELLA and Judge KRAUSS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

FOR THE COURT: