UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

YOB, KRAUSS, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist ROBERT O. BOZEMAN 

United States Army, Appellant 

ARMY 20080711 

Headquarters, III Corps and Fort Hood 

Gregory A. Gross, Military Judge 

Colonel Mark Cremin, Staff Judge Advocate 

For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene Jamison, 

JA; Major Laura Kesler, JA; Lieutenant Colonel Jonathan F. Potter, JA (on brief). 

For Appellee: Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain 

Christopher B. Witwer, JA (on brief). 

28 September 2012 

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MEMORANDUM OPINION ON REMAND 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

BURTON, Judge: 

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

convicted appellant, contrary to his pleas, of two specifications of willfully 

disobeying a superior commissioned officer and one specification of engaging in an 

indecent liberty with a child as a lesser–included offense of attempted abusive 

sexual contact with a child, in violation of Articles 90 and 120, Uniform Code of 

Military Justice, 10 U.S.C. §§ 890, 920 (2006) [hereinafter UCMJ]. The panel also 

convicted appellant, contrary to his pleas, of two adultery specifications, see Manual 

for Courts–Martial, United States (2008 ed.) [hereinafter MCM], pt. IV, ¶ 62, and 

one specification alleging an indecent act with a child, see MCM, 2002, pt. IV, ¶ 87, 

deleted by Exec. Order No. 13,447, 72 Fed. Reg. 56,179 (Sep. 28, 2007), both in 
BOZEMAN—ARMY 20080711 

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violation of Article 134, UCMJ.1 The convening authority approved the adjudged 

sentence to a bad–conduct discharge and confinement for three years, and credited 

appellant with 127 days of confinement against the approved sentence to 

confinement. 

On 27 December 2011, we issued an opinion in this case, setting aside and 

dismissing the Specification of Charge I and Charge I (indecent liberties with a child 

in violation of Article 120, UCMJ). United States v. Bozeman, ARMY 20080711, 

2011 WL 6826857, at *1–2 (Army Ct. Crim. App. 27 Dec. 2011) (summ. disp.). We 

then affirmed the remaining findings of guilty. Id. We also affirmed the sentence as 

approved by the convening authority after 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 Judge Baker in his concurring 

opinion in Moffeit. Bozeman, 2011 WL 6826857, at *1–2. 

On 10 July 2012, our superior court reversed our decision as to Charge III and 

its Specifications and as to the sentence, 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. Bozeman, 71 M.J. 354 (C.A.A.F. 2012). Consequently, appellant’s 

case is again before this court for review under Article 66, UCMJ. 

Much like the specification at issue in Humphries, it was plain and obvious 

error for the government to fail to allege the terminal elements of Article 134, 

UCMJ, in the Specifications of Charge III. See Humphries, 71 M.J. at 214. 

Nonetheless, while Charge III and its Specifications were defective and these defects 

affected appellant’s constitutional right to notice under the Fifth and Sixth 

Amendments, “it does not constitute structural error subject to automatic dismissal.” 

Id. at 212. Instead, we must resolve “whether the defective specification[s] resulted 

in material prejudice to [appellant’s] substantial right to notice.” Id. at 215. To 

resolve this issue, we must closely review the trial record. Id. 

Close review of the trial record in this case reveals that appellant was on 

notice of the missing terminal elements. Id. at 215–16. The government called 

Specialist (SPC) EH as its first witness. The government immediately established 

that SPC EH married appellant on 5 July 2007 and that SPC EH deployed to Iraq at 

the end of July 2007. The following exchange then took place: 

TC: What was your job? 

 

1

 The panel acquitted appellant of one adultery specification. 
BOZEMAN—ARMY 20080711 

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Wit: I was initially assigned to General [RO’s] PSD 

[Personal Security Detachment] [hereinafter PSD]. 

CDC: Objection, Your Honor, not relevant. 

MJ: Sustained. Is that relevant for any reason, trial 

counsel? 

TC: Your Honor, I am trying to prove up an element of 

one of the offenses charged. 

MJ: Why does it matter what she did in Iraq regarding the 

element? 

TC: It will have an impact on—I am trying to prove up 

impact on good order and discipline. 

MJ: I will let you go there, overruled. 

Specialist EH subsequently described that she received information indicating 

appellant’s unfaithfulness to her. After receiving this information, SPC EH testified 

that she found it “very difficult to function as a [s]oldier[.]” In fact, SPC EH’s 

chain of command eventually removed her from the PSD because she had problems 

eating, sleeping, and concentrating on her duties. Specialist EH further testified that 

her professional work performance problems stemmed from her relationship with 

appellant. 

After SPC EH testified, the government next called a seventeen year–old girl, 

Ms. SJ. Ms. SJ testified that she was sixteen years of age when she met appellant, 

and that she had sexual intercourse on many occasions with appellant during October 

and November 2007. The following exchange then took place: 

TC: Has the accused ever taken you and dropped you off 

at your grandma’s house for the school bus to go to 

school? 

Wit: Not at mine but at Alyssa’s. 

TC: At Alyssa’s, okay why don’t you tell us about that? 

CDC: Objection, relevance, Your Honor. 

MJ: What is the relevance, trial counsel? 
BOZEMAN—ARMY 20080711 

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TC: Again, this is a 134 offense and the issue of good 

order and discipline and service discrediting. 

MJ: Overruled. 

TC: Please tell us about that. 

Wit: We would just hangout and then he would—and then 

whenever it was time for him to go PT then he would drop 

us off at the house and go do his job. 

 After these facts came out, Ms. SJ testified that she was in tenth grade at 

school during the time appellant and Ms. SJ were having sexual intercourse. Ms. SJ 

stated that appellant would be dressed in his military uniform when he either picked 

her up from school or dropped her off in the morning to catch the bus for school. 

 During cross–examination of Ms. SJ, appellant’s defense counsel asked Ms. 

SJ to confirm that appellant was not the only soldier she was seeing at the time. The 

military judge sustained the government’s objection, and the military judge then 

called an Article 39(a), UCMJ, session because he believed the defense was raising 

prohibited matters under Military Rule of Evidence [hereinafter Mil. R. Evid.] 412. 

In response, appellant’s defense counsel stated the following: 

The prosecution was the one talking about all of this 

activities to the prejudice of good order and discipline if 

contemporaneous with the so called charged offense here, 

she is engaging in similar conduct with other [s]oldiers we 

think it is a relevant factor for the court to . . . consider. 

Ultimately, the military judge prohibited appellant’s defense counsel from 

questioning Ms. SJ about any sexual activities she may have engaged in with other 

soldiers. 

 The seventh witness the government called was Ms. LH. Ms. LH was a police 

investigator with the Copperas Cove Police Department. Ms. LH interrogated 

appellant regarding Ms. SJ, and appellant provided Ms. LH a statement regarding the 

sexual activities he engaged in with Ms. SJ. During the cross–examination of Ms. 

LH, the military judge called an Article 39(a), UCMJ, session after he felt 

appellant’s defense counsel was going to ask Ms. LH about offenses Ms. SJ 

allegedly committed. When the military judge asked appellant’s defense counsel 

where he was going with his cross–examination, appellant’s defense counsel 

responded in the following fashion: 
BOZEMAN—ARMY 20080711 

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Again, it is just on the basis of trying to demonstrate 

what’s supposedly either prejudicial—conduct prejudicial 

to good order and discipline and cooperating with all the 

officials who investigated the relationship with [Ms. SJ]. 

Ultimately, the military judge allowed appellant’s defense counsel to establish on 

cross–examination that the State of Texas deferred adjudication on appellant 

regarding the sexual relationship he had with Ms. SJ. 

Under the facts of this case, we are convinced that the record of trial 

demonstrated appellant had sufficient notice of the terminal elements and the theory 

of criminality pursued by the government as it pertained to Specifications 3-4 of 

Charge III. See Humphries, 71 M.J. at 216 (finding that “[n]either the specification 

nor the record provides notice of which terminal element or theory of criminality the 

Government pursued in this case”). Therefore, appellant did not suffer prejudice 

from the omission of the terminal elements as to Specifications 3-4 of Charge III. 

However, we are not convinced that the record of trial demonstrates appellant 

had sufficient notice of the terminal elements and the theory of criminality pursued 

by the government as it pertained to Specification 1 of Charge III. Moreover, 

Specification 1 of Charge III clearly represented the most aggravating offense 

appellant faced and of which he was convicted. Thus, appellant is entitled to the 

relief we order in our decretal paragraph. 

CONCLUSION 

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

Humphries, 71 M.J. 209 (C.A.A.F. 2012), the finding of guilty of Specification 1 of 

Charge III is set aside and dismissed. The remaining findings of guilty are affirmed. 

The same or a different convening authority may order a rehearing on Specification 

1 of Charge III and the sentence, which is set aside. If the convening authority 

determines that a rehearing on Specification 1 of Charge III is impracticable, he may 

dismiss Specification 1 of Charge III and order a rehearing on the sentence only for 

the remaining offenses. See United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006); 

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). 

Senior Judge YOB and Judge KRAUSS concur. 
BOZEMAN—ARMY 20080711 

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FOR THE COURT:2

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

 

2

 While Judge KRAUSS agrees with the court’s application of Humphries in this 

case, Judge KRAUSS maintains his position that the military judge abused his 

discretion by allowing statements of appellant’s daughter, MB, into evidence under 

the residual hearsay exception contained in Mil. R. Evid. 807. See Bozeman, 2011 

WL 6826857, at *3–4 (Krauss, J., concurring in part and dissenting in part and in the 

result). 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: