## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Specialist ROBER T O. BOZEMAN United States Army, Appellant

ARMY 20080711

Headquarters, III Co rps and Fort Hood Gregory A. Gross, Military Judge Colonel Mark Cremin, Staff Judge Advocate

For Appellant: Colone l Mark Tellitocci, JA; Lieutena nt Colonel Imogene Jamison, JA; Major Laura Kesler, JA; Lieutenant Colo nel Jonathan F. Pott er, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major La Johnne 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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

BURTON, Judge:

A panel of officer an d enlisted members, sitting as a gene ral court–martial, convicted appellant, contrary to his pleas, of two sp ecifications of willfully disobeying a superior commissioned officer a nd 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) [hereina fter UCMJ]. The panel also convicted appellant, contra ry 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 inBOZEMAN—ARMY 20080711

2 violation of Article 134, UCMJ. 1 The convening authorit y approved the adjudged

sentence to a bad–co nduct discharge and c onfinement for three ye ars, and credited appellant with 127 days of confinement against th e approved sentence to

confinement.

On 27 December 2011, we is sued an opinion in this case, setting aside and dismissing the Specification of Charge I and Charge I (indec ent liberties with a child

in violation of Artic le 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 remain ing findings of guilty. Id. We also affirmed the sentence as approved by the convening au thority after reasse ssing 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 th e factors identified by Judge Baker in his concurring opinion in Moffeit

. Bozeman , 2011 WL 682685 7, at *1–2.

On 10 July 2012, our superior court reve rsed our decision as to Charge III and its Specifications and as to the sentence, and returned the reco rd 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 th is 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 Specificati ons of Charge III. See Humphries , 71 M.J. at 214. Nonetheless, while Charge III and its Speci fications were defect ive and these defects affected appellant’s constitutional ri ght to notice under the Fifth and Sixth Amendments, “it does not cons titute structural error subjec t to automatic dismissal.”

Id. at 212. Instead, we must resolve “whether the defective specification[s] resulted in material prejudice to [appellant’s] substant ial right to notice.” Id. at 215. To resolve this issue, we must cl osely review the trial record. Id.

Close review of the trial record in this case reve als 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 appellan t on 5 July 2007 an d 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 a ppellant of one adulte ry specification.BOZEMAN—ARMY 20080711

3 Wit: I was initially assigned to General [RO’s] PSD [Personal Security Detach ment] [hereinafter PSD].

CDC: Objection, Your Honor, not relevant.

MJ: Sustained. Is that relevant fo r any reason, trial

counsel?

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

one of the offe nses 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 orde r and discipline.

MJ: I will let you go there, overruled.

Specialist EH subsequently described th at she received information indicating appellant’s unfaithfulness to her. After r eceiving this informat ion, SPC EH testified

that she found it “ver y difficult to function as a [s]o ldier[.]” In fact, SPC EH’s chain of command eventually removed her from the PSD because she had problems eating, sleeping, and concentrat ing on her duties. Specialis t EH further testified that her professional work perf ormance problems stemmed fr om her relati onship with appellant.

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

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

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

and November 2007. The followi ng exchange then took place:

TC: Has the accused ever ta ken you and dropped you off at your grandma’s house fo r the school bu s to go to
school?

Wit: Not at mine but at Alyssa’s.

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

CDC: Objection, rele vance, Your Honor.

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

4 TC: Again, this is a 134 o ffense 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 ou t, 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 hi s military uniform when he either picked her up from school or droppe d her off in the mo rning to catch th e bus for school.

During cross–examinatio n of Ms. SJ, appellant’s defense counsel asked Ms. SJ to confirm that appellant was not the on ly soldier she was seei ng at the time. The military judge sustained th e 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 pr ejudice of good order and discipline if contemporaneous with the so called charged offense here, she is engaging in similar condu ct with other [s]oldiers we

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

Ultimately, the milit ary judge prohibited appellant’s defense counsel from questioning Ms. SJ about any sexual activities she may ha ve engaged in with other

soldiers.

The seventh witness the government called was Ms. LH . Ms. LH was a police investigator with the Copperas Cove Po lice Department. Ms. LH interrogated appellant regarding Ms. SJ, and appellant pr ovided 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 Articl e 39(a), UCMJ, sess ion after he felt appellant’s defense counse l was going to ask Ms. LH about offenses Ms. SJ allegedly committed. When the military judge asked appellan t’s defense counsel where he was going with his cross–exam ination, appellant’s defense counsel responded in the following fashion:BOZEMAN—ARMY 20080711

5 Again, it is just on the basis of tryi ng to demonstrate what’s supposedly either pr ejudicial—conduct prejudicial to good order and discipline a nd cooperating with all the officials who investigated the relationship wi th [Ms. SJ].

Ultimately, the mi litary judge allowed appellant’s de fense counsel to establish on

cross–examination that the State of Te xas deferred adjudica tion on appellant regarding the se xual relationship he had with Ms. SJ.

Under the facts of this case, we are convinced th at the record of trial demonstrated appellant had sufficient notice of the terminal elements and the theory of criminality pursue d by the government as it pertained to Spec ifications 3-4 of Charge III. See Humphries , 71 M.J. at 216 (f inding 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, appell ant did not suffer prejudice

from the omission of the termin al elements as to Specifi cations 3-4 of Charge III.

However, we are not convin ced that the record of tr ial demonstrat es appellant

had sufficient notice of the terminal elements and the th eory of crimin ality pursued by the government as it pert ained 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 di smissed. The remain ing findings of guil ty are affirmed. The same or a different convening authorit y 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 im practicable, he may dismiss Specification 1 of Ch arge III and order a rehearin g 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

6 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 ab used his discretion by allowing statem ents of appellant’s daughter, MB, into evidence under the residual hearsay ex ception contained in Mil. R. Evid. 807. See Bozeman , 2011 WL 6826857, at *3–4 (Krauss, J., concurring in part an d dissenting in part and in the result). MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: