## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before LIND, KRAUSS, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 DAMION M. PETEE

United States Army, Appellant

ARMY 20130128

Headquarters, Fort Riley Jeffery R. Nance, Military Judge Lieutenant Colonel John A. Hamner, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Elisabeth A. Claus, JA; Captain Timothy C. Erickson, JA (on brief).

24 September 2014

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KRAUSS, Judge:

A military judge, sitting as a general court-martia l, convicted appellant pursuant to hi s pleas of attempted wrongful dist ribution of hydro morphone (two specifications), wrongful use of cocaine, wr ongful use of amphet amine, sexual abuse of a child, assault consumma ted by a battery, chil d endangerment by design (three specifications), child endanger ment by culpable negligence (two specifications), and unlawfully hosting minors co nsuming alcoholic li quor or cereal malt beverages in violation of Articles 80, 112a, 120b, 128, a nd 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S. C. §§ 880, 912a, 920b, 928, 934 (2006 & Sup p. V 2012). Appellant was sentenced to a dishonorable discharge and three years confinement. In accordance with a pretri al agreement, the convening authority approved only so much of the sentence as pr ovided for a dishonorable discharge and 30 months

confinement. The co nvening authority also credited appellant with 105 days against

the sentence to confinem ent.PETEE—ARMY 20130128

2 This case is before the court for review under Article 66, UC MJ. Appellant assigns two errors asse rting the improvidence of his pl eas to the two specifications of child endangerment by culpable negligen ce and to the charge and specification of assault consummated by a batter y, respectively. He also ra ises an issue pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We find that the error relative to the battery has merit, but that the other assigned error and the matter raised pursuant to Grostefon do not.

Appellant pled guilty to assault consummated by a battery based on the fact that he injected dilaudid 1 into the arm of a minor who as ked him to do it . During the providence inquiry, the militar y judge premised appellant’s guilty plea on the notion that “a person may not lawf ully consent to having something done to them that is unlawful” and that “a person ca nnot lawfully consent to an unlawful touching.” The parties do not offer, and we do not find, any authorit y to embrace such a broad

diminution of the consent defense to simp le battery. We re cognize the possibility that one might provid ently plead guilty to a charge of simple battery under these

circumstances. However the legal premise of such a plea would be based on the notion that such activity is sufficiently offensive to p ublic order as to permit liability under Article 128. See generally United States v. Bygrave , 46 M.J. 491 (C.A.A.F. 1997); United States v. Arab , 55 M.J. 508 (Army Ct. Crim. App. 2001). An accused might admit that the act of injecting a poten tially injurious illegal drug

into the arm of a drunken mino r is sufficiently offensive to the public generally as to permit conviction under Article 128. However, neither that legal premise, nor

reference to those fa cts as the basis for criminal lia bility in that context, was discussed with appellant. Ther efore, we hold that appellant’s plea to this offense is insufficiently intelligent to warrant its acceptance. See United States v. Medina

, 66 M.J. 21 (C.A.A.F. 2008). 2

Although not raised by appe llant, we also find precious little in th e record to accept appellant’s pleas to child endangerment under Article 134 as far as the alleged prejudice to good orde r and discipline an d will take actio n accordingly. Nowhere does appellant arti culate prejudice as contemplated or defined under

Article 134. See Manual fo r Courts-Martial, United States (2012 ed.) [hereinafter

MCM ], pt. IV, ¶ 60.c(2)(a ). He did, however, rather consistently articulate facts

1 Appellant stipulated that “dilaudid” is a Schedule II controlle d substance with the generic name of hydromorphone.

2 Even if we were to accept appellant’s plea on the general prem ise expressed by the judge, we conclude that the circumstances of this case warrant the exercise of our plenary power under Ar ticle 66 to set aside the battery conviction as an unreasonable multiplication of charges in light of appellant’s conviction of child endangerment by design for the same misconduct. See Rule for Court-Ma rtial 307(c)(4); United States v. Quiroz , 55 M.J. 334 (C .A.A.F. 2001).PETEE—ARMY 20130128

3 sufficient to establis h a knowing and intellig ent plea to conduc t that was service discrediting. See MCM , pt. IV, ¶ 60.c(3).

The findings of guilty as to Charge IV and it s specification (assault consummated by a battery) are set aside an d dismissed. As to Specifications 1, 2, 3, 4, and 6 of Charge V (child endangermen t), we affirm only so much of each specification as alleges that appellant’s co nduct was of a nature to bring discredit upon the armed forces. The remaining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors noted and the entire record, we are confident appellant woul d have received a se ntence at least as severe as that approved by the conv ening authority. See United States v. Sales , 22 M.J. 305, 307- 08 (C.M.A. 1986); United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013). The sentence is AFFIRMED. All righ ts, privileges, and property, of which appellant has been deprived by virtue of th at portion of the findings set aside by this decision, are ordered restored.

Senior Judge LIND and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: