UNITED STATES ARMY COURT 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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SUMMARY DISPOSITION 

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KRAUSS, Judge: 

A military judge, sitting as a general court-martial, convicted appellant 

pursuant to his pleas of attempted wrongful distribution of hydromorphone (two 

specifications), wrongful use of cocaine, wrongful use of amphetamine, sexual abuse 

of a child, assault consummated by a battery, child endangerment by design (three 

specifications), child endangerment by culpable negligence (two specifications), and 

unlawfully hosting minors consuming alcoholic liquor or cereal malt beverages in 

violation of Articles 80, 112a, 120b, 128, and 134, Uniform Code of Military Justice 

[hereinafter UCMJ], 10 U.S.C. §§ 880, 912a, 920b, 928, 934 (2006 & Supp. V 2012). 

Appellant was sentenced to a dishonorable discharge and three years confinement. 

In accordance with a pretrial agreement, the convening authority approved only so 

much of the sentence as provided for a dishonorable discharge and 30 months 

confinement. The convening authority also credited appellant with 105 days against 

the sentence to confinement. 
PETEE—ARMY 20130128 

2

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

assigns two errors asserting the improvidence of his pleas to the two specifications 

of child endangerment by culpable negligence and to the charge and specification of 

assault consummated by a battery, respectively. He also raises 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 dilaudid1

 into the arm of a minor who asked him to do it. During the 

providence inquiry, the military judge premised appellant’s guilty plea on the notion 

that “a person may not lawfully consent to having something done to them that is 

unlawful” and that “a person cannot lawfully consent to an unlawful touching.” The 

parties do not offer, and we do not find, any authority to embrace such a broad 

diminution of the consent defense to simple battery. We recognize the possibility 

that one might providently 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 public 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 potentially injurious illegal drug 

into the arm of a drunken minor is sufficiently offensive to the public generally as to 

permit conviction under Article 128. However, neither that legal premise, nor 

reference to those facts as the basis for criminal liability in that context, was 

discussed with appellant. Therefore, 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 appellant, we also find precious little in the record to 

accept appellant’s pleas to child endangerment under Article 134 as far as the 

alleged prejudice to good order and discipline and will take action accordingly. 

Nowhere does appellant articulate prejudice as contemplated or defined under 

Article 134. See Manual for 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 controlled substance with the 

generic name of hydromorphone. 

2

 Even if we were to accept appellant’s plea on the general premise expressed by the 

judge, we conclude that the circumstances of this case warrant the exercise of our 

plenary power under Article 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-Martial 307(c)(4); United States 

v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001). 
PETEE—ARMY 20130128 

3

sufficient to establish a knowing and intelligent plea to conduct that was service 

discrediting. See MCM, pt. IV, ¶ 60.c(3). 

 The findings of guilty as to Charge IV and its specification (assault 

consummated by a battery) are set aside and dismissed. As to Specifications 1, 2, 3, 

4, and 6 of Charge V (child endangerment), we affirm only so much of each 

specification as alleges that appellant’s conduct 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 would have received a sentence at least as severe as that 

approved by the convening 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 rights, privileges, and property, of which 

appellant has been deprived by virtue of that 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: