## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, GALLAGHER, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 ROBERT L. CONRADY United States Army, Appellant

ARMY 20080534

Headquarters, Joint Readiness Tr aining Center and Fort Polk Victor L. Horton, Military Judge Colonel James D. Key, St aff Judge Advocate

For Appellant: William E. Cassara, Esquir e (argued); Captain Sarah E. Wolf, JA; William E. Cassara, Esquir e (on brief); Captain Michae l E. Korte, JA; William E. Cassara, Esquire ( on reply brief).

For Appellee: Captain St ephen E. Latino, JA (argued); Colonel Michael E. Mulligan, JA; Lieute nant Colonel Martha L. Foss , JA; Major Christopher B. Burgess, JA; Major Lynn I. Williams, JA (on brief).

21 December 2012

--------------------------------------------------- SUMMARY DISPOSITION ON REMAND

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of two specificatio ns of rape of a child under the age of twelve, one specification of sodomy with a child under the age of twelve, one specification of assault consummated by a battery upon a child under the age of sixteen, and three specificat ions of indecent acts with a child, in violation of Articles 120, 125, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925, 928, and 934 (2006) [hereinafter UCMJ]. The military judge sentenced appellant to thirty-five years of confinem ent and a dishonorable discharge. The convening authority approved a sentence to confinement of th irty-four years and

nine months and a dishonorabl e discharge. The convenin g authority also credited appellant with 304 da ys of credit toward the se ntence to confinement.CONRADY—ARMY 20080534

2 On 30 March 2011, this cour t issued an opinion of th e court pertaining to this

case in which we fo und the military judge committed error in admitting an image of child pornography un der Military Rule of Evidence [hereinafter Mil. R. Evid. ] 414(d)(2). However, beca use we found the error wa s harmless, no relief was warranted. Accordingly, we affirmed th e findings of guilt y and the sentence United States v. Conrady , ARMY 20080534 (Army Ct. Crim. App. 30 Mar. 2011). On 7 October 2011, our superior cour t set aside and dismissed th e guilty findings to the

words “on divers occasions” contained in both Specificati on 3 of Charge II (forcible sodomy with a child under the age of twelve) and Spec ification 7 of Charge III (indecent acts with a child under the age of sixteen). Our superior court then vacated our original decision and returned the record of trial to The Judge Advocate General of the Army for remand to this court for consideration in light of United

States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011).

On 28 February 2012, we issued an opinion in this case, af firming the findings of guilty and the sentence. United States v. Conrady , ARMY 20080534 (Army Ct. Crim. App. 28 Feb. 2012). On 10 July 2012, our superi or court reversed our decision as to Specifications 2, 6, and 7 of Charge III (indec ent acts with a child under the age of sixteen) in violation of Article 134, UC MJ, and as to the sentence;

affirmed our decision as to the other specifications and charges; 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. Conrady , 71 M.J. 350 (C .A.A.F. 2012). Consequently, appellant’s case is again befo re this court for revi ew under Article 66,

UCMJ.

DISCUSSION

The elements of a crime unde r clause 1 or 2 of Article 134, UCMJ are that (1) the accused enga ged in certain conduct, and (2) that the conduct was prejudicial to good order and discipline or service discrediting. See Manual for Courts-Martial

, United States (2008 ed.), pt. IV, ¶ 66.b(1)(e).

“The Government must allege every element expressly or by necessary implication, including the terminal element.” Fosler , 70 M.J. at 232 (C.A.A.F. 2011). Pursuant to Humphries , even if a specification do es not allege the terminal element by necessary implicat ion, the question remains wh ether the defect resulted in material prejudice to ap pellant’s substantia l right to notice. This question is answered by a close review of the record to determine if “notice of the missing

element is somewhere extant in the tr ial record, or whether the element is ‘essentially unco ntroverted.’” Humphries , 71 M.J. at 215-216 (citing United States

v. Cotton , 535 U.S. 625, 633 (2002)).CONRADY—ARMY 20080534

3 In view of Humphries , we are compelled to disapprove the fi nding of guilt as to the Article 134, UCMJ, offe nses of indecent acts with a child unde r the age of sixteen previously af firmed. The specification does not contain a llegations of

terminal elements under Artic le 134, UCMJ, and there is nothing in the record to satisfactorily establish notice of the need to defend against a terminal element as required under Humphries . Therefore, we now revers e appellant’s convictions for indecent acts and dismiss the defective specifications which failed to state an offense in light of Fosler

.

CONCLUSION

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

, 71 M.J. 209 (C.A.A.F. 2012), th e findings of guilty of Spec ifications 2, 6, and 7 of Charge III are set aside and di smissed. Reassessing the se ntence 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 , the court affirms the sentence as approved by the convening authority.

FOR THE COURT:

JOANNE P. TETREAULT E Deputy Clerk of Court JOANNE P. TETREAULT ELDRIDGE Deputy Clerk of Court FOR THE COURT: