LAVERGNE—ARMY 20090986

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

JOHNSON, KRAUSS, and BURTON

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Staff Sergeant LAWRENCE J. LAVERGNE, JR.**

**United States Army, Appellant**

ARMY 20090986

Headquarters, 2d Infantry Division 

T. Mark Kulish, Military Judge

Lieutenant Colonel Michael R. Lutton, Staff Judge Advocate

For Appellant:  Daniel Conway, Esquire (argued); Captain A. Jason Nef, JA; Daniel Conway, Esquire (on brief). 

For Appellee:  Captain Daniel D. Maurer, JA (argued); Major Amber J. Williams, JA; Major Katherine S. Gowell, JA; Captain Daniel D. Maurer, JA (on brief).

30 March 2012

---------------------------------

SUMMARY DISPOSITION

---------------------------------

Per Curiam:

A panel of officer and enlisted members, sitting as a general court-martial, convicted appellant, contrary to his pleas, of aggravated sexual assault, housebreaking (as a lesser-included offense of burglary), and adultery, in violation of Articles 120, 130, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 930, 934 (2006) [hereinafter UCMJ].  *See Manual for Courts-Martial*, *United States*, (2008 ed.), pt. IV, ¶ 62.b.  Appellant was sentenced to a bad-conduct discharge, confinement for thirty-six months, forfeiture of all pay and allowances, and reduction to the grade of E-1.  The convening authority approved the adjudged sentence.

Appellant’s case is now before this court for review under Article 66, UCMJ.  Appellant raises five assignments of error, one of which alleges his adultery conviction is factually insufficient.  The government concedes the merits of this assignment of error and that the charge is factually insufficient.  We agree and will grant relief in our decretal paragraph.  However, we find each of appellant’s other assignments of error to be without merit.(

In addition, although not raised by appellate defense counsel, it is evident that the staff judge advocate’s post-trial recommendation to the convening authority omits any reference to the sentencing authority’s clemency recommendation.   We have considered this incomplete advice, and in the context of this case, conclude that it requires a new review and action.

**LAW AND DISCUSSION**

*The Adultery Charge*

We find the evidence factually insufficient to establish that appellant was married *at the time of the offense*.  *See**United States v. Washington*, 57 M.J. 394, 399 (C.A.A.F. 2002) (holding that factual sufficiency review “involves a fresh, impartial look at the evidence, giving no deference to the decision of the trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into account the fact that the trial court saw and heard the witnesses”).  At trial, the government relied entirely on appellant’s enlisted record brief (ERB) to prove that he was married.  However, under the facts of this case, appellant’s ERB is insufficient in this regard.  Although it is strong circumstantial evidence that he was married on 18 October 2009, the ERB does not establish whether appellant was married at the time of the offense, 29 November 2008, nearly one year earlier.  Accordingly, the evidence does not establish beyond a reasonable doubt that appellant committed adultery as alleged in the Specification of Charge III.

*The Staff Judge Advocate Recommendation*

Rule for Courts-Martial [hereinafter R.C.M.] 1106(d)(3)(B) requires that the SJA’s post-trial advice to the convening authority contain, where applicable, “[a] recommendation for clemency by the sentencing authority, made in conjunction with the announced sentence.”  In this case, the panel at appellant’s court-martial adjudged total forfeitures but recommended “6 months of pay and allowances [be provided] to [appellant’s] family.”  The military judge sought to clarify this recommendation by asking the panel whether its recommendation was to “waive automatic forfeitures and disapprove adjudged forfeitures to the extent that they are paid to his family for the maximum period allowed.”  The president of the panel agreed with this characterization of the clemency recommendation.  The SJA’s post-trial advice to the convening authority (SJAR) does not reference either the written clemency recommendation or the military judge’s subsequent “clarification” of that recommendation.  Instead, the SJAR affirmatively misadvised the convening authority that no clemency recommendations were made by the sentencing authority.

Under the facts of this case, the aforementioned error in the SJAR was prejudicial.  Following trial, appellant requested that his adjudged and automatic forfeitures be deferred, which the convening authority approved.  This deferral period lasted for more than six months.  However, appellant’s request for deferral mischaracterized the panel’s recommendation for a *waiver* of forfeitures as a recommendation for a *deferral* of forfeitures.  Moreover, the SJA’s separate advice to the convening authority regarding this deferral request omitted any reference to the panel’s actual clemency recommendation.  Given the convening authority’s inherent power to waive forfeitures under Article 58b, UCMJ, and the panel’s clemency recommendation (as clarified by the military judge), we are unable to say with any certainty that additional relief would not have been granted.  *See United States v. Wheelus*, 49 M.J. 283, 289 (C.A.A.F. 1998) (requiring only “some colorable showing of possible prejudice” for errors connected with a convening authority’s post-trial review).

**CONCLUSION**

On consideration of the entire record, the findings of guilty of the Specification of Charge III, and Charge III, are set aside and dismissed.  The convening authority’s initial action is set aside.  The record of trial is returned to The Judge Advocate General for a new SJAR and action by the same or a different convening authority in accordance with Article 60(c)–(e), UCMJ.  In light of our decision setting aside Charge III, the SJA should be cognizant of his duty to also advise the convening authority about sentence reassessment.  *United States v. Reed*, 33 M.J. 98, 99–100 (C.M.A. 1991).  *See United States v. Sales*, 22 M.J. 305 (C.M.A. 1986); *United States v. Moffeit*, 63 M.J. 40, 42 (C.A.A.F. 2006) (Baker, J., concurring).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

( In his fifth assignment of error, appellant avers that the military judge erred when he did not instruct the panel that appellant first possessed the burden to prove the affirmative defenses of consent and mistake of fact as to consent by a preponderance of the evidence.  UCMJ art. 120(t)(16).  We hold that the military judge erred by not giving a legally sufficient explanation when he provided an instruction that was inconsistent with Article 120, UCMJ.  See United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011).  However, under the facts of this case, we are satisfied that this error was harmless beyond a reasonable doubt.  The instruction that was given was clear and correctly conveyed that the burden to disprove the affirmative defenses beyond a reasonable doubt rested solely with the government.  See id.

PAGE  

3