## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant S TEPHEN M. WILLIAMS United States Army, Appellant

ARMY 20160006

Headquarters, Fort Carson Lanny J. Acosta, Jr ., Military Judge Colonel Gregg A. Engler , Staff Judge Advocate

For Appellant: Lieutena nt Colonel Melissa R. Covole sky, JA; Major Ch ristopher D. Coleman, JA (on brief); Lieutenant Colone l Christopher D. Carrier, JA; Captain Bryan A. Osterhage, JA; Captain Joshua B. Fix, JA (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Capt ain John Gardella, JA (on brief).

31 August 2017

--------------------------------- SUMMARY DISPOSITION

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his plea, of one specifica tion of absence from his unit for over thirty days terminated by apprehension in vi olation of Article 86 , Uniform Code of Military Justice, 10 U.S.C. § 886 (2012) [hereinafter UCMJ]. The military judge also convicted appella nt, contrary to his plea, of one specification of larceny of property of a value greater than $500.00, in violati on of Article 121, UCMJ. The military judge sentenced appellant to a bad-conduct discharg e, confinement for eighteen months, and reduction to the grade of E- 1. The convening authority approved the sentence as adjudged. The convening authority also credited appellant with nineteen days confinement credit against the sentence to confinement.WILLIAMS—ARMY 20160006

2 This case is before us for review under Article 66, UCMJ. Appe llant raises two assignments of error, one of which merits discussion and relief, and one which is rendered moot by our decision in this case . In particular, appellant argues that the military judge committed er ror when he allowed the trial counsel to amend the larceny specificati on upon which appellant was c onvicted, such amendment constituting a major change to the specifi cation in violation of Rule for Court Martial [hereinafter R.C.M.] 603. We agree and pr ovide relief in our decretal paragraph. Appellan t’s personal submis sions pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), ot her than the issue discusse d below, do not warrant

relief.

BACKGROUND

Appellant was originally charged, inter alia , with the following violation of

the UCMJ:

CHARGE II: Violation of the UCMJ, Article 121.

. . . .

Specification 3: In that [appel lant], U.S. Army, did, at or near Fort Carson, Colorado and at or near Fort Leonard Wood, Missouri, between on or about 20 Janua ry 2013 and on or about 16 February 2013 , steal U.S. Currency, of a value greater than $500, the property of Military Star Exchange Credit Program.

At trial, the mi litary judge amended the above specification, ov er defense objection,

to read:

CHARGE II: Violation of the UCMJ, Article 121.

Specification 3: In that [appel lant], U.S. Army, did, at or near Fort Carson, Colorado and at or near Fort Leonard Wood, Missouri, between on or about 20 Janua ry 2013 and on or about 16 February 2013 , steal cards, of a value greater than $500, the property of Military Star Exchange Credit Program.

The military judge found ap pellant guilty of the a bove specification. We agree with appellant that th e change in the specification from larceny of “currency” to larceny of “cards” was a major change. It is true, as the government argues, that appellant was on notice of the conduct he was accused of committing from the discovery materials and bill of particulars provided by the government—stealing giftWILLIAMS—ARMY 20160006

3 cards purchased with a Military Star Card. It is also true that appellant was given a continuance by the military judge to inve stigate the amended sp ecification, so he was not surprised on the day of trial regarding the conduc t he was defending against. However, the application of R.C.M. 603 ag ainst the backdrop of recent case law from our superior cour t leads us to the conclusion that the change to Specification 3 of Charge II constit uted a major change.

LAW AND DISCUSSION

In pertinent parts, R.C.M. 603 reads:

Rule 603. Chan ges to charges and specifications

(a) Minor changes defined . Minor changes in charges and specifications are any except those which add a party, offenses, or substan tial matter not fairly included in those previously preferred, or which are likely to mislead the accused as to the offenses charged.

. . . .

(d) Major changes . Changes or amendments to charges or specifications other than mino r changes may not be made over the objection of the accu sed unless the charge or specification affected is preferred anew.

R.C.M. 603( a), (d).

In United States v. Reese , our superior court app lied ordinary rules of statutory construction in interpreting R. C.M. 603 and stated, “To the extent our precedent has required a separa te showing of prejudice u nder these circ umstances [a major change over defense objec tion], it is overruled: absent ‘preferral anew’ and a

second referral there is no ch arge to which jurisdiction can attach, and Article 59(a), UCMJ, is not, in fact, imp licated.” 76 M.J. 297, 302 (C.A.A.F. 2017) (internal citation omitted).

In this case, appellant’s conduct consisted of stealing gift cards by using a Military Star Card account he set up in the name of one of his subordinates, a Specialist Williams, and designating himsel f as an authorized user of the card.

There is no doubt th at appellant did not steal U.S. currency as charged in the original specification. It is also clear that there is a di fference between U.S. currency and gift cards. On its face the amended specification adds a substantial matter not fairly included in the original charge, namely what was stolen. While they could be used for the same purposes, gift cards are not U.S. currency. ThisWILLIAMS—ARMY 20160006

4 change is not of the type to amend “trivial mistakes.” United States v. Longmire , 39 M.J. 536, 538 (A.C.M.R. 1994) . This change to the specification was a major change.

It is not dispositive that appellant actu ally knew the basis for Specification 3 of Charge II was the larce ny of “cards” and no t “U.S. currency” be cause a prejudice analysis under th ese circumstances is no longer appropriate after Reese . What is dispositive is that the change to Specification 3, made over defense ob jection, added

a substantial matt er not fairly included in the or iginal charge, th us rendering it a major change under R.C.M. 603( a). “The practical effect is that if a ch ange is major and the defense objects, the charge has no legal basis and the court-martial may not

consider it unless and until it is ‘preferred anew,’ and subsequently referred.”

Reese , 76 M.J. at 301 (quo ting R.C.M. 603(d)).

Appellant also alleges his defense counsel were ineffective by alerting the government to a factual impossi bility in the gove rnment’s case (i.e ., that appellant did not steal “U.S. currency”) before jeopardy attached. This assignment of error is directly related to th e same Specification 3 of Charge II discusse d above and is moot in light of our decision.

CONCLUSION

The findings of guilty of Specification 3 of Charge II ar e set aside. The remaining findings of guilty are affirmed. The sentence is set aside. The case is

returned to the same or a different convenin g authority. A rehearing is directed on Specification 3 of Charge II and the sentence. If the co nvening authority determines that a rehearing on that specification is impracticable, the c onvening authority may dismiss that specification a nd charge, and order a rehearing on the sentence only. If the convening authority determ ines that a rehearing on the sentence is likewise impracticable, the conveni ng authority may take an y other lawful action.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: