## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CELTNIEKS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant TIMOTHY A. SKAGGS United States Army, Appellant

ARMY 20140099

Headquarters, U.S. Army Training Center and Fort Jackson John P. Moran, Milita ry Judge (arraignment)

Kirsten V. Brunson, M ilitary Judge (trial) Colonel Steven B. Weir, Sta ff Judge Advocate (pretrial) Lieutenant Colonel Robert L. Manley III, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Lieutena nt Colonel Jonathan F. Potter, JA (on brief).

For Appellee: Li eutenant Colonel A.G. Courie III, JA; Major Anne C. Hsieh, JA (on brief).

29 September 2016

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

MEMORANDUM OPINION

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

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CELTNIEKS, Judge:

A panel consisting of offi cer and enlisted members sitting as a general courtmartial convicted appellant, contrary to hi s pleas, of one specifi cation of failure to obey a lawful order, one specification of rape of a ch ild under the age of 12 years, two specifications of sexual abuse of a child under the age of 12 years, one specification of obstructing ju stice, and one specification of communicating a threat in violation of Articles 92, 120b, and 134, Uniform Code of Military Justice, 10SKAGGS — ARMY 20140099

2 U.S.C. §§ 892, 920b, 934 (2012) [hereinafter UCMJ]. 1 The pane l sentenced appellant to a dishonorable discharge, conf inement for thirteen years, and reduction to the grade of E-1. The convening auth ority approved the findings and only so much of the sentence as pr ovided for a dishonorable di scharge, confinement for twelve years and eleven mont hs, and reduction to the grade of E- 1, and credited appellant with 317 days of confinement credit. 2

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellate defense counsel assign s one error to this court, and appellant personally raised

matters pursuant to United States v. Grostefon , 12 M.J. 431 (C .M.A. 1982). The assigned error warrants discussion and relief; the matters raised under Grostefon are without merit. In the assi gned error, appellant assert s the military judge erred by failing to provide pane l instructions on th e issue of voluntary intoxication as it related to the specific intent necessary for a conv iction of Specifi cation 1 of Charge I, rape of a child under the age of 12 years.

BACKGROUND

At trial, sworn testimony from government witnesse s and appellant himself indicated appellant was regu larly intoxicated by alcohol during the time period covered by the char ged misconduct under Article 120b, UCMJ. 3 In an Article 39(a) session discussing pane l instructions as they related to the Article 120 b offenses of Charge I, the military judg e announced, “and I will also add a voluntary intoxication

1 Appellant was acquitted of one specification of false official statement, one specification of rape of a ch ild under the age of 12 years, two specifications of

sexual abuse of a child under the age of 12 years, one specification of violating the general article by instructi ng a child under the age of 12 years to wipe semen off appellant’s stomach, and one sp ecification of communicating a threat in violation of Articles 107, 120b , and 134, UCMJ.

2 We note neither the action nor the promulgating orde r reflects the convening authority’s waiver of appellant’s automatic forfeitures under Ar ticle 58b, UCMJ. Appellant’s record of tr ial includes the convening authority’s 3 March 2014 memorandum approving waiver of the automatic forfeiture of all pay, directing the

waived forfeitures be sent to appellant’s s pouse for support, with an effective date of 28 February 2014. The waiver remained in effect for a period of six mo nths for the purpose of provid ing support to appellant’s family.

3 The dates alleged for all seven specificatio ns of Charge I are between 28 June 2012 and 20 September 2012.SKAGGS — ARMY 20140099

3 instruction, 4 as requested by both pa rties.” After properly instructing the panel on the elements of rape of a child for Specifica tions 1 and 2 of Char ge I, the military judge instructed th e panel as follows:

The evidence has raised the issu e of voluntary intoxication

in relation to the offenses of sexual abuse of a child in Specifications 4 th rough 7 of Charge I. I advised you

earlier that one of the elemen ts of the offense of sexual abuse of a child is that the accused had the specific intent to expose his genitalia, communicate indecent language, abuse, humiliate or degrade another person, arouse or gratify the sexual desires of any person, or engage in

indecent conduct with or in th e presence of a child. In deciding whether the accused had such a specific intent at the time, you should consider the evidence of voluntary

intoxication.

Despite the omission of Specifications 1 and 2 of Charge I from this instruction, defense counsel di d not object to the instructio ns as given. The military judge completed the instruct ions, counsel for both part ies argued, and the court closed for panel deliberations on findings . The panel reached a mixed verdict. Among the remaining six Article 120b specifications of Charge I, 5 the panel returned findings of guilty on Spec ification 1 (rape of a child under 12 years of age) and Specifications 4 and 7 (sex ual abuse a child under 12 years of age). After announcement of findings, the military judge recessed the court for the night.

When the trial court reconvened the next morning, the military judge sua sponte made the following announcement:

Members of the Panel, I di scovered an error in my

instructions. It would only pertain to one specification, Specification 1 of Charge I, wh ich is a finding of guilty. And there is an instruction that -- I gave you the instruction, but I di dn’t instruct you to apply it to that specific specification. So wh at I’m going to do is give you the instruction again, and we’ll se nd you out for you

4 See Rule for Courts-Martial [hereinafter R. C.M.] 916(l)(2); Dep’t of Army, Pam. 27-9, Legal Services: Milit ary Judges’ Benchbook, pa ra. 5-12 (1 Jan. 2010).

5 Specification 3 of Charge I was dismissed by the military judge prior to appellant’s plea.SKAGGS — ARMY 20140099

4 to determine whether you want to reconsider your finding on Specification 1 of Charge I. Okay?

The military judge then instructed the panel on voluntary intoxication in relation to Specification 1 of Charge I, advised the panel on procedures for reconsidering a guilty finding, and closed the court for their deliberations. During the Article 39(a) session that followed, de fense counsel argued reconsideration was not proper under the rules, but conceded “I think the proper remedy would be dismissal of that particular charge [sic] and allowing the government to continue to argue those acts because he wasn’t acquitte d of them.” The mi litary judge heard the government’s argument and recessed the court to research the issu e. While the panel

was in deliberations on reconsiderat ion, she made the following ruling:

Okay. The court finds that it was not plain error to specifically instruct on the vo luntary intoxica tion as to Specification 1 of Charge I. Instruction for voluntary

intoxication was included. Al though it specifically referenced Specificati ons 4-7, the in struction was in there. It explained that it could be considered on the issue of specific intent. And so while Specification 1 was not specifically referenced, the in struction was in there and the panel members could have applied it to Specification 1 of Charge I.

So, notwithstanding all the shenanigans this morning,

reconsideration wa s not the proper method.... [M]y thought was that re consideration could only inure to the

benefit of the accused and th at was why I put it to the panel. But in looking closely at the rules, given that the findings was already announ ced, it’s not appropriate.

So, the finding will stand. I’m not goi ng to have the panel

re-announce the findi ng, and we will just not discuss what they did when they went back , and the findings will stand as they are.

The military judge recalle d the members and informed them reconsideration of their finding on Specification 1 of Charge I was not ap propriate under the circumstances. The sentencing pha se of the trial then commenced.

LAW AND DISCUSSION

“The question of whether a jury was properly instru cted [is] a question of law, and thus, review is de novo.” United States v. Hearn , 66 M.J. 770, 775 (ArmySKAGGS — ARMY 20140099

5 Ct. Crim. App. 2008) (citing United States v. Schroder , 65 M.J. 49, 54 (C.A.A.F. 2007) (citation omitted)). The military judge bears primary re sponsibility for ensuring mandatory instructio ns are given to the panel and given accurately. United

States v. Miller , 58 M.J. 266, 270 (C .A.A.F. 2003); R.C.M. 920(a)-(e). “[T]he defense of voluntary intoxi cation is a mandator y instruction when ‘some evidence’ of intoxication ‘raise[s] a reasonable doubt about actual knowledge, specific intent, willfulness, or premeditation when they are elements of a charged offense.’” Hearn

, 66 M.J. at 776 (citing United States v. Hensler , 44 M.J. 184, 187 (C.A.A.F. 1996)).

In accordance with R.C.M. 920(f), appell ant’s failure to prop erly object to or request a mandatory instruction forfeits the error, absent plain error. United States v. Payne , 73 M.J. 19, 23 (C.A.A.F. 2014); see United States v. Girouard , 70 M.J. 5, 11 (C.A.A.F. 2011); see also United States v. Davis , 75 M.J. 537, 544 (Army Ct. Crim. App. 2015). “The plai n error standard is met when: (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.” United States v. Maynard , 66 M.J. 242, 244 (C.A.A.F. 2008) (cita tion and internal quota tion marks omitted).

We agree with the military judge that reconsideration of th e member’s finding on Specification 1 of Char ge I was “not appropriat e” under R.C.M. 924(a). 6 Applying the plain error standa rd to the facts of this ca se, however, the military judge erred when she failed to instruct on voluntary in toxication rela tive to the specific intent element of Specificati on 1 of Charge I pr ior to the panel’s announcement of findings. We find the error to be plain, obvious, and substantial as illustrated by evidence reasonably raising the issue, the agreem ent between counsel and the military judge that a voluntary intoxicati on instruction was applicable to the Article 120(b) offenses of Charge I, and the military judge’s efforts to remedy the error after the pa nel announced find ings. Lastly, we find th e error “had an unfair prejudicial impact” on th e panel’s deliberation. United States v. Fisher , 21 M.J. 327, 328 (C.M.A. 1986). We are left to spec ulate whether a pr operly instructed panel may have reasonable d oubt that appellant had formed the requisite specific

intent due to his intoxication. Hearn , 66 M.J. at 777, 778. Consequent ly, we cannot affirm the panel’s finding of guilty for Specification 1 of Ch arge I. We will provide

relief in our decr etal paragraph.

6 “Members may reconsider an y finding reached by them before such finding is announced in open session. ” R.C.M. 924(a) (e mphasis added). But see, proceedings

in revision under R.C. M. 1102. We do no t consider whether the reconsideration process was akin to a proceeding in revisi on because the military judge terminated

reconsideration deliberations and issued a ruling before the panel made a

determination.SKAGGS — ARMY 20140099

6 CONCLUSION

After consideration of the entire record of trial, ap pellant’s assi gnment of error, and the matters personally raised by appellant pursuant to Grostefon , the finding of guilty of Specif ication 1 of Charge I is set aside and DISMISSED.

The remaining findings of guilty are AFFIRMED.

We are able to reassess th e sentence on the basis of the errors noted, and do so after conducting a thorough analysis of the totality of circum stances presented by appellant’s case and in accordance with th e principles articulat ed by our superior

court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013). Appellant remains convicted of one specification of failur e to obey a la wful order, two specifications of sexual abuse of a child under the age of 12 years, one specification of obstructing ju stice, and one specification of communicating a threat. Without Specification 1 of Ch arge I, appellant’s maximu m period of confinement is reduced from life without eligib ility for parole to forty-th ree years and six months, a significant change in the penalty landscape. Id. Second, appellant was sentenced by a panel consisting of offi cer and enlisted members, and two of the remaining

offenses address “s ervice discrediting conduc t or conduct unbecoming.” Id . Third, the gravamen of appellant’ s misconduct remains uncha nged, and “significant or aggravating circumstances addressed at th e court-martial remain admissible and

relevant to the rema ining offenses.” Id. Finally, this court reviews the records of a

substantial number of courts-mar tial involving violations of offenses sim ilar to those remaining against appellant, and we have extens ive experience and familiarity with the level of sentences impos ed for such offenses unde r various circumstances. Id.

After reassessing the senten ce based on the errors not ed, the entire record, and in accordance with the pr inciples enumerated in Winckelmann , we affirm only so much of the sentence as provides for a di shonorable discharge, confinement for ten years, and reduction to the grade of E-1. We find th is reassessed se ntence is not only purged of any error but is also appropria te. All rights, priv ileges, and property, of which appellant has been deprived by vi rtue of that portion of the findings and sentence set aside by this de cision, are ordere d restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

Senior Judge TOZZI and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: