UNITED STATES ARMY COURT 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, Military Judge (arraignment) 

Kirsten V. Brunson, Military Judge (trial) 

Colonel Steven B. Weir, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Robert L. Manley III, Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Lieutenant Colonel 

Jonathan F. Potter, JA (on brief). 

For Appellee: Lieutenant 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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CELTNIEKS, Judge: 

A panel consisting of officer and enlisted members sitting as a general courtmartial convicted appellant, contrary to his pleas, of one specification of failure to 

obey a lawful order, one specification of rape of a child under the age of 12 years, 

two specifications of sexual abuse of a child under the age of 12 years, one 

specification of obstructing justice, and one specification of communicating a threat 

in violation of Articles 92, 120b, and 134, Uniform Code of Military Justice, 10 
SKAGGS — ARMY 20140099 

2

U.S.C. §§ 892, 920b, 934 (2012) [hereinafter UCMJ].1 The panel sentenced 

appellant to a dishonorable discharge, confinement for thirteen years, and reduction 

to the grade of E-1. The convening authority approved the findings and only so 

much of the sentence as provided for a dishonorable discharge, confinement for 

twelve years and eleven months, 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 Article 66, UCMJ. Appellate 

defense counsel assigns 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 assigned error, appellant asserts the military judge erred by 

failing to provide panel instructions on the issue of voluntary intoxication as it 

related to the specific intent necessary for a conviction of Specification 1 of Charge 

I, rape of a child under the age of 12 years. 

BACKGROUND 

At trial, sworn testimony from government witnesses and appellant himself 

indicated appellant was regularly intoxicated by alcohol during the time period 

covered by the charged misconduct under Article 120b, UCMJ.3

 In an Article 39(a) 

session discussing panel instructions as they related to the Article 120b offenses of 

Charge I, the military judge 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 child 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 instructing a child under the age of 12 years to wipe semen off 

appellant’s stomach, and one specification of communicating a threat in violation of 

Articles 107, 120b, and 134, UCMJ. 

2

 We note neither the action nor the promulgating order reflects the convening 

authority’s waiver of appellant’s automatic forfeitures under Article 58b, UCMJ. 

Appellant’s record of trial 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 spouse for support, with an effective date of 

28 February 2014. The waiver remained in effect for a period of six months for the 

purpose of providing support to appellant’s family. 

3

 The dates alleged for all seven specifications of Charge I are between 28 June 2012 

and 20 September 2012. 
SKAGGS — ARMY 20140099 

3

instruction,4 as requested by both parties.” After properly instructing the panel on 

the elements of rape of a child for Specifications 1 and 2 of Charge I, the military 

judge instructed the panel as follows: 

The evidence has raised the issue of voluntary intoxication 

in relation to the offenses of sexual abuse of a child in 

Specifications 4 through 7 of Charge I. I advised you 

earlier that one of the elements 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 the 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 did not object to the instructions as given. The military 

judge completed the instructions, counsel for both parties 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 Specification 1 (rape of a child under 12 years of age) and 

Specifications 4 and 7 (sexual 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 discovered an error in my 

instructions. It would only pertain to one specification, 

Specification 1 of Charge I, which is a finding of guilty. 

And there is an instruction that -- I gave you the 

instruction, but I didn’t instruct you to apply it to that 

specific specification. So what I’m going to do is give 

you the instruction again, and we’ll send 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: Military Judges’ Benchbook, para. 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, defense 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 acquitted of them.” The military judge heard the 

government’s argument and recessed the court to research the issue. While the panel 

was in deliberations on reconsideration, she made the following ruling: 

Okay. The court finds that it was not plain error to 

specifically instruct on the voluntary intoxication as to 

Specification 1 of Charge I. Instruction for voluntary 

intoxication was included. Although it specifically 

referenced Specifications 4-7, the instruction 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 instruction 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 was not the proper method.... [M]y 

thought was that reconsideration could only inure to the 

benefit of the accused and that was why I put it to the 

panel. But in looking closely at the rules, given that the 

findings was already announced, it’s not appropriate. 

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

re-announce the finding, and we will just not discuss what 

they did when they went back, and the findings will stand 

as they are. 

The military judge recalled the members and informed them reconsideration 

of their finding on Specification 1 of Charge I was not appropriate under the 

circumstances. The sentencing phase of the trial then commenced. 

LAW AND DISCUSSION 

“The question of whether a jury was properly instructed [is] a question of 

law, and thus, review is de novo.” United States v. Hearn, 66 M.J. 770, 775 (Army 
SKAGGS — 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 responsibility for 

ensuring mandatory instructions 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 intoxication is a mandatory 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), appellant’s failure to properly 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 plain 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) (citation and internal quotation marks omitted). 

We agree with the military judge that reconsideration of the member’s finding 

on Specification 1 of Charge I was “not appropriate” under R.C.M. 924(a).6

 

Applying the plain error standard to the facts of this case, however, the military 

judge erred when she failed to instruct on voluntary intoxication relative to the 

specific intent element of Specification 1 of Charge I prior 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 agreement between counsel 

and the military judge that a voluntary intoxication instruction was applicable to the 

Article 120(b) offenses of Charge I, and the military judge’s efforts to remedy the 

error after the panel announced findings. Lastly, we find the error “had an unfair 

prejudicial impact” on the panel’s deliberation. United States v. Fisher, 21 M.J. 

327, 328 (C.M.A. 1986). We are left to speculate whether a properly instructed 

panel may have reasonable doubt that appellant had formed the requisite specific 

intent due to his intoxication. Hearn, 66 M.J. at 777, 778. Consequently, we cannot 

affirm the panel’s finding of guilty for Specification 1 of Charge I. We will provide 

relief in our decretal paragraph. 

 

6

 “Members may reconsider any finding reached by them before such finding is 

announced in open session.” R.C.M. 924(a) (emphasis added). But see, proceedings 

in revision under R.C.M. 1102. We do not consider whether the reconsideration 

process was akin to a proceeding in revision 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, appellant’s assignment of 

error, and the matters personally raised by appellant pursuant to Grostefon, the 

finding of guilty of Specification 1 of Charge I is set aside and DISMISSED. 

The remaining findings of guilty are AFFIRMED. 

We are able to reassess the sentence on the basis of the errors noted, and do 

so after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated 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 failure to obey a lawful order, 

two specifications of sexual abuse of a child under the age of 12 years, one 

specification of obstructing justice, and one specification of communicating a threat. 

Without Specification 1 of Charge I, appellant’s maximum period of confinement is 

reduced from life without eligibility for parole to forty-three years and six months, a 

significant change in the penalty landscape. Id. Second, appellant was sentenced by 

a panel consisting of officer and enlisted members, and two of the remaining 

offenses address “service discrediting conduct or conduct unbecoming.” Id. Third, 

the gravamen of appellant’s misconduct remains unchanged, and “significant or 

aggravating circumstances addressed at the court-martial remain admissible and 

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

substantial number of courts-martial involving violations of offenses similar to those 

remaining against appellant, and we have extensive experience and familiarity with 

the level of sentences imposed for such offenses under various circumstances. Id. 

After reassessing the sentence based on the errors noted, the entire record, and 

in accordance with the principles enumerated in Winckelmann, we affirm only so 

much of the sentence as provides for a dishonorable discharge, confinement for ten 

years, and reduction to the grade of E-1. We find this reassessed sentence is not 

only purged of any error but is also appropriate. All rights, privileges, and property, 

of which appellant has been deprived by virtue of that portion of the findings and 

sentence set aside by this decision, are ordered 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: