Filed: Jan. 31, 2017
Latest Update: Mar. 03, 2020
Summary: The offenses charged in Specifications 1 and 2 of, Charge IV, that is, the aggravated sexual assault by digital, penetration, are one offense for sentencing purposes, as, are Specifications 3 and 4 of Charge IV, the aggravated, sexual assault by penile penetration. United States v. Diaz, 40 M.J.
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist JACOB P. HENDERSON
United States Army, Appellant
ARMY 20140081
Headquarters, I Corps
David L. Conn, Military Judge
Colonel William R. Martin, Staff Judge Advocate (pretrial)
Colonel Randall J. Bagwell, Staff Judge Advocate (post-trial)
For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Patrick J. Scudieri, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major John K. Choike, JA; Captain John Gardella, JA (on brief).
31 January 2017
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SUMMARY DISPOSITION
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Per Curiam:
A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of disobeying a
noncommissioned officer, two specifications of failure to obey a lawful order, four
specifications of aggravated sexual assault, one specification of indecent act, three
specifications of assault consummated by battery, and one specification of
aggravated assault in violation of Articles 91, 92, 120, and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 891, 892, 920, 928 (2006 & Supp. II 2009; 2006 &
Supp. IV 2011; 2006 & Supp. V 2012) [hereinafter UCMJ]. The panel sentenced
appellant to a dishonorable discharge, confinement for nine years, forfeiture of all
pay and allowances, and reduction to E-1. The military judge credited appellant
with 168 days of confinement credit. The convening authority approved eight years
HENDERSON—ARMY 20140081
and ten months of confinement 1 and the remainder of the adjudged sentence,
including the confinement credit.
This case is before us for review under Article 66, UCMJ. Appellate defense
counsel assigns two errors to this court, and appellant personally raised matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). After due
consideration, we find one assigned error warrants discussion and relief; the matters
raised under Grostefon are without merit.
BACKGROUND
The panel found appellant guilty of the four aggravated sexual assault
specifications of Charge IV, in violation of Article 120, UCMJ, as follows:
SPECIFICATION 1: [Appellant], U.S. Army, did, at or
near Chatan, Okinawa, Japan, on or about 1 June 2012,
engage in a sexual act, to wit: use his finger to digitally
penetrate the vulva of [MF], who was substantially
incapable of declining participation in the sexual act.
SPECIFICATION 2: [Appellant], U.S. Army, did, at or
near Chatan, Okinawa, Japan, on or about 1 June 2012,
cause [MF] to engage in a sexual act, to wit: use his finger
to digitally penetrate her genital opening, by causing
bodily harm to her, to wit: pushing her body against a
sink.
SPECIFICATION 3: [Appellant], U.S. Army, did, at or
near Chatan, Okinawa, Japan, on or about 1 June 2012,
engage in a sexual act, to wit: use his penis to penetrate
the vulva of [MF], who was substantially incapable of
declining participation in the sexual act.
SPECIFICATION 4: [Appellant], U.S. Army, did, at or
near Chatan, Okinawa, Japan, on or about 1 June 2012,
cause [MF] to engage in a sexual act, to wit: the
penetration of her vulva with his penis, by causing bodily
harm to her, to wit: pushing her body against a sink.
1
In response to a legal error raised in appellant’s Rule for Courts-Martial 1105
clemency submissions alleging unreasonable government delay in post-trial
processing under United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), the staff
judge advocate recommended and the convening authority approved eight years and
ten months confinement.
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HENDERSON—ARMY 20140081
During an Article 39(a) session before the parties presented their sentencing
arguments, the military judge ruled sua sponte on the aggravated sexual assault
offenses. Regarding Specifications 1 and 2 of Charge IV, the military judge stated,
“I find that these constitute multiplicity for findings and, therefore, will merge
Specifications 1 and 2 into a unitary specification of aggravated sexual assault by
digital penetration.” Regarding Specifications 3 and 4 of Charge IV, the military
judge further stated, “Similarly, . . . I find that they are multiplicious and, therefore,
will merge Specifications 3 and 4 into a unitary specification of aggravated sexual
assault by penile penetration.” 2 Before the panel’s sentence deliberations, the
military judge instructed the members:
The offenses charged in Specifications 1 and 2 of
Charge IV, that is, the aggravated sexual assault by digital
penetration, are one offense for sentencing purposes, as
are Specifications 3 and 4 of Charge IV, the aggravated
sexual assault by penile penetration. Therefore, in
determining an appropriate sentence in this case, you must
consider both digital penetration offenses as one offense,
and both penile penetration offenses as also one offense.
The staff judge advocate’s recommendation (SJAR) does not list the offenses
of which appellant was convicted; the Report of Result of Trial (ROT) is attached to
the SJAR and incorporated by reference. The ROT does not reflect the merger of the
aggravated sexual assault offenses into two specifications for findings as directed by
the military judge. Rather, the ROT lists four aggravated sexual assault convictions
in violation of Article 120, UCMJ, as originally charged. Additionally, the
convening authority’s action approved the sentence without addressing the findings,
and the promulgating order includes guilty findings for Specifications 1 through 4 of
Charge IV.
LAW AND DISCUSSION
This court reviews jurisdictional questions regarding which findings a
convening authority implicitly approved de novo. See United States v. Alexander,
61 M.J. 266, 269 (C.A.A.F. 2005); United States v. Diaz,
40 M.J. 335, 337, 345
(C.M.A. 1994). When a convening authority does not explicitly address findings in
2
Although the military judge used the term “multiplicity for findings” in reference
to Specifications 1 and 2 of Charge IV and “multiplicious” in reference to
Specifications 3 and 4 of Charge IV, it appears clear to this court—based on the
context of the statements and remedy imposed—that the military judge intended to
use the term “unreasonable multiplication of charges as applied to findings.” See
United States v. Campbell,
71 M.J. 19, 23-24 (C.A.A.F. 2012).
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HENDERSON—ARMY 20140081
the action, the convening authority implicitly approves the findings as correctly
reported in the SJAR. Diaz, 40 M.J. at 337. Where there is an unresolvable
ambiguity between the adjudged and approved findings, a case should be returned
for a new SJAR and convening authority initial action. United States v. Alexander,
63 M.J. 269, 275-76 (C.A.A.F. 2006).
We find unresolvable error here because the convening authority considered
and approved findings that were incorrectly reported in the SJAR via the
incorporated ROT, and agree with both parties that this case must be returned to the
convening authority for a new action. Accordingly, we will set aside the action and
return the case for a new SJAR and action. First, however, it is appropriate to
consolidate the aggravated sexual assault specifications consistent with the military
judge’s rulings at trial that they were unreasonably multiplied as applied to findings
and sentence. See United States v. Mayberry, 72 M.J. 467, 467-468 (C.A.A.F.
2013). We do so now in the decretal paragraph.
CONCLUSION
Specification 1 of Charge IV is consolidated with Specification 2 of
Charge IV as follows:
[Appellant], U.S. Army, did, at or near Chatan, Okinawa,
Japan, on or about 1 June 2012, engage in a sexual act, to
wit: use his finger to digitally penetrate the vulva of M.F.,
who was substantially incapable of declining participation
in the sexual act, and cause M.F. to engage in a sexual act,
to wit: use his finger to digitally penetrate her genital
opening, by causing bodily harm to her, to wit: pushing
her body against a sink.
Specification 3 of Charge IV is consolidated with Specification 4 of
Charge IV as follows:
[Appellant], U.S. Army, did, at or near Chatan, Okinawa,
Japan, on or about 1 June 2012, engage in a sexual act, to
wit: use his penis to penetrate the vulva of M.F., who was
substantially incapable of declining participation in the
sexual act, and cause M.F. to engage in a sexual act, to
wit: the penetration of her vulva with his penis, by causing
bodily harm to her, to wit: pushing her body against a
sink.
The convening authority’s action, dated 26 March 2015, is set aside. The
record of trial is returned to The Judge Advocate General for a new SJAR and action
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HENDERSON—ARMY 20140081
by the same or a different convening authority in accordance with Article 60(c)-(e),
UCMJ.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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