United States v. Corporal RICHARD J. FARR

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before JOHNSON, COOK, and BAIME Appellate Military Judges UNITED STATES, Appellee v. Corporal RICHARD J. FARR United States Army, Appellant ARMY 20080099 Headquarters, 82nd Airborne Division Patrick J. Parrish, Military Judge Lieutenant Colonel William A. Schmittel, Staff Judge Advocate (trial) Lieutenant Colonel Paul S. Wilson, Staff Judge Advocate (post-trial) For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Lieutenant Colonel Norman R. Zamboni, JA (on brief). For Appellee: Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Sara M. Root, JA; Captain Kevin F. Sweeney, JA (on brief). 20 October 2009 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: A panel composed of officer members sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit wrongful appropriation; absence without leave; violating a lawful general regulation (ten specifications); maltreatment (five specifications); false official statements (four specifications); assault consummated by battery (two specifications)[1]; and indecent assault, in violation of Articles 81, 86, 92, 93, 107, 128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 , 886, 892, 893, 907, 928, and 934. The panel sentenced petitioner to confinement for thirty months, reduction to the rank of Private (E-1), total forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence. Appellant raises four assignments of error related to factual and legal sufficiency of the evidence. Government appellate counsel concur with the merits of three of the assignments of error. The requested relief for these three assignments of error requires our court to modify the findings for the three affected specifications by excepting out the words “on divers occasions” from each, which we now do for Specifications 1, 2, and 6 of Charge IV.[2] The remaining assignment of error asserts the evidence is factually and legally insufficient to find appellant ordered Private First Class (PFC) M.M.C. to have dinner with him. We concur with appellate defense counsel “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could [not] have found the essential elements of the crime beyond a reasonable doubt.” United States v. Pabon, 42 M.J. 404, 405 (1995) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted)), cert denied, 516 U.S. 1075 (1996).[3] As such, we set aside and dismiss the finding of guilty to Specification 1 of Charge V. Finally, appellate defense counsel request that we reassess appellant’s sentence. In United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), our superior court reaffirmed the standard for sentence reassessment. “[I]f the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error . . . .” Id. at 41 (quoting United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986)). In curing the errors through reassessment, we must assure the sentence is “equal to or no greater than a sentence that would have been imposed if there had been no error.” Id. (citing Sales, 22 M.J. at 308 ). See also United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985) (requiring “that the sentence is no greater than that which would have been imposed if the prejudicial error had not been committed”). Under the circumstances of this case, we are confident that a sentence rehearing is not necessary. The excepted language and set aside finding do not dramatically change the sentencing landscape in this case. The maximum possible punishment to which appellant would have been exposed at trial is only slightly reduced from 52 to 51 years, and the adjudged sentence remains well below the authorized maximum. The offensive nature of appellant’s remaining 23 offenses, when coupled with the presentencing evidence, leaves us secure in our position the panel would have imposed a sentence of a certain magnitude had appellant been convicted of only the remaining charges and specifications. Therefore, we can reliably determine the sentence the panel would have imposed had appellant’s trial been error free. Reassessing the sentence on the basis of the modified findings, the entire record, and in accordance with the principles of Sales, 22 M.J. at 307 -309 and Moffeit, 63 M.J. at 42-44 , to include those factors identified by Judge Baker in his concurring opinion in Moffeit, we are confident with our determination in this case. “[W]e perceive no reasonable possibility of benefit to [appellant] by remand of the record . . . for reassessment of the sentence.” United States v. Sims, 57 M.J. 419, 422 (C.A.A.F. 2002) (citation omitted). We affirm the remaining findings of guilty, and affirm the sentence as approved by the convening authority. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] The panel found appellant not guilty of two other indecent assault specifications but guilty of two specifications of Article 128, a lesser included offense of Article 134 (indecent assault) under the Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM]. The misconduct underlying these specifications occurred in May and June 2007 and thus was charged under the 2005 edition of the MCM. [2] We are able to conduct a factual sufficiency review and affirm the findings because we can confidently, and without any doubt, determine the single occasion on which the conviction is based. See generally United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005). [3] The trial counsel never elicited testimony from PFC M.M.C. about any specific order by appellant for PFC M.M.C. to go to dinner with him. No testimony in the record concerns any dates on which such an order may have been given, the time of day of such order, the name of the eating establishment, or whether the establishment served dinner. While there is evidence appellant ordered PFC M.M.C. to act as his designated driver so appellant could go out drinking, to include a place called “Spinners,” there is no evidence Spinners served dinner or appellant ordered PFC M.M.C. to eat with him there. In fact, evidence in the record depicts Spinners more as a late-night drinking “club” rather than a restaurant. See Record of Trial 424-25 and 520 (unrebutted testimony of both Specialist K.I. and appellant, respectively, describing dinner at a “restaurant” called “Samurai” followed by continued drinking at a “club” called “Spinners”).