United States v. Sergeant JOSHUA L. ROCK

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges UNITED STATES, Appellee v. Sergeant JOSHUA L. ROCK United States Army, Appellant ARMY 20061065 Joint Readiness Training Center and Fort Polk Victor L. Horton, Military Judge Colonel James W. Herring, Jr., Staff Judge Advocate For Appellant: Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Teresa L. Raymond, JA; Captain Richard P. Pizur, JA (on brief); Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Captain Nathan J. Bankson, JA; Captain Richard P. Pizur, JA (on reply brief). For Appellee: Major Elizabeth G. Marotta, JA; Lieutenant Colonel Francis C. Kiley, JA; Major Mary E. Braisted, JA (on brief). 24 April 2008 -------------------------------- SUMMARY DISPOSITION -------------------------------- Per Curiam: This case is before us for review under Article 66, Uniform Code of Military Justice, 10 U.S.C. §866 [hereinafter UCMJ]. Although not raised by appellant, we find error in the findings of the court-martial as described below. Appellant was charged, inter alia, with six specifications of wrongful use of a controlled substance (cocaine, marijuana, ecstasy, and methamphetamines), in violation of Article 112a, UCMJ. Although all uses were alleged to have occurred “at or near Fort Polk, Louisiana,” appellant indicated during the providence inquiry that the situs of all the illegal drug use was Morgan City, Louisiana. See United States v Miller, 34 M.J. 598, 601 (A.C.M.R. 1992) (failure to establish precisely where and when drug use under Article 112a, UCMJ, occurred is irrelevant since proof of exact time and location of drug use is not required to prove the offense). To safeguard appellant’s double jeopardy rights, we will amend the specifications to conform to his responses in the providence inquiry. Accordingly, we amend Specifications 1 through 6 of Charge III to delete the words “Fort Polk” and substitute the words “Morgan City,” and affirm the findings of guilty to the specifications as amended. See generally United States v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999) (“To prevail on a fatal-variance claim, appellant must show that the variance was material and that it substantially prejudiced him.” (citation and quotation marks omitted)). The remaining findings of guilty are affirmed. We have considered the assignment of error and those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Reassessing the sentence on the basis of the error noted, the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, including Judge Baker’s concurring opinion, 63 M.J. 40, 43 (C.A.A.F. 2006), the court affirms the sentence. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court