United States v. Bivins

OPINION OF THE COURT STARR, Judge. A military judge sitting as a general court-martial convicted the appellant, consistent with his pleas, of wrongful use of marijuana, signing a false official statement in connection with his Air Force enlistment, dereliction of duty by failing to remain at his quarters while on “sick-in quarters” status, underage possession and consumption of alcohol in violation of Air Force Instruction (AFI) 34-119, and indecent exposure. Contrary to his plea, he was also convicted of bigamy. The convening authority approved the adjudged sentence of a bad-conduct discharge, confinement for 13 months, forfeiture of $500 per month for 13 months, and reduction to E-l. The appellant presents three assignments of error for our consideration. First, he contends that his conviction for underage [502] drinking must be set aside. Relying upon United States v. Hode, 44 M.J. 816 (A.F.Ct. Crim.App.1996) (decided seven months after the appellant’s trial), he maintains that because this Court has found AFI 34-119 to be nonpunitive, his conviction for failing to obey it cannot be sustained. The appellate government counsel agree but observe that in Hode we nonetheless affirmed a conviction for willful dereliction of duty, despite the instruction’s nonpunitive nature.' The government urges us to do the same in the appellant’s case. Where a guilty plea inquiry fully apprises an accused of the elements of an included offense as part of the elements of the charged offense, and an accused’s responses knowingly and clearly admit the included offense, this Court may affirm the included offense if not persuaded of the charged offense. United States v. Felix, 36 M.J. 903, 910 (A.F.C.M.R.1993), aff'd, 40 M.J. 356 (C.M.A.1994). In this ease, the military judge fully apprised the appellant of the elements of dereliction of duty by underage possession and consumption of alcohol during the dialogue concerning the provisions of the AFI. The appellant admitted he drank three or four beers at a party in a housing area on an -Air Force installation. He stated that when he did this he was 19 years old, that he knew the legal drinking age on the installation was 21, that he had a duty to obey that rule, and that he did not obey that rule. The appellant thus knowingly and clearly admitted all the elements of dereliction of duty by underage possession and consumption of alcohol. We therefore affirm a finding of guilty of this included offense. See United States v. Hoskins, 29 M.J. 402 (C.M.A.1990); United States v. Caver, 41 M.J. 556, 564-65 (N.M.Ct.Crim.App.1994), pet. denied, 43 M.J. 151 (1995). The finding of guilty of specification 2 of Charge II is modified as follows: “In that Airman First Class Christopher A. Bivins, who knew of his duties at or near Fort MacArthur Family Housing, California, on or about 22 April 1995, was derelict in the performance of those duties, in that he willfully failed to refrain from drinking and possessing alcoholic beverages while under the age of 21, as it was his duty to do.” As modified, this affirms a violation of Article 92(3), UCMJ. 10 U.S.C. § 892(3). We reject the appellant’s remaining assignments of error. The appellant’s plea of guilty to indecent exposure was not improvident. MCM, Part IV, para 88b (1995 edition); United States v. Faircloih, _M.J. ___ (1996). After carefully reviewing the evidence, we are convinced of the appellant’s guilt of bigamy, beyond a reasonable doubt. United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Having modified the finding of guilty on the underage drinking specification, we must reassess the sentence to ensure that it is no greater than that which would have been imposed absent the error. United States v. Suzuki, 20 M.J. 248 (C.M.A.1985). We are confident that we can do so. The underage drinking violation was a relatively minor offense in relation to the others of which the appellant was convicted. Reassessing the sentence, we find the approved sentence appropriate. United States v. Sales, 22 M.J. 305 (C.M.A.1986). The findings, as modified, and the sentence, as reassessed, are correct in law and fact and are AFFIRMED. Senior Judge SCHREIER concurs.