UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            LIND, KRAUSS, and PENLAND
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Specialist CHAD C. ADAMS
                          United States Army, Appellant

                                  ARMY 20140377

                        Headquarters, 7th Infantry Division
                         Jeffery D. Lippert, Military Judge
            Lieutenant Colonel Michael S. Devine, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray-Jones, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.


                                   26 January 2015

                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

KRAUSS, Judge:

       A military judge sitting as a general court -martial convicted appellant,
contrary to his pleas, of two specifications of desertion in violation of Article 85,
Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 885 (2006). The
military judge sentenced appellant to a bad -conduct discharge, confinement for
140 days, and reduction to the grade of E-1. The convening authority approved the
adjudged sentence and credited appellant with 71 days against the sentence to
confinement.

      This case is before the court for review under Article 66, UCMJ. Appellant
submitted the case upon its merits. And some merit it does possess.

                              Procedural Background

       Appellant was charged with two specifications of desertion, one terminated by
apprehension. Each specification alleged appellant’s unauthorized absence with an
intent to remain away permanently. The first period of absence that was terminated
ADAMS—ARMY 20140377

by apprehension ran just under 3 months. The second period of absence was just
over 3 years.

      Appellant pled not guilty to the charged desertions , but guilty to the lesser
offense of absence without leave (AWOL) necessarily included in each. Prior to
conducting the providence inquiry, the judge advised appellant that:

             Your plea of guilty to a lesser-included offense also may
             establish certain elements of the charged offense, if the
             government decides to proceed on the charged offense . . . .
             [Y]ou’re pleading guilty to a violation of Article 86.
             Some of the elements of Article 86 are the same as those
             of Article 85, so the government will be able to use those
             admissions regarding the elements that are common to
             both of those charges in order to go forw ard on the greater
             offense of desertion.

(emphasis added).

        Appellant’s plea to AWOL established all of the elements of the greater
offense of desertion except the requisite intent to remain away permanently. There
was neither a pretrial agreement nor a stipulation of fact in this case and no other
exhibit was introduced by the government or defense in relat ion to appellant’s plea
itself.

       Appellant’s pleas to AWOL were provident. Upon acceptance of those pleas,
the following exchange ensued:

             MJ: Government, do you intend to go forward on the
             greater charged offense in Specification 2 of Article 85,
             desertion?

             TC: I do, Your Honor.

             MJ: Very well. Do you want to take a recess before we
             begin the findings portion of the trial or do you want to
             continue moving right now?

             TC: No, Your Honor. We can move forward.

             MJ: Do you have an opening statement?

             TC: No, Your Honor.




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             MJ: Defense, do you have an opening or do you wish to
             reserve?

             DC: Yes, Your Honor. Reserve, Your Honor.

             MJ: Trial Counsel, please call your first witness.

             TC: The government rests, Your Honor.

             MJ: Defense, do you wish to make an opening?

             DC: No, Your Honor.

             MJ: Do you have any witnesses, Defense?

             DC: Yes, Your Honor.         Specialist Chad Adams, Your
             Honor.

             MJ: And he will he [sic] be testifying under oath?

             DC: Yes, Your Honor.

             TC: Is he still under oath, sir?

             MJ: Yes.

      Appellant was then called as a witness in his own defense, reminded of his
previous oath, and then testified to the effect that he never entertained the intent to
remain away permanently.

       Defense counsel conducted direct examination with reference to appellant’s
providence inquiry and elicited testimony relevant to the contested element in each
of the charged specifications. The military judge interjected with a couple of
questions to appellant during defense counsel’s direct examination, trial counsel
conducted cross-examination, and defense counsel then completed a brief redirect
examination.




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      Appellant repeatedly denied that he ever possessed any intent to remain away
from the Army permanently and offered explanations for the duration of each of his
absences in line with his explanations during the providence inquiry. 1

      Upon completion of appellant’s testimony, the defense rested. The
government offered no rebuttal evidence and the parties proceeded to argue. After
hearing closing arguments, the judge deliberated for approximately 12 minutes and
announced his findings: “Of The Charge and its Specifications: Guilty.”

      The defense never made a motion for a finding of not guilty pursuant to Rule
for Courts-Martial [hereinafter R.C.M.] 917, the judge never mentioned the
possibility, and the government never introduced any evidence on the question of
appellant’s guilt.

        Rule for Courts-Martial 917 (Motion for a Finding of Not Guilty)

      R.C.M. 917(a) provides:

             The military judge, on motion by the accused or sua
             sponte, shall enter a finding of not guilty of one or more
             offenses charged after the evidence on either side is closed
             and before findings on the general issue of guilt are
             announced if the evidence is insufficient to sustain a
             conviction of the offense affected.

(emphasis added).

       If ever there were a case for the judge to sua sponte address the propriety of a
finding of not guilty under R.C.M. 917, this is it. To begin with, it is important to
recognize that while an accused’s plea to a lesser-included offense may establish the
elements it shares with a greater contested offense, the accused’s providence inquiry
to that lesser-included offense, as the judge properly advised, cannot be used to
prove any additional element required to establish the greater offense charged.
United States v. Resch, 65 M.J. 233, 237-38 (C.A.A.F. 2007); United States v.
Caszatt, 11 U.S.C.M.A. 705, 706-07, 29 C.M.R. 521, 522-23 (1960); United States v.
Ramelb, 44 M.J. 625, 629-30 (Army Ct. Crim. App. 1996). Therefore, where the
government immediately rested without introducing any evidence, there could be no
more plain or obvious a scenario where a motion for a finding of not guilty should
have been made. See generally United States v. Rushatz, 30 M.J. 525, 530

1
  Appellant claimed that his absence was motivated by a desire to keep his marriage
together and help his wife overcome depression.




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ADAMS—ARMY 20140377

(A.C.M.R. 1990). See also United States v. Treat, 73 M.J. 331, 340-41 (C.A.A.F.
2014) (Ryan, J., dissenting) (“[T]he military judge had an independent duty to
dismiss the charge, including giving the parties an opportunity to be heard, and the
military judge failed to fulfill that duty.”). 2 Instead, the judge invited defense
counsel to call witnesses, and the defense counsel then called appellant to testify in
his own defense. 3

                      The Limits of United States v. Pleasant,
                  71 M.J. 709, 712-14 (Army Ct. Crim. App. 2012)

       Of course, an accused testifies at his own peril and his denials under oath may
be rejected by the finder of fact and used against him when resolving his guilt.
United States v. Pleasant, 71 M.J. 709, 712-14 (Army Ct. Crim. App. 2012), pet.
denied, 72 M.J. 385 (C.A.A.F. 2013). However, an accused cannot be convicted on
his testimony alone. United States v. Urban, 404 F.3d 754, 782 (3d Cir. 2005)
(quoting Bose Corp. v. Consumers Union of Unit ed States, Inc., 466 U.S. 485, 512
(1984)) (citing United States v. Reed, 297 F.3d 787, 789 (8th Cir. 2002); United
States v. Aulicino, 44 F.3d 1102, 1114-15 (2d Cir. 1995)); United States v. Cisneros,
448 F.2d 298, 305-06 (9th Cir. 1971).

      Imposition of the burden to prove an accused’s guilt upon the government is
as fundamental to our system of justice as any guarantee of fairness. In re Winship,
397 U.S. 358, 361-64 (1970); United States v. Czekala, 42 M.J. 168, 170 (C.A.A.F.
1995); UCMJ art. 51(c)(4); R.C.M. 920(e)(5)(D). Absent a knowing, intelligent, and
voluntary plea of guilty to a charged offense, nothing relieves the government of this
obligation. At a minimum, where an accused’s testimony is used as evidence that he
committed a charged offense, the government must introduce some evidence
corroborative of the alleged offense before the fact finder is permitted to consider
whether, in light of all the evidence, the government has p roven an accused’s guilt

2
  Though the motion would necessarily trigger an opportunity for the government to
address and, if permitted by the judge, rectify its approach, it is worthy of note that
there is nothing in this record to indicate trial counsel was prepared to prove
appellant’s guilt of desertion by introducing evidence of any sort on the contested
issue of appellant’s intent. See R.C.M. 917(c); R.C.M. 917(c) discussion; R.C.M.
913(c)(5).
3
  In light of our disposition of this case, we need not further address the specter of
ineffective assistance of counsel where defense counsel fails to move for a finding
of not guilty, and then calls his client as a witness to provide testimony that can , and
was, used to convict him though the government had done nothing to prove his guilt
to the contested offense.




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beyond a reasonable doubt. See United States v. Williams, 390 F.3d 1319, 1325-26
(11th Cir. 2004); United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002);
United States v. Burgos, 94 F.3d 849, 868 (4th Cir. 1996) (“Thus, Burgos’s lying on
the stand may have aided in establishing the fact that he was guilty.”) (emphasis
added); Pleasant, 71 M.J. at 713; see also United States v. Zafiro, 945 F.2d 881, 888
(7th Cir. 1991) (presuming that in cases such as ours, where the government offers
no evidence of guilt, the judge would enter a finding of not guilty prior to any
possible testimony from the accused while affirming that , if an accused testifies, that
testimony might become “evidence of guilt to add to the other evidence.”) (emphasis
added).

      Thus, despite appellant voluntarily providing evidence against himself, that
evidence alone is legally insufficient to affirm the findings as to desertion and to
overcome the judge’s failure to properly enter a finding of not guilty under
R.C.M. 917. See United States v. Zeigler, 994 F.2d 845, 848-50 (D.C. Cir. 1993);
United States v. Foster, 783 F.2d 1082 (D.C. Cir. 1986); United States v. Contreras,
667 F.2d 976, 980 (11th Cir. 1982); United States v. Bland, 653 F.2d 989, 995
(5th Cir. 1981); United States v. Frazier, 34 M.J. 194, 195 n.2 (C.M.A. 1992);
R.C.M. 917(g) (permitting affirmance where an accused’s testimony makes the
evidence sufficient despite the fact that a motion for not guilty should have been
granted after the government introduced all of its evidence and rested its case).

        The requirement to put the government to its burden on a contested element is
no empty ritual in circumstances such as in this case or in any case . Beyond the
simple promise that a soldier’s liberty will not be deprived absent government proof
that he committed a crime beyond a reasonable doubt is the accused’s right to have
that conviction reviewed for sufficiency of evidence. Courts less sanguine about the
use of an accused’s testimony as positive evidence of guilt recognize that to permit
conviction based on judgments of an accused’s credibility alone would essentially
strip the appellate courts of the ability to effectively review the sufficiency of the
evidence against an appellant. See Zeigler, 994 F.2d at 848-50.

      Reviewing courts are at a disadvantage when judging such credibility as those
judgments are largely and necessarily based on observation of live testimony. Id.;
UCMJ art. 66(c) (“In considering the record, [a service court of criminal appeals]
may weigh the evidence, judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the trial court saw and heard the
witnesses.”) (emphasis added). The necessity for the government to produce
evidence to prove the alleged offense ensures minimum guarantees of reliability to
criminal convictions obtained in our adversarial system of justice and preserves an
accused’s right to meaningful appellate review.

      In relation to the crime of desertion, t he government may prove the contested
element of intent to remain away permanently by direct or circumstantial evidence ,



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see United States v. Oliver, 70 M.J. 64 (C.A.A.F. 2011), but what it may not do is
secure conviction by resting on an accused’s providence inquiry to the lesser
offense. Resch, 65 M.J. 233. Though the judge apparently rejected appellant’s
denials at trial, assessed appellant’s self-interested testimony as incredible, and used
the same to find the opposite of appellant’s denials true, it was a violation of the
minimum guarantees of due process to convict appellant of the contested charge of
desertion on the assessment of his credibility alone.

                                   CONCLUSION

       We affirm only so much of the findings of guilty of Specifications 1 and 2 of
the Charge that extend to the lesser-included offenses of absence without leave in
violation of Article 86, UCMJ, as follow:

             Specification 1: In that Specialist (E -4) Chad C. Adams,
             U.S. Army, did, at or near Joint Base Lewis-McChord,
             Washington, on or about 8 December 2010, without
             authority, absent himself from his unit, to wit:
             Headquarters and Headquarters Company, 2d Battalion,
             23rd Infantry Regiment, located at Joint Base Lewis-
             McChord, Washington, and did so remain absent until he
             was apprehended on or about 27 February 2011.

             Specification 2: In that Specialist (E -4) Chad C. Adams,
             U.S. Army, did, at or near Pottsville, Pennsylvania, on or
             about 3 March 2011, without authority, absent h imself
             from his unit, to wit: Headquarters and Headquarters
             Company, 2d Battalion, 23rd Infantry Regiment, located at
             Joint Base Lewis-McChord, Washington, and did so
             remain absent until 8 March 2014.

       Though the maximum exposure to confinement drops from 5 years to 2 years
and 6 months, reassessment is nevertheless proper in this case. See Manual for
Courts-Martial, United States (2012 ed.), pt. IV, ¶¶ 9.e.(2)(a)-(b), 10.e.(2)(c)-(d);
United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013); United States v.
Sales, 22 M.J. 305, 307-08 (C.M.A. 1986). The aggravated nature of the successive
periods of unauthorized absence in conjunction with the judge alone sentence and
our experience and familiarity with AWOL offenses permit our reliable
reassessment. See Winckelmann, 73 M.J. at 15-16.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Sales, 22 M.J. at 307-08 and Winckelmann,
73 M.J. at 15-16, we are confident the military judge would have adjudged the same
sentence. We find this reassessed sentence is also appropriate under Article 66,



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UCMJ. The sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the find ings set aside by this
decision, are ordered restored.

      Senior Judge LIND and Judge PENLAND concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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