UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                        Specialist DAVID G. MICHAELS
                         United States Army, Appellant

                                   ARMY 20110288

                      Headquarters, III Corps and Fort Hood
                      Jacqueline L. Emanuel, Military Judge
                  Colonel Phillip N. Foster, Staff Judge Advocate


For Appellant: Frank J. Spinner, Esquire (argued); Captain J. Fred Ingram, JA;
Frank J. Spinner, Esquire (on brief)

For Appellee: Captain Carl L. Moore, JA (argued); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captain
Steve T. Nam, JA (on brief)


                                      22 May 2014

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of failure to obey a lawful order, two specifications of
aggravated sexual assault of a child, abusive sexual contact with a child, and
obstructing justice, in violation of Articles 92, 120, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 920, 934) (2006 & Supp. II 2009), amended by
10 U.S.C. § 920 (2012) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a dishonorable discharge, confinement for eleven years, and
reduction to E-1.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises four assignments of error and personally submits matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Only one assignment of error
warrants discussion and relief. In particular, appellant argues, and the government
concedes, that appellant’s conviction for obstructing justice should be set aside
MICHAELS—ARMY 20110288

pursuant to United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). We agree.
The specification at issue did not allege the terminal element, and there is nothing in
the record to satisfactorily establish notice of the need to defend against the terminal
element as required under Humphries.

                                   CONCLUSION

       Upon consideration of the entire record, the parties’ briefs, the matters
submitted pursuant to Grostefon, and oral argument, the findings of guilty of Charge
III and its Specification are set aside. Charge III and its Specification are dismissed.
The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winkelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United
States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       First, appellant was tried and sentenced by a military judge alone. Second,
although we have set aside a conviction for obstructing justice, appellant remains
convicted of the gravamen of his misconduct, that is, sexual misconduct involving
two step-daughters. Finally, based on our experience, we are familiar with the
remaining offenses so that we may reliably determine what sentence would have
been imposed at trial. Accordingly, we affirm so much of the sentence as extends to
a dishonorable discharge, 129 months of confinement, and reduction to E-1. We find
this reassessed sentence purges any error and is also appropriate. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings and sentence set aside by this decision, are ordered restored.

                                        FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:




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




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