UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                              YOB, JOHNSON, and BURTON
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                     Private First Class TANNER P. FORRY
                         United States Army, Appellant

                                     ARMY 20080334

                            Headquarters, Fort Lewis
                John Head and Michelle Shields, Military Judges
          Colonel James Kevin Lovejoy, Staff Judge Advocate (pretrial)
      Colonel Mitchell R. Chitwood, Staff Judge Advocate (recommendation)


For Appellant: Colonel Mark Tellitocci, JA; Captain Shay Stanford, JA; Major
Jonathan F. Potter, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major LaJohnne White, JA; Captain
Benjamin Owens-Filice, JA (on brief).


                                      28 August 2012
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                       SUMMARY DISPOSITION UPON REMAND
                      -------------------------------------------------------

Per Curiam:

       A panel composed of officer and enlisted members, sitting as a general court-
martial, convicted appellant, contrary to his pleas, of one specification of attempted
carnal knowledge with a child over the age of twelve but under the age of sixteen,
one specification of possessing child pornography, one specification of distributing
child pornography, one specification of persuading, inducing, or enticing a minor to
engage in sexually explicit conduct, one specification of persuading, inducing, or
enticing a minor via the internet to engage in sexual intercourse, one specification of
traveling in interstate commerce for the purpose of engaging in illicit sexual
conduct, one specification of transferring obscene matter via the internet, two
specifications of communicating indecent language to a child in writing, and one
specification of knowingly executing computer programs of a forensically
destructive nature for the purpose of preventing or impairing the Government’s
lawful authority to take his computer into its custody and control in violation of
FORRY—ARMY 20080334

Articles 80 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 934
(2006) [hereinafter UCMJ].  Appellant was sentenced to be confined for fifteen (15)
years and to be dishonorably discharged from the service. The convening authority
approved the adjudged sentence and credited appellant with thirty (30) days of
confinement against the sentence to confinement.

       On 7 June 2011, we issued an opinion in this case, summarily affirming the
findings of guilty and the sentence. United States v. Forry, ARMY 20080334 (Army
Ct. Crim. App. 7 June 2011) (unpub.). On 19 October 2011, our superior court
vacated our decision and returned the record of trial to The Judge Advocate General
of the Army for remand to this court for consideration in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). On 7 December 2011, we issued an opinion in
this case, affirming the findings of guilty and the sentence. United States v. Forry,
ARMY 20080334, (Army Ct. Crim. App. 7 Dec. 2011) (summ. disp.). On 10 July
2012, our superior court reversed our decision as to Specifications 5 and 7 of
Additional Charge II and as to the sentence, and returned the record of trial to The
Judge Advocate General of the Army for remand to this court for further
consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
Consequently, appellant’s case is again before this court for review under Article 66,
UCMJ.

        In light of Humphries, we are compelled to disapprove the findings of guilt
as to the Article 134, UCMJ, offenses previously affirmed. The specifications do
not contain allegations of terminal elements under Article 134, UCMJ, and there is
nothing in the record to satisfactorily establish notice of the need to defend against a
terminal element as required under Humphries. Therefore, we now reverse
appellant’s convictions for communicating indecent language to a child and dismiss
the defective specifications which failed to state an offense in light of United States
v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

       On consideration of the entire record, the findings of guilty of Specification 5
and 7 of Additional Charge II are set aside and those specifications are dismissed.
The remaining findings of guilty are affirmed. Reassessing the sentence on the basis
of the errors noted, the entire record, and in accordance with the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms the sentence as approved by the convening
authority.


 Appellant was found not guilty of one specification of persuading, inducing, or
enticing a minor to engage in sexually explicit conduct in violation of Article 134,
UCMJ.




                                           2
FORRY—ARMY 20080334


                       FORTHE
                      FOR  THECOURT:
                               COURT:




                      MALCOLM
                       MALCOLMH.H.SQUIRES,
                                       SQUIRES,JR.
                                                JR.
                      Clerk
                       ClerkofofCourt
                                 Court




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