UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                              Sergeant JOHN RON
                          United States Army, Appellant

                                     ARMY 20100599

       Headquarters, U.S. Army Signal Center of Excellence and Fort Gordon
                    Tara Osborn, Military Judge (arraignment)
                     Gary Brockington, Military Judge (trial)
               Colonel Michael W. Hoadley, Staff Judge Advocate


For Appellant: Captain Meghan M. Poirier, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R. Kesler, JA;
Captain Meghan M. Poirier, JA (on brief); Colonel Patricia A. Ham, JA; Lieutenant
Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Captain Meghan M.
Poirier, JA (on supplemental brief).

For Appellee: Captain John D. Riesenberg, JA (argued); Major Ellen S. Jennings,
JA; Captain Chad M. Fisher, JA; Captain Ryan D. Pyles, JA (on brief); Major Amber
J. Roach, JA; Captain Chad M. Fisher, JA; Captain John D. Riesenberg, JA (on
supplemental brief).


                                     7 February 2013

                        --------------------------------------------------
                        SUMMARY DISPOSITION ON REMAND
                        --------------------------------------------------

Per Curium:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of abusive sexual contact, forcible sodomy, and assault with
intent to commit sodomy, in violation of Articles 120(h), 125, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 920(h), 925, 934 (2006 & Supp. III 2009)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence to a
dishonorable discharge, confinement for four years, forfeiture of all pay and
allowances, and reduction to the grade of E-1.
RON—ARMY 20100599

       On 1 June 2012, this court issued a memorandum opinion affirming the
findings and sentence. United States v. Ron, ARMY 20100599, 2012 WL 2178630
(Army Ct. Crim. App. 1 June 2012) (mem. op.). On 11 September 2012, our
superior court reversed the portion of our decision as to Charge II and its
specification and the sentence, and affirmed our decision as to the remaining charges
and specifications. United States v. Ron, 71 M.J. 396 (C.A.A.F. 11 Sep. 2012)
(summ. disp.). The court returned the record of trial to The Judge Advocate General
of the Army for remand to this court for reconsideration in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012). Id. Consequently, appellant’s case is
once again before this court for review under Article 66, UCMJ.

       In accordance with Humphries, we are compelled to set aside the finding of
guilty to the Specification of Charge II and Charge II. This specification does not
allege the terminal elements under Article 134, UCMJ, there is nothing in the record
to satisfactorily establish notice of the need to defend against the terminal elements,
and there is no indication the evidence was uncontroverted as to the terminal
elements. See Humphries, 71 M.J. at 215–16 (holding that to assess prejudice, “we
look to the record to determine whether notice of the missing element is somewhere
extant in the trial record, or whether the element is ‘essentially uncontroverted’”
(citing United States v. Cotton, 535 U.S. 625, 633 (2002); Johnson v. United States,
520 U.S. 461, 470 (1997))). Therefore, we now set aside appellant’s conviction for
assault with intent to commit sodomy, and dismiss the defective specification which
failed to state an offense pursuant to the holding in United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011).

       On consideration of the entire record, and pursuant to Humphries, the findings
of guilty to the Specification of Charge II, and Charge II, are set aside and that
charge and specification are dismissed. Reassessing the sentence on the basis of the
error 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 approved sentence is AFFIRMED.


                                           FOR  THE COURT:
                                           FOR THE COURT: 




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




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