UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           YOB, CAMPANELLA, and KRAUSS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist EDMOND D. JONES
                          United States Army, Appellant

                                   ARMY 20111011

           Headquarters, U.S. Army Combined Arms Support Command ,
                 Sustainment Center of Excellence and Fort Lee
                          Denise R. Lind, Military Judge
                 Colonel Paul E. Kantwill, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jaired D. Stallard, JA; Captain
James P. Curtin, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain Sean P. Fitzgibbon, JA (on brief).


                                   31 October 2013
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                               SUMMARY DISPOSITION
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YOB, Senior Judge:

       A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of making a false
official statement and one specification of negligently discharging a firearm in
violation of Articles 107 and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 907 and 934 (2006) [hereinafter UCMJ]. 1 The panel sentenced appellant to a bad-
conduct discharge. The convening authority approved the adjudged sentence.


1
 Prior to arraignment, the military judge dismissed Charge II and its specification,
alleged as a violation of Article 131, UCMJ, Perjury. After the government
appealed this dismissal under Article 62, UCMJ, the military judge severed this
charge from the present court-martial. What had been listed on appellant’s charge
sheet as Charge III and Charge IV were then renumbered Charge II and Charge III,

                                                                   (continued . . .)
JONES — ARMY 20111101

       This case is before the court for review under Article 66, UCMJ. Appellant
asserts four assignments of error, two of which merit discussion and relief. Our
action in response to these two assignments of error renders it unnecessary to
address the remaining assigned errors or those matters personally raised by
Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

       The charges that resulted in findings of guilt were based on two separate
incidents. In the first incident, occurring in February 2009, appellant attended a
party at a private, off-post residence during which he unintentionally discharged a
round from his pistol while standing alone in the bedroom of the party’s host. The
round entered the wall of the room without striking anyone.

       In the second incident, occurring in November 2009, appellant was arguing
with his wife in his apartment when she suggested she might kill herself. In
response, appellant slid his loaded pistol across the counter to her and suggested she
go ahead with her threat. Moments later, his wife picked up the pistol and shot
herself under her chin. Appellant summoned emergency help and his wife was
rushed to a hospital where she received emergency medical treatment and survived
the shooting. Appellant subsequently lied about the events that led up to the
shooting, telling a civilian police officer he left the gun and an ejected magazine on
his kitchen counter, which his wife retrieved and loaded before shooting herself.

       At the conclusion of the government’s case, defense counsel moved to dismiss
Charge III and its specification, which alleged appellant made a false official
statement to the civilian police officer. Defense counsel argued appellant’s
statement to the civilian police officer did not constitute an official statement. The
parties at trial cited United States v. Teffeau, 58 M.J. 62, 68-69 (C.A.A.F. 2003),
United States v. Day, 66 M.J. 172 (C.A.A.F. 2008) and United States v. Morgan,
65 M.J. 616 (N.M. Ct. Crim. App. 2007) and framed the issue as a question of
whether a nexus existed between appellant’s statements and his military duties. The
evidence clearly showed that when appellant made the statement in question, the
civilian police officer was not acting in support of or in concert with military
authorities, and military authorities had not initiated any investigation into the
incident at that time. The government argued that a nexus was established because
the military did ultimately open an investigation after the civilian authorities
concluded their case and elected not to pursue any charges. Based on these facts and
the existing case law at the time of appellant’s trial, the military judge denied the
motion and found there was a nexus between the statements and appellant’s military
duty.



(. . . continued)
respectively. The panel found appellant not guilty of all specifications of Charge I,
as well as Specifications 1-3 of the renumbered Charge II.


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JONES — ARMY 20111101

        Subsequent to the conclusion of appellant ’s case, in United States v. Spicer,
71 M.J. 470, 473-75 (C.A.A.F. 2013), our superior court clarified the analysis used
to determine whether a statement to a civilian law enforcement officer is considered
to be an official statement within the meaning of Article 107, UCMJ. In Spicer, as
in the present case, the appellant’s statements were neither made in the line of duty
nor related to appellant’s official military duties. 71 M.J. at 475. The court
ultimately held that in cases such as this, statements made to civilian law
enforcement agents are not “official statements” for purposes of Article 107, UCMJ,
if the civilian agents “were not conducting any military function at the time the
statements were made,” even if the statements ultimately affected on -base personnel
performing official military functions. Id. Appellant cites the holding in Spicer as
grounds for dismissal of the false official statement charge. Government appellate
counsel concede that dismissal is appropriate in light of Spicer and we concur.

       Likewise, the government concedes to appellant’ s argument that this court
must dismiss the finding of guilt of Specification 4 of Charge II (negligent
discharge) under the holding of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011)
and United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). We concur. The
government failed to allege the “terminal element” of the Article 134, UCMJ,
offense in this charge. 2 Further, nothing in the record of trial provides any notice of
the terminal element prior to the military judge’s instructions to the members, which
occurred after the close of evidence and therefore “did not alert the appell[ant] to
the Government’s theory of guilt.” Id. at 216 (citing Fosler, 70 M.J. at 230). Based
on a totality of the circumstances, we are not convinced appellant was placed on
sufficient notice of the government’s theory as to which clause(s) of the terminal
element he violated. As a result, the government’s failure to allege the terminal
element in specification 4 of Charge II, constituted material prejudice to appellant’s
substantial right to notice. See id. at 215-17; UCMJ art. 59a.

       Therefore, on consideration of the entire record and the briefs submitted by
the parties, the findings of guilty of Specification 4 of Charge II and Charge II and
the Specification of Charge III and Charge III are set aside. The sentence is set
aside. Charge III and its specification are dismissed. The same or a different
convening authority may order a rehearing on Specification 4 of Charge II and
Charge II. All rights, privileges, and property of which appellant has been deprived
by virtue of the findings of guilty and the sentence set aside by this decision are
ordered restored. See UCMJ art. 75(a).




2
 The terminal element for this offense requires proof that appellant’s conduct was
either of a nature to bring discredit upon the armed forces or to the prejudice of
good order and discipline in the armed forces. UCMJ art. 134.


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JONES — ARMY 20111101

    Judge CAMPANELLA and Judge KRAUSS concur.


                              FOR THE
                              FOR THE COURT:
                                      COURT:



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




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