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

                           UNITED STATES, Appellee
                                        v.
                         Private E1 DAMION M. PETEE
                          United States Army, Appellant

                                  ARMY 20130128

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
             Lieutenant Colonel John A. Hamner, Staff Judge Advocate


For Appellant: Major Jacob D. Bashore, JA; Captain Brian J. Sullivan, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Elisabeth A. Claus, JA; Captain Timothy C. Erickson, JA (on brief).


                                24 September 2014

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                              SUMMARY DISPOSITION
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KRAUSS, Judge:

       A military judge, sitting as a general court-martial, convicted appellant
pursuant to his pleas of attempted wrongful distribution of hydromorphone (two
specifications), wrongful use of cocaine, wrongful use of amphetamine, sexual abuse
of a child, assault consummated by a battery, child endangerment by design (three
specifications), child endangerment by culpable negligence (two specifications), and
unlawfully hosting minors consuming alcoholic liquor or cereal malt beverages in
violation of Articles 80, 112a, 120b, 128, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 880, 912a, 920b, 928, 934 (2006 & Supp. V 2012).
Appellant was sentenced to a dishonorable discharge and three years confinement.
In accordance with a pretrial agreement, the convening authority approved only so
much of the sentence as provided for a dishonorable discharge and 30 months
confinement. The convening authority also credited appellant with 105 days against
the sentence to confinement.
PETEE—ARMY 20130128

       This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors asserting the improvidence of his pleas to the two specifications
of child endangerment by culpable negligence and to the charge and specification of
assault consummated by a battery, respectively. He also raises an issue pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find that the error
relative to the battery has merit, but that the other assigned error and the matter
raised pursuant to Grostefon do not.

        Appellant pled guilty to assault consummated by a battery based on the fact
that he injected dilaudid 1 into the arm of a minor who asked him to do it. During the
providence inquiry, the military judge premised appellant’s guilty plea on the notion
that “a person may not lawfully consent to having something done to them that is
unlawful” and that “a person cannot lawfully consent to an unlawful touching.” The
parties do not offer, and we do not find, any authority to embrace such a broad
diminution of the consent defense to simple battery. We recognize the possibility
that one might providently plead guilty to a charge of simple battery under these
circumstances. However the legal premise of such a plea would be based on the
notion that such activity is sufficiently offensive to public order as to permit
liability under Article 128. See generally United States v. Bygrave, 46 M.J. 491
(C.A.A.F. 1997); United States v. Arab, 55 M.J. 508 (Army Ct. Crim. App. 2001).
An accused might admit that the act of injecting a potentially injurious illegal drug
into the arm of a drunken minor is sufficiently offensive to the public generally as to
permit conviction under Article 128. However, neither that legal premise, nor
reference to those facts as the basis for criminal liability in that context, was
discussed with appellant. Therefore, we hold that appellant’s plea to this offense is
insufficiently intelligent to warrant its acceptance. See United States v. Medina,
66 M.J. 21 (C.A.A.F. 2008). 2

       Although not raised by appellant, we also find precious little in the record to
accept appellant’s pleas to child endangerment under Article 134 as far as the
alleged prejudice to good order and discipline and will take action accordingly.
Nowhere does appellant articulate prejudice as contemplated or defined under
Article 134. See Manual for Courts-Martial, United States (2012 ed.) [hereinafter
MCM], pt. IV, ¶ 60.c(2)(a). He did, however, rather consistently articulate facts

1
 Appellant stipulated that “dilaudid” is a Schedule II controlled substance with the
generic name of hydromorphone.
2
  Even if we were to accept appellant’s plea on the general premise expressed by the
judge, we conclude that the circumstances of this case warrant the exercise of our
plenary power under Article 66 to set aside the battery conviction as an unreasonable
multiplication of charges in light of appellant’s conviction of child endangerment by
design for the same misconduct. See Rule for Court-Martial 307(c)(4); United States
v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001).


                                           2
PETEE—ARMY 20130128

sufficient to establish a knowing and intelligent plea to conduct that was service
discrediting. See MCM, pt. IV, ¶ 60.c(3).

       The findings of guilty as to Charge IV and its specification (assault
consummated by a battery) are set aside and dismissed. As to Specifications 1, 2, 3,
4, and 6 of Charge V (child endangerment), we affirm only so much of each
specification as alleges that appellant’s conduct was of a nature to bring discredit
upon the armed forces. The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted and the entire record,
we are confident appellant would have received a sentence at least as severe as that
approved by the convening authority. See United States v. Sales, 22 M.J. 305, 307-
08 (C.M.A. 1986); United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013). The sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored.

      Senior Judge LIND and Judge PENLAND concur.

                                       FOR
                                      FOR  THE
                                          THE   COURT:
                                              COURT:




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




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