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

                           UNITED STATES, Appellee
                                        v.
                      Specialist WILLIAM E. NEWTON, JR.
                          United States Army, Appellant

                                   ARMY 20110499

                            Headquarters, Fort Bliss
          David H. Robertson and Jacqueline L. Emanuel, Military Judges
                  Colonel Francis P. King, Staff Judge Advocate


For Appellant: Captain Robert A. Feldmeier, JA; William E. Cassara, Esquire (on
brief); Captain James S. Trieschmann, Jr., JA; William E. Cassar a, Esquire (on reply
brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine Brantley, JA; Captain Daniel M. Goldberg, JA (on brief).


                                  19 December 2013

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

Per Curiam:

       A panel of officer and enlisted members, sitting as a general court -martial,
convicted appellant, contrary to his pleas, of rape of a child under the age of twelve
years in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920
(1994) [hereinafter UCMJ]; indecent acts; wrongfully sending a picture of himself to
his natural daughter, who was under eighteen years of age, focused on his genital
area, showing an erection underneath his clothing; and knowingly failing to register
as required by the Sex Offender Registration and Notification Act, 18 U.S.C. §
2052(a), in violation of Articles 120 and 134 UCMJ. 10 U.S.C. 920, 934 (2006 &
Supp. III 2010). The panel sentenced appellant to a dishonorable discharge, thirty
years confinement, and total forfeitures. The convening authority approved only so
much of the sentence extending to a dishonorable discharge, twenty-nine years
confinement, and total forfeitures.
NEWTON —ARMY 20110499

       This case is before this court for review pursuant to Article 66, UCMJ.
Appellant argues that the evidence is legally and factually insufficient to sustain all
of his convictions. We agree in part. First, because the evidence only presented and
established one instance of rape of a child under the age of twelve years, the
evidence is insufficient to sustain appellant’s conviction for raping a child under the
age of twelve years “on divers occasions.” Second, we also agree that the evidence
is insufficient regarding appellant’s violations of Article 134, UCMJ, but only to the
extent that the evidence does not reflect that appellant’s acts were to the prejudice of
good order and discipline in the armed forces. Appellant’s other assignments of
error do not merit discussion or relief.

                               “On Divers Occasions”

       In Specification 1 of renumbered Charge I, the government charged appellant
with raping BN, a child under the age of twelve years , “on divers occasions.”
However, at trial, BN only testified as to a single instance of rape, which occurred in
a hotel room. No other evidence establishes other possible instances of a rape of
BN. At an Article 39(a), UCMJ session covering instructions for findings,
government counsel noted without objection fro m defense counsel that the evidence
did not raise on divers occasions. Trial counsel argued before findings that the rape
occurred one time. After findings, the parties agreed that the evidence presented
only one instance of penile penetration of BN. The military judge instructed the
panel at sentencing that with regards to the rape conviction, appellant could “be
sentenced for only one instance of conduct.” Accordingly, we agree that the
evidence is factually and legally insufficient to sustain the “on divers occasions”
language of Specification 1 of renumbered Charge I.

       We further conclude that this relief does not create ambiguous findings. “[A]
Court of Criminal Appeals may review the record to determine if there is only a
single possible incident that meets all the details of the specification for which the
appellant was convicted.” United States v. Wilson, 67 M.J. 423, 429 (C.A.A.F.
2009) (citing United States v. Scheurer, 62 M.J. 100, 111-112 (C.A.A.F. 2005)).
Here, the record is unambiguous as to which incident formed the basis of the
conviction because the record reflects only a single instance of rape.

                         The Article 134, UCMJ Convictions

       Appellant stands convicted of two Article 134, UCMJ offenses. Specification
2 of renumbered Charge II is a novel specification:

      In that [appellant], U.S. Army, did, at or near Fort Bliss, Texas,
      between on or about 1 January 2010 and 1 March 2010, wrongfully
      send a picture of himself to his natural daughter, [BN], who was under
      18 years of age, focused on his genital area, showing an erection



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NEWTON —ARMY 20110499

      underneath his clothing, which conduct, under the circumstances, was
      to the prejudice of good order and discipline and was of a nature to
      bring discredit upon the armed forces.

The other offense, the Specification of the Additional Charge, all eged a violation of
all three clauses of Article 134, UCMJ:

      In that [appellant], U.S. Army, who was required to register under the
      Sex Offender Registration and Notification Act, did, at or near El Paso,
      Texas, between on or about 1 October 2009 and on or about 29 July
      2010, travel in interstate commerce, and knowingly fail to register in
      the state of Texas as he was required to do by the Sex Offender
      Registration and Notification Act, in violation of 18 U.S. Code Section
      2250(a), such conduct being prejudicial to good order and discipline in
      the armed forces and being of a nature to bring discredit upon the
      armed forces.

Here, the government admitted no evidence tending to prove that appellant’s conduct
was prejudicial to good order and discipline. Therefore, on the record before us, we
conclude that the evidence is legally and factually insufficient to sustain appellant’s
convictions for conduct in violation of Clause 1 of Article 134, UCMJ .

                                   CONCLUSION

       On consideration of the entire record, the court only affirms so much of the
finding of guilty of Specification 1 of renumbered Charge I as finds that appellant
“did, at or near St. Louis, Missouri, between on or about 1 September 1998 and 1
September 2001, rape BN, a person under the age of 12.” The court only affirms so
much of the finding of guilty of Specification 2 of renumbered Charge II as finds
that appellant “did, at or near Fort Bliss, Texas, between on or about 1 January 2010
and 1 March 2010, wrongfully send a picture of himself to his nat ural daughter,
[BN], who was under 18 years of age, focused on his genital area, showing an
erection underneath his clothing, which conduct, under the circumstances, was of a
nature to bring discredit upon the armed forces.” The court only affirms so much of
the finding of guilty of the Specification of the Additional Charge as finds that
appellant “who was required to register under the Sex Offender Registration and
Notification Act, did, at or near El Paso, Texas, between on or about 1 October 2009
and on or about 29 July 2010, travel in interstate commerce, and knowingly fail to
register in the state of Texas as he was required to do by the Sex Offender
Registration and Notification Act, in violation of 18 U.S. Code Section 2250(a),
such conduct being of a nature to bring discredit upon the armed forces.” The
remaining findings of guilty are AFFIRMED.




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NEWTON —ARMY 20110499

       Reassessing the sentence on the basis of the modified findings, 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. All rights, privileges, and property, of whic h
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored.




                                                 FOR THE COURT:




                                                 MALCOLM H. SQUIRES, JR.
                                                 Clerk of Court




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