UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 COOK 1, HAIGHT, and PENLAND
                                    Appellate Military Judges

                               UNITED STATES, Appellee
                                           v.
                           Private E2 TIMOTHY E. BENNITT
                             United States Army, Appellant

                                         ARMY 20100172

                                Headquarters, I Corps
                            Kwasi Hawks, Military Judge
                  Colonel Mitchell R. Chitwood, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Patrick J.
Scudieri, JA; Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Major A.G. Courie, III, JA; Major Janae M. Lepir, JA; Captain Carrie
L. Ward, JA (on brief).


                                        3 September 2015
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                      SUMMARY DISPOSITION ON FURTHER REVIEW
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Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of four specifications of wrongful distribution of a
controlled substance and four specifications of wrongful use of a controlled
substance, each in violation of Article 112a, Uniform Code of Military Justice, 10
U.S.C. § 912a (2006) [hereinafter UCMJ]. Contrary to appellant’s plea, the military
judge also convicted appellant of involuntary manslaughter while perpetrating an
offense directly affecting the person of LK by aiding or abetting her wrongful use of
a controlled substance in violation of Article 119(b)(2), UCMJ. 2 The convening

1
    Senior Judge COOK took final action in this case prior to his retirement.
2
 The military judge acquitted appellant of involuntary manslaughter by culpable
negligence under Article 119(b)(1), UCMJ.
BENNITT—ARMY 20100172

authority approved the adjudged sentence of a dishonorable discharge, confinement
for seventy months, forfeiture of all pay and allowances, and reduction to the grade
of E-1. The convening authority also credited appellant with 360 days of
confinement against his sentence to confinement.

       On 16 May 2012, in a per curiam opinion, this court affirmed the findings and
sentence. Our superior court, the Court of Appeals for the Armed Forces (CAAF), in
United States v. Bennitt (Bennitt I), 72 M.J. 266 (C.A.A.F. 2013), reversed our
decision in regard to the Article 119(b)(2), UCMJ, offense. In setting aside the
finding of guilty and dismissing the specification for legal insufficiency, CAAF
found appellant’s distribution of oxymorphone to LK, his 16-year-old girlfriend,
which led to her death by overdose, did “not constitute . . . an offense directly
affecting the person.” Id. at 271-72. Our superior court also set aside appellant’s
sentence; affirmed the remaining findings of guilty; and returned the record of trial
to The Judge Advocate General of the Army, who in turn returned the record to this
court to either reassess the sentence or direct a rehearing on sentence.

       On 25 September 2013, in a Summary Disposition on Further Review, based
on the entire record and after reassessing the sentence, we affirmed the sentence.
United States v. Bennitt (Bennitt II), ARMY 20100172, 2013 CCA LEXIS 838
(Army Ct. Crim. App. 25 Sept. 2013) (summ. disp.). In so doing, we found that
“[a]lthough appellant now stands acquitted of involuntary manslaughter, pursuant to
Rule for Courts-Martial 1001(b)(4), LK’s death was directly related to appellant’s
conviction for oxymorphone distribution.” Id. at *3-4. Therefore, the evidence
underlying the dismissed charge was proper aggravation evidence . . . .” Id. at *4.
Pursuant to appellate defense counsel’s request, we reconsidered our decision, but
ultimately affirmed again the reassessed, approved sentence on 25 March 2014.
United States v. Bennitt (Bennitt III), ARMY 20100172, 2014 CCA LEXIS 188
(Army Ct. Crim. App. 25 Mar. 2014) (summ disp.).

       On 2 April 2015, our superior court set aside that decision. United States v.
Bennitt (Bennitt IV), 74 M.J. 125 (C.A.A.F. 2015). While acknowledging that
appellant distributed oxymorphone to LK, CAAF specifically ruled that appellant’s
conviction for distribution of oxymorphone did not include that acknowledged
distribution to LK. 3 Id. at 128. Our superior court further stated, “we make no


3
    The court explained:

               As a preliminary matter, we [CAAF] note that in Bennitt I,
               we held Appellant's conviction for involuntary
               manslaughter “is legally insufficient because Appellant's
               distribution of the controlled substance was not an

                                                                  (continued . . .)


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BENNITT—ARMY 20100172

statement on whether sentence reassessment rather than a rehearing was appropriate,
the admissibility of evidence of LK’s death as aggravation evidence for the
distribution [to those other than LK] charge, or whether the reassessed sentence was
also appropriate.” Id. at 129. Finally, our superior court returned the record to The
Judge Advocate General of the Army for remand to this court for reassessment of the
sentence or a rehearing. Id.

      Having now once again thoroughly reviewed this case, we find reassessment
appropriate.

                              LAW AND DISCUSSION

      As a preliminary matter, we must first determine whether evidence of
appellant’s distribution of oxymorphone to LK and her death is admissible as
aggravation evidence in regards to appellant’s conviction for distribution of
oxymorphone.

      Appellant argues that we cannot consider this evidence because it not only
represents uncharged misconduct, but also should be excluded pursuant to Military
Rule of Evidence [hereinafter Mil. R. Evid.] 403. In the alternative, appellant posits
that LK’s death was not sufficiently related to appellant’s actions to warrant its use
as aggravating evidence.




(. . . continued)
               ‘offense . . . directly affecting the person.’” Our use of
               the word “distribution” was a description of the conduct
               underlying the involuntary manslaughter charge, not a
               holding that Appellant's Article 112a, UCMJ, conviction
               for distribution of oxymorphone included distribution to
               LK -- a matter which our opinion in Bennitt I did not
               address. While Appellant no doubt did distribute
               oxymorphone to LK, as he himself admitted, that
               “distribution” was presented as the means by which he
               was guilty of the Article 119, UCMJ, manslaughter
               offense, which this Court vacated. Contrary to the CCA's
               conclusion, the Article 112a, UCMJ, conviction did not
               include distribution of oxymorphone to LK.

Bennitt IV, 74 M.J. at 128 (internal citations omitted).




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BENNITT—ARMY 20100172

       Government counsel, on the other hand, in encouraging us to use this
distribution and death as a matter in aggravation, cites to United States v. Shupe, 36
M.J. 431 (C.M.A. 1993). In that case, our superior court allowed the admission of
testimony concerning Shupe’s involvement in LSD transactions and introductions of
LSD onto a naval base that were in addition to those he admitted to during his
providence inquiry. Id. at 436. In so doing, our superior court found this evidence
was admissible under Rule for Courts-Martial [hereinafter R.C.M.] 1001(b)(4),
specifically finding “it showed ‘the continuous nature of the charged conduct and its
full impact on the military community.’” Id. (quoting United States v. Ross, 34 M.J.
183, 187 (C.M.A. 1992)).

       In applying R.C.M. 1001(b)(4) (“Evidence in aggravation”) to the current
case, we find that while the distribution to LK is admissible because, like Shupe, it
clearly illustrates the “continuous nature of the charged conduct and its full impact
on the military community,” evidence concerning LK’s death is not. 36 M.J. at 436
(quoting Ross, 34 M.J. at 187). The distribution to LK was closely related to a
charge of which appellant remains convicted in that it involved the same drug, the
same location, and the same timeframe. Although we do not agree with appellant’s
characterization that appellant’s distribution to LK or her death represents
uncharged misconduct or that this evidence should be excluded under Mil. R. Evid.
403, based on the facts and posture of appellant’s case, we find too tenuous a link to
extend R.C.M. 1001(b)(4) to allow the admission of LK’s death to be used as
aggravation evidence.

        In deciding whether we can reassess appellant’s sentence, we consider the
totality of the circumstances presented by appellant’s case, including the principles
and non-exhaustive list of factors articulated by our superior court in United States
v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22
M.J. 305 (C.M.A. 1986).

       First, we note the penalty landscape and exposure was not dramatically
changed by our superior court’s earlier decision to set aside appellant’s Article
119(b)(2), UCMJ, conviction. See Winckelmann, 73 M.J. at 15. After trial,
appellant stood convicted of offenses that exposed him to 82 years of confinement.
Setting aside the Article 119(b)(2), UCMJ, conviction reduced appellant’s maximum
sentence to confinement by 10 years. The CAAF’s later ruling that appellant’s
conviction for oxymorphone distribution does not include the distribution to LK
does not affect the maximum potential punishment at all. As such, appellant’s
approved sentence to 70 months of confinement is still well below the adjusted
maximum period of confinement. This factor weighs in favor of our ability to
reassess his sentence.

       Second, appellant chose to be sentenced by a military judge alone and because
“the courts of criminal appeals are more likely to be certain of what a military judge



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BENNITT—ARMY 20100172

would have done as opposed to members,” this factor also favors our ability to
reassess his sentence. Id. at 16.

       With respect to the third factor, we note that at its core, the gravamen of
appellant’s misconduct remains the same. Id. Appellant’s case involved multiple
unlawful distributions of powerful and dangerous controlled substances to soldiers
in the military barracks. Not being able to consider LK’s death as an aggravating
factor does not impact the seriousness of appellant repeatedly distributing
oxycodone to soldiers in the barracks or distributing, again in the barracks,
oxymorphone to multiple soldiers on divers occasions. Each of these convictions
carried a maximum punishment that included confinement for 15 years and a
dishonorable discharge.

       In addition, per our discussion above, we can still consider that appellant
provided oxymorphone to a 16-year-old in the barracks as a factor in aggravation
despite the fact appellant is not convicted of distribution to LK. See Shupe, 36 M.J.
431. Appellant also still stands convicted of distributing marijuana to soldiers in the
barracks and distributing alprazolam, a Schedule IV controlled substance, to a
soldier in the barracks. These drug distributions carried with them a maximum
punishment that included, respectively, 15 and 10 years of confinement and a
dishonorable discharge. Although we are no longer considering LK’s death as an
aggravating factor, the remaining offenses of which appellant stands convicted
continue to capture the gravamen of appellant’s criminal conduct and therefore this
factor weighs in favor of our ability to reassess this case.

       Finally, in reviewing the fourth factor, based on our experience and
familiarity with the type of charges that remain, we are confident we can reliably
determine what sentence, at a minimum, would have been imposed at trial. Id.
Having concluded that all four enumerated Winckelmann factors support our ability
to reassess appellant’s sentence and after considering the totality of the
circumstances presented by appellant’s case, to include the noted error, we find that
we are able to reassess appellant’s sentence.

                                   CONCLUSION

       Reassessing the sentence based on the errors noted and the entire record, we
AFFIRM only so much of the approved sentence that includes a dishonorable
discharge, confinement for sixty-three months, and reduction to the grade of E-1. We
find this reassessed sentence is not only purged of any error, but is also appropriate.
All rights, privileges, and property, of which appellant has been deprived by virtue
of that portion of the findings and sentence that have been set aside, are ordered
restored.




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BENNITT—ARMY 20100172

                        FOR
                        FOR THE
                            THE COURT:
                                COURT:




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




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