UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         MULLIGAN, HERRING, and BURTON
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Specialist JAVIER J. GUMBS
                          United States Army, Appellant

                                  ARMY 20130803

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

For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA; Major
Mary E. Braisted, JA (on brief).

For Appellee: Major Albert G. Courie III, JA; Major John K. Choike, JA; Captain
Jaclyn E. Shea, JA (on brief).

                                 29 September 2015

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------
Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of assault consummated by a battery upon a child under sixteen
years of age (two specifications) and child endangerment by design (three
specifications), in violation of Articles 128 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 928, 934 (2012) [hereinafter UCMJ]. The convening authority
approved the adjudged sentence of a dishonorable discharge, thirty-two months of
confinement, and reduction to Private E1.

      This case is before us for review pursuant to Article 66, UCMJ. Appellant has
assigned one error, which merits neither discussion nor relief. * However, after
review of the entire record, we are not convinced beyond a reasonable doubt as to
one element of appellant’s guilt. Accordingly we will except “on divers occasions”
from Specification 1 of Charge II in our decretal paragraph.



*
 We have also reviewed those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit.
GUMBS—ARMY 20130803

        Specification 1 of Charge II alleged appellant struck his five year old step-
child, LV “on divers occasion . . . on the buttocks and back with a belt.” The
evidence introduced at trial to support this allegation was the testimony of LV that
appellant hit him once with a belt on his leg; the testimony of the seven year-old
older brother, CT, that he saw appellant hit LV once but believed it happened more
than once; and the testimony of government’s medical expert that the marks on LV
were “very consistent with inflicted trauma as opposed to disease process or
accidental injury” and that some marks were older than others. Both children
testified that their mother struck them with a belt as well.

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

     Having completed our review and in consideration of the entire record, we
AFFIRM only so much of Specification 1, Charge II as finds:

             [Appellant], did, at or near Fort Riley, Kansas, between on
             or about 23 June 2012 and on or about 7 October 2012,
             unlawfully strike LV, a child under the age of sixteen
             years, on the buttocks and back with a belt.

      The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error noted and do so after conducting a thorough
analysis of the totality of circumstances presented by appellant’s case and in
accordance with the principles 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). We are confident that based on the entire record and appellant’s
course of conduct, the military judge would have imposed a sentence of at least that
which was adjudged, and accordingly we AFFIRM the sentence.

      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




                                           2
GUMBS—ARMY 20130803

deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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