                       UNITED STATES, Appellee

                                    v.

                     Timothy E. BENNITT, Private
                         U.S. Army, Appellant

                              No. 12-0616

                       Crim. App. No. 20100172

       United States Court of Appeals for the Armed Forces

                       Argued December 10, 2014

                        Decided April 2, 2015

RYAN, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY, and OHLSON, JJ., joined. BAKER, C.J., filed a separate
dissenting opinion.

                                 Counsel


For Appellant: Major Yolanda D. McCray Jones (argued); Colonel
Patricia A. Ham, Lieutenant Colonel Jonathan F. Potter, Major
Jacob D. Bashore, Major Amy E. Nieman, and Captain Aaron R.
Inkenbrandt (on brief); Colonel Kevin Boyle.


For Appellee: Captain Carrie L. Ward (argued); Colonel John P.
Carrell, Lieutenant Colonel Amber J. Roach, Major Katherine S.
Gowel, Captain Kenneth W. Borgnino, and Captain Janae M. Lepir
(on brief); Captain Timothy C. Erickson.


Military Judge:   Kwasi L. Hawks

       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bennitt, 12-0616/AR


       Judge RYAN delivered the opinion of the Court.

       Pursuant to his pleas, a military judge sitting as a

general court-martial convicted Appellant of four specifications

of wrongful distribution of a controlled substance and three

specifications of wrongful use of a controlled substance in

violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912(a) (2006).    Contrary to Appellant’s

plea, the military judge convicted Appellant of the involuntary

manslaughter of LK, in violation of Article 119, UCMJ.

Appellant was sentenced to a reduction to the grade of E-1,

forfeiture of all pay and allowances, confinement for a period

of seventy months, and a dishonorable discharge.   The United

States Army Court of Criminal Appeals (CCA) affirmed the

findings and sentence.   This Court subsequently set aside and

dismissed Appellant’s conviction for the involuntary

manslaughter of LK as legally insufficient.   United States v.

Bennitt (Bennitt I), 72 M.J. 266, 267 (C.A.A.F. 2013) (holding

that “Appellant’s conduct was not an offense directly affecting

the person”).   We reversed the CCA’s decision as to Appellant’s

sentence and returned the record of trial to the CCA for

sentence reassessment or a rehearing on the sentence.    Id. at

272.

       The CCA reassessed Appellant’s sentence, and reimposed the

same sentence Appellant had received before his appeal to this

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United States v. Bennitt, 12-0616/AR


Court.    United States v. Bennitt (Bennitt II), No. ACM 20100172,

2013 CCA LEXIS 838, at *4-5, 2013 WL 5588229, at *2 (A. Ct.

Crim. App. Sept. 25, 2013) (unpublished).       The CCA explained

that “[a]lthough appellant now stands acquitted of involuntary

manslaughter, pursuant to Rule for CourtsMartial [sic]

1001(b)(4), LK’s death was directly related to appellant’s

conviction for oxymorphone distribution.    Therefore, the

evidence underlying the dismissed charge was proper aggravation

evidence . . . .”    Bennitt II, 2013 CCA LEXIS 838, at *3-4, 2013

WL 5588229, at *1.

       On a motion for reconsideration in light of United States

v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), the CCA again

reassessed, and did not change, Appellant’s sentence.1      United

States v. Bennitt (Bennitt III), No. ACM 20100172, 2014 CCA

LEXIS 188, at *11, 2014 WL 1246764, at *3 (A. Ct. Crim. App.

Mar. 25, 2014) (unpublished).    The CCA’s reasoning did change,

however.    The CCA concluded that evidence of LK’s death was

admissible aggravation evidence because Appellant’s Article


1
    We granted review of the following issue:

       WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS
       DISCRETION BY RE-AFFIRMING APPELLANT’S APPROVED SENTENCE
       AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.

Because we hold that the CCA’s analysis included the erroneous
statement that Appellant was convicted of distribution to LK as
part of his Article 112a, UCMJ, conviction, we do not reach the
granted issue.
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United States v. Bennitt, 12-0616/AR


112a, UCMJ, conviction of oxymorphone distribution on divers

occasions on or about February 14, 2009, included distribution

of the drug to LK.   Bennitt III, 2014 CCA LEXIS 188, at *9-10,

2014 WL 1246764, at *3.

      While the CCA enjoys broad discretion in reassessing a

sentence, Winckelmann, 73 M.J. at 15, 18, it cannot base its

reassessment on an erroneous statement of law.      See United

States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005) (holding

that the lower court improperly relied on an erroneous view of

the law when reassessing the appellant’s sentence).      The CCA

erred as a matter of law in its second reassessment when it

stated that Appellant was convicted of distribution of

oxymorphone to LK as part of his Article 112a, UCMJ, conviction.

Bennitt III, 2014 CCA LEXIS 188, at *9-10, 2014 WL 1246764, at

*3.   We therefore reverse the decision of the CCA and remand for

sentence reassessment or a sentence rehearing consistent with

this opinion.

                             I.   FACTS

      We described all of the facts surrounding the charged

events in our opinion in Bennitt I.       72 M.J. at 267-68.   This

disposition requires special attention to the chronology of

events on the night LK died -- the evening of February 14 and

early morning of February 15, 2009.

      Appellant gave two sworn statements to law enforcement,

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United States v. Bennitt, 12-0616/AR


both of which were admitted as evidence to support the contested

Article 119, UCMJ, charge and specifications.   In the first, he

testified that around 1:00 a.m. or 1:30 a.m. on February 15, he

picked up his girlfriend, LK, and her friend, TY, and brought

them back to his room on base.    He stated that around 1:45 a.m.

he snorted an oxymorphone pill LK gave him; around 2:00 a.m. or

2:15 a.m., he left the room; he later returned and found LK and

TY asleep; around 3:00 a.m., Appellant laid down with them and

fell asleep; and at 4:30 a.m., he woke to find LK foaming at the

mouth and pale.

     In his second statement, Appellant wrote that about 9:00

p.m. on February 14, he borrowed a soldier’s truck and drove to

meet LK.   After purchasing pills and running other errands,

Appellant drove LK and TY to his barracks.   Appellant stated

that upon returning to the barracks he gave pills to another

soldier, then took LK and TY to his room to watch a movie.     He

admitted to crushing and snorting one pill then preparing a

second pill for LK and TY to snort.    Shortly after they snorted

these pills, Appellant received a phone call from a friend

asking him to find some “weed.”   He made a call then left his

room to search for marijuana.    According to Appellant, he

returned to find LK and TY asleep on his bed, joined them for an

hour and a half, woke to find LK unresponsive, and called 911.

     Appellant’s call log shows outgoing calls at 1:07 a.m. and

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United States v. Bennitt, 12-0616/AR


3:35 a.m. on February 15, and one incoming call at 1:11 a.m.

that lasted approximately two minutes.   At trial, an EMT

testified that he received the 911 call about LK at 3:35 or 3:40

a.m. on February 15.   TY testified at trial that she, Appellant,

and LK got to base at 11:17 p.m. on February 14.

     In relevant part, the Government charged Appellant with

distribution of oxymorphone “on divers occasions between on or

about 14 February 2009 and on or about 15 February 2009,” a

violation of Article 112a, UCMJ, as well as involuntary

manslaughter of LK by “aiding or abetting her wrongful use

Oxymorphone and Alprazolam,” in violation of Article 119, UCMJ.

     Appellant pleaded guilty to distribution of oxymorphone,

with the exception of the words “on divers occasions between”

and “and on or about 15 February 2009,” to which he pleaded not

guilty.2   During the providence inquiry, Appellant testified that

he distributed oxymorphone to three soldiers on February 14.    He

did not testify that he distributed oxymorphone to LK.

Following the merits phase of the court-martial, the military

judge found Appellant guilty of distribution of oxymorphone “on

divers occasions” “on or about” February 14, 2009, but not

guilty of the excepted words “between” and “on or about 15

February 2009.”   In relevant part, he also found Appellant


2
  Appellant subsequently modified his plea to admit guilt on
divers occasions “on or about 14 February 2009.”
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United States v. Bennitt, 12-0616/AR


guilty of unlawfully killing LK “by aiding and abetting her

wrongful use of Oxymorphone” “between on or about 14 February

2009 and on or about 15 February 2009.”3   (Emphasis added.)

    II.   ARMY COURT OF CRIMINAL APPEALS SENTENCE REASSESSMENT

     In its March 25, 2014, opinion on reconsideration in light

of Winckelman, the CCA stated that the Government’s theory at

trial was that the involuntary manslaughter charge was “a form

of aggravated distribution of oxymorphone,” and that “[t]he

evidence in this case . . . showed that on or about 14 February

2009, [A]ppellant distributed oxymorphone to . . . LK, and then

went further in facilitating LK’s use of the drug.”     Bennitt

III, 2014 CCA LEXIS 188, at *6, *8, 2014 WL 1246764, at *2-3

(emphasis added).   Based on the evidence at trial, Appellant’s

sworn statements, the providence inquiry testimony, and the

overlap of the time frames specified in the Article 112a, UCMJ,

distribution charge and the Article 119, UCMJ, involuntary

manslaughter charge set aside by this Court, the CCA concluded

that Appellant’s Article 112a, UCMJ, distribution conviction

“covers and includes his distribution to LK.”     Bennitt III, 2014

CCA LEXIS 188, at *9, 2014 WL 1246764, at *2-3.




3
  The military judge found Appellant not guilty of the excepted
words “and Alprazolam.”
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United States v. Bennitt, 12-0616/AR


                         III.   DISCUSSION

     As a preliminary matter, we 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 ‘offense . . . directly affecting the

person.’”   72 M.J. at 267 (quoting Article 119(b)(2), UCMJ).

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.

     An accused has a right to be tried and “heard on the

specific charges of which he is accused.”    United States v.

Dunn, 442 U.S. 100, 106 (1979).    Though the CCA has significant

factfinding powers under Article 66, UCMJ, the CCA is “not free

to revise the basis on which a defendant is convicted simply

because the same result would likely obtain on retrial.”      United

States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009) (quoting

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United States v. Bennitt, 12-0616/AR


Dunn, 442 U.S. at 107).    To that end, “an appellate court may

not affirm an included offense on ‘a theory not presented to

the’ trier of fact.”   United States v. Riley, 50 M.J. 410, 415

(C.A.A.F. 1999) (quoting Chiarella v. United States, 445 U.S.

222, 236 (1980)); see also United States v. Standifer, 40 M.J.

440, 445 (C.M.A. 1994) (“If the evidence is sufficient to

establish an included offense, this Court may affirm the

included offense, provided that it does not do so on a theory

not presented to the trier of fact.”).

     The CCA’s finding was based on “a theory not presented to

the trier of fact.”    Riley, 50 M.J. at 415 (internal quotation

marks omitted).   First, the Government did not present evidence

that Appellant gave oxymorphone to LK in support of the Article

112a, UCMJ, charge.    Next, Appellant’s guilty plea to the

Article 112a, UCMJ, charge does not support distribution to LK

−− in pleading, he excepted the words “and on or about 15

February 2009,” to which he pleaded not guilty.   Nor did

Appellant testify during the providence inquiry that he

distributed oxymorphone to LK.   While the Government could have

gone forward on the merits to prove Appellant was guilty of the

excepted words, the Government did not do so.   See United States

v. Hartsfeld, 18 C.M.A. 569, 570, 40 C.M.R. 281, 282 (1969)

(affirming a conviction despite an improvident plea because the

government proved the conduct during the merits phase).

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United States v. Bennitt, 12-0616/AR


     The record, particularly the Government’s opening

statement, reveals that the Government’s theory in the merits

phase was that Appellant was guilty of involuntary manslaughter,

in violation of Article 119, UCMJ, by means of aiding and

abetting LK’s use of oxymorphone.      In pursuit of this, the

Government did present evidence -- most notably Appellant’s

second sworn statement -- that he distributed oxymorphone to LK;

however, the Government brought this evidence as support for the

Article 119, UCMJ, involuntary manslaughter charge, which this

Court set aside.    See Bennitt I, 72 M.J. at 267.

     Moreover, the CCA was bound by the military judge’s finding

that Appellant was not guilty of distribution on February 15.

The CCA can “affirm only such findings of guilty . . . as it

finds correct in law and fact,” Article 66(c), UCMJ, and “cannot

find as fact any allegation in a specification for which the

fact-finder below has found the accused not guilty.”      United

States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003); see also

United States v. Smith, 39 M.J. 448, 451-52 (C.M.A. 1994),

overruled on other grounds by United States v. Fosler, 70 M.J.

225 (C.A.A.F. 2011) (“[A CCA] may not make findings of fact

contradicting findings of not guilty reached by the

factfinder.”).     The military judge waited to pronounce his

findings for all of the charges and specifications until after

the conclusion of the merits trial for involuntary manslaughter.

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United States v. Bennitt, 12-0616/AR


The military judge found Appellant guilty of distribution of

oxymorphone “on divers occasions” “on or about” February 14,

2009, but not guilty of the excepted words “between” and “on or

about 15 February 2009.”   The effect of this finding is that

neither this Court nor the CCA is free to conclude that

Appellant’s conviction for that specification of the Article

112a, UCMJ, charge included distribution on February 15 -- even

if the record showed that he actually distributed on that day.4

Walters, 58 M.J. at 395.

     Nor is the record legally sufficient to support a

distribution to LK on February 14, even if the Government had

intended to prove at trial distribution of oxymorphone to LK in

support of the Article 112a, UCMJ, conviction.   In Appellant’s

initial sworn statement, he indicated multiple times,

unequivocally, that his relevant interactions with LK all

occurred on February 15, 2009.   In Appellant’s second statement,

he recalled that “[s]hortly after” he, LK, and TY snorted the

oxymorphone, he made a call to look for marijuana, left his room

to try to locate some marijuana, then returned to his room and


4
  Normally, the charge “on or about February 14, 2009” would
include the early morning hours of February 15, 2009, and
whether an action took place just before midnight or just after
midnight is usually insignificant. However, because Appellant
excepted the portions of his plea dealing with February 15, and
the military judge found Appellant not guilty of distribution on
February 15, in this case “on or about” cannot include actions
that took place on February 15.
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United States v. Bennitt, 12-0616/AR


fell asleep for “about an hour and a half.”    Appellant’s call

logs, along with the EMT’s testimony, corroborate the timing

established in his second statement, and show that these calls

and the tragic interactions that resulted in the death of LK

took place on February 15.    Finally, while TY testified that

she, Appellant, and LK arrived on base at 11:17 p.m. on February

14, nothing in her testimony suggests that she or LK took

oxymorphone on February 14.     Together, this evidence is legally

insufficient to support the conclusion that Appellant’s

distribution to LK took place on February 14.     See United States

v. Tollinchi, 54 M.J. 80, 82 (C.A.A.F. 2000).

                          IV.    CONCLUSION

     We hold that the CCA erred as a matter of law in stating

that Appellant was convicted of distribution to LK as part of

his Article 112a, UCMJ, conviction.    In so holding, we make no

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 charge, or

whether the reassessed sentence was also appropriate.    The

decision of the United States Army Court of Criminal Appeals is

therefore reversed.   The record is returned to the Judge

Advocate General of the Army for remand to the CCA for

reassessment of the sentence or rehearing in light of our

findings.

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United States v. Bennitt, NO 12-0616/AR


        BAKER, Chief Judge (dissenting):

        I respectfully dissent from this Court’s opinion concluding

that Appellant was not convicted of distribution of oxymorphone

to LK.    This conclusion is contrary to the military judge’s

findings, the lower court’s findings, and the record in this

case.    The majority’s conclusion is also contrary to this

Court’s long-standing practice interpreting the language “on or

about,” which, in this case, encompasses the early morning hours

of February 15 as well as February 14 for a specification

alleging “on or about February 14.”     Therefore, the military

judge properly found Appellant guilty of distribution on or

about February 14, which language encompassed both the factual

possibility that Appellant provided LK the drug during the late

hours of February 14 or the early morning hours of February 15.

        LK is the sixteen-year-old victim who died as a result of

Appellant’s distribution.    Under specification 3 of Charge II,

the Government alleged the following:

        In that [Appellant] did, at or near Fort Lewis,
        Washington, on divers occasions between on or about 14
        February 2009 and on or about 15 February 2009,
        wrongfully distribute some amount of Oxymorphone, a
        Schedule II controlled substance.
Appellant entered a plea of guilty to this specification as

follows:

        To specification 3 Charge II:   Guilty
United States v. Bennitt, No. 12-0616/AR


          Except the words and figures “between” and “and
          on or about 15 February 2009”; to the excepted
          words and figures: Not Guilty;
     To the Charge:   Guilty
Thus, in substance, Appellant’s exceptions resulted in a plea to

a specification that would have appeared as follows:   in that

Appellant did, at or near Fort Lewis, Washington, on divers

occasions between on or about 14 February 2009 and on or about

15 February 2009, wrongfully distribute some amount of

Oxymorphone, a Schedule II controlled substance.

     Following the entry of Appellant’s pleas, the Government

proceeded on the merits.   In his opening statement trial counsel

stated:

     So, if you follow the drugs in this case, Your Honor, you
     will find that, on 14 February 2009, that this accused
     obtained essentially a truck-load of Opana and Alprazolam.
     . . . And that [Appellant] on 14 February 2009,
     [distributed those two drugs to several soldiers. He also,
     though, Your Honor, [distributed] the Opana, we know for
     certain, and probably the . . . Alprazolam, to [LK], in the
     late hours of 14 February 2009, and the early morning hours
     of 15 February 2009. And it is those two drugs in the very
     possession of the accused on 14 February 2009, that killed
     [LK].

During the trial, the prosecution offered, among other things,

Appellant’s sworn statement.   The statement was admitted as

Prosecution Exhibit 27 and recites Appellant’s account of the

events during the day and into the late evening of February 14,

2009, during which he obtained several drugs and subsequently

distributed those drugs to several individuals including LK.


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United States v. Bennitt, No. 12-0616/AR


Specifically, Appellant stated that around 9:00 p.m. on February

14, he borrowed a friend’s truck and proceeded to a location

where he purchased several oxymorphone pills.     According to the

statement, about twenty minutes after procuring the drug, he, LK

and one of LK’s friends returned to his barracks.    Appellant

then stated:

     Once we got [to] the barracks I gave [S] his pills and then
     I went back to my room. I put in a movie and we were
     watching it. When we were watching the movie I crushed up
     two of the pills that I had gotten for myself and snorted
     them. . . . After I snorted the two pills I crushed up the
     other pill and [LK] and her friend snorted it.

Finally, according to Appellant, he left the room, returned

later and fell asleep in the bed with the two girls.    He awoke

at some point and found LK unresponsive.

     At the close of the evidence, the military judge entered

the following finding to specification 3 of Charge II:

     Of specification 3 of Charge II:   Guilty;

          Except the word “between” and except the words
          and figures, “and on or about 15 February 2009.”

The military judge’s exceptions resulted in a finding of guilty

of wrongful distribution of oxymorphone “on divers occasions on

or about 14 February 2009.”   On Appellant’s statement alone, the

military judge, sitting as the reasonable trier of fact in the

case, could have found that the distribution of oxymorphone to

LK occurred during the evening of the 14th.



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United States v. Bennitt, No. 12-0616/AR


     However, even if one were to conclude that it occurred

during the very early hours of the 15th, (the participants were

not keeping careful note of the time), it would still have been

considered “on or about” the 14th.    In essence, the military

judge’s exception of the language “and on or about 15 February

2009” had no legal significance given the fact that the finding

included the “divers occasions” language and the “on or about 14

February” language.   Thus, the record supports a finding in this

case that Appellant distributed oxymorphone to the victim LK “on

or about 14 February 2009.”

     The qualifier, “on or about” heretofore has been used in

cases, like this one, where the exact time or date of an event

may not be known or within the recollection of the critical

witnesses, but nonetheless fairly orients the accused to the

offense charged.   “‘On or about,’ however, are words of art in

pleading which generally connote any time within a few weeks of

the ‘on or about’ date.”   United States v. Brown, 34 M.J. 105,

110 (C.M.A. 1992).    “The words ‘on or about’ in pleadings mean

that ‘the government is not required to prove the exact date, if

a date reasonably near is established.’”    United States v. Hunt,

37 M.J. 344, 347 (C.M.A. 1993) (quoting United States v.

Nersesian, 824 F.2d 1294, 1323 (2d Cir. 1987).    “When a charge

employs ‘on or about’ language, the Government is not required

to prove the specific date alleged in the charge.”   United

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United States v. Bennitt, No. 12-0616/AR


States v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999).   Upon entry of

his pleas, Appellant did not except either the “divers

occasions” language or the “on or about” language as it

pertained to February 14, 2009.   Similarly, the military judge

did not except those phrases when he entered his finding to

specification 3 of Charge II.   The military judge used the date

to which the Appellant pleaded guilty knowing that in accordance

with this Court’s long-standing case law and military practice,

a conviction “on or about February 14” would cover the potential

variances in fact as to the precise moment on February 14 or 15

at which the drug was distributed to LK.

     If, at the time of trial, there had been any question or

confusion on the part of the defense as to what specification 3

included, counsel had at least two remedies available.    First,

prior to trial, the defense could have moved for a bill of

particulars under Rule for Courts-Martial (R.C.M.) 906(b)(6).

Alternatively, since this was a military judge-alone trial, the

defense could have requested special findings under R.C.M.

918(b).   The defense did neither.

     Finally, the majority concedes that the evidence of record

proves that Appellant distributed oxymorphone to the victim.

However, according to the majority, since this evidence was

“presented as the means by which he was guilty of the Article

119[(b)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

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United States v. Bennitt, No. 12-0616/AR


919(b)(2) (2006)], . . . offense,” this resulted in a theory not

presented to the trier of fact on the Article 112a, UCMJ, 10

U.S.C. § 912a (2006), offense.   United States v. Bennitt, __

M.J. __, __ (8) __ (C.A.A.F. 2015).   This reasoning does not

make sense since the sole theory of the manslaughter offense was

the distribution to LK, which occurred “on or about” February

14.   The majority buttresses its view with the statement that

“the Government did not present evidence that Appellant gave

oxymorphone to LK in support of the Article 112a, UCMJ, charge.”

Bennitt, __ M.J. at __ (9).   I am not aware of authority that

requires the prosecution during the trial of the facts to

continually announce what evidence is being offered to support

individual offenses, and indeed the majority cites none.     In

every criminal trial, the charges are presented, the evidence is

admitted, and the trier of fact returns a verdict.   That is

exactly what happened in this case.   Thus, it appears the

majority is substituting its own finding on the facts,

notwithstanding those entered by the military judge and the CCA,

and without identifying how as a matter of law either the

military judge or the CCA erred.1




1
  The majority’s decision to reinterpret the meaning   of “on or
about” and to reverse the CCA’s conclusion regarding   the
distribution to the manslaughter victim in this case   seems all
the more misplaced, because this Court did not grant   this case

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United States v. Bennitt, No. 12-0616/AR

     As a result, I respectfully dissent.




on that basis and has not heard argument nor received briefs on
the issue.

                                7
