              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                           No. ACM 38943 (f rev)
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                            Evan G. SMITH
                 Captain (O-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                            Upon Further Review
                           Decided 15 April 2019
                          ________________________

Military Judge: Mark W. Milam.
Approved sentence: No punishment.
For Appellant: Major Jarett Merk, USAF; William E. Cassara, Esquire.
For Appellee: Captain Anne M. Delmare, USAF; Mary Ellen Payne, Es-
quire.
Before MAYBERRY, JOHNSON, and POSCH, Appellate Military
Judges.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________


PER CURIAM:
    In 2015, a general court-martial consisting of a military judge convicted
Appellant, contrary to his pleas, of one specification of assault consummated
by a battery upon a child under 16 years of age; one specification of perjury by
giving false testimony; and one specification of child endangerment by culpable
negligence in violation of Articles 128, 131, and 134, Uniform Code of Military
                United States v. Smith, No. ACM 38943 (f rev)


Justice (UCMJ), 10 U.S.C. §§ 928, 931, 934 (2012). The military judge acquit-
ted Appellant of one specification of damaging non-military property; one spec-
ification of rape by using force; one specification of forcible sodomy; one speci-
fication of assault consummated by a battery; and one specification of assault
consummated by a battery upon a child under 16 years of age in violation of
Articles 109, 120, 125, and 128, UCMJ, 10 U.S.C. §§ 909, 920, 925, 928 (2012).
The military judge sentenced Appellant to a dismissal. The convening author-
ity approved the sentence as adjudged.
    Appellant initially raised three assignments of error, asserting his perjury
conviction was legally and factually insufficient; his assault consummated by
a battery upon a child under 16 years of age conviction was factually insuffi-
cient; and the military judge’s exception of the “divers occasions” language ren-
dered his conviction for child endangerment ambiguous. In our original opin-
ion, United States v. Smith, No. ACM 38943, 2017 CCA LEXIS 474 (A.F. Ct.
Crim. App. 14 Jul. 2017) (unpub. op.), we set aside and dismissed with preju-
dice the convictions for perjury and child endangerment, affirmed the convic-
tion for assault consummated by a battery upon a child under the age of 16
years, set aside the sentence, and authorized a rehearing.
   On 8 December 2017, the convening authority ordered a rehearing on sen-
tence. On 28 November 2018, the convening authority determined a rehearing
was impracticable and imposed a sentence of no punishment.
    The previously-affirmed finding and newly-approved sentence are correct
in law and fact, and no error materially prejudicial to Appellant’s substantial
rights occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c)
(2016). Accordingly, the previously affirmed finding in Smith, unpub. op., and
the sentence are AFFIRMED.


                     FOR THE COURT



                     CAROL K. JOYCE
                     Clerk of the Court




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