UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                            YOB, GALLAGHER, KRAUSS
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Inmate SOLOMON E. SMITH
                          United States Army, Appellant

                                  ARMY 20110706

       Headquarters, US Army Combined Arms Center and Fort Leavenworth
                        Jeffery R. Nance, Military Judge
                  Colonel Fred P. Taylor, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Captain Jack D. Einhorn, JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief).


                                     31 July 2013

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                              SUMMARY DISPOSITION
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KRAUSS, Judge:

       A military judge sitting as a general court-martial, convicted appellant,
contrary to his pleas, of mutiny, damaging military property, and assault
consummated by a battery in violation of Articles 94, 108, and 128, Uniform Code
of Military Justice, 10 U.S.C. §§ 894, 908, 928 (2006) [hereinafter UCMJ].
Appellant was acquitted of kidnapping, disobedience, and two other specifications of
assault consummated by a battery. The convening authority approved the adjudged
sentence to twenty-five months confinement.

      This case is before the court for review un der Article 66, UCMJ. Appellant
assigns two errors, one of which merits brief remark and relief.

       Appellant asserts that the evidence is legally and factually insufficient to
support his convictions for damaging military property and assault consummated by
a battery. The government concedes that the evidence is insufficient to support
SMITH — ARMY 20110706

appellant’s conviction for damage to property but sufficient to support the battery
conviction. We accept the government’s concession but also find the evidence
factually insufficient to establish that the battery at issue was accom plished with a
metal table leg. See generally United States v. Washington , 57 M.J. 394 (C.A.A.F.
2002). See also United States v. Savage, 72 M.J. 560, 567 (Army Ct. Crim. App.
2013).

       In accordance with above, and after reviewing the entire record and the
parties’ briefs, the finding of guilty as to Charge IV and its Specification is set aside
and dismissed. The court affirms only so much of the finding of guilty of
Specification 3 of Charge V, as finds that appellant did, on or about 12 August 2010,
assault SPC A.K., who then was and was then known by the accused to be a person
then having and in the execution of military police duties, by striking him in the
face. The remaining findings of guilty are AFFIRMED. Reassessing the sentence
on the basis of the errors noted, 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 sentence is AFFIRMED.

      Senior Judge YOB and Judge GALLAGHER concur.


                                         FOR THE COURT:




                                         ANTHONY
                                        ANTHONY         O. POTTINGER
                                                    O. POTTINGER
                                        Chief Deputy Clerk
                                         Chief Deputy Clerkof Courtof Court




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