UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                        COOK, GALLAGHER, and BORGERDING
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Private E2 ROBERT A. LYON
                          United States Army, Appellant

                                     ARMY 20090792

                    Headquarters, United States Army Alaska
             Michael J. Hargis and Donna M. Wright, Military Judges
   Lieutenant Colonel John T. Rawcliffe, Acting Staff Judge Advocate (pretrial)
 Lieutenant Colonel Randall J. Bagwell, Staff Judge Advocate (recommendation &
                                   addendum)


For Appellant: Captain Richard M. Gallagher, JA (argued); Colonel Mark Tellitocci,
JA; Lieutenant Colonel Jonathan F. Potter, JA; Major Laura R. Kesler, JA; Captain
E. Patrick Gilman, JA (on brief).

For Appellee: Captain Edward J. Whitford, JA (argued); Major Amber J. Williams,
JA; Major Sara M. Root, JA; Captain Christopher L. Simons, JA (on brief).


                                      17 August 2012
                        --------------------------------------------------
                        SUMMARY DISPOSITION ON REMAND
                        --------------------------------------------------

BORGERDING, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of aggravated assault of a child who has
attained the age of 12 years but has not attained the age of 16 years, one
specification of sodomy, two specifications of willful disobedience of a superior
commissioned officer, one specification of wearing unauthorized insignia, one
specification of wrongful appropriation of a military motor vehicle, and one
specification of failing to go to his place of duty, in violation of Articles 86, 90,
120, 121, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 890,
920, 921, 925, 934 (2006) [hereinafter UCMJ]. See Manual for Courts-Martial,
United States (2008 ed.). The military judge sentenced appellant to a bad-conduct
discharge, confinement for three years, and reduction to the grade of E-1. The
convening authority reduced the amount of confinement to two years and six months
LYON—ARMY 20090792

and otherwise approved the adjudged sentence. The convening authority also
credited appellant with 49 days of confinement credit against the sentence to
confinement.

       On 8 August 2011, this court issued a decision affirming the findings and
sentence in this case. United States v. Lyon, ARMY 20090792 (Army Ct. Crim.
App. 8 Aug. 2011) (mem. op.). On 11 January 2012, our superior court vacated our
decision and returned the record of trial to The Judge Advocate General of the Army
for remand to this court for consideration in light of United States v. Fosler, 70 M.J.
225 (C.A.A.F. 2011). On 28 February 2012, this court issued a memorandum
opinion in which we again affirmed the findings and sentence in this case after both
a review of appellant’s original assignments of error, and a review of the case in
light of Fosler. United States v. Lyon, ARMY 20090792 (Army Ct. Crim. App. 28
Feb. 2012) (mem. op).

       On 10 July 2012, our superior court reversed the portion of our decision as to
Charge IV and its specification and as to the sentence, and affirmed our decision as
to the remaining charges and specifications. The court returned the record of trial to
The Judge Advocate General of the Army for remand to this court for further
consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
Consequently, appellant’s case is once again before this court for review under
Article 66, UCMJ.

                              LAW AND DISCUSSION

       The Specification of Charge IV, alleging that appellant wrongfully wore a
Ranger tab on his uniform without authority, fails to allege the terminal elements of
Article 134, UCMJ, specifically that appellant’s conduct was prejudicial to good
order and discipline or service-discrediting. Pursuant to United States v. Fosler, 70
M.J. 225 (C.A.A.F. 2011), and United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012),
it was error to omit the terminal elements from this specification. However, we find
that appellant suffered no material prejudice to his substantial rights because “notice
of the missing element is somewhere extant in the trial record.” Humphries, 71 M.J.
at 215. As a result, appellant had fair notice that the government was required to
prove one or both of the alternative terminal elements of Article 134, UCMJ, despite
their absence in the pleadings.

       During the Government case-in-chief, the trial counsel put on specific
evidence to prove that appellant’s conduct was prejudicial to good order and
discipline through the testimony of Sergeant First Class (SFC) MK. Sergeant First
Class MK was the Rear Detachment First Sergeant for appellant’s unit and had been
in the Army for nineteen years at the time of trial. During SFC MK’s direct
testimony, trial counsel asked him “what kind of effect would it have on the unit, for
someone to—to walk around, wearing things that they weren’t authorized to wear?”



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LYON—ARMY 20090792

At this point, trial defense counsel objected to the question alleging that it was
merely speculation on the part of SFC MK. The military judge replied:

             No. He’s the First Sergeant. And I think the Government
             has to prove that it’s prejudicial to good order and
             discipline. So I think this is one way for them to do it. I
             don’t think it’s speculation, on the First Sergeant’s part.
             He’s been in the Army nineteen years.

The trial counsel then repeated his question, this time specifically asking SFC MK
about the effect someone wearing a Ranger tab who was not Ranger qualified would
have on the unit. Sergeant First Class MK then gave a lengthy answer describing
how the value of the Ranger tab (and other honors) would be diminished and thus
would have a negative effect on the unit. 1 Based on SFC MK’s testimony, we find
that appellant was reasonably placed on notice as to “which terminal element or
theory of criminality the Government pursued” at trial. 2 Humphries, 71 M.J. at 216.

       Our holding is further supported by the defense trial strategy regarding
Charge IV and its specification. A main point of contention at trial regarding this
specification was whether appellant wore the tab to a wedding he attended with KA,
as the government claimed, or whether he put the tab on only to get his picture


1
  While this testimony is “evidence from which a reasonable trier of fact could
conclude that [appellant’s] conduct satisfied either clause 1 or 2 of the terminal
element of Article 134, UCMJ,” it is also evidence that appellant “was on notice of
the Government’s theory of guilt with respect to the terminal element.” Humphries,
71 M.J. at 216 n.8.
2
 In addition, trial counsel referenced SFC MK’s testimony in his closing argument,
making it clear to all parties as to what clause of the terminal element of Article
134, UCMJ, the government was pursuing:

     And you heard from Sergeant [K] that, in fact, someone who is not
     authorized to wear insignia and actually wears that insignia creates a
     negative impact on the unit. It’s prejudicial to good order and discipline
     because it gives the Soldiers the idea that they can just---basically, as he
     called it, become a PX Ranger, or a PX anything. They can figure out
     what they want to be and just go and buy it from the PX.

We acknowledge our superior court’s questioning as to whether or not such notice
could be sufficient at this point in the proceeding. Humphries, 71 M.J. at 216 n.9.
We cite this portion of the record only as further evidence that “notice of the
missing element is somewhere extant in the trial record.” Id. at 215.



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LYON—ARMY 20090792

taken, in the privacy of KA’s home. 3 The defense did not contest the facts of the
specification, conceding that it was appellant wearing the tab in the picture and that
he was not authorized to wear the tab. 4 Instead, the defense contested the terminal
element of Article 134, UCMJ, as evidenced by trial defense counsel’s cross-
examination questions regarding whether or not appellant had the tab on at the
wedding and appellant’s testimony that he did not wear the tab at the wedding (and
had no idea KA would post the picture of him wearing the tab online). This tactic
indicates that appellant was on notice that the government had to prove the wear of
the Ranger tab was prejudicial to good order and discipline or service discrediting
and that he needed to (and did) defend against this element.

       Trial defense counsel’s closing argument gives a summation of the defense
strategy at trial, conceding guilt to the terminal element if the government’s claim
was true:

               DC: [i]t would be one thing if there was sufficient proof
               that he was wearing the Ranger tab in front of a bunch of
               people in a public forum like that—at a public event.
               That’s clearly conduct that could be prejudicial to good
               order and discipline, or service discrediting depending
               upon the makeup of that public forum, but at the house
               joking around briefly, taking a quick picture by [KA], that
               doesn’t amount to prejudice to good order and discipline
               or service discrediting misconduct.


3
  The government offered Prosecution Exhibit (PE) 9, a picture of appellant pointing
to the Ranger tab he was wearing on his Class A uniform, as evidence of this charge.
Although appellant denied wearing this tab in public to a wedding, we find this
specification to be legally and factually sufficient. Jackson v. Virginia, 443 U.S.
307 (1979); United States v. Turner, 25 M.J. 324, 327 (C.M.A. 1987). Despite
appellant’s testimony, two other witnesses testified that they saw him wearing the
Ranger tab, at the wedding, in the presence of other people, some of whom were
members of the military.
4
    Appellant testified on direct examination:

               ACC: It was—I’ve always wanted to be a Ranger
               so, you know, I collect Ranger things… She (KA)
               thought it would be---you know, we thought it
               would be funny to put it on and take a picture of it.
               So she pinned it on, with a—with the little nail she
               told you about. Then, after that, took it off. Little
               did I know that she was going to post the picture
               up, on the website, sir.


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LYON—ARMY 20090792

       This argument goes beyond merely pointing out that the government failed to
present evidence of prejudice to good order and discipline or service discredit as was
the case in Humphries. Humphries at 217. Rather, this argument is the culmination
of the defense strategy at trial to defend against the Specification of Charge IV by
contesting the terminal element of Article 134, UCMJ.

       After reviewing the record in its entirety we find that under the totality of the
circumstances in this case, the government’s error in failing to plead the terminal
element of Article 134, UCMJ, did not result in material prejudice to appellant’s
substantial, constitutional right to notice. Humphries, 71 M.J. at 215 (citing United
States v. Girouard, 70 M.J. 5, 11–12 (C.A.A.F. 2011); United States v. McMurrin,
70 M.J. 15, 19–20 (C.A.A.F. 2011); Fosler, 70 M.J. at 229).

                                    CONCLUSION

       On consideration of the entire record, and in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), we hold the findings of guilty to the
Specification of Charge IV, and Charge IV, correct in law and fact. Accordingly,
those findings of guilty and the sentence are AFFIRMED.  

      Senior Judge COOK and Judge GALLAGHER concur.

                                         FOR
                                          FORTHE
                                              THE COURT:
                                                  COURT:




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




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