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

                                 No. ACM 39481
                           ________________________

                              UNITED STATES
                                  Appellee
                                        v.
                           Cody A. LEAKEY
               Airman Basic (E-1), U.S. Air Force, Appellant
                           ________________________

           Appeal from the United States Air Force Trial Judiciary
                            Decided 2 January 2019
                           ________________________

Military Judge: Brian D. Teter.
Approved sentence: Dishonorable discharge, confinement for 50 months,
and forfeiture of all pay and allowances. Sentence adjudged 12 February
2018 by GCM convened at Joint Base San Antonio-Lackland, Texas.
For Appellant: Lieutenant Colonel R. Davis Younts, USAF.
Before JOHNSON, DENNIS, and LEWIS, 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    This is an unpublished opinion and, as such, does not serve as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 accordance with Appellant’s pleas pursuant to a pretrial agreement, a
general court-martial composed of a military judge convicted Appellant of one
specification of attempting to communicate indecent language to a minor, one
specification of attempting to receive child pornography, one specification of
abusive sexual contact, two specifications of sexual assault of a child, and one
specification of sexual abuse of a child in violation of Articles 80, 120, and 120b,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 920, 920b. The
military judge sentenced Appellant to a dishonorable discharge, confinement
                   United States v. Leakey, No. ACM 39481


for 50 months, and total forfeiture of pay and allowances. The convening au-
thority approved the sentence as adjudged.
  This case was submitted to us on its merits with no assignment of error.
Having reviewed the record, we note several errors worthy of brief discussion.
    The first two errors involve the Specification of Charge II. When the speci-
fication was preferred against Appellant, it alleged that Appellant did “commit
sexual contact with Airman Basic [KF].” (Emphasis added). In accordance with
the preliminary hearing officer’s recommendation and the staff judge advo-
cate’s pretrial advice, the specification as referred by the convening authority
alleged that Appellant did “commit sexual contact upon Airman Basic [KF].”
(Emphasis added). The original charge sheet included in the record of trial does
not reflect this change and instead includes the word “with” instead of “upon.”
Similarly, the 30 May 2018 Court-Martial Order (CMO) includes the word
“with” instead of “upon.” Because the convening authority’s intent is clear in
the record before us and the military judge accurately advised Appellant of the
elements of the offense in accordance with the convening authority’s intent, we
find no prejudice in the errors on the charge sheet or CMO. See United States
v. Blascak, 17 M.J. 1081, 1082 (A.F.C.M.R. 1984).
    A third error can be found in the referral block of the charge sheet referring
the Additional Charge “[t]o be tried with the original charges, dated 4 Decem-
ber 2018.” Though the original charges were, in fact, dated 4 December 2017,
we find no prejudice in the erroneous date placed on the charge sheet. See
United States v. Otero, 26 M.J. 546, 548 (A.F.C.M.R. 1988) (finding no jurisdic-
tional error in discrepancy between date on actual convening order and date
which appeared in referral portion of the charge sheet).
    We find yet another error in the absence of four attachments to Prosecution
Exhibit 1 from the record of trial. Prosecution Exhibit 1, a stipulation of fact,
lists nine attachments, but only attachments 1–5 are actually attached to the
exhibit in the record of trial. The missing attachments, attachments 6–9, are
recordings. In our review of the record, we discovered each of these attach-
ments in the portion of the record containing allied papers. Applying the stand-
ard set forth in United States v. Abrams, 50 M.J. 361, 363 (C.A.A.F. 1999), we
find enough information available in the record to rebut the presumption of
prejudice and are confident we can complete our Article 66, UCMJ, review of
Appellant’s case.
   The fifth and final error we address involves the staff judge advocate’s rec-
ommendation. In it, the staff judge advocate stated that the maximum confine-
ment Appellant faced was 112 years, failing to take into account that the mili-
tary judge had merged three of the specifications thereby decreasing Appel-
lant’s maximum confinement period to 62 years. We find the error plain and


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                     United States v. Leakey, No. ACM 39481


obvious, but do not find a colorable showing of possible prejudice. See United
States v. Scalo, 60 M.J. 435, 436–37 (C.A.A.F. 2005). Under the facts of this
case, we are confident that stating the proper maximum confinement would
not have led to a more favorable recommendation nor clemency by the conven-
ing authority. See United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996).
    Though the combination of these errors do not result in relief for Appellant
in this case, they do lead us to remind military justice practitioners to pay
closer attention to the referral documents and post-trial documents contained
in the record of trial.
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved
findings and sentence are AFFIRMED.*


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




*In addition to the previously discussed error in the Specification of Charge II, we note
that the expurgated CMO includes the initials “MC” vice “MV” in Specification 1 of the
Additional Charge. We order the promulgation of a corrected CMO to correct both er-
rors.


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