United States v. Colonel NIKKI S. MCCARTY

• Court: Army Court of Criminal Appeals
• Decided: February 27, 2008
• Docket: ARMY 20060218
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee v. Colonel NIKKI S. MCCARTY United States Army, Appellant

ARMY 20060218

21st Theater Support Command James L. Pohl and Denise R. Lind, Military Judges Colonel Scott W. Arnold, Staff Judge Advocate (trial and addendum) Lieutenant Colonel Daria P. Wollschlaeger, Acting Staff Judge Advocate (recommendation)

For Appellant: Major Billy B. Ruhling, JA; Mary T. Hall, Esquire (on brief).

For Appellee: Colonel John W. Miller II, JA; Major Elizabeth G. Marotta, JA; Captain Larry W. Downend, JA, JA; Major Jay Eiche, JA (on brief).

27 February 2008

------------------------------------- SUMMARY DISPOSITION -------------------------------------

Per Curiam:

Upon review of the case before us under Article 66, Uniform Code of Military Justice, we concur in part with the defense assertion that certain language in Specification 5 of Charge I is multiplicious with Specification 3 of Charge I, but further find other language in Specification 5 is not multiplicious with Specification 3 as alleged. United States v. Palagar, 56 M.J. 294, 296-97 (C.A.A.F. 2002) (holding that the “lower court did not err by setting aside so much of conviction of conduct unbecoming an officer as was included in the obstruction of justice”); see also Rule for Court- Martial [hereinafter R.C.M.] 907(b)(3). We will cure the error in findings by striking the multiplicious language, “that the said Colonel Nikki S. McCarty wanted to have sex with her, and that it would be the best sex she ever had because the said Colonel Nikki S. McCarthy is Italian,” from Specification 5 of Charge I.

We also note certain language in Specification 9 of Charge I, “repeatedly,” and Specification 4 of Charge IV, “down her sides and,” is not supported by the evidence. There is sufficient evidence to support the findings of guilty with remaining language in those specifications. R.C.M. 918(a)(1); see also United States v. Finch, 64 M.J. 118, 123 (C.A.A.F. 2006) (variance between pleadings and proof was not fatal); United States v. Marrie, 39 M.J. 993, 1002-05 (A.F.C.M.R. 1994) (amending specifications to properly reflect the evidence presented at trial). We will remedy this error in our decretal paragraph.

Accordingly, we amend Specification 5 of Charge I to read as follows:

In that Colonel Nikki S. McCarty, U.S. Army, at or near Camp Bondsteel, Kosovo, on or about 8 April 2005, did maltreat Major Kate McCarthy, a person subject to his orders, by telling her that her husband was probably fooling around on her, or words to that effect.

We amend Specification 9 of Charge I to read as follows:

In that Colonel Nikki S. McCarty, U.S. Army, at or near Camp Bondsteel, Kosovo, on or about 1 May 2005, did maltreat Lieutenant Colonel Pamela D. Boles, a person subject to his orders, by telling her that he wished she was single.

We amend Specification 4 of Charge IV to read as follows:

In that Colonel Nikki S. McCarty, U.S. Army, did, at or near Camp Bondsteel, Kosovo, on or between 1 April 2005 and 30 April 2005, commit an indecent assault upon Major Mary L. West, a person not his wife, by running his hands down the front of her uniform, with the intent to gratify his lust or sexual desires.

The amended specifications and the remaining findings of guilty are affirmed. We have considered the remaining assignments of error and find them to be without merit. Reassessing the sentence of the basis of the error noted, the entire record, and applying 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), including Judge Baker’s concurring opinion, the remaining findings and sentence are affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court