United States v. ELIZONDO

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: June 11, 2024
• Docket: 202300239
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before HOLIFIELD, GROSS, and HARRELL Appellate Military Judges

_________________________

UNITED STATES Appellee

v.

Christian J. ELIZONDO Lance Corporal (E-3), U.S. Marine Corps Appellant

No. 202300239

Decided: 11 June 2024

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: Andrea C. Goode (trial) Douglas C. Hatch (entry of judgment)

Sentence adjudged 15 June 2023 by a general court-martial convened at Marine Corps Air Station Yuma, Arizona, consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E- 1, confinement for 30 months, and a bad conduct discharge.

For Appellant: Captain Colin P. Norton, USMC

For Appellee: Lieutenant Michael A. Tuosto, JAGC, USN United States v. Elizondo, NMCCA No. 202300239 Opinion of the Court

This opinion does not serve as binding precedent under NMCCA Rule of Appellate Procedure 30.2(a).

PER CURIAM: Appellant was found guilty in accordance with his pleas of one specification of possession of child pornography and one specification of distribution of child pornography in violation of Article 134, Uniform Code of Military Justice. 1 On appeal Appellant raises one assignment of error claiming that the Entry of Judgment (EOJ) does not comply with Rule for Courts-Martial 1111(b)(1)(A) because it does not correctly summarize each specification referred to trial. Having considered the briefs of the parties and the record of trial, we find merit in Appellant’s assignment of error and take action in our decretal para- graph. After convicting Appellant, in accordance with his pleas, the military judge entered judgment pursuant to R.C.M. 1111(b). In doing so, he listed the ac- cused pleas and findings to the charge and specifications as follows: Charge: Violation of the UCMJ, Article 134 Plea: Guilty Finding: Guilty Spec 1: Child pornography: possessing or receiving or viewing Plea: Guilty Finding: Guilty Spec 2: Child pornography: distribution Plea: Guilty Finding: Guilty. We recently set forth the requirements for EOJs when listing the summary of each charge and specification, holding that to be sufficient the EOJ must include: 1) as already required, the Article of the UCMJ for each charge; 2) for each specification any subsection if applicable; 3) the nature of the offense in the specification; and

1 10 U.S.C. § 934.

2 United States v. Elizondo, NMCCA No. 202300239 Opinion of the Court

4) the date of the offense. 2 Here, the EOJ fails to meet these requirements as the summary of specifi- cation 1 fails to correctly list the subsection of the offense (possession of child pornography) and neither specification summary lists the dates of the offense. We therefore will modify the EOJ. Although we find no prejudice, Appellant is entitled to have court-martial records that correctly reflect the content of his proceeding. 3 In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the rec- ord. Upon modification of the EOJ, and after careful consideration of the record and briefs of appellate counsel, we have determined that the findings are cor- rect in law and the sentence is correct in law and fact and that no error mate- rially prejudicial to Appellant’s substantial rights occurred. 4 The findings and sentence are AFFIRMED.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

2 United States v. Wadaa, __ M.J. ___ No. 202300273, 2024 CCA LEXIS 148 at *6

(N-M Ct. Crim. App. Apr. 25, 2024). 3 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).

4 Articles 59 & 66, UCMJ.

3 UNITED STATES NMCCA NO. 202300239

v. ENTRY OF Christian J. ELIZONDO JUDGMENT Lance Corporal (E-3) U.S. Marine Corps As Modified on Appeal Accused 11 June 2024

On 15 June 2023, the Accused was tried at Marine Corps Air Station Yuma, Arizona, by a general court-martial, consisting of a military judge sitting alone. Military Judges: Andrea C. Goode and Douglas C. Hatch.

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all of- fenses the convening authority referred to trial:

Charge: Violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. Plea: Guilty. Finding: Guilty.

Specification 1: Wrongful possession of child pornography on or about 10 August 2022. Plea: Guilty. Finding: Guilty.

Specification 2: Wrongful distribution of child pornography on divers occasions between on or about 6 July 2022 and on or about 10 August 2022. Plea: Guilty. Finding: Guilty. United States v. Elizondo, NMCCA No. 202300239 Modified Entry of Judgment

SENTENCE

On 15 June 2023, a military judge sentenced the Accused to the following: Reduction to pay grade E-1. Confinement For Specification 1 of the Charge: confinement for 24 months. For Specification 2 of the Charge: confinement for 30 months. The terms of confinement will run concurrently. Confinement for a total of 30 months. A bad-conduct discharge.