United States v. Sergeant ANDREW T. FULLERTON

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before TOZZI, HAM, and SIMS Appellate Military Judges

UNITED STATES, Appellee v. Sergeant ANDREW T. FULLERTON, United States Army, Appellant

ARMY 20090738

Headquarters, Fort Lewis Kwasi Hawks, Military Judge Colonel Mitchell R. Chitwood, Staff Judge Advocate

For Appellant: Major Bradley Voorhees, JA; Captain W. Jeremy Stephens, JA (on brief).

For Appellee: Lieutenant Colonel Martha L. Foss, JA (on brief).

29 January 2010

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

TOZZI, Chief Judge:

On consideration of the entire record, including consideration of the issues personally specified by appellant, we hold the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.

Judge SIMS concurs.

HAM, Judge, dissenting:

This case was submitted to us on its merits. I dissent from my brethren’s summary affirmance because I believe the case presents a number of issues that neither our court, nor our superior court has decided with regard to the statute to which appellant pled guilty—18 U.S.C. § 2422. For example, do the acts admitted to by appellant constitute enticement or attempted enticement? If the latter, do appellant’s acts go beyond mere preparation? There are other outstanding issues as well. United States v. Garner, 67 M.J. 734 (N.M. Ct. Crim. App. 2009), review granted, (January 15, 2010) (No. 10-089), is currently pending before our superior court and may decide one or more of them. Therefore, I would specify issues for briefing and full decision by this court.

Accordingly, I dissent.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court