United States v. Shields

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: June 14, 2019
• Docket: 201600133
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before HUTCHISON, TANG, and LAWRENCE, Appellate Military Judges _________________________

UNITED STATES Appellee

v.

William A. SHIELDS III Aviation Boatswain’s Mate (Equipment) Third Class (E-4), U.S. Navy Appellant

No. 201600133

Decided: 14 June 2019. Appeal from the United States Navy-Marine Corps Trial Judiciary up- on further review. Military Judge: Commander Heather Partridge, USN. Sentence adjudged 11 December 2015 by a special court-martial convened at Naval Station Norfolk, Virginia, consisting of officer and enlisted members. Sentence approved by the convening authority fol- lowing remand: no punishment. For Appellant: Lieutenant R. Andrew Austria, JAGC, USNR. For Appellee: Lieutenant George R. Lewis, JAGC, USN. _________________________

This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________

PER CURIAM: The appellant was originally convicted, contrary to his pleas, of two speci- fications of violating a general order—the Navy’s sexual harassment regula- tion—and two specifications of abusive sexual contact, in violation of Articles United States v. Shields, No. 201600133 (Further Review)

92 and 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892 and 920 (2012). 1 The adjudged and approved sentence consisted of a bad-conduct discharge. In United States v. Shields, 77 M.J. 621 (N-M. Ct. Crim. App. 2018), we set aside the guilty findings for both abusive sexual contact specifications and affirmed the appellant’s convictions for violating the sexual harassment regu- lation. We also set aside the sentence and authorized a rehearing on the abu- sive sexual contact specifications and the sentence or on the sentence alone. The case was returned to the convening authority for action consistent with our opinion. On 7 January 2019, the convening authority determined that a rehearing for findings on the abusive sexual contact specifications was impracticable and dismissed them without prejudice. Rather than order a rehearing on sen- tence for the sexual harassment specifications, in accordance with RULE FOR COURTS-MARTIAL 1107(e)(2)(C)(iii), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), the convening authority approved a sentence of no pun- ishment. The appellant once again raises an issue, which we considered in our pre- vious opinion and ruled against him. Specifically, relying upon his original arguments before this court, he contends that the sexual harassment specifi- cations failed to state an offense because the Navy’s sexual harassment gen- eral order had been cancelled. For the reasons stated in our previous opinion, see Shields, 77 M.J. at 628-30, upon further review, and after careful consid- eration of the record, we have determined that the approved findings and sentence are correct in law and fact and that no error materially prejudicial to the appellant’s substantial rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866. The findings and sentence as approved by the convening authority are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

1 The members acquitted the appellant of an additional sexual harassment speci- fication, and four additional abusive sexual contact specifications.