United States v. Specialist JOSHUA G. BAASE

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee v. Specialist JOSHUA G. BAASE United States Army, Appellant

ARMY 20070261

Headquarters, 1st Infantry Division and Fort Riley Timothy Grammel, Military Judge Lieutenant Colonel Jeff A. Bovarnick, Acting Staff Judge Advocate (pretrial) Colonel Robert D. Teetsel, Staff Judge Advocate (post-trial)

For Appellant: Mr. Timothy Litka, Esquire (argued); Captain Alison L. Gregoire, JA; Mr. Timothy Litka, Esquire (on brief).

For Appellee: Captain Michael G. Pond, JA (argued); Colonel John W. Miller, JA; Major Elizabeth G. Marotta, JA; Captain Michael C. Friess, JA; Captain Michael G. Pond, JA (on brief).

23 July 2008

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

Per Curiam:

On review of the case under Article 66, Uniform Code of Military Justice [UCMJ], and after hearing oral arguments, we considered the following issue:

WHETHER THE PORTION OF APPELLANT’S CONFESSION ADDRESSING THE NUMBER OF TIMES HE COMMITTED INDECENT ACTS WITH A CHILD WAS SUFFICIENTLY CORROBORATED BY THE EVIDENCE

Pursuant to appellant’s pleas, a military judge sitting as a general court-martial convicted appellant of indecent exposure and possession of thirty-five images of child pornography transported in interstate commerce by computer, in violation of 18 U.S.C. 1466A(b)(1).[1] Contrary to his pleas, appellant was also convicted of indecent acts with a child on divers occasions. All of appellant’s offenses were alleged as violations of Article 134, UCMJ, 10 U.S.C. §934.

We find sufficient corroboration for appellant’s confession to indecent acts with a child. Based on our superior court’s decision in United States v. Rounds, 30 M.J. 76 (C.M.A. 1990) and acting out of an abundance of caution, however, we find appellant’s confession admitting the molestation occurred on more than one occasion was not sufficiently corroborated. See M.R.E. 304(g). Accordingly, we amend the finding of guilty of Specification 1 of the Charge to delete the words “on divers occasions.” The remaining findings of guilty are affirmed.

We have reviewed the remaining assignments of error and find them to be without merit. Reassessing the sentence on 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, including Judge Baker’s concurring opinion, 63 M.J. 40, 43 (C.A.A.F. 2006), the court affirms the sentence.

FOR THE COURT:

MARY B. CHAPMAN Deputy Clerk of Court

----------------------- [1] During the providence inquiry, appellant admitted all of the child pornography images had been transported in interstate commerce in violation of the cited statute.