United States v. Staff Sergeant COREY D. BOWMAN

• Court: Army Court of Criminal Appeals
• Decided: October 19, 2009
• Docket: ARMY 20080817
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before JOHNSON, COOK, and BAIME Appellate Military Judges

UNITED STATES, Appellee v. Staff Sergeant COREY D. BOWMAN United States Army, Appellant

ARMY 20080817

Headquarters, 82nd Airborne Division Patrick J. Parrish and David L. Conn, Military Judges Lieutenant Colonel William A. Schmittel, Staff Judge Advocate (trial) Lieutenant Colonel Paul S. Wilson, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace M. Gallagher, JA; Major Julie Caruso Haines, JA (on brief).

For Appellee: Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Adam S. Kazin, JA; Captain Nicole L. Fish, JA (on brief).

19 October 2009

--------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam:

An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of attempted indecent assault, assault consummated by battery (two specifications)[1], indecent language (four specifications), and indecent assault (four specifications), in violation of Articles 80, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 928, and 934. The convening authority approved the adjudged sentence of reduction to the rank of Private (E-1) and a bad-conduct discharge. Appellant alleges that the evidence is factually and legally insufficient to support the findings of guilty to one specification each of assault consummated by a battery and of indecent language. We agree, in part.

In Specification 1 of Charge III, appellant was convicted of, on divers occasions, committing an assault consummated by a battery “upon then [Staff Sergeant] T.W., a person not his wife, by pinning her to the wall, rubbing her legs, and feeling her breasts and buttocks, with intent to gratify his sexual desires.” We find no evidence that the assault occurred more than once and will now except out the words “on divers occasions.”[2]

In Specification 12 of Charge III, appellant was convicted of indecent language for communication of certain language to Specialist TF. We find no evidence certain language was used and will now except out the words “I bet I can make you feel like no man has ever made you feel.”

The remaining findings of guilty and the modified findings of guilty to the two specifications discussed supra are affirmed. We have considered the matters personally asserted by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Considering the nature of the remaining findings of guilty, the entire record, the sentence adjudged at trial, and applying the principles of United States v. Sales, 22 M.J. 305, 307-309 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40, 42-44 (C.A.A.F. 2006), to include those factors identified by Judge Baker in his concurring opinion in Moffeit, we are confident in our ability to reassess the sentence. “[W]e perceive no reasonable possibility of benefit to [appellant] by remand of the record for reassessment of the sentence.” United States v. Sims, 57 M.J. 419, 422 (C.A.A.F. 2002) (citation omitted). We affirm the sentence as approved by the convening authority.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court ----------------------- [1] The panel found appellant not guilty of two other indecent assault specifications, but guilty of two specifications of Article 128, a lesser included offense of Article 134 (indecent assault) under the Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM]. The misconduct underlying these specifications occurred between February and August 2007 and thus was charged under the 2005 edition of the MCM. Similarly, appellant was convicted of the Article 80 attempt as a lesser included offense of a charged specification of Article 134 (indecent assault). [2] We are able to conduct a factual sufficiency review and affirm the findings because we can confidently, and without any doubt, determine the single occasion on which the conviction is based. See generally United States v. Scheurer, 62 M.J. 100 (C.A.A.F. 2005).