United States v. Stapp

60 M.J. 795, 2004 CCA LEXIS 282, 2004 WL 2955153
CourtArmy Court of Criminal Appeals
DecidedDecember 22, 2004
DocketARMY 20010433
StatusPublished
Cited by6 cases

This text of 60 M.J. 795 (United States v. Stapp) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Stapp, 60 M.J. 795, 2004 CCA LEXIS 282, 2004 WL 2955153 (acca 2004).

Opinion

OPINION OF THE COURT

BARTO, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of attempted distribution of a controlled substance, absence without leave, violation of a lawful general order, wrongful use (two specifications) and distribution (four specifications) of controlled substances, and breaking restriction in violation of Articles 80, 86, 92, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 886, 892, 912a, and 934, respectively [hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable discharge, confinement for eight years, and forfeiture of all pay and allowances. A pretrial agreement limited the confinement that the convening authority could approve to four years, but to moot any claim of prejudice flowing from untimely post-trial processing, the convening authority approved only so much of the sentence as provides for a dishonorable discharge, confinement for forty-five months, and forfeiture of all pay and allowances. Appellant was further credited with fifty-nine days of pretrial-confinement credit.

This case is before the court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. Two issues merit discussion and relief. First, appellant’s guilty plea to violating a lawful general regulation was partially improvident. Second, we agree with appellant that the military judge erroneously considered inadmissible pre-sentencing evidence and improperly limited cross-examination of a government pre-sentencing witness. We will reassess the sentence in our decretal paragraph.

BACKGROUND

On 23 February 2001, JC and KW ran away from their respective homes in Ever-son, Washington; JC was fifteen years old at the time, while KW was sixteen. The two girls eventually made their way to Fort Lewis, Washington, arriving on or about 27 February 2001, in the company of several soldiers from appellant’s unit. The soldiers gave the girls alcohol and they became so intoxicated that they could not leave the barracks until early on the morning of 28 February 2001. It was when the girls returned to Fort Lewis later on that day that they first met appellant. He purchased alcohol, including a bottle of vodka, and allowed KW and various underage soldiers to consume it. Both girls passed out after consuming large quantities of alcohol, and JC awoke to find herself naked and being sexually violated by a soldier from appellant’s unit. The girls eventually left Fort .Lewis on Friday, 2 March 2001.

[797]*797The two girls returned to the barracks on Sunday, 4 March 2001, and went to appellant’s room looking for a soldier who was apparently out of town. Appellant invited the girls to smoke marijuana with him and a friend, and they did so. Later in the evening, the girls accepted appellant’s invitation to spend the night in his barracks room. JC agreed to sleep with appellant in his bed, but recalled telling appellant “that she did not want anything to happen sexually.” JC was feeling the effects of the marijuana she used earlier, and, as the parties later stipulated, appellant “coaxed JC into having sex.” JC did not manifest a lack of consent. Appellant did not know that JC was fifteen years old, and did not use any force greater than that incident to the intercourse. KW and appellant’s friend were also in the room at this time and could hear the sexual activity between appellant and JC. Appellant, JC, and KW parted company the next morning, and the girls spent the evening with other soldiers in appellant’s unit.

Appellant next encountered JC and KW on 6 March 2001, when he once again shared marijuana with JC in his barracks room. It was at this time that JC told appellant and another soldier that she was seventeen years old. The two girls then left appellant’s room, but stayed in the barracks with other soldiers from appellant’s unit until 8 March 2001, when a soldier notified the chain of command that the girls were staying in the barracks. The girls were then taken into custody and turned over to their parents.

PROVIDENCE OF GUILTY PLEA

Additional Facts

Appellant pleaded guilty to distributing some amount of marijuana to JC while she spent the night with him in his room. Appellant pleaded not guilty to committing carnal knowledge with JC, and the military judge dismissed that charge upon government motion pursuant to the pretrial agreement between appellant and the convening authority. Appellant also pleaded guilty to Additional Charge III and its Specification, which alleged the following:

In that Private Jason L. Stapp, U.S. Army, did, at or near Fort Lewis, WA, between on or about 4 March 2001 and on or about 5 March 2001, violate a lawful general order, to wit: paragraph 6(d)(1)(a), paragraph 6(d)(1)(b), and paragraph 6(d)(1)(c), Fort Lewis Policy Statement # 10, dated 16 November 2000, by wrongfully having Miss [JC], a person under the age of 18, in his barracks room overnight, between 2300 hours, 4 March 2001 and 0800 hours, 5 March 2001, and by failing to sign in the said Miss [JC] with the unit CQ/SDNCO.

The military judge explained the offense in the following fashion:

The elements of that offense, which is called violating a lawful general order or regulation, are:
One, that there was in existence a certain lawful general order in the following terms: Paragraph 6(d)(1)(a) of Fort Lewis Policy Statement Number 10, dated 16 November 2000, which states[,] “Visits may be made from 0800 to 2300, Sunday through Thursday, from 0800 to 0200, Friday and Saturday, and from 0800 to 0200 on a day preceding a recognized official or unit training holiday. Visitation during any other time period in not permitted. No overnight visitors are permitted in the barracks”;
Paragraph 6(d)(1)(b) of Fort Lewis Policy Statement Number 10, dated 16 November 2000[,] which states[,] “Any nonmilitary visitor below the age of eighteen, who is not a member of the soldier’s immediate family—for example, brother or sister—must be accompanied by a legal parent or guardian at all times”;
And paragraph 6(d)(1)(c) of Fort Lewis Policy Statement Number 10, dated 16 November 2000, which states[,] “Visitors must be sponsored and escorted at all times. The sponsor is responsible for the visitor. Visitors will be signed in and out through the unit CQ [or] SDNCO”;
Two, that you had a duty to obey that order; and,
Three, that, at or near Fort Lewis, Washington, between on or about 4 March 2001 and on or about 5 March 2001, you violated this lawful general order by [798]*798■wrongfully having Miss [JC], a person under the age of eighteen, in your barracks room overnight between 2300 hours, 4 March 2001, and 0800 hours, 5 March 2001, and by failing to sign in Miss [JC] with the unit CQ [or] SDNCO.

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Cite This Page — Counsel Stack

Bluebook (online)
60 M.J. 795, 2004 CCA LEXIS 282, 2004 WL 2955153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stapp-acca-2004.