UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
YOB, KRAUSS, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant JEFFREY A. BURDETT
United States Army, Appellant
ARMY 20110013
Headquarters, Fort Bliss
David H. Robertson, Military Judge
Colonel Francis P. King, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Ian M. Guy, JA (on brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA;
Captain Daniel H. Karna, JA (on brief).
31 October 2012
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SUMMARY DISPOSITION
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KRAUSS, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of failure to obey an order, one
specification of aggravated sexual contact with a child, and one specification of
indecent liberty with a child, in violation of Articles 92 and 120, Uniform Code of
Military Justice, 10 U.S.C. §§ 892, 920 (2006 & Supp. II 2008) [hereinafter UCMJ].
Contrary to his pleas, the court-martial convicted appellant of rape of a child and
another specification of aggravated sexual contact with a child in violation of
Article 120, UCMJ. * Appellant was sentenced to a dishonorable discharge and
*
Appellant was acquitted of attempted sodomy of a child, two separate
specifications of aggravated sexual contact with a child, and forcible sodomy on a
child.
BURDETT—ARMY 20110013
confinement for twelve years. The convening authority approved the sentence as
adjudged.
This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors and personally raises matters pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982).
Appellant asserts that the evidence is legally and factually insufficient to
support his conviction under Specification 2 of Charge III for aggravated sexual
contact with a child. The government concedes that, at the least, the evidence is
factually insufficient to support that conviction. We agree with that aspect of
appellant’s assertion and the government concession and we find the evidence
factually insufficient to support appellant’s conviction of Specification 2 of Charge
III. See United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Under United States v.
Sales, we do not consider the situation warrants a rehearing but rather we are
confident that we can reassess the sentence. See United States v. Sales, 22 M.J. 305
(C.M.A. 1986).
On consideration of the entire record, the parties’ briefs and those matters
raised by appellant pursuant to Grostefon, we disapprove the finding of guilty as to
Specification 2 of Charge III and find the remaining findings of guilty correct in law
and fact. Accordingly, Specification 2 of Charge III is dismissed; the remaining
findings of guilty are affirmed. Reassessing the sentence on the basis of the error
noted, the entire record, and in accordance with the principles of United States v.
Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, in conjunction with the exercise of our responsibility under
Article 66(c), UCMJ, the court approves only so much of the sentence as provides
for a bad-conduct discharge and ten years’ confinement.
Senior Judge YOB and Judge BURTON concur.
FOR THE COURT:
FOR THE COURT:
JOANNE P. TETREAULT ELDRIDGE
JOANNE
Deputy ClerkP.of TETREAULT
Court E
Deputy Clerk of Court
2
United States v. Sergeant JEFFREY A. BURDETT
Combined Opinion