Lead Opinion
Pursuant to his pleas, a military judge sitting as a general court-martial convicted Appellant of four specifications of wrongful distribution of a controlled substance and three specifications of wrongful use of a controlled substance in violation of Article 112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912(a) (2006). Contrary to Appellant’s plea, the military judge convicted Appellant of the involuntary manslaughter of LK, in violation of Article 119, UCMJ, 10 U.S.C. § 919. Appellant was sentenced to a reduction to the grade of E-l, forfeiture of all pay and allowances, confinement for a period of seventy months, and a dishonorable discharge. The United States Army Court of Criminal Appeals (CCA) affirmed the findings and sentence. This Court subsequently set aside and dismissed Appellant’s conviction for the involuntary manslaughter of LK as legally insufficient. United States v. Bennitt (Bennitt I), 72 M.J. 266, 267 (C.A.A.F.2013) (holding that “Appellant’s conduct was not an offense directly affecting the person”). We reversed the CCA’s decision as to Appellant’s sentence and returned the record of tidal to the CCA for sentence reassessment or a rehearing on the sentence. Id. at 272.
The CCA reassessed Appellant’s sentence, and reimposed the same sentence Appellant had received before his appeal to this Court. United States v. Bennitt (Bennitt II), No. ACM 20100172,
On a motion for reconsideration in light of United States v. Winckelmann,
While the CCA enjoys broad discretion in reassessing a sentence, Winckelmann,
I. FACTS
We described all of the facts surrounding the charged events in our opinion in Bennitt I.
Appellant gave two sworn statements to law enforcement, both of which were admitted as evidence to support the contested Article 119, UCMJ, charge and specifications. In the first, he testified that around 1:00 a.m. or 1:30 a.m. on February 15, he picked up his girlfriend, LK, and her friend, TY, and brought them back to his room on base. He stated that around 1:45 a.m. he snorted an oxymorphone pill LK gave him; around 2:00 a.m. or 2:15 a.m., he left the room; he later returned and found LK and TY asleep; around 3:00 a.m., Appellant laid down with them and fell asleep; and at 4:30 a.m., he woke to find LK foaming at the mouth and pale.
In his second statement, Appellant wrote that about 9:00 p.m. on February 14, he borrowed a soldier’s truck and drove to meet LK. After purchasing pills and running other errands, Appellant drove LK and TY to' his barracks. Appellant stated that upon returning to the barracks he gave pills to another soldier, then took LK and TY to his room to watch a movie. He admitted to crushing and snorting one pill then preparing a second pill for LK and TY to snort. Shortly after they snorted these pills, Appellant received a phone call from a friend asking him to find some “weed.” He made a call then left his room to search for marijuana. According to Appellant, he returned to find LK and TY asleep on his bed, joined them for an hour and a half, woke to find LK unresponsive, and called 911.
Appellant’s call log shows outgoing calls at 1:07 a.m. and 3:35 a.m. on February 15, and one incoming call at 1:11 a.m. that lasted approximately two minutes. At trial, an EMT testified that he received the 911 call about LK at 3:35 or 3:40 a.m. on February 15. TY testified at trial that she, Appellant, and LK got to base at 11:17 p.m. on February 14.
In relevant part, the Government charged Appellant with distribution of oxymorphone “on divers occasions between on or about 14 February 2009 and on or about 15 February 2009,” a violation of Article 112a, UCMJ, as well as involuntary manslaughter of LK by “aiding or abetting her wrongful use Oxy-morphone and Alprazolam,” in violation of Article 119, UCMJ.
Appellant pleaded guilty to distribution of oxymorphone, with the exception of the words “on divers occasions between” and “and on or about 15 February 2009,” to which he pleaded not guilty.
II. ARMY COURT OF CRIMINAL APPEALS SENTENCE REASSESSMENT
In its March 25, 2014, opinion on reconsideration in light of Winckelmann, the CCA stated that the Government’s theory at trial was that the involuntary manslaughter charge was “a form of aggravated distribu
III. DISCUSSION
As a preliminary matter, we note that in Bennitt I, we held Appellant’s conviction for involuntary manslaughter “is legally insufficient because Appellant’s distribution of the controlled substance was not an ‘offense ... directly affecting the person.’”
An accused has a right to be tried and “heard on the specific charges of which he is accused.” Dunn v. United States,
The CCA’s finding was based on “a theory not presented to the trier of fact.” Riley,
The record, particularly the Government’s opening statement, reveals that the Government’s theory in the merits phase was that Appellant was guilty of involuntary manslaughter, in violation of Article 119, UCMJ, by means of aiding and abetting LK’s use of oxymorphone. In pursuit of this, the Government did present evidence — most notably Appellant’s second sworn statement — that he distributed oxymorphone to LK; however, the Government brought this evidence as support for the Article 119, UCMJ, involuntary manslaughter charge, which this Court set aside. See Bennitt I,
Nor is the record legally sufficient to support a distribution to LK on February 14, even if the Government had intended to prove at trial distribution of oxymorphone to LK in support of the Article 112a, UCMJ, conviction. In Appellant’s initial sworn statement, he indicated multiple times, unequivocally, that his relevant interactions with LK all occurred on February 15, 2009. In Appellant’s second statement, he recalled that “[sjhortly after” he, LK, and TY snorted the oxymorphone, he made a call to look for marijuana, left his room to try to locate some marijuana, then returned to his room and fell asleep for “about an hour and a half.” Appellant’s call logs, along with the EMT’s testimony, corroborate the timing established in his second statement, and show that these calls and the tragic interactions that resulted in the death of LK took place on February 15. Finally, while TY testified that she, Appellant, and LK arrived on base at 11:17 p.m. on February 14, nothing in her testimony suggests that she or LK took oxymorphone on February 14. Together, this evidence is legally insufficient to support the conclusion that Appellant’s distribution to LK took place on February 14. See United States v. Tollinchi,
IV. CONCLUSION
We hold that the CCA erred as a matter of law in stating that Appellant was convicted of distribution to LK as part of his Article 112a, UCMJ, conviction. In so holding, we make no statement on whether sentence reassessment rather than a rehearing was appropriate, the admissibility of evidence of LK’s death as aggravation evidence for the distribution charge, or whether the reassessed sentence was also appropriate. The decision of the United States Army Court of Criminal Appeals is therefore reversed. The record is returned to the Judge Advocate General of the Army for remand to the CCA for reassessment of the sentence or rehearing in light of our findings.
Notes
. We granted review of the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY RE-AFFIRMING APPELLANT’S APPROVED SENTENCE AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.
Because we hold that the CCA's analysis included the erroneous statement that Appellant was convicted of distribution to LK as part of his Article 112a, UCMJ, conviction, we do not reach the granted issue.
. Appellant subsequently modified his plea to admit guilt on divers occasions "on or about 14 February 2009.”
. The military judge found Appellant not guilty of the excepted words "and Alprazolam.”
. Normally, the charge "on or about Februaiy 14, 2009” would include the early morning hours of February 15, 2009, and whether an action took place just before midnight or just after midnight is usually insignificant. However, because Appellant excepted the portions of his plea dealing with February 15, and the military judge found Appellant not guilty of distribution on February 15, in this case "on or about” cannot include actions that took place on February 15.
Dissenting Opinion
(dissenting):
I respectfully dissent from this Court’s opinion concluding that Appellant was not convicted of distribution of oxymorphone to LK. This conclusion is contrary to the military judge’s findings, the lower court’s findings, and the record in this case. The majority’s conclusion is also contrary to this Court’s long-standing practice interpreting the language “on or about,” which, in this ease, encompasses the early morning hours of February 15 as well as February 14 for a specification alleging “on or about February 14.” Therefore, the military judge properly
LK is the sixteen-year-old victim who died as a result of Appellant’s distribution. Under specification 3 of Charge II, the Government alleged the following:
In that [Appellant] did, at or near Fort Lewis, Washington, on divers occasions between on or about 14 February 2009 and on or about 15 February 2009, wrongfully distribute some amount of Oxymorphone, a Schedule II controlled substance.
Appellant entered a plea of guilty to this specification as follows:
To specification 3 Charge II: Guilty
Except the words and figures “between” and “and on or about 15 February 2009”; to the excepted words and figures: Not Guilty;
To the Charge: Guilty
Thus, in substance, Appellant’s exceptions resulted in a plea to a specification that would have appeared as follows: in that Appellant did, at or near Fort Lewis, Washington, on divers occasions between on or about 14 February 2009 and -on -or-afeout' 1-5-Febru-ary 2009, wrongfully distribute some amount of Oxymorphone, a Schedule II controlled substance.
Following the entry of Appellant’s pleas, the Government proceeded on the merits. In his opening statement trial counsel stated:
So, if you follow the drugs in this case, Your Honor, you will find that, on 14 February 2009, that this accused obtained essentially a truck-load of Opana and Al-prazolam. ... And that [Appellant] on 14 February 2009, [distributed those two drugs to several soldier's. He also, though, Your Honor, [distributed] the Opana, we know for certain, and probably the ... Alprazolam, to [LK], in the late hours of 14 February 2009, and the early morning hours of 15 February 2009. And it is those two drugs in the very possession of the accused on 14 February 2009, that killed [LK].
During the trial, the prosecution offered, among other things, Appellant’s sworn statement. The statement was admitted as Prosecution Exhibit 27 and recites Appellant’s account of the events during the day and into the late evening of February 14, 2009, during which he obtained several drugs and subsequently distributed those drugs to several individuals including LK. Specifically, Appellant stated that around 9:00 p.m. on February 14, he borrowed a friend’s truck and proceeded to a location where he purchased several oxymorphone pills. According to the statement, about twenty minutes after procuring the drug, he, LK and one of LK’s friends returned to his barracks, Appellant then stated:
Once we got [to] the barracks I gave [S] his pills and then I went back to my room. I put in a movie and we were watching it. When we were watching the movie I crushed up two of the pills that I had gotten for myself and snorted them.... After I snorted the two pills I crushed up the other pill and [LK] and her friend snorted it.
Finally, according to Appellant, he left the room, returned later and fell asleep in the bed with the two girls. He awoke at some point and found LK unresponsive.
At the close of the evidence, the military judge entered the following finding to specification 3 of Charge II:
Of specification 3 of Charge II: Guilty;
Except the word “between” and except the words and figures, “and on or about 15 February 2009.”
The military judge’s exceptions resulted in a finding of guilty of wrongful distribution of oxymorphone “on divers occasions on or about 14 February 2009.” On Appellant’s statement alone, the military judge, sitting as the reasonable trier of fact in the case, could have found that the distribution of oxymor-phone to LK occurred during the evening of the 14th.
However, even if one were to conclude that it occurred during the very early hours of the 15th, (the participants were not keeping careful note of the time), it would still have been
The qualifier, “on or about” heretofore has been used in cases, like this one, where the exact time or date of an event may not be known or within the recollection of the critical witnesses, but nonetheless fairly orients, the accused to the offense charged. “ ‘On or about,’ however, are words of art in pleading which generally connote any time within a few weeks of the ‘on or about’ date.” United States v. Brown,
If, at the time of trial, there had been any question or confusion on the part of the defense as to what specification 3 included, counsel had at least two remedies available. First, prior to trial, the defense could have moved for a bill of particulars under Rule for Courts-Martial (R.C.M.) 906(b)(6). Alternatively, since this was a military judge-alone trial, the defense could have requested special findings under R.C.M. 918(b). The defense did neither.
Finally, the majority concedes that the evidence of record proves that Appellant distributed oxymorphone to the victim. However, according to the majority, since this evidence was “presented as the means by which he was 'guilty of the Article 119[(b)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 919(b)(2) (2006) ], ... offense,” this resulted in a theory not presented to the trier of fact on the Article 112a, UCMJ, 10 U.S.C. § 912a (2006), offense. United States v. Bennitt,
As a result, I respectfully dissent.
. The majority’s decision to reinterpret the meaning of "on or about” and to reverse the CCA's conclusion regarding the distribution to the manslaughter victim in this case seems all the more misplaced, because this Court did not grant this case on that basis and has not heard argument nor received briefs on the issue.