*1 STATES, Appellee, UNITED HAWES, Lieutenant, P. Second Force, Appellant.
U.S.
No. 98-0199.
Crim.App. 32481. No.
U.S. Court of
the Armed Forces.
Argued Feb. 1999. Aug.
Decided 1999.
GIERKE, J., opinion delivered the Court, COX, C.J., in which and CRAWFORD JJ., EFFRON, J., joined. SULLIVAN, dissenting opinion. filed a For Appellant: Captain Natasha V. Wro- (argued); bel Douglas Colonel H. Kohrt and (on Captain brief); Apol J. Michael Lieuten- ant Colonel L. Kim and Lieutenant Sheffield Ray Colonel T. Blank. Appellee: Major For B. Thompson Steven (argued); Lieutenant Colonel J. Michael (on Captain Breslin and D. Steven Dubriske brief); Hollis, J. Colonel Brenda Lieutenant Dattilo, P. Anthony Major Colonel G. Allen Erickson, Major Rodgers. Ronald A. Judge opinion GIERKE delivered the thе Court. military judge sitting general
Before court-martial, appellant pleaded guilty to wrongfully using marijuana guilty but not violation Articles 112a Justice, Military Uniform Code §§ respectively. USC 912a and military judge appellant guilty found wrongfully using marijuana, alleged. The specification *2 lieutenant, apart on the same street en- lived houses pellant, a second hosted three home, growing up. aсcompanied his them listed airmen at rea- public personal, locations for social to security policeman SrA Frimodt was them, sons, with allowed consumed alcohol security assigned duties. He to missile name, by first the airmen address his Falls, Montana, his with wife lived Great any require not them to extend and did Ap- apartment. in a basement child to him. military courtesies on a small pellant lived outside town judge appellant guilty of fraterni- also found family ap- and his visited ranch. Frimodt zation, allowing but for the airmen ranch, they play his where pellant at by his The ad- first name. address aрpel- appellant’s puppies and ride with judged approved provides for visit horses. Frimodt would also lant’s and forfeiture alone or with airmen appellant’s ranch per month fоr months. $500.00 friends, would shoot on JV RN. set aside horses, The Court target range, appellant’s ride or appellant’s apply- conviction puppies. see statutory factfinding powers under assigned RN JV and were to missile 66(c), UCMJ, 866(c), § 10 USC Article security with Frimodt. RN eventu- duties beyond a stating, “[W]e are not convinced ally puppies bought one of the from appellant’s conduct reasonаble doubt price. During lant at fair market most of Unpub. op. at amounted fraternization.” by Frimodt the visits to ranch 3. The court then reassessed and affirmed friends, family appellant or was his sentence, reasoning as follows: occasions, they present. On other saw Reassessing light appellant but did not visit with him. On a offense, remaining marijuana only the occasions, present appellant was few would have been the are convinced and, once, spoke at visitors Peoples, same. United States offered refreshments to his visitors. of- The fraternization appellant Frimodt never called SrA relatively comparison fense was trivial in duty. During his first name while on drug use with an airman. they duty, on Frimodt al- few times met Unpub. op. at 4. ways appellant addressed as sir or his grantеd following This Court review of the expected military rank and rendered issue: However, off-duty at courtesies. while WHETHER THE AIR FORCE COURT ranch, occasionally pellant’s Frimodt called OF APPEALS ERRED BY CRIMINAL first name. Frimodt ini- A FAILING TO ORDER REHEARING tially “my introduced JV IT ON SENTENCE AFTER DIS- friend, Hawes.” All three airmen THE FRATER- MISSED CHARGE OF knew was an officer at the time NIZATION. fraternization. Fri- With present, modt JV and RN both called We affirm the decision of Court pellant by his first name on one or two Appeаls, for the set out below. reasons at ranch. and RN occasions JV set the court below never his first addressed aside the conviction of fraternization and on-duty. name if encountered rеassessed the sentence summarized any Appellant never the en- corrected unpublished opinion, the court’s as follows: name, listed when his first men used 25-year-old Air Force encourаge it nor did he have Academy graduate serving as a combat much with them when visited contact missile crew commander Malmstrom the ranch. Base, Montana. He encountered (SrA) Frimodt, cаlled In March Frimodt Airman a close Senior a mutu- kindergarten, and told him that he had talked to and classmate since friend school who now arriving at Malmstrom. The two had al civilian friend after Helеna, IV, 83e, lived in Montana. The friend said Part Manual ed.), would like see Frimodt 1003(b)(9)(A) (B), Manual, driving supra.* he was to Helena the RCM give and offered to him a argues ride. The Government that the court below *3 Apрellant accepted agreed the offer and did not abuse its the rec discretion because morning. supports meet at Frimodt’s the house next ord its conclusion that the fraterni arrivеd, Frimodt, JV, When and zation was a trivial offense. all present. RN were Frimodt had not a Appeals When Court of Criminal go- the other two would be finding guilty, may aside a purge sets of ing along. RN drove to Helеna with prejudicial impact the of the error reas pellant passenger in the back seat. sessing sentence, if it the can determine that arrived, When all four fishing, went “the accused’s sentence would have been at yards fished alone about 100 magnitude.” of a certain United States weather, from the Because of others. bad Jones, 315, 1994), quot v. 39 MJ 317 fishing ceased and went to a local 305, 22 United States v. MJ 307 restaurant where all ate and drank (CMA 1986). higher may “No sentence together. some beer at the While restau- appellate affirmed the court than would rant, apрellant encountered a civilian he adjudged have been at trial absent the er had met at a all agreed go rodeo. 494, ror.” United States v. 48 MJ 495 together. a bar (1998), quoting v. Peoples, United Stаtes bar, While at the the three airmen 1990). MJ 427-28 of played pool and drank beer while Appeals may purge prejudicial Criminal the sat alone at bar drank the beer. He impact of thе error sen the play pool didn’t with them. The civilian of ordering rehearing, tence instead a “if it from the Rodeo arrived with another civil- ‘confidently can discern the extent the ian and the twо of them went outside with sentencing authority’s error’s effect the there, appellant and Frimodt. While 495, quoting decision.’” MJ at pellant marijuana and Frimodt smoked Reed, (CMA 1991). v. provided by using pipe the сivilians made We review the lower court’s reassess
from a coke modified can. The three air- only ment for abuse of discretion. “We will Falls, men later returned to Great disturb the [lower cоurt’s] reassessment waited the bar for his ‘prevent jus miscarriages order obvious school He friend. returned to Falls Great ” tice or abuses discretion.’ 48 MJ at the girlfriend picked with his who quoting 39 up During her car. trip this Helena, all three airmen have called appellant by his first name on occasion persuad has the burden of objection without It ing us that the court below abused its discre occurred, unclear how often this but it was tion. We not persuaded. military are a few times most. judge acquitted appellant of most of the fra Id. at 1-8. allegations ternization convicted
Appellant now that only permitting military contends the Court of a breach of cour Appeals required tesy off-duty setting. Criminal to order a an The Court of pos could not relied ex sibly perience expertise determine what that concluded would have been without the the fraternization trivial in com offense was conviction, carry both parison marijuana since offenses punishment. same maximum Both offenses would have “at least” received dismissal, punishable forfeitures, are total modest 2 years. record, and confinement for adjudged. forfeitures On this we are * provisions unchanged These in the 1998 edi- tion. at least an been persuaded that there has been obvious accused’s sentence magnitude”). a certain justice or abuse of discrеtion.
miscarriage of offenses, guilty of two Appellant was found note, however, court We that while the do pleaded marijuana to which he offense aside the fraternization conviction below set guilty and fraternization offense which thereby removed conduct from guilty. The fact that pleaded case, “fra- it did not remove reference to present findings include thе offense to reprimand. To ternization” from clearly pleaded guilty puts in a impact that the convic- ensure posture sentencing before the more favorable fully of fraternizаtion is removed from tion court. sentence, set aside so much of the will *4 reads, reprimand “and as Also, autho each offense carried the same enlisted subordinates.” punishment, maximum for rizеd allowances, years’ feiture all the United decision of States 83(e), confinement. affirmed, is Manual for States United except of its as affirms for so much decision ed.). reasonably Can be said that portion reprimand containing the reduction of 50% the maximum authorized words fraternization with sub- “and enlisted no punishment would have effect on ad Those words are stricken from ordinates.” judged punishment? Would none reprimand. $1,000in forfeitures be reduced? Appeals’ The Court of Criminal reassess- SULLIVAN, Judge (dissenting): wrong highly unlikely it is ment majority opinion I I disagree with the gotten exact States v. United if he same sentence had been tried one (1998)(Sullivan, J., dissenting). The felony rather The court crime than two. highly unlikely make case expert below sen- lant would receive the exact “same sentence” tences, jury but it cannot read the minds of Id., rehearing. citing at a this, United authority convening and a like ease 1986); States v. MJ 305 major is a where there reduction cf. crimes which the sentence is fashioned. 1994) (reassessment appropriate where “the I would remand for a on sentence.