United States v. Sergeant TROY D. GADDIS

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before HOFFMAN, CARLTON and GIFFORD Appellate Military Judges UNITED STATES, Appellee v. Sergeant TROY D. GADDIS United States Army, Appellant ARMY 20080150 Headquarters, XVIII Airborne Corps and Fort Bragg Patrick Parrish, Military Judge (arraignment) Tara Osborne, Military Judge (trial) Colonel Thomas E. Ayers, Staff Judge Advocate

For Appellant: Lieutenant Colonel D. Linden Barber, JA (argued); Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller, JA; Major Grace Gallagher, JA; Lieutenant Colonel D. Linden Barber, JA (on brief).

For Appellee: Captain Christopher B. Witwer, JA (argued); Colonel Norman F. J. Allen, III, JA; Lieutenant Colonel Martha L. Foss, JA; Major Christopher B. Burgess, JA; Lieutenant Colonel Damon A. King, JA (on brief).

31 March 2010 -------------------------------- SUMMARY DISPOSITION -------------------------------- Per Curiam: Statute of Limitations

In Specification 1 of Charge II, appellant was charged with having committed an indecent act on or about 1 November 2002 and 15 January 2003.

The evidence adduced at trial, however, indicates that the indecent act occurred on or about November or December 2001. Thus, the act occurred more than five years prior to the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command. The November 2003 congressional amendment of Article 43, Uniform Code of Military Justice, which extended the statute of limitations for child abuse offenses from five years to a child victim's twenty-fifth birthday, does not apply retroactively to cases, which arose prior to the amendment. United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).

Thus, we set aside and dismiss Specification 1 of Charge II.

Abuse of Discretion Appellant asserts, among other assignments of error, that the military judge “committed plain error” by excluding evidence under Military Rule of Evidence 412. We review a military judge’s decision to admit or exclude evidence for an abuse of discretion. United States v. Banker, 60 M.J. 216, 223 (C.A.A.F. 2004); United States v.Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). We applied the abuse of discretion standard to the issue at bar, and we find that the military judge did not abuse her discretion.

We have considered those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. The finding of guilty to Specification 1 of Charge II is set aside and dismissed with prejudice. The remaining findings are affirmed. In view of our corrective action on findings, we have reassessed the sentence in accordance with United States v. Sales, 22 M.J. 305, 307 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J. concurring). We are satisfied that the sentencing landscape in this case has not changed dramatically. United States v. Buber, 62 M.J. 476, 479 (C.A.A.F. 2006). Appellant remains convicted of sodomy with a child under age 12, which carries a potential life sentence, as well as three other specifications of indecent acts with a child (two of which were on divers occasions). After reviewing the evidence presented on the merits and on sentencing, we conclude the adjudged sentence for the affirmed offenses would have been at least the same as that adjudged by the members and approved by the convening authority. Id. at 478. The sentence is affirmed.

FOR THE COURT:

MARY B. CHAPMAN Acting Clerk of Court