## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before JOHNSON, BERG, and KRAUSS Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 PAYSON C. AVERILL United States Army, Appellant

ARMY 20090491

Headquarters, United States Army Maneuver Center of Excellence James Pohl, Military Judge Colonel Tracy A. Ba rnes, Staff Judge Ad vocate (pretrial a nd recommendation) Lieutenant Colonel Jeffery D. Lippert, Deputy Staff Judge Advocate (addendum)

For Appellant: Captain Kristin McGrory, JA; Mr. Frank J. Sp inner, Esquire (on brief).

For Appellee: Major Amber J. Williams, JA; Captain Ke nneth W. Borgnino, JA (on brief).

7 December 2011

--------------------------------- SUMMARY DISPOSITION

---------------------------------

Per Curiam:

A panel of officer an d enlisted members, sitting as a gene ral court-martial, convicted appellant, contrary to his pleas, of aggravated sexual assault, indecent conduct, and adultery, in violation of Articles 120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, and 934 (200 7) [hereinaft er UCMJ]. See Manual for Courts-Martial

, United States , (2005 ed.) [hereinafter MCM ], Part IV, para. 62.b. The convening authority approved the adjudge d sentence of a bad- conduct discharge, confinement for one ye ar, forfeiture of all pay and al lowances, and reduction to E1. 1

1 Prior to taking ac tion, the convening au thority considered th e addendum to the staff judge advocate recommenda tion (SJAR). The SJAR ad dendum was signed by Lieutenant Colonel Lippert as the “Dep uty Staff Judge Advo cate.” However, Article 60(d), UCMJ, requ ires a convening authorit y to obtain the written recommendation of his staff j udge advocate or legal office r, not the deputy staff

(continued . . .)AVERILL—ARMY 20090491

2 Appellant’s case is now be fore this court for review under Article 66, UCMJ. Appellant raises two assignments of error. 2 In addition, it is evident that Specification 1 of Charge II, setting fort h a violation of Arti cle 134, UCMJ, does not expressly allege a terminal element. We have considered the Ar ticle 134 charge and specification in light of United States v. Fosler , 70 M.J. 225 (C.A .A.F. 2011), and
we have also considered the issues rais ed by appellant, the government’s answer,
and the record of trial. We find the issues raised by appellant to be without merit, and we hold that Speci fication 1 of Charge II, when liberally construed, states the offense of adultery.

LAW AND DISCUSSION

Whether a charge and specifi cation state an offense is a question of law that is
reviewed de novo. United States v. Roberts , __ M.J. ___, slip op. at 4 (Army Ct. Crim. App. 14 Oct. 2011). Toge ther, the charge and specif ication must “allege every element of the offense either expressly or by necessary implication, so as to give the accused notice and protect him against double jeopardy,” id. (quoting United States

v. Dear , 40 M.J. 196, 197 (C.M.A. 1994)). Rule for Courts-M artial 307(c)(3). Here, appellant pleaded not guilty to the charge of adultery—which in this case does not expressly allege that appe llant’s conduct was to the prejudice of good order and discipline or of a nature to bring discredit upon the armed forces. However, appellant did not object to the language of the charge and specification at trial, nor did he object in his post-tria l matters to the convening auth ority, or in his appeal to this court. Appellant’s silence on this issue speaks volumes and informs our
decision on this matter. See United States v. Hoskins , 17 M.J. 134, 136 (C.M.A.

(. . . continued) judge advocate. Consequently, it was pl ain error for the deput y staff judge advocate to sign the SJAR addendum. United States v. Hudgins , 69 M.J. 630, 631 (Army Ct. Crim. App. 2010). Regardless, we fi nd no prejudice in this case. Appellant did not allege th e error to this c ourt nor did he ma ke “any colorable showing of possible prejudice.” United States v. Wheelus , 49 M.J. 283, 289 (C.A.A.F. 1998).

2 In one assignment of error, appellant aver s that the military judge erred when he did not instruct the panel th at appellant first possesse d the burden to prove the
affirmative defenses of consent and mistake of fact as to cons ent by a prep onderance
of the evidence. UCMJ art. 120(t)(16). We hold that the military judg e erred by not giving a legally suffici ent explanation when he provid ed an instruction that was
inconsistent with Ar ticle 120, UCMJ. United States v. Medina , 69 M.J. 462, 465 (C.A.A.F. 2011). Howeve r, under the facts of this case, we are satisfied that this
error was harmless be yond a reasonable doub t. The instruction that was given was clear and correctly conveyed that the burde n to disprove the a ffirmative defenses beyond a reasonable doubt rested solely wi th the government. Id

.AVERILL—ARMY 20090491

3 1984) (listing factors that directly impact the ultimate deci sion of whether a charge and specification necessarily imply an element). Where a charge and specification are not challenged at trial, their language is to be liberally construed. Roberts

, __ M.J. at ___, slip op . at 4 (citing United States v. Watkins , 21 M.J. 208, 209–10 (C.M.A. 1986)). Cf. Fosler , 70 M.J. at 230. This liberal rule of interpretation is applicable even where an appe llant does not plead guilty. United States v. Fox , 34 M.J. 99, 102 (C .M.A. 1992); Roberts , __ M.J. at ___, slip op. at 5; United States v.

Berner , 32 M.J. 570, 572 (A.C.M.R. 1991).

In the absence of an objection at tria l, we will not set aside a charge and specification unless it is “so obviously defective that it could not be reasonably construed to embrace [the ] terminal element.” Roberts , __ M.J. at ___, slip op. at 5;
United States v. Watkins , 21 M.J. 208, 209–10 (C .M.A. 1986). We hold that in this case the Article 134 charge and specificat ion can be so constr ued, and, therefore,
state the offense of adul tery. In this case, appellant did not object at trial; therefore, his standing to challenge the charge and specificat ions is circumscribed. Roberts

, __ M.J. at ___, slip op. at 4. Cf. Fosler , 70 M.J. at 230. In ad dition, the allegations contained in the adultery specification mirror those supporting the separately charged specifications alleging an aggravated sexual assa ult and an indecent act. In other words, altogether th e charges notified appellant that the adultery was committed by engaging in sexual intercour se with a substan tially incapacitated
woman that was not hi s spouse in violation of Arti cle 134, UCMJ. Therefore, the adultery charge and specification in this case necessarily imply that appellant’s conduct was prejudicial to good order and di scipline or service discrediting.

Furthermore, this textual relationship of necessary implication provided appellant with fair notice. The charge se ts forth a violation of Article, 134, UCMJ, and the specification states the date, location, and the victim of the offense. See,

e.g. , United States v. Dear , 40 M.J. 196, 197 (C.M.A. 19 94) (holding a maltreatment specification provided no tice because “it set[] forth the Article of the Code, name of the victim, the time frame of the offense, and the commen ts alleged to have been made by appellant”). Add itionally, the panel was instru cted in open court, without comment from appellant or his defense counsel, that the Ar ticle 134 offense contained terminal elements and required proof of the same . Buttressed by the presumption of the de fense counsel’s competence, this is strong evidence that appellant was not misled about the nature of the charge leve led against him. See
MCM , Part IV, paras. 60.c.(6)(a) , and 62.b. Finally, the factual allegations in the specification combined with th e record of trial sufficientl y protect appellant against double jeopardy.

CONCLUSION

On consideration of the entire record, and in light of United States v. Fosler

, 70 M.J. 225 (C.A.A.F. 2011), we find appellant’s argument s to be without merit. We hold the findings of gu ilty and the sentence as approved by the conveningAVERILL—ARMY 20090491

4 authority correct in law and fact. Acco rdingly, the findings of guilty and the
sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: