## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before SIMS, COOK, and MAGGS Appellate Military Judges

UNITED STATES, Appellee

v. Specialist MAC D. WARNER United States Army, Appellant

ARMY 20100398

Headquarters, V Corps Wendy P. Daknis, Military Judge

Colonel Flora D. Da rpino, Staff Judge Ad vocate (pretrial)

Lieutenant Colonel Matthew M. Miller, Acti ng Staff Judge Advoca te (post-trial)

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on brief).

For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain Kenneth W. Borgnino, JA (on brief).

24 May 2012

-------------------------------- SUMMARY DISPOSITON

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

Per Curiam:

A military judge, sitting as a general court-martia l, convicted appellant, contrary to his pleas, of one specification of aggravated sexual contact with a child, and two specifications of inde cent language, in violation of Articl es 120 and 134 of the Uniform Code of Military Justice, 10 U.S.C. §§ 920 a nd 934 (2008) [hereinafter UCMJ]. Appellant was sent enced to a dishonorable di scharge, confinement for eighteen months , total forfeiture of all pay and al lowances, and reduct ion in rank to E-1. The convening authority (CA) ap proved the adjudged sentence. The CA

deferred forfeitures effective 25 May 2010 until acti on on 22 Oct 2010 . This case is before this court for review pu rsuant to Articl e 66, UCMJ.WARNER – ARMY 20100398

2 DISCUSSION

Specifications 4 and 7 of Charge II concern appe llants communication of indecent language. Appellants sole assignment of erro r on appeal is that these specifications failed to state an offense under Article 134, UCMJ , because they did not allege expressly that appellant’s conduct was prej udicial to good order and discipline or of a nature to bring discredit upon the Armed Forces. Trial defense counsel did not raise this obje ction to the specifications in pretrial proceedings, at trial, or in the post-tri al Rule for Courts-Martial [hereinafter R.C.M.] 1105 submission. Although defens e counsel did challenge specifi cation 7 of Charge II in a pretrial motion, the ground for the chal lenge was only that th e language used was

not indecent. See Pretrial Motion to Di smiss (Failure to Stat e a Claim), Appellate Exhibit XIII, at 3. Defense counsel did not cha llenge specification 4 of Charge II on any grounds. We have reviewed this assignment of error in light of United States v.

Ballan , 71 M.J. 28 (C.A.A.F. 2012); United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011); United States v. Fox , 34 M.J. 99 (C.M.A. 1986); United States v. Watkins , 21 M.J. 208 (C.M.A. 1986); and United States v. Berner , 32 M.J. 570 (A .C.M.R. 1991). Although the specificat ions were defectivel y stated, we find no prejudice because appellant had notice and de monstrated actual knowledg e that the government was required to pr ove one or both of the alternative terminal elements of Article 134, UCMJ. Trial defense counsel specifically identified the alternative terminal elements in the pretrial motion cited ab ove and in a motion fo r a finding of not guilty at the close of the gover nment’s case. Trial defense counsel also asserted that the government had failed to prove the element in closin g argument. We therefore

conclude that no relief is warranted.

CONCLUSION

We have considered appe llant’s assignment of error, and those matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), in our review of the record and find them to be without merit. The findings of guilty and th e sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: