## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Captain KENYON T. TADLOCK

United States Army, Appellant

ARMY 20110366

United States Army Inte lligence Center of Excellence and Fort Huachuca Andrew J. Glass, Military Judge
Colonel Thomas C. Modeszto, Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Ba shore, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain Samuel Gabremariam, JA (on brief).

25 January 2013

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

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KRAUSS, Judge:

A military judge, sitting as a general court-martia l, convicted appellant, pursuant to his pleas, of one specificat ion of fraternization a nd one specification of adultery, in violation of Ar ticle 134, Uniform Code of M ilitary Justice, 10 U.S.C. § 134 (2006) [hereinafter UCMJ ], and contrary to appellant’s pl eas, convicted appellant of one specifica tion of damaging non-military property, stal king, three specifications of assa ult consummated by a battery, tw o specifications of conduct unbecoming an officer and gentlemen, a se cond specification of adultery and one specification of communicating a threat, in violation of Ar ticles 109, 120a, 128, 133TADLOCK—ARMY 20110366

2 and 134, 10 U.S.C. §§ 909, 920a, 928, 933, 934, respectively.  The convening authority approved th e adjudged sentence of a dism issal and confin ement for six
months.

The case is before the court for review under Ar ticle 66, UCMJ. Appellant asserts that Specifications 2 and 5 of Charge VI, ad ultery and communicating a threat, fail to state an offense because neit her specification contains allegation of a terminal element as required under United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011). Appellant also raises matte rs pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). We find the assigned error possesses merit and that the first
matter raised under Grostefon , relative to the factual su fficiency of the evidence supporting conviction, possesse s merit, in part. We al so find that appellant’s separate plea of guilty to adultery was improvident.

We agree with the government to the ex tent that normally appellant’s plea of guilty to one specification of adultery would disp ose of any complain t over notice in
relation to a second contes ted adultery charge in the same court-martial. See United
States v. Ballan , 71 M.J. 28 (C.A.A.F. 2012). A provident plea to one would establish proper notice to defend against the other. Id. However, in the case at hand, appellant fail ed to admit facts sufficient to esta blish violation of either clause one or two of Article 134, UCMJ, as contemplated in Manual for Courts-Martial

, United States (2008 ed.), pt. IV , ¶62, Adultery, and failed to sufficiently signify his understanding of the te rminal elements at stake in th e contested char ge. Though the judge defined the terminal elem ents initially, the factual ba sis elicited to support the plea was inadequate. Appe llant never subseq uently admitted su fficient facts to
establish that his adulterous conduct had “an obv ious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or [was] clearly detrimental to the authority or stat ure of or respect toward a servicemember.” Id. Nor did appellant admit sufficient facts to establish that his adulterous conduct was “open or
notorious.” Id. Appellant’s plea to clauses one and two was, in essence, based on speculative prejudice or discredit that fa lls short of the prej udice or discredit required to constitute criminal adultery under Ar ticle 134, UCMJ. See generally id.
and United States v. Jonsson , 67 M.J. 624, 626–628 (C.G . Ct. Crim. App. 2009);

 One specification of rape , one specification of assaul t consummated by a battery, one specification of unlawful entry and one specification of obstruction of justice, in violation of Articles 120, 128, and 134, respecti vely, were dismissed

. Appellant was acquitted of two specifications of damaging non-military property, one specification of rape, one specification of aggravated sexual assault, two specifications of aggravated sexual contact, two specifi cations of aggravat ed assault, five specifications of assault cons ummated by a battery, one spec ification of assault, six specifications of conduc t unbecoming an officer an d gentleman, and, one specification of kidnapping alleged in violation of Ar ticles 109, 120, 128, 133 and 134, respectively.TADLOCK—ARMY 20110366

3 United States v. Perez , 33 M.J. 1050, 1054 –55 (A.C.M.R. 1991). The military judge, therefore, abused his discretion by accepting such a plea. See generally
United States v. Inabinette , 66 M.J. 320 (C.A.A.F. 2008); United States v. Medina

, 66 M.J. 21 (C.A.A.F. 2008). In light of this misunders tanding, and failure by the judge to properly ensure appellant’s requ isite understanding of the law under the circumstances, we find lack of fair notice as to the terminal elements in relation to the contested adultery specification requirin g reversal of that conviction as well.
See United States v. Humphries , 71 M.J. 209 (C .A.A.F. 2012); United States v.
Ballan , 71 M.J. 28 (C.A.A.F. 2012).

We also find, under Humphries , the necessity to reverse appellant’s conviction for communicating a threat, and, completing ou r review under Article 66, UCMJ, conclude that the evidence is fact ually insufficient to support appellant’s conviction for damaging non-military property. See Humphries , 71 M.J. 209; United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 200 2). Further, we find the
evidence to be factua lly insufficient as it relates to the words “a hinge, and break a
door knob and bolt” cont ained within Specification 3 of Ch arge V. UCMJ art. 66(c); Washington , 57 M.J. at 399.

We therefore disapprove the findings of guilty as to Specifi cation 3 of Charge I and Specifications 2, 4, and 5 of Char ge VI; those findings are set aside and dismissed. In addition, we affirm only so much of th e finding of gu ilty as to Specification 3 of Charge V as states that appellant “did, at or near Sierra Vista, Arizona, between on or ab out 15 May 2009 and 30 Novemb er 2009, wron gfully and intentionally, damage a doo r frame, at the quarters where SSG [TW] was living, which conduct, unde r the circumstances was conduct unbecoming an officer and gentleman,” in violation of Article 133, UCMJ. The remain ing findings of guilty are
affirmed.

We have also consider ed the remaining matters posited for our review pursuant to United States v. Grostefon , 12 M.J. at 431, and fi nd them to be without merit. Appellant suffers no prejudice in sentence in light of his erroneous convictions for adultery because the ju dge properly consid ered the adultery specifications and the fraternization specification, ba sed on his adulterous conduct, as one for sentencing. See United States v. Campbell, 71 M.J. 19, 25 (C.A.A.F. 2012). In addition , we resolve that, under the circumstances of this case, a rehearing
on sentence is unwarranted. United States v. Sales , 22 M.J. 305 (C.M.A. 1986). Reassessing the sentence on the basis of the er rors noted, the entir e record, and in accordance with the principles of Sales , 22 M.J. 305, and United States v. Moffeit

, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identifi ed by Judge Baker in his concurring opinion in Moffeit , we are confident that appe llant would have received a
sentence at least as severe as that adjudged. The sentence is , therefore, affirmed.

Senior Judge YOB and Judge BURTON concur.TADLOCK—ARMY 20110366

4 FOR THE COURT:

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