UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

S taff Sergeant THOMAS N. WALTHOUR

United States Air Force

ACM S32235

7 April 2015

Sentence adjudged 2 7 February 201 4 by SP CM convened at Columbus Air Force Base, Mississippi

. Military Judge: Shaun S. Speranza (sitting alone)

.

Approved S entence: Bad

- conduct d is charge, confinement for 2 months,

and reduction to E

- 1

.

Appellate Counsel for the Appellant: Major Anthony D. Ortiz

.

Appellate Counsel for the United States: Major R obert Ram í rez and Gerald R. Bruce, Esquire

.

Before

ALLRED

, HECKER , and TELLER Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under Air Force Rule of Practice and Procedure 18.4.

HECKER , Judge:

A special court

- martial composed of a military judge convicted the appellant,
pursuant to his pleas, of assault consummated by a battery and adultery, in violation of

Article s 128 and 134, UCMJ, 10 U.S.C. § 928, 934

. Contrary to his pleas, he was convicted of maltreating a subordinate, in violation of Article 93, UCMJ,

10 U.S.C. § 893. T he adjudged and approved sentence consisted of a bad

- conduct discharge, confinement for 2 months, and reduction to E

- 1.ACM S32235 2 Pursuant to United States v. Grostefon , 12 M.J. 4 3 1 (C.M.A. 1982), the appellant argues the maltreatment specification fails to state an offense and his conviction for that specification is legally and factually insufficient. Finding no error that materially prejudices a substantial right of the appellant, we affirm the approved findings and

sentence.

Background

The charges in this case stemmed from the appellant’s interactions with several

other A irmen between February and April 2013 , with the majority of the misconduct occurring on 12 February while he was traveling with them to a deployment as their team

leader . He engaged in sexual intercourse with one of the female A irmen despite both of them being married to other individuals, resulting the adultery charge

.

The appellant also admitted intentionally placing his hands on the buttocks of

another female A irman without her permission during the course of a game played in a billeting room. Around the same time, the appellant bent a male A irman’s arm behind his back, causing him pain. For these two incidents, the appellant pled guilty to two specifications of as sault consummated by a battery. *

Failure to State an Offense

In addition to assaulting a female Airman by touching her buttocks, the appellant was also charged with maltreating her by making offensive comments of a sexual nature between 1 February 2013 an d 30 April 2013. A week before trial, the defense moved for a bill of particulars, asking what comments served as the basis for this specification. The following day, trial counsel notified the defense of three comments allegedly made by the appellant. One comment was alleged to have occurred on 12 February 2013 and two

other comments came prior to the deployment. Just before trial, the government notified the defense about an additional comment allegedly made on 12 February 2013.

At trial, the defense moved to dismiss this specification

, contending the specification as charged failed to provide sufficient specificity about the comments to state an offense. The defense also argued that the specification alleged a single incident of maltreatment and the government had improperly broadened the specification by including multiple comments allegedly made on multiple occasions. The military judge

denied the defense motion. Pursuant to Grostefon , the appellant renews this motion on appeal.

* The appellant was charged with aggravated sexual contact for the buttocks incident in violation of Article 120, UCMJ, 10 U.S.C. § 920 . After he pled guilty to the lesser included offense of assault consummated by a battery, the government elected to go forward with the greater offense. The military judge found the appellant not guilty of the greater offense. The appellant also pled not guilty to two specifications of obstruction of justice charged under

Article 134

, UCMJ, 10 U.S.C. § 934, and was acquitted of those offenses.ACM S32235 3 Whether a specification fails to state an offense is a question of law that we review

de novo. United States v. Crafter , 64 M.J. 209, 211 (C.A.A.F. 2006). “The military is a notice pleading jurisdiction.” United States v. Fosler , 70 M.J. 225, 229 (C.A.A.F. 2011) (citing United States v. Sell , 11 C.M.R. 202 , 206 (C.M.A. 1953)). A specification states an offense if it alleges every element of the charged offense expressly or by necessary implication so as to give the accused notice and protection against double jeopardy.

Rule for Courts

- Martial (R.C.M.) 30 7(c)(3); Crafter , 64 M.J. at 211. “A specification that is susceptible to multiple meanings is different from a specification that is facially
deficient.” Crafter , 64 M.J. at 211

.

As did the military judge, we conclude both elements of the maltreatment o ffense were pled in the specification

— that the female A irman was subject to the accused’s orders and that he maltreated her by making offensive comments of a sexual nature during a 60

- day time frame. See Manual for Courts

- Martial, United States

, Part IV, ¶ 17

. c

. (2) (2012 ed.) (noting that deliberate or repeated offensive comments can constitute this offense). We also find that the specification is adequate to provide the appellant with notice and protection against double jeopardy. Furthermore, the bill of particulars served “to inform the accused of the nature of the charge with sufficient precision to enable the [ appellant ] to prepare for trial. ” R.C.M. 906(b)(6) , Discussion

.

Sufficiency of the Evidence

Also pursuant to Grostefon , the appellant contends the evidence is factually and legally insufficient to sustain the appellant’s conviction for maltreatment because there

were numerous inconsistencies in the female A irman’s testimony. We review issues of legal and factual sufficie ncy de novo. United States v. Washington

, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the evidence is ‘whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could

have found all the essential elements beyond a reasonable doubt.’” United States v. Humpherys

, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner

, 25 M.J. 324 (C.M.A. 1987)). “The test for factual sufficiency is whether, after weighing

the evidence

. . . and making allowances for not having personally observed the witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.”

United States v. Reed , 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting Turner , 25 M.J. at 325) (internal quotation m arks omitted).

We are convinced that the appellant did make offensive comments of a sexual

nature to this female A irman while she was subject to his orders. Viewing the evidence in the light most favorable to the government, we are convinced a rational f actfinder could find beyond a reasonable doubt the appellant was guilty of the offense. Upon our own review of the evidence in the record of trial, we are personally convinced of the appellant’s guilt beyond a reasonable doubt.ACM S32235 4 Conclusion

The approved findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and

sentence are

AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN Deputy Clerk of the Court