UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant THOMAS N. WALTHOUR

United States Air Force

ACM S32235

7 April 2015

Sentence adjudged 27 February 2014 by SPCM convened at Columbus

Air Force Base, Mississippi. Military Judge: Shaun S. Speranza

(sitting alone).

Approved Sentence: Bad-conduct discharge, 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 Robert Ramírez 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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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 

Articles 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. The adjudged and approved sentence consisted of a bad-conduct 

discharge, confinement for 2 months, and reduction to E-1.
2 ACM S32235

Pursuant to United States v. Grostefon, 12 M.J. 431 (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 Airmen 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 Airmen 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 Airman without her permission during the course of a game played in a 

billeting room. Around the same time, the appellant bent a male Airman’s arm behind 

his back, causing him pain. For these two incidents, the appellant pled guilty to two 

specifications of assault 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 and 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.
3 ACM S32235

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.) 307(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 offense 

were pled in the specification—that the female Airman 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 Airman’s testimony. We review issues of 

legal and factual sufficiency 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 marks omitted).

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

nature to this female Airman while she was subject to his orders. Viewing the evidence 

in the light most favorable to the government, we are convinced a rational factfinder 

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. 
4 ACM S32235

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