## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before SIMS, COOK, and GALLAGHER Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant RI CHARD J. McINNISH United States Army, Appellant

ARMY 20090923

U.S. Army Basic Combat Trai ning Center of Excellence John McAfee, Military Judge
Lieutenant Colonel Chri stopher B. Valentino, St aff Judge Advocate

For Appellant: Colo nel Mark Tellitocci, JA; Lieu tenant Colonel Imogene M. Jamison, JA; Lieutenant Colonel Jonathan F. Potter, JA; Captain Barbara A. SnowMartone, JA (on brief).

For Appellee: Majo r Amber J. Williams, JA; Majo r Sara M. Root, JA; Captain Kenneth W. Borgnino, JA (on brief).

30 November 2011

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

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Per Curiam:

A military judge, sitting as a special court-martia l, convicted appellant, pursuant to his pleas, of three specifications of failure to obey a regulation, one specification of false official statement, two specifications of sodomy, and three specifications of adul tery, in violation of Articles 92, 107, 12 5, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907 , 925, and 934 [her einafter UCMJ]. Appellant was sentenced to a bad-conduc t discharge, and confinement for seven months, and reduction to the grade of E1. The convening author ity approved only so
much of the sentence to confinement as provided for five mont hs confinement and otherwise approved the adjudged sentence. This case is befo re us for review pursuant to Arti cle 66, UCMJ.McINNISH

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2 LAW AND DISCUSSION

In United States v. Hartman , 69 M.J. 467, 468 (C.A.A.F . 2011), our Superior
Court held that a provident plea to Article 125, UCMJ, which implicates both criminal and constitutionally protected conduct, must include a co lloquy between the military judge and the accused establishi ng an acknowledgment by the accused “of
the critical distinction between permissible and prohibited behavior.” Hartman at
468. In Lawrence v. Texas , 539 U.S. 558 (2003), the Supreme Court recognized constitutional limitations upon the crimin alization of certain intimate sexual
conduct. In United States v. Marcum , 60 M.J. 198 (C.A.A .F. 2004), the CAAF “identified a tripartite framework for addressing Lawrence challenges within the military context....” Hartman at 468. The considerations identified in Marcum can provide “the appropriat e framework for distingui shing between conduct constitutionally protected under Lawrence and conduct that may be prosecuted criminally under Article 125.” Id . In this case, both specifications of Charge III implicate conduct identified in Lawrence as potentially protecte d, that being the act of sodomy. Although the co lloquy in this case elic ited facts pertinent to
consideration of the Marcum framework, the discussion between the mi litary judge and the appellant did not establish an und erstanding by the ap pellant as to the relationship between th ese facts and the criminal nature of his conduc t in light of

Lawrence. Accordingly, appella nt’s pleas of guilty to Charge III and its specifications are not prov ident and the findings of guilt are set aside.

The second issue warranting discussi on concerns whether Charge IV and its specifications allege an offe nse despite an omission of express words alleging that appellant’s conduct wa s to the prejudice of good order and discip line in the armed forces, of a nature to bring discredit upon the armed forces, or a non-capital crime or offense. Article 134, Clau ses 1, 2, and 3, UCMJ. United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011)

Whether a charge and specifi cation state an offense is a question of law that is
reviewed de novo. United States v. Crafter , 64 M.J. 209, 211 (C.A.A.F. 2006). Together, the charge and specification mu st “allege every elem ent of the offense either expressly or by nece ssary implication, so as to give the accus ed 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-Martial 307( c)(3). Where a charge and specification are not challenged at trial, their language is to be liberally construed.
Roberts , __ M.J. ___, slip op. at 4 (A rmy Ct. Crim. App. 14 Oct. 2011). Cf. Fosler
at 230. Additionall y, as found in the case before us, “standing to challenge a specification on appeal [i s] considerably less where an accu sed knowingly and voluntarily pleads guilt y to the offense.” United States v. Watkins , 21 M.J. 208, 210 (C.M.A. 1986).

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 reasonablyMcINNISH

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3 construed to embrace [the ] terminal element.” Roberts at 5; United States v.
Watkins , 21 M.J. 208, 209-10 (C.M.A. 1986). A charge and specification initially challenged on appeal, while being liberally construed, will not be held invalid “absent a clear showing of su bstantial prejudice to the acc used -- such as a showing
that the indictment is so ob viously defective that by no reasonable construction can it be said to charge the offens e for which convic tion was had.” Watkins at 209-10 (quoting United States v. Thompson , 356 F.2d 216, 22 6 (2d Cir. 1965), cert. denied

, 384 U.S. 964 (1966)(internal quotation marks omitted)). Appellant ha s failed to make such a showing.

In this case, appellant did not complain that Charge IV and its Specifications failed to state an offense by objecting at trial, in his post-trial submissions to the convening authority, or in hi s pleadings before this court. The charge sets forth a violation of Article 134, UC MJ, and the specific ations state the date, location, the identity of the par ticipants, their pertinent stat us, and the wrongful act. See, e.g., United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)(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”). The specifications also identify that the appellant was a Staff Sergeant and the co-actor was a Private in each inst ance. Accordingly, these allegations necessarily imply that appellant’s co nduct was prejudic ial to g ood order and discipline and service discrediting.

Furthermore, there is ample evidence in the record that appellant was on notice of the charge and specifications agai nst him. Appellant negotiated a pretrial agreement, pled guilty to the spec ifications with the benefit of advice from his trial defense counsel, and was advise d by the military judge of the elements of adultery
—to include the terminal elements—after which appellant descri bed how his conduct was both prejudicial to go od order and discipline and service discrediting.

We hold that the adultery charge was no t so obviously defective th at it could not be reasonably constr ued to embrace this terminal element. Roberts at 5. There is no reason to conclude appellant was misled or that he might otherwise suffer prosecution for these same o ffenses twice. He receive d notice of the offenses against which he had to defend and protection agains t double jeopardy . Charge IV and its Specifications state an offense.

CONCLUSION

On consideration of the entire record and the submissions of the parties, the findings of guilty of the Specifications of Ch arge III are set aside and dismissed. The remaining findings of gu ilty are affirmed. The dismissal of the Specifications of Charge III does not dramatically change the sentencing landscape. The military judge found each of the Sp ecifications of Charge III to be multiplicious for sentencing purposes with the remaining char ges and specifications pertaining to eachMcINNISH

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4 identified co-actor. Furthermore, the ma ximum possible punishment is not affected by the dismissal. Re assessing the sentence on the ba sis of the errors noted, the entire record, and in accordan ce with the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit , 63 M.J. 40 (C.A.A.F. 2006), to
include the factors identified by Judge Baker in his conc urring opinion, the court
affirms the sentence.

We have also considered the matters personally raised by appellant pursuant

to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1 982) and find th em to be
without merit.

FOR THE COURT:

MALCOLM H. SQUIRES JR. MALCOLM H. SQUIRES, JR

Clerk of Court FOR THE COURT: