## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, YOB, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Specialist ANTHONY R. ELLINGTON United States Army, Appellant

ARMY 20100667

Headquarters, Fort Stewart
Tara A. Osborn and Tiernan P. Do lan, Military Judges
Lieutenant Colonel Shane E. Bart ee, Staff Judge Ad vocate (trial) Colonel Randall J. Bagwell, Staff Judge Advocate (new recommendation and action)

For Appellant: Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA.

For Appellee: Pursuant to A.C.C.A. Rule 15.2 , no response filed.

31 January 2012

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SUMMARY DISPOSITION ON FURTHER REVIEW

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ALDYKIEWICZ, Judge:

On 14 August 2010, a military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of assault consummated by a battery (two specifications), aggravated assault, and ch ild endangerment in violation of Articles 128 and 134, Uniform Code of Military Jus tice, 10 U.S.C. §§ 928 and 934 [hereinafter UCMJ]. On 29 October 2010, the convening authority approved the adjudged sentence of a bad-conduct discha rge, confinement for thirty-two months, forfeiture of all pay and allowances, and redu ction to Private E1.

On 30 June 2011, this court set aside the convening authority’s action, returning the record of trial to The Judg e Advocate General for remand to the same convening authority for a new staff judg e advocate recomme ndation and action. 1

1 The case was returned because twelve days after trial, the appe llant, a Soldier with a dependent daughter, submitted a timely re quest to defer adjudg ed forfeitures and defer and waive automatic forfeitures in hi s case, a request that was never acted on by the convening authority.ELLINGTON – ARMY 20100667

2 United States v. Ellington , ARMY 20100667 (Army Ct. Crim. App. 30 June 2011)(unpub.).

On 18 October 2011, the convening authority agai n acted in appe llant’s case, this time approving only the bad-conduct discharge, confinement for thirty-two months, and reduction to Pr ivate E1. The convening au thority granted a six-month
waiver of the automati c forfeitures, directing payment of the funds “to the mother of the [appellant’s] child, in support of the [appellan t’s] [f]amily [m]ember.” 2

A review of the record reveals one issu e that merits discussion but no relief; that is, the failure of the child endangerment sp ecification, a viol ation of Article 134, UCMJ to allege the te rminal element for a clause 1 or cl ause 2 violation. 3

Fosler Issue

Whether a charge and specification states an offense is a qu estion of law that
is reviewed de novo. United States v. Roberts , 70 M.J. 550, 552 (Army Ct. Crim. App. 2011) (citing United States v. Crafter , 64 M.J. 209, 211 (C .A.A.F. 2006)).

As noted by our superior court:

The military is a notice pleading ju risdiction. United States v. Sell , 3 C.M.A. 202, 206, 11 C.M.R. 202, 206 ( 1953). A charge and specification will be found sufficient if they, “f irst, contain[ ] the elements of the offense charged and fairly inform[ ] a defendant of the charge against which he must defend, and, se cond, enable [ ] him to plead an acquittal or co nviction in bar of future prosecutions for the
same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed. 2d 590 (1974); see also United States v. Resendiz–

Ponce , 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007) (citations and quota tion marks omitted); United States v. Sutton, 68

2 The Court notes that both the report of re sult of trial and pr omulgating order have errors requiring corr ection. The former incorrectly describes Char ge IV and its specification; the latter, Ge neral Court-Martial Order Nu mber 18, dated 18 October 2011, is incomplete and fails to comply with Appendix 17 of the MCM , 2008, noting only the convening authority’s action and omitting information such as the time and place of arraignment, the offenses for wh ich the appellant was arraigned, the pleas and findings, the adjudged sentence, a nd the requirement fo r DNA processing IAW 10 U.S.C. § 1565.

3 The terminal element for a clause 1 and clause 2, Article 134, UCMJ violation is that the alleged conduct was “to the prej udice of good order and discipline” or “conduct of a nature to bring discredit upon the armed forc es” respectively. See Manual for Courts-Martial

, United States , (2005 ed.) [hereinafter MCM , 2005], Part IV, para. 60.c.ELLINGTON – ARMY 20100667

3 M.J. 455, 455 (C .A.A.F. 2010); United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006); Sell, 3 C.M.A. at 206, 11 C.M.R. at 206. The rules governing court-martial procedure encompass the notice requirement: “A specification is suffi cient if it alleges every element of the charged offense expressly or by necessary implic ation.” R.C.M. 307(c)(3).

Fosler , 70 M.J. at 229 (holding an adultery ch arge failed to state an offense where it neither expressly nor impliedly alleged the terminal elements for a clause 1 or clause 2 Article 134, UCMJ offense, appellant objected at tr ial to the pleading, and appellant contested the charge and specification at issue). See also

, Roberts , 70 M.J. at 553; United States v. Dear , 40 M.J. 196, 19 7 (C.M.A. 1994).

Charges and specifications first ch allenged on appeal , even where an appellant pleaded not guilty, are liberally construed. Roberts , 70 M.J. at 553 (citing
United States v. Watkins , 21 M.J. 208, 209-10 (C.M.A. 1986)); s ee also

, United
States v. Fox , 34 M.J. 99, 10 2 (C.M.A. 1992); United States v. Berner , 32 M.J. 570, 572 (A.C.M.R. 1991). Addition ally, an appellan t’s “standin g” to challenge the pleading following a knowing a nd voluntary guilty plea thereto is diminished.
Roberts , 70 M.J. at 553. Absent an objection at trial, we will not set aside a specification unless it is “‘so obviously de fective that by no re asonable construction can it be said to charge the offe nse for which convic tion was had.’” Id (citing
United States v. Watkins , 21 M.J. 208, 209 -210) (quoting United States v. Thompson

, 356 F.2d 216, 226 (2d Cir.1965), cert. deni ed, 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966)) (internal quotation marks omitted).

Unlike Fosler , the procedural posture and facts of appellant’s case are notably different, resulting in a differe nt outcome. The pleading it self alleged a violation of Article 134, UCMJ “Child en dangerment,” a title that ne cessarily implies service discrediting behavior. The text of the sp ecification stated, in part, that appellant “did endanger the mental health of [KW], by assaulti ng Ms. [AP], the mother of [KW], while [KW] was in [the ] home and able to hear such acts ta ke place.” The appellant did not obje ct to the pleading. 4 The action taken by appellant and made criminal by Article 134 was the endanger ment of a two-year old child’s mental health, through culpable negl igence, as he physi cally assaulted th e child’s mother within the hearing of the child. The stipul ation of fact, dated 19 July 2010, almost
one month before tr ial and signed by appellant an d counsel noted: appellant
assaulted the child’s mother within hearing of the child; the child awoke during the
assault and heard the “noise from the assaul t and the pleas of he r mother;” appellant
knew or should have know n that his actions endangered the mental h ealth of the child; appellant had a duty of care towards the child; and appellant’s actions “would lower the reputation and publ ic esteem towards the military and w ould also cause a

4 Appellant did not object to the pleading at trial, during the post -trial processing of his case, or on appeal before this court.ELLINGTON – ARMY 20100667

4 good order and discipli ne issue.” Additionally, the colloquy betwee n the military judge and appellant during the providence inquiry addressed how his actions were both prejudicial to g ood order and discipli ne and servic e discrediting, elements clearly defined by the m ilitary judge and unders tood by appellant.

The pleading was sufficient to place the appellant on notic e of the offense charged and the specification as written, and pleaded to, necessarily implies conduct that, at a minimum, is serv ice discrediting, the terminal element for a “clause 2” Article 134, UCMJ offense. See United States v. Hoskins , 17 M.J. 13 4, 136 (C.M.A. 1984) (listing factors that directly impact the ultimate decision of wh ether a charge and specification necessar ily imply an element); see also

, United States v. Berner

, 32 M.J. 570 (A.C.M.R. 1991); United States v. Watkins , 21 M.J. 208 (C .M.A. 1986). Finally, the pleading and the re cord of trial suffi ciently protect the appellant from a double jeopardy pe rspective.

Conclusion

On consideration of the entire recor d, we hold the finding s of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the fi ndings of guilty and the sentence are affirmed.

Senior Judge KERN and Judge YOB concur.

FOR THE COURT:

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