## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before JOHNSON, BERG, 1 and KRAUSS Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant JAMIL V. WILLIAMS

United States Army, Appellant

ARMY 20090619

Headquarters, III Corps and Fort Hood Gregory A. Gross, Military Judge
Lieutenant Colonel Anth ony T. Febbo, Acting St aff Judge Advocate

For Appellant: Lieutenant Colonel Jonath an F. Potter, JA; Captain Barbara A. Snow-Martone, JA (on brief) ; Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captai n Barbara A. SnowMartone, JA (reply brief).

For Appellee: Major Amber J. Williams, JA; Major La Johnne A. White, JA; Captain Daniel H. Karna, JA (on brief).

21 December 2011

---------------------------------- MEMORANDUM OPINION

----------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

BERG, Judge:

A panel of officers and en listed members, s itting as a genera l court-martial, convicted appellant, contrary to his pleas, of absence without leave terminated by apprehension, willfully disobe ying a superior commissioned officer, violation of a lawful general regulation, false official statement, consensual sodomy, assault consummated by a battery, adultery, and obs tructing justice, in violation of Articles 86, 90, 92, 107, 125, 128, and 134, Uniform Code of M ilitary Justice, 10 U.S.C. §§

1 Judge BERG took final action in this case while on active duty.WILLIAMS—ARMY 20090619

2 886, 890, 892, 907, 925, 928, and 934 (2008) [hereinafter UCMJ]. See Manual for
Courts-Martial

, United States , (2008 ed.) [hereinafter MCM ], Part IV, paras. 62.b., and 96a.b. The court sentenced appellant to a bad-conduct disc harge, confinement for nine months, forfeiture of all pay and allowances, an d reduction to the grade of E1. The convening authority approved the adjudged sentence and credited appellant with 116 days of pretrial confinement against the sentence to confinement.

This case is before this court for review pursuant to Article 66, UCMJ. Appellant raises one assignm ent of error which challenge s the constitu tionality of his sodomy conviction 2 and personally submits matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 19 82). We also note that the Article 134 specifications do not formally allege the terminal elements of pr ejudice to good order and discipline or serv ice discrediting conduct. See United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011). The issues merit di scussion but no relief.

BACKGROUND

Appellant met Ms. A.F. in an off-post bar near Fo rt Hood, Texas. At the outset appellant learned from Ms. A.F. that she was a civ ilian married to a soldier deployed to Iraq and that sh e was nineteen years old. Appellant wa s twenty-five years old and married as we ll. Nonetheless, they ended up returning to her apartment and “cuddling” alt hough they did not ha ve sexual relations that night. Thereafter they engaged in frequent sexual intercourse at Ms. A.F.’s apartment and at appellant’s barracks room as well as oral sodomy a nd at least two incidents of anal sodomy. The relation ship became progressively vi olent, both in terms of arguably consensual “r ough sex” and clearly non -consensual pummeling by appellant on Ms. A.F. Appellant fueled these behaviors, prov iding himself and the under-aged (for al cohol consumption) Ms . A.F. with copious amounts of straight
vodka.

Matters came to a head when appellant, after an evening in his barracks room in which he anally sodomized Ms. A.F. out of a concern that she had contracted a

2 APPELLANT’S CONSENSUAL SODOMY WITH MS. A.F., A CIVILIAN WITH WHOM APPELLANT HAD AN INTIMATE RELATIONSHIP, FELL ENTIRELY
WITHIN THE LIBERTY INTERESTS ESTABLISHED IN LAWRENCE V. TEXAS

. THEREFORE, APPELLANT’S CONVICTI ON OF CHARGE II MUST BE SET
ASIDE AND HIS SENTENCE REASSESSED.WILLIAMS—ARMY 20090619

3 vaginal sexually transmitted disease, sent her out to fetch him breakfast. 3 Ms. A.F. returned with breakfast for appellant and then went about clea ning up broken glass and “puke in the bathroom” from the night before. After a brie f argument, appellant became enraged with Ms. A. F. and choked her, asking, “Why shouldn’t I kill you?” Appellant then slapped Ms. A.F. and punc hed her in the mouth. Ms. A.F. escaped
from him and returned to he r apartment but appellant mana ged to beat her there.
Ms. A.F.’s roommate di stracted appellant while Ms. A.F. hurriedly locked herself in
her room. Ms. A.F. called civilian police who resp onded, took stat ements, and directed appellant to leave. Ms. A.F. later contacted Fort Hood authorities.

Appellant received a no-co ntact order from his comm and and was called into the Criminal Investigation Command (CID ) for questioni ng. Appell ant denied having any sexual relations with Ms. A.F. Just after he told CID about disposing of his bedding in a dumpster, appellant was confronted wi th CID’s contemporaneous recovery of his bedding from th e back of his car pursuant to a search authorization. Appellant reacted by immediat ely fleeing from the CID o ffice on foot and leaving
Fort Hood. 4 During his unauthorized absence, appellant repeated ly contacted Ms. A.F. in an effort to get he r to recant her allega tions of assault a nd forcible sodomy. With Ms. A.F.’s connivance, appellant was appreh ended by civilian police at a motel in Temple, Texas a few days later and returned to military control.

LAW AND DISCUSSION

Constitutionality of Appe llant’s Sodomy Conviction

Appellant argues for the first time on appeal that the act of anal sodomy committed in his barracks room fell within the substantive due process protections
announced in Lawrence v. Texas , 539 U.S. 558 (2003). We use an “as applied” approach under the test announced by ou r higher court in United States v. Marcum

, 60 M.J. 198, 205–207 (C .A.A.F. 2004). Analytically, we consider three questions:

3 Ms. A.F. testified that th e anal sodomy was no t consensual and oc curred af ter she passed out from drinking vo dka then awakened to find appellant penetrating her anus. The panel members f ound appellant not guilty of forcible sodom y but guilty
of the lesser included offense of sodomy. This convicti on is the basis for appellant’s assignment of error.

4 At trial the government established th e presence of appellant’s and Ms. A.F.’s
DNA in numerous semen st ains on the bedding.WILLIAMS—ARMY 20090619

4 First, was the conduc t that the accused wa s found guilty of a na ture to bring it within the liberty intere st identified by the Supr eme Court? Second, did the conduct encompass any behavior or fa ctors as outside the analysis in

Lawrence ? Third, are there additional factor s relevant solely in the military
environment that affect th e nature and reach of the Lawrence liberty interest?

Id. at 206-207 (interna l citation omitted). 5

The panel found appellant guilty of sodomy. We a ssume without deciding that although th e conduct took place on-post in appellant’s barra cks room, it occurred in private. We must accept the panel’s general verdict that it was not
forcible. 6 This answers the first question favorably to the appellant.

Whether appellant’s con duct implicates be havior that the Supreme Court
identified as outside of Lawrence ’s holding is a much mo re troubling question for appellant. One of the non-protected areas involves “persons who might be injured or
coerced or who are situated in relation ships where consent mi ght not easily be refused,” Marcum , 60 M.J. at 207 (citing Lawrence , 539 U.S. at 57 8). Ms. A.F. testified that the anal penetration was pain ful and that appellant plied her with more
vodka to secure he r acquiescence after sh e protested that he st op. Additionally the entire relationship was overlain with an in creasing level of physical abuse directed at subordinating the teenager to appellant’ s control. We find th at the act of anal sodomy occurred in the context of a repres sive, brutal relations hip utterly distinct from the consensual and paci fic consorting present in Lawrence

.

In addition, appellant’s co nduct clearly falls within the exception of the third

Marcum question addressing unique military factors intertwined with the conduct. Appellant engaged in anal sodomy knowing th at it was also adul terous and that Ms. A.F. was the young spouse of a deployed soldier. The c onduct occurred on-post in appellant’s barracks room. The conduct occurred after ap pellant illegally provided

5 Appellant makes a related clai m, also raised for the firs t time on appe al, that the panel should have been instructed regarding these Marcum factors. We agree with the Air Force Court of Criminal Appeals th at such factors imp licate questions of law, not findings of fact on el ements of the offense, and fa ilure to give instructions on them, sua sponte , was not an abuse of discretion. See United States v. Harvey , 67 M.J. 758, 763 (A.F. Ct. Crim. App. 2009).

6 This contrasts with our recent opinion in United States v. Truss , 70 M.J. 545 (Army Ct. Crim. App. 2011). In th at case the militar y judge in a bench trial found the accused not guilty beyond a re asonable doubt of forcible sodomy but made special findings, notwithstand ing the verdict, that the accu sed was guilty of a sodomy that
was not consensual either. Truss , 70 M.J. at 548.WILLIAMS—ARMY 20090619

5 the underage Ms. A.F. with alcoholic beverages in di rect violation of lawful regulations. We find under the seco nd and third Marcum factors that appellant’s conduct “fell outside of any li berty interest recognized in Lawrence and was appropriately regulated as a matter of military discipline un der Article 125.” United
States v. Stirewalt , 60 M.J. 297, 304 (C.A.A.F. 2004).

Whether the Article 134 Specific ations Allege an Offense

Although not raised by appe llant it is evident to us that Charge IV and its Specification and Specification 1 of Additi onal Charge V do not allege the terminal elements because they do no t by words allege that appe llant’s conduct was to the prejudice of good orde r and discipline in the armed forces, of a nature to bring discredit upon the arme d forces, or a non-capital crime or offense. UCMJ art. 134, cls. 1, 2, and 3. See United States v. Fosler , 70 M.J. 225 (C.A.A.F. 2011).

Whether a charge and specification 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. 200 6). Together, the charge and specification must “allege every elemen t of the offense either expressly or by nece ssary implication, so as to give the accused 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 3 07(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

, 70 M.J. at 230.

In the absence of an objection at tria l, we will not set aside a charge and specification unless it is “s o obviously defective that it could not be reasonably construed to embrace [t he] terminal element.” Roberts , __ M.J. at ___, slip op. at 5;
United States v.Watkins , 21 M.J. 208, 209–10 (C.M.A. 1986). Th erefore, a charge and specification not challenged at trial, while being liberally cons trued, will not be
held invalid “absent a clear showing of substantial prejudice to the accused—such as a showing that the indictme nt is so obviously defect ive that by no reasonable construction can it be said to charge th e offense for which co nviction was had.”
Watkins , 21 M.J. at 209–10 (quoting United States v. Thompson , 356 F.2d 216, 226 (2d Cir. 1965), cert. denied , 384 U.S. 964 (1966) (i nternal quotation marks omitted)).

In this case, appellant did not complain that Charge IV an d its Specification or Specification 1 of Addition al Charge V failed to state an offense by objecting at trial, in his post-trial submissions to th e convening authority, or in his pleadings
before this cour t. The charges set forth a violat ion of Article 13 4, UCMJ, and the specifications detail the da te, location, the identity of the partic ipants, their pertinent status, and the wrongful acts. See, e.g.

, Dear

, 40 M.J. at 1 97 (holding a maltreatment specification pr ovided notice beca use “it set[] forth the Article of theWILLIAMS—ARMY 20090619

6 Code, name of the victim, th e time frame of the offense, and the comments alleged to have been made by appella nt”). The Specification of Charge IV identifies that appellant was a married Soldier and the co-actor, Ms. A.F., was a married woman not his wife and that they un lawfully engaged in sexual intercourse. Specification 1 of Additional Charge V again identifies appellant and Ms. A.F. and alleges that appellant tried to persuade Ms. A.F. to re cant her statements to CID, provide CID
with false oral and written statements and tell them th at her claim of forcible sodomy was a misunderstanding, never occu rred, and that she no longer would cooperate with the investigation. Accord ingly, these allegati ons necessarily imply that appellant’s conduct wa s prejudicial to good order and discipline and service discrediting.

Furthermore, there is ample evidence in the record that appellant was on notice of the charges and sp ecifications against him. Th e military judge properly instructed the panel members, without object ion, as to the requir ements of proof of the terminal elements rega rding each Article 134, UCMJ, specification. In vigorously challenging all of the allegations, appellant al so specifically argued the insufficiency of proof regard ing the terminal element on the adultery specification, stating, “[g]ot to have some addition al proof to establish that additional requirement.”

We hold that neither the ad ultery charge nor the obstruction of justice charge was so obviously defective that it could not be reasonably cons trued to embrace the
terminal elements. There is no reason to conclu de appellant was misled or that he might otherwise suffer prosecu tion for these same offens es twice. He received
notice of the offenses against which he had to defend and protection against double jeopardy. Charge IV and its Specification states an offe nse as does Specification 1 of Additional Charge V.
CONCLUSION

On consideration of the entire recor d, including the issues personally raised by appellant pu rsuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), we hold the findings of guilty a nd sentence as approved by the convening authority
correct in law and fact. Accordingly, the findi ngs of guilty and the sentence are
AFFIRMED.

Senior Judge JOHNSON an d Judge KRAUSS concur.

FOR THE COURT:

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