## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, YOB, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Class DAVID J. WATSON, JR. United States Army, Appellant

ARMY 20100930

Headquarters, United States Army Sp ecial Forces Comm and (Airborne) Gary J. Brockington and Karin G. Tackaber ry, Military Judges Colonel Steven B. Weir, Staff Judge Advocate

For Appellant: Colo nel Mark Tellitocci, JA; Lieu tenant Colonel Imogene M. Jamison, JA; Captain Jennif er A. Parker, JA; Captai n Matthew T. Grady, JA.

For Appellee: Major Amber J. Williams, JA; Major El len S. Jennings, JA; Captain Michael J. Frank, JA.

31 January 2012

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent

ALDYKIEWICZ, Judge:

A military judge, sitting as a general court-ma rtial, convict ed appellant pursuant to his pleas of one specificatio n of an indecent liberties with a child and one specification of an inde cent act with a child, in vi olation of Articles 120 and 134, Uniform Code of Milit ary Justice, 10 U.S.C. §§ 920 (2008) an d 934 (2007) 1

1 The Article 134, UCMJ offens e “Indecent acts or libert ies with a ch ild” covered misconduct, as alleged, be tween 21 June 2007 and 22 Se ptember 2007, a period of time pre-dating the amendm ent to Article 120, UCMJ, wh ich deleted “I ndecent acts
or liberties with a child” as an Article 134, UCMJ offense effect ive 1 October 2007. See Manual for Courts-Martial

, United States (2005 ed.) [hereinafter MCM , 2005]

(continued . . .)WATSON – ARMY 20100930

2 [hereinafter UCMJ]. Appellant was sentenced to a bad-conduct discharge, confinement for eight years, and reduction to the grade of Private E1. Pursuant to a pretrial agreement, the convening authorit y disapproved the disc harge but otherwise approved the remainder of the sentence. 2

This case is before th is court for review pursua nt to Article 66, UCMJ. Appellant raises two assignments of erro r, both of which meri t discussion but no relief. The first assignment of error alleges the Article 134, UCMJ specification is
defective and fails to state an offense because it does not allege the terminal element
for a clause 1 or clause 2 violation. 3 The second assignme nt of error is that appellant’s sentence to eight years’ confinement is “inappropriately and disproportionately severe.”

Assignment of Error I – Fosler Issue

Whether a charge and specification state an offense is a ques tion of law that is
reviewed de novo. United States v. Roberts , 70 M.J. 550, 552 (A rmy 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 jurisdiction. United States v. Sell , 3 C.M.A. 202, 206, 11 C.M.R. 202, 206 (1953). A charge and specification will be f ound sufficient if they, “f irst, contain[ ] the elements of the offense charged and fairly inform[ ] a defendant of the charge against which he must de fend, and, second, en able[ ] him to plead an acquittal or c onviction in bar of future prosecutions for the
same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct.

(. . . continued) Part IV, para. 87.b., deleted by Exec. Order No. 13447, 72 Fe d. Reg. 56179 (Sep. 28, 2007).

2 The appellant was credited with fort y-eight days of confinement credit. Additionally, the convening authority defe rred the automatic forfeitures from 17 December 2010 until ac tion (10 February 2 011). At action, th e convening authority waived the automatic forfeitures for a pe riod of six months for the benefit of appellant’s dependents with fo rfeitures waived to be paid to appellant’s spouse, Ms. LW.

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 MCM , 2005, Part IV , para. 60.c.WATSON – ARMY 20100930

3 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 quotati on marks omitted); United States v. Sutton, 68 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 implication.” 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)); see 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 entit led “Indecent acts or libertie s with a child, ” a title that necessarily implies service-discrediting behavior. Appellant did not object to the pleading. The action taken by appellant and made crimin al by Articl e 134 was his placing his four-year old daug hter’s hand on his penis until he ejaculated. The stipulation of fact signed by appellant and counsel, dated 10 September 2010, was apparently entered into over two months before trial and specifically documented that appellant’s actions were both prejud icial to good order and discipline and service discrediting. Additionally, the mi litary judge fully defined prejudicial and service-discrediting conduct, appellant stat ed he understood the defined terms, and appellant agreed and explai ned why his conduct was prejudicial to good order and discipline and serv ice discrediting.WATSON – ARMY 20100930

4 The pleading was sufficient to plac e appellant on notice of the offense charged and the specificati on as written, and pl eaded to, necessary implied conduct that, at a minimum, was service discrediti ng—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 record of trial sufficiently protect appellant from a double jeopardy pe rspective.

Assignment of Error II – Se verity of Sentence Issue

In support of appe llant’s second assigned error, he cites to “[s]everal similar
cases . . . where a So ldier received less confinement than appellant.” 4

Sentence appropriateness is reviewed de novo. United States v. Bauerbach

, 55 M.J. 501, 504 (Army Ct . Crim. App. 2001)(citing United States v. Cole , 31 M.J. 270, 272 (C.M.A.1990)); see also

, United States v. Aguilar , 70 M.J. 563, 567 (A.F. Ct. Crim. App. 2011). In determining appr opriateness, an exer cise of a service court’s Article 66, UCMJ author ity, the court looks to the character of the offender,
the nature and seriousness of the offenses, and the en tire record of trial. United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982); United States v. Ransom , 56 M.J. 861, 865 (Army Ct. Crim. App. 2002); United States v. Triplett , 56 M.J. 875, 885 (Army Ct. Crim. App. 2002).

Sentence comparison, unli ke sentence appropriatene ss, is required only in
“‘those rare instances in wh ich sentence appropriateness can be fairly determined only by reference to dispar ate sentences adjudged in closely related cases.’” United States v. Lacy , 50 M.J. 286, 288 (C.A .A.F. 1999) (quoting United States v. Ballard

, 20 M.J. 282, 283 (C.M.A. 1985)). See also United States v. Wacha , 55 M.J. 266, 267 (C.A.A.F. 2001); Ransom , 56 M.J. at 865; Triplett , 56 M.J. at 88 5. The burden is on the appellant seeking reli ef to show that his or her case is “closely related” to
the cited cases and that the sent ences are “highly disparate.” Lacy , 50 M.J. at 288.
See also United States v. Sothen , 54 M.J. 294, 296 (C.A.A.F. 2001); Ransom , 56 M.J. at 866. Once met, the burden shifts to the governme nt to show a rational basis for the disparity. Lacy , 50 M.J. at 288. See also Sothen , 54 M.J. at 296; Ransom , 56
M.J. at 866.

In the case at bar, appellant acted alone and without any co-accused or coactors. No one othe r than appellant was prosecuted or even faced prosecution, whether by military or civilian author ities, based on the facts surrounding

4 Defense Appellate Brief at 16.WATSON – ARMY 20100930

5 appellant’s indecent acts or liberties with his two minor daughters. The cases cited by appellant are simply not “closely rela ted” to his. The cases do not involve “coactors involved in a common crime, se rvicemembers involv ed in a common or parallel scheme, or some other direct nexus between the servicemembers whose sentences are sought to be compared.” Lacy , 50 M.J. at 288. While the factors
articulated in Lacy to assess “closely re lated[ness]” ar e not all inclusive, the only common thread between appellan t’s case and those he cite s are they all involve acts of indecency directed at a minor child. Appe llant falls far shor t of meeting his
burden to establish that his ca se is “closely rela ted” to the cited ca ses triggering any requirement to engage in sentence comparis on. Having failed to meet this initial burden, this Court ne ed not address disparity among the cited cases or whether a
rational basis exists for appellant’s sentence vis-à- vis the cited cases.

The issue of sentence appropriatenes s focuses on whether appellant received
“individualized co nsideration” based on hi s character and the nature and seriousness
of the offenses. Snelling , 14 M.J. at 268; Ransom , 56 M.J. at 865; Triplett , 56 M.J.
at 885. A review of the entire record reveals signif icant effort on th e part of the defense to highlight: the appellant’s twenty years of military se rvice; his multiple deployments; his rehabilitative potential; the impact appellan t’s absence was having on his family; the isolated nature of the two incidents; the fact that alcohol was involved in at least one incident, albeit not rising to a defense; the low probability of recidivism; the fact that appe llant was physically and sexu ally abused at age eleven; and appellant’s remorse, all facts pres ented to the senten cing authority. Additionally, the convening authority was apprised, through ap pellant’s Rule for
Courts-Martial 1105 and 1106 s ubmissions, of the above (e. g., the signific ant case in extenuation and mitiga tion presented at tria l, appellant’s character, the isolated
nature of the offenses for which he was c onvicted, etc.).

There can be no doubt that the sentencing authority, as well as the convening authority, were presented with and considered appellant’s extenuation and mitigation as well as the egregious and heinous nature of appellant’s cond uct (i.e., placing his four-year-old daughter’s hand on his penis until he ejaculated and having a graphic and sexually explicit conversation with hi s fifteen-year old da ughter focused on her
mother’s sexual activities as well as the daughter’s fu ture sexual potential and prowess).

The maximum period of confinement ap pellant faced was twenty-two years, yet he was only senten ced to eight, thirty-six percen t of the maximum. The eight
year sentence was two years less than the ten year confinement limitation appellant agreed to in his pretrial ag reement. Moreover, the conve ning authority, pursuant to appellant’s pretrial agreement, disappro ved the adjudged discharge, making an active duty retirement a vi able option for appellant despite his c onviction for offenses that requir e him to register as a sex offender.WATSON – ARMY 20100930

6 After considering the subm issions of counsel, appell ant’s military record, to
include a relief for cause no ncommissioned officer evalua tion report and removal from the E8 promotion list fo r an incident unrel ated to appellant ’s conviction, and
all the facts and circumstan ces surrounding the offenses for which he was found guilty, appellant’s adjudged sentence is appropriate. While reasonable minds might disagree regarding the severity of appell ant’s sentence, that is not the standard for relief. Appellant’s case is not “closely re lated” to any other cases triggering a need to compare sentences and appellant receiv ed individualized consideration by the sentencing authority, the convening author ity, and this Court. Any reduction in sentence by this Court woul d be tantamount to granting clemency, a power vested in the convening authority and others, such as the Service Secretary, but not the appellate courts. See Articles 60, 71, 74, UCMJ; see also United States v. Nerad , 69 M.J. 138, 145-147 (C.A.A.F. 2010); United States v. Harris , 43 M.J. 652, 654 (Army Ct. Crim. App. 1995); United States v. Merz , 50 M.J. 850, 851 (N-M. Ct. Crim. App. 1999).

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: