UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              JOHNSON, BERG, * and KRAUSS
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                      Sergeant CHRISTOPHER L. COVINGTON
                            United States Army, Appellant

                                    ARMY 20090877

                      Headquarters, Combined Joint Task Force 82
                             Robert Rigsby, Military Judge
               Lieutenant Colonel Jeffrey C. Hagler, Staff Judge Advocate


For Appellant: Captain Tiffany K. Dewell, JA; Daniel Conway, Esquire (on brief).

For Appellee: Major Amber J. Williams, JA; Captain Chad M. Fisher, JA; Captain
Ryan D. Pyles, JA (on brief).


                                   21 December 2011
                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------
Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of maltreatment, wrongful sexual contact, and three
specifications of soliciting another to commit sodomy, in violation of Articles 93,
120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 893, 920, and 934
(2008) [hereinafter UCMJ]. See Manual for Courts-Martial, United States, (2008
ed.) [hereinafter MCM], Part IV, para. 105.b. The convening authority approved the
adjudged sentence of a dishonorable discharge, confinement for four years, and
reduction to the grade of E1. Appellant raises six assignments of error, two of
which merit discussion.




*
    Judge BERG took final action in this case while on active duty.
COVINGTON—ARMY 20090877

            Factual Insufficiency of the Wrongful Sexual Contact Charge

       This case is before us for review under Article 66, UCMJ, which provides that
a Court of Criminal Appeals “may affirm only such findings of guilty . . . as it finds
correct in law and fact.” In performing our duty, we must conduct a de novo review
of factual sufficiency. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). This review for factual sufficiency “involves a fresh, impartial look at the
evidence, giving no deference to the decision of the trial court on factual sufficiency
beyond the admonition in Article 66(c), UCMJ, to take into account the fact that the
trial court saw and heard the witnesses.” Id.

       To commit the offense of wrongful sexual contact as alleged in Charge II,
appellant must be proved to have, inter alia, intentionally touched the inner thigh of
PFC DB See UCMJ art. 120(t)(2); United States v. Bonner, 70 M.J. 1 (C.A.A.F.
2011). In this case, we are not convinced beyond a reasonable doubt that appellant’s
hand ever touched PFC DB’s inner thigh. Nonetheless, appellant specifically
intended to do so and his actions constituted more than mere preparation.
Consequently, we are convinced beyond a reasonable doubt that appellant attempted
to touch PFC DB’s inner thigh, and we will affirm a finding of guilty to the lesser-
included offense of attempted wrongful sexual contact. See UCMJ arts. 59(b), and
79.
             The Charge IV Specifications State an Article 134 Offense

       Here, appellant pleaded not guilty to charges of soliciting others to commit an
offense—which in this case did not expressly allege that appellant’s conduct was to
the prejudice of good order and discipline in the armed forces or of a nature to bring
discredit upon the armed forces. Whether a charge and specification state an offense
is a question of law that is reviewed de novo. United States v. Roberts, __ M.J. ___,
slip op. at 4 (Army Ct. Crim. App. 14 Oct. 2011). Together, the charge and
specification must “allege every element of the offense either expressly or by
necessary 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 307(c)(3). Where a charge and specification are not
challenged at trial, their language is to be liberally construed. Roberts, __ M.J. at
___, slip op. at 4 (citing United States v. Watkins, 21 M.J. 208, 209–10 (C.M.A.
1986)). Cf. Fosler, 70 M.J. at 230. See United States v. Hoskins, 17 M.J. 134, 136
(C.M.A. 1984). This liberal rule of interpretation is applicable even where an
appellant does not plead guilty. United States v. Fox, 34 M.J. 99, 102 (C.M.A.
1992); Roberts, __ M.J. at ___, slip op. at 5; United States v. Berner, 32 M.J. 570,
572 (A.C.M.R. 1991).

       Appellant did not object to the language of the charge and its specifications at
trial. Facially, the language of the charge and specifications in this case embraces
an allegation of conduct which is prejudicial to good order and discipline and



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COVINGTON—ARMY 20090877

service-discrediting. In total, the charge and specifications state that appellant, a
noncommissioned officer, solicited other soldiers (in most cases, junior enlisted
soldiers) to engage in oral sodomy in a combat zone in violation of Article 134,
UCMJ. These allegations necessarily imply conduct in violation of the terminal
elements. This textual relationship of necessary implication provided appellant with
fair notice, as did the factual detail alleged in the charge and specifications
themselves. See, e.g., United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994)
(holding a maltreatment specification provided notice because “it set[] forth the
Article of the Code, name of the victim, the time frame of the offense, and the
comments alleged to have been made by appellant”). See also MCM, 2002, Part IV,
para. 60.c.(6)(a). Finally, these very factual allegations combined with the record of
trial sufficiently protect appellant against double jeopardy. Accordingly, the
specifications of Charge IV expressly allege or necessarily imply all of the elements
of the offense of solicitation of another to commit sodomy, in violation of Article
134, UCMJ, so as to provide appellant with notice and protect him against being
placed twice in jeopardy.

                                   CONCLUSION

       The court affirms only so much of the finding of guilty of the Specification of
Charge II as finds that appellant “US Army, did, at or near FOB Salerno,
Afghanistan, on or about 30 April 2009, attempt to engage in sexual contact with
PFC DB by intentionally moving his hand toward PFC DB’s inner thigh, without
legal justification or lawful authorization and without the permission of PFC DB, in
violation of Article 80, UCMJ.” The remaining findings of guilty are affirmed.
Reassessing the sentence on the basis of the error noted, the entire record, and in
accordance 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 concurring opinion in Moffeit, the court affirms the
sentence as approved by the convening authority.


                                        FORTHE
                                       FOR  THECOURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                       MALCOLM     H. SQUIRES, JR.
                                        Clerk of Court
                                       Clerk of Court




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