UNITED STATES ARMY COURT 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 Special Forces Command (Airborne)
           Gary J. Brockington and Karin G. Tackaberry, Military Judges
                   Colonel Steven B. Weir, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Captain Jennifer A. Parker, JA; Captain Matthew T. Grady, JA.

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

                                        31 January 2012

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent



ALDYKIEWICZ, Judge:

      A military judge, sitting as a general court-martial, convicted appellant
pursuant to his pleas of one specification of an indecent liberties with a child and
one specification of an indecent act with a child, in violation of Articles 120 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 (2008) and 934 (2007) 1


1
  The Article 134, UCMJ offense “Indecent acts or liberties with a child” covered
misconduct, as alleged, between 21 June 2007 and 22 September 2007, a period of
time pre-dating the amendment to Article 120, UCMJ, which deleted “Indecent acts
or liberties with a child” as an Article 134, UCMJ offense effective 1 October 2007.
See Manual for Courts-Martial, United States (2005 ed.) [hereinafter MCM, 2005]

                                                                               (continued . . .)
WATSON – ARMY 20100930

[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 authority disapproved the discharge but otherwise
approved the remainder of the sentence. 2

       This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, both of which merit 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 assignment 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 question 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 jurisdiction. 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, “first, contain[ ] the
      elements of the offense charged and fairly inform[ ] a defendant of the
      charge against which he must defend, and, second, enable[ ] him to
      plead an acquittal or conviction 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 Fed. Reg. 56179 (Sep. 28,
2007).
2
 The appellant was credited with forty-eight days of confinement credit.
Additionally, the convening authority deferred the automatic forfeitures from 17
December 2010 until action (10 February 2011). At action, the convening authority
waived the automatic forfeitures for a period of six months for the benefit of
appellant’s dependents with forfeitures 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 prejudice of good order and discipline” or
“conduct of a nature to bring discredit upon the armed forces” respectively. See
MCM, 2005, Part IV, para. 60.c.




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WATSON – ARMY 20100930

      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 quotation 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 sufficient 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 charge 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 trial 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, 197 (C.M.A. 1994).

       Charges and specifications first challenged 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, 102 (C.M.A. 1992); United States v. Berner, 32 M.J. 570,
572 (A.C.M.R. 1991). Additionally, an appellant’s “standing” to challenge the
pleading following a knowing and 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 defective that by no reasonable construction
can it be said to charge the offense for which conviction 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. denied, 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 different outcome. The pleading itself alleged a violation of
Article 134, UCMJ entitled “Indecent acts or liberties 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 criminal by Article 134 was his
placing his four-year old daughter’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 prejudicial to good order and discipline and
service discrediting. Additionally, the military judge fully defined prejudicial and
service-discrediting conduct, appellant stated he understood the defined terms, and
appellant agreed and explained why his conduct was prejudicial to good order and
discipline and service discrediting.




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WATSON – ARMY 20100930

        The pleading was sufficient to place appellant on notice of the offense
charged and the specification as written, and pleaded to, necessary implied conduct
that, at a minimum, was service discrediting—the terminal element for a “clause 2”
Article 134, UCMJ offense. See United States v. Hoskins, 17 M.J. 134, 136 (C.M.A.
1984) (listing factors that directly impact the ultimate decision of whether a charge
and specification necessarily 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 perspective.

                 Assignment of Error II – Severity of Sentence Issue

       In support of appellant’s second assigned error, he cites to “[s]everal similar
cases . . . where a Soldier 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 appropriateness, an exercise of a service
court’s Article 66, UCMJ authority, the court looks to the character of the offender,
the nature and seriousness of the offenses, and the entire 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, unlike sentence appropriateness, is required only in
“‘those rare instances in which sentence appropriateness can be fairly determined
only by reference to disparate 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 885. The burden
is on the appellant seeking relief to show that his or her case is “closely related” to
the cited cases and that the sentences 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 government 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 co-
actors. No one other than appellant was prosecuted or even faced prosecution,
whether by military or civilian authorities, based on the facts surrounding
4
    Defense Appellate Brief at 16.




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WATSON – ARMY 20100930

appellant’s indecent acts or liberties with his two minor daughters. The cases cited
by appellant are simply not “closely related” to his. The cases do not involve
“coactors involved in a common crime, servicemembers involved 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 related[ness]” are not all inclusive, the only
common thread between appellant’s case and those he cites are they all involve acts
of indecency directed at a minor child. Appellant falls far short of meeting his
burden to establish that his case is “closely related” to the cited cases triggering any
requirement to engage in sentence comparison. Having failed to meet this initial
burden, this Court need 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 appropriateness focuses on whether appellant received
“individualized consideration” based on his 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 significant effort on the part of the
defense to highlight: the appellant’s twenty years of military service; his multiple
deployments; his rehabilitative potential; the impact appellant’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 appellant was physically and sexually abused at age eleven;
and appellant’s remorse, all facts presented to the sentencing authority.
Additionally, the convening authority was apprised, through appellant’s Rule for
Courts-Martial 1105 and 1106 submissions, of the above (e.g., the significant case in
extenuation and mitigation presented at trial, appellant’s character, the isolated
nature of the offenses for which he was convicted, 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 conduct (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 his fifteen-year old daughter focused on her
mother’s sexual activities as well as the daughter’s future sexual potential and
prowess).

       The maximum period of confinement appellant faced was twenty-two years,
yet he was only sentenced to eight, thirty-six percent of the maximum. The eight
year sentence was two years less than the ten year confinement limitation appellant
agreed to in his pretrial agreement. Moreover, the convening authority, pursuant to
appellant’s pretrial agreement, disapproved the adjudged discharge, making an
active duty retirement a viable option for appellant despite his conviction for
offenses that require him to register as a sex offender.




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WATSON – ARMY 20100930

       After considering the submissions of counsel, appellant’s military record, to
include a relief for cause noncommissioned officer evaluation report and removal
from the E8 promotion list for an incident unrelated to appellant’s conviction, and
all the facts and circumstances surrounding the offenses for which he was found
guilty, appellant’s adjudged sentence is appropriate. While reasonable minds might
disagree regarding the severity of appellant’s sentence, that is not the standard for
relief. Appellant’s case is not “closely related” to any other cases triggering a need
to compare sentences and appellant received individualized consideration by the
sentencing authority, the convening authority, and this Court. Any reduction in
sentence by this Court would 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 record, we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are affirmed.

      Senior Judge KERN and Judge YOB concur.

                                        FORTHE
                                       FOR  THECOURT:
                                               COURT:




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




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