UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            SIMS, COOK, and GALLAGHER
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Sergeant KEVIN D. GOODMAN
                          United States Army, Appellant

                                  ARMY 20110144

                             Headquarters, Fort Bliss
                         David Robertson, Military Judge
                   Colonel Francis P. King, Staff Judge Advocate


For Appellant: Captain Jack D. Einhorn, JA (argued); Colonel Patricia A. Ham, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain
Jack D. Einhorn, JA (on brief).

For Appellee: Edward J. Whitford, JA (argued); Major Amber J. Williams, JA;
Major Ellen S. Jennings, JA; Captain Edward J. Whitford, JA (on brief).


                                 23 November 2011
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

COOK, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of aggravated sexual assault of a child
who had attained the age of 12 years but had not attained the age of 16 years, and of
one specification each of abusive sexual contact of a child who had attained the age
of 12 years but had not attained the age of 16 years, indecent acts, sodomy, and
furnishing alcohol to a minor, in violation of Articles 120, 125, and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 920, 925, 934 (2008) [hereinafter UCMJ].
Appellant was also convicted, pursuant to his pleas, of one specification alleging
adultery and one specification alleging communicating indecent language to a child
under 16 years, in violation of Article 134, UCMJ, 10 U.S.C. § 934. See Manual for
Courts-Martial, United States (2008 ed.) [hereinafter MCM], Part IV, paras. 62.b,
and 89.b. In each instance, the victim was the appellant’s step-daughter. The
military judge sentenced appellant to a bad-conduct discharge, confinement for 10
years, forfeiture of all pay and allowances, and reduction to the grade of E1. The
GOODMAN—ARMY 20110144

convening authority approved the adjudged sentence and granted a waiver of
automatic forfeitures for a period of six months from the effective date of sentence.

       This case is before the court for review under Article 66, UCMJ. Appellant
has raised the following single assignment of error:

             SPECIFICATIONS 2 AND 3 OF CHARGE III FAIL TO
             STATE AN OFFENSE AS THEY DO NOT ALLEGE,
             EXPRESSLY OR BY NECESSARY IMPLICATION,
             “THE TERMINAL ELEMENT” AS REQUIRED BY
             UNITED STATES V. FOSLER, 70 M.J. 225 (C.A.A.F.
             2011).

      We have considered the record of trial, appellant’s assignment of error, the
government’s answer, and oral argument. We hold that Specifications 2 and 3 of
Charge III, when liberally construed, state the offenses of adultery and indecent
language.

                              LAW AND DISCUSSION
      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. 2006).
Together, the charge and specification must “alleg[e], either expressly or by
implication, every element of the offense, so as to give the accused notice and
protection 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). In United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), our superior court held that where the appellant
“objected to the specification at trial, and thereafter contested the case, an adultery
charge failed to state an offense because it did not expressly or impliedly allege the
terminal elements.” Roberts, __ M.J. ___, slip op. at 5 (Army Ct. Crim. App. 14
Oct. 2011).

       Although the adultery charges at issue in both Fosler and this case are similar,
the procedural posture of the parties is different. At trial, appellant neither objected
to the specifications at issue, nor did he contest the case. Before this court,
appellant asserts for the first time that the challenged specifications failed to state
offenses because neither contained reference to a terminal element under Article
134, UCMJ. As such, a charge or specification “first challenged after trial … is
viewed with greater tolerance than one which was attacked before findings and
sentence.” United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986).

       A charge and specification initially challenged on appeal, while being
liberally construed, will not be held invalid “absent a clear showing of substantial
prejudice to the accused -- such as a showing that the indictment is so obviously
defective that by no reasonable construction can it be said to charge the offense for
which conviction was had.” Id. at 209-210 (quoting United States v. Thompson, 356

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GOODMAN—ARMY 20110144

F.2d 216, 226 (2d Cir. 1965), cert. denied, 384 U.S. 964 (1966)) (internal quotation
marks omitted). Additionally, as found in the case before us, “standing to challenge
a specification on appeal [is] considerably less where an accused knowingly and
voluntarily pleads guilty to the offense.” Watkins at 210. Therefore, we will not
set aside the adultery and indecent language specifications without a clear showing
of substantial prejudice. Appellant has failed to make such a showing.

       Here, in examining the text of both the unchallenged charge and the
unchallenged specifications, we conclude both specifications imply the terminal
elements of conduct prejudicial to good order and discipline and service discrediting
conduct. The language of the unchallenged charge states that the offense is a
“[v]iolation of the UCMJ, Article 134.” The language of the unchallenged adultery
specification states that appellant, “a married man . . . , wrongfully ha[d] sexual
intercourse with a woman not his wife.” The language of the unchallenged indecent
language specification states appellant “orally communicate[d] to [CS], a child
under the age of 16 years, certain indecent language, to wit: ‘Do you want to have a
threesome with me and my friend, [TH]?’” Construed liberally, the language of this
unchallenged charge and these unchallenged specifications necessarily implies
appellant’s conduct was to the prejudice of good order and discipline in the armed
forces and conduct of a nature to bring discredit upon the armed forces. See
Roberts at 6.

       Furthermore, there is ample evidence in the record that appellant was on
notice of the charge and specifications against him. Appellant pleaded guilty to the
specifications with the benefit of advice from his trial defense counsel. See also
MCM, Part IV, para. 60.c.(6)(a). In addition, the military judge advised appellant of
the elements of adultery and indecent language —to include the terminal elements—
after which appellant described how his conduct was both prejudicial to good order
and discipline and service discrediting.

       There is no reason to conclude appellant was misled or that he might
otherwise suffer prosecution for these same offenses twice. He received notice of
the offenses against which he had to defend and protection against double jeopardy.

                                  CONCLUSION
       On consideration of the entire record, the assigned error, and in light of
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), we find appellant’s arguments
to be without merit. 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.




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GOODMAN—ARMY 20110144

    Senior Judge SIMS and Judge GALLAGHER concur.

                                FORTHE
                               FOR  THECOURT:
                                        COURT:




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




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