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

                           UNITED STATES, Appellee
                                        v.
                     Specialist MICHAEL T. McNAUGHTON
                          United States Army, Appellant

                                     ARMY 20090596

                            Headquarters, Fort Carson
                        Debra L. Boudreau, Military Judge
                  Colonel Michael W. Meier, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Captain Michael E. Korte, JA (on brief).

For Appellee: Major Christopher B. Burgess, JA; Captain Stephen E. Latino, JA;
Captain Nathan S. Mammen, JA (on brief).

                                    19 December 2011
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                         SUMMARY DISPOSITION ON REMAND
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Per Curiam:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of sodomy, aggravated incest, and adultery in violation of
Articles 125 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925 and 934
(2005) [hereinafter UCMJ].  The military judge sentenced appellant to reduction to
the grade of E1, forfeiture of all pay and allowances, confinement for four years, and
a bad-conduct discharge. The convening authority approved only so much of the
sentence as provided for reduction to the grade of E1, confinement for four years,
and a bad-conduct discharge. The convening authority deferred the automatic
forfeiture of all pay and allowances until action and then waived the automatic


 After arraignment and prior to plea, the military judge dismissed one specification
of violation of a lawful general regulation in violation of Article 92, UCMJ, 10
U.S.C. § 892. After pleas, the military judge dismissed two specifications of
wrongful sexual contact in violation of Article 134, UCMJ, 10 U.S.C. § 934.  
McNAUGHTON—ARMY 20090596

forfeiture of all pay and allowances for a period of six months from the date of
action.

       On 26 January 2011, we issued a decision in this case, summarily affirming
the findings of guilty and the sentence. On 21 September 2011, our superior court
vacated our decision and returned the record of trial to The Judge Advocate General
of the Army for remand to this court for consideration in light of United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011). Consequently, appellant’s case is again before
this court for review under Article 66, UCMJ, 10 U.S.C. § 866.

                              LAW AND DISCUSSION
       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). Here,
appellant pleaded not guilty to the charge of adultery—in this case, the specification
does not expressly allege that appellant’s conduct was to the prejudice of good order
and discipline or of a nature to bring discredit upon the armed forces. However,
appellant did not object to the language of the adultery specification at trial, nor did
he object in his post-trial matters to the convening authority, or in his appeal to this
court. Appellant’s silence on this issue speaks volumes and informs our decision on
this matter. 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). 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. 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).

       In the absence of an objection at trial, we will not set aside a charge and
specification unless it is “so obviously defective that it could not be reasonably
construed to embrace [the] terminal element.” Roberts, __ M.J. at ___, slip op. at 5;
United States v. Watkins, 21 M.J. 208, 209–10 (C.M.A. 1986). We hold that in this
case the Article 134 charge and specification can be so construed, and, therefore,
state the offense of adultery. Although the adultery charges at issue in Fosler and
this case are similar, the procedural posture of the parties is different. In this case,
appellant did not object at trial; therefore, his standing to challenge the charge and
specifications is circumscribed. Roberts, __ M.J. at ___, slip op. at 4. Cf. Fosler,
70 M.J. at 230.



                                           2
McNAUGHTON—ARMY 20090596

       Facially, the language of the charge and specification in this case necessarily
implies both conduct prejudicial to good order and discipline and conduct of a nature
to bring discredit upon the armed forces by alleging that appellant wrongfully
engaged in sexual intercourse with MM, a woman not his wife, in violation of
Article 134, UCMJ. In fact, MM was appellant’s sixteen-year old stepdaughter, and
he was convicted of engaging in aggravated incest with MM in violation of Colorado
law as assimilated under the Federal Assimilative Crimes Act, 18 U.S.C. § 13.
Furthermore, this textual relationship of necessary implication provided appellant
with fair notice. The charge of adultery sets forth a violation of Article 134, UCMJ,
and the specification states the date, location, and the victim of the offense. 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”). Buttressed by the presumption of the defense counsel’s
competence, this is strong evidence that appellant was not misled about the nature of
the charge leveled against him. See Manual for Courts-Martial, Part IV, paras.
60.c.(6)(a), and 62.b. Finally, the factual allegations in the specification combined
with the record of trial sufficiently protect appellant against double jeopardy.

                                   CONCLUSION
      On consideration of the entire record and in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), 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.

                                        FOR THE COURT:
                                         FOR THE COURT:



                                         JOANNE P. TETREAULT ELDRIDGE
                                        JOANNE      P.ofTETREAULT
                                         Deputy Clerk    Court    ELDR
                                        Deputy Clerk of Court




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