UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         BURTON, CELTNIEKS, and SCHASBERGER
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                          v.
                        Sergeant EDISON C. ROBERTSON, JR.
                            United States Army, Appellant

                                     ARMY 20170022

                             Headquarters, Fort Campbell
                         Matthew A. Calarco, Military Judge
          Lieutenant Colonel Robert C. Insani, Staff Judge Advocate (pretrial)
             Colonel Andras M. Marton, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Brendan R.
Cronin, JA; Captain Benjamin A. Accinelli, JA (on brief); Lieutenant Colonel
Tiffany M. Chapman, JA; Major Brendan R. Cronin, JA; Captain Benjamin A.
Accinelli, JA (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Cormac M. Smith, JA; Major Pamela Perillo, JA (on brief).


                                     26 February 2018

                                 ---------------------------------
                                 SUMMARY DISPOSITION
                                 ---------------------------------

Per Curiam:

       At issue in this appeal is whether two specifications of abusive sexual contact
violated appellant’s right to notice when the specifications did not contain language
stating which theory of criminality the government was pursuing. We find the
specifications at issue meet the requirements of our notice-pleading jurisdiction.

       An officer and enlisted panel sitting as a general court-martial convicted
appellant, contrary to his plea, of two specifications of abusive sexual contact, one
specification of assault consummated by a battery, and three specifications of
indecent language, in violation of Articles 120, 128, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 928, 934 (2012 & Supp. III 2016). 1 The panel

1
    Appellant was acquitted of two specifications of sexual assault.
ROBERTSON—ARMY 20170022

sentenced appellant to a bad-conduct discharge, thirty days confinement, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence, crediting appellant with seven days of confinement credit.

                                   BACKGROUND

       While conducting a barracks inspection with Private First Class (PFC) BW,
appellant grabbed PFC BW’s uniform jacket, pulled her close then grabbed her
buttocks, rubbed his genitals against her, and kissed her. Private First Class BW put
her hands up between them and told him that she did not like men. Appellant backed
off. As PFC BW proceeded with the room inspection, appellant asked her questions
about the color of her pubic hair and the type of underwear she was wearing.
Appellant said he did not care if she liked girls because he “like[d] girls too.” A
short time later, he again grabbed PFC BW’s buttocks and attempted to kiss her.

    The two specifications at issue here were charged as violations of Article 120,
UCMJ, as follows:

             SPECIFICATION 4 (Abusive Sexual Contact): In that
             [appellant], U.S. Army, did, at or near Fort Campbell,
             Kentucky, on or about 15 June 2016, commit sexual
             contact upon [PFC BW], to wit: grabbing her buttocks
             with his hands, rubbing his genitals against her groin, and
             kissing her neck, by causing bodily harm to her, to wit:
             grabbing her uniform top with his hand.

             SPECIFICATION 5 (Abusive Sexual Contact): In that
             [appellant], U.S. Army, did, at or near Fort Campbell,
             Kentucky, on or about 15 June 2016, commit sexual
             contact upon [PFC BW], to wit: grabbing her buttocks
             with his hand and kissing her lips, 2 by causing bodily
             harm to her, to wit: grabbing her buttocks and kissing her
             lips without her consent.

       The defense did not request a bill of particulars or raise any objections to the
specifications at trial.

                              LAW AND DISCUSSION

       Specifications that are first challenged after trial are viewed with greater
tolerance than those challenged at trial. United States v. Watkins, 21 M.J. 208, 209
(C.M.A. 1986). “[W]here defects in a specification are raised for the first time on
appeal, dismissal of the affected charges or specifications will depend on whether
2
  The language “and kissing her lips” was dismissed by the military judge pursuant
to a defense motion under Rule for Courts-Martial 917.


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ROBERTSON—ARMY 20170022

there is plain error . . . .” United States v. Humphries, 71 M.J. 209, 213 (C.A.A.F.
2012) (citing United States v. Cotton, 535 U.S. 625, 631-32 (2002)). The test for
plain error is whether: “(1) an error was committed; (2) the error was plain, or clear,
or obvious; and (3) the error resulted in material prejudice to substantial rights.”
United States v Paige, 67 M.J. 442, 449 (C.A.A.F. 2009) (internal quotation marks
and citation omitted).

       As our superior court reiterated in United States v. Fosler, the military is a
notice pleading jurisdiction. 70 M.J. 225, 229 (C.A.A.F. 2011). “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.” Id. (internal quotation marks and citations
omitted). While the preference is for each element to be expressly pleaded, “[a]
specification is sufficient if it alleges every element of the charged offense expressly
or by necessary implication . . . .” Rule for Courts-Martial 307(c)(3).

       The statutory elements for the offense of abusive sexual contact by causing
bodily harm are: (1) that the accused “commits or causes sexual contact upon
another person” (2) by “causing bodily harm to that other person[.]” UCMJ
art. 120(b)(1)(B), (d). The definition of “sexual contact” is:

             (A) touching, . . . either directly or through the clothing,
             the genitalia, anus, groin, breast, inner thigh, or buttocks
             of any person, with an intent to abuse, humiliate, or
             degrade any person; or

             (B) any touching, . . . either directly or through the
             clothing, any body part of any person, if done with an
             intent to arouse or gratify the sexual desire of any person.

UCMJ art. 120(g)(2).

       As can be plainly read, there are several different subjective intents that all
are part of the definition of “sexual contact.” Appellant contends the government
must specifically allege which specific intent he had (i.e., either “to abuse, humiliate
or degrade” or “to gratify [his] sexual desire”). Otherwise, appellant claims, the
specifications are deficient and fail to give constitutionally required notice. In
support of his heightened notice requirement, appellant argues his case is akin to the
one before our superior court in Fosler.

      We are unpersuaded Fosler compels the conclusion appellant asserts. Fosler
allows for the elements of an offense to be stated either expressly or by necessary
implication. 70 M.J. at 229. The court in Fosler examined the definition of
“wrongfully” and concluded “[n]either the word ‘wrongfully’ nor similar words of



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ROBERTSON—ARMY 20170022

criminality can be read to mean or be defined as, for example, a ‘disorder[ or]
neglect[] to the prejudice of good order and discipline.’” Id. at 231. This is not the
case here; the definition for “sexual contact” expressly contains the specific intent
language.

       We agree with the rationale our sister court provided in United States v.
Winston, 2014 CCA LEXIS 757 (A.F. Ct. Crim. App. 8 Oct. 2014). There, when
faced with the same issue, our sister court applied the findings of United States v.
Alston, 69 M.J. 214 (C.A.A.F. 2010). Our sister court concluded that though the
“statutory definition of sexual act contained two disjunctive factual predicates and
the two specific intent alternatives at issue in this case, the Alston court did not find
either of those two statutory alternatives were elements in the sense of providing
notice to the accused of the allegations he was required to defend against.” Winston,
2014 CCA LEXIS, at *9.

      Appellant also raises the point that the government failed to follow the
language of the model specifications. While correct, the model specifications are
guidelines and not the law. In this case, though inartfully drawn, the specification
was not legally defective.

                                    CONCLUSION

      On consideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.

                                            FOR THE COURT:




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




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