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

                           UNITED STATES, Appellee
                                        v.
                      Private E2 ANTHONY P. KNOWLAND
                          United States Army, Appellant

                                     ARMY 20071405

                    Headquarters, United States Army Alaska
             Debra L. Boudreau and Grant C. Jaquith, Military Judges
           Lieutenant Colonel Jeffery D. Pedersen, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M. Miller,
JA; Major Grace M. Gallagher, JA; Captain Candace N. White Halverson, JA (on
brief).

For Appellee: Colonel Norman F.J. Allen III, JA; Lieutenant Colonel Martha L.
Foss, JA; Major Sara M. Root, JA; Major Jennifer H. McGee, JA (on brief).


                                      30 August 2012
                      -------------------------------------------------------
                       SUMMARY DISPOSITION UPON REMAND
                      -------------------------------------------------------
Per Curiam:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of one specification of rape and
one specification of adultery, in violation of Articles 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 934 (2006) [hereinafter UCMJ]. The panel
sentenced appellant to a dishonorable discharge, confinement for thirty-six months,
and reduction to the grade of Private E-1. The convening authority approved the
adjudged sentence and granted appellant’s request to defer forfeiture until action and
granted appellant’s request to waive automatic forfeitures for six months.

       On 24 February 2011, we issued an opinion in this case, 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). On 16 December 2011, we issued an opinion
in this case, affirming the findings of guilty and the sentence. On 10 July 2012, our
KNOWLAND—ARMY 20071405

superior court reversed our decision as to Charge II and its Specification and as to
the sentence, and returned the record of trial to The Judge Advocate General of the
Army for remand to this court for further consideration in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012). Consequently, appellant’s case is again
before this court for review under Article 66, UCMJ.

       Appellant’s conviction for adultery was charged as an Article 134, UCMJ,
offense and the specification fails to allege the terminal elements of prejudice to
good order and discipline or service-discrediting conduct. Pursuant to United States
v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and United States v. Ballan, 71 M.J. 28
(C.A.A.F. 2012), it was error to omit the terminal elements from this specification.
However, appellant did not object to the form of this specification at trial, and
“where defects in a specification are raised for the first time on appeal, dismissal of
the affected charges or specifications will depend on whether there is plain error—
which, in most cases will turn on the question of prejudice.” Humphries, 71 M.J. at
213–14 (citing United States v. Cotton, 535 U.S. 625, 631–32 (2002)). Therefore,
appellant must demonstrate “the Government’s error in failing to plead the terminal
element of Article 134, UCMJ, resulted in material prejudice to [appellant’s]
substantial, constitutional right to notice.” Humphries, 71 M.J. at 215; UCMJ art.
59(a). To assess prejudice, “we look to the record to determine whether notice of
the missing element is somewhere extant in the trial record, or whether the element
is ‘essentially uncontroverted.’” Id. at 215–16 (citing Cotton, 535 U.S. at 633;
Johnson v. United States, 520 U.S. 461, 470 (1997)).

       In Humphries, our superior court found the appellant was prejudiced where
the record was devoid of any evidence as to “which terminal element or theory of
criminality the Government pursued.” Id. at 216. In contrast to Humphries, there is
ample evidence in the record in this case that appellant was on notice of the terminal
elements. Appellant’s defense counsel, in his opening statement, posited that while
appellant’s misconduct was adultery, it was not criminal adultery “because there was
not prejudice to good order and discipline at that time.” Later, in its closing
argument, the trial counsel pointed out that the conduct was clearly prejudicial to
good order and discipline. The trial defense counsel in closing argument returned to
their theory that there was adultery, but it was not criminal. Directing the members
to pay close attention to the military judge’s instructions as to the elements
necessary for adultery to be criminal, the trial defense counsel listed the factors to
consider in determining if the conduct was prejudicial to good order and discipline
or service discrediting. Finally, he voiced no objection to the military judge’s
instructions as to the terminal elements.

       Under the facts of this case, we are convinced that the record of trial
demonstrated appellant had sufficient notice of the terminal elements and the theory
of criminality pursued by the government. See Humphries, 71 M.J. at 216 (finding
that “[n]either the specification nor the record provides notice of which terminal

                                           2
KNOWLAND—ARMY 20071405

element or theory of criminality the Government pursued in this case”). Therefore,
appellant did not suffer prejudice from the omission of the terminal elements in
Charge II and its Specification and the error did not amount to plain error.

       However, even assuming arguendo that appellant was prejudiced by the
defective adultery specification, we would reverse appellant’s conviction for
adultery and dismiss the defective specification. We would then reassess the
sentence. In order to reassess, we must be confident “that, absent any error, the
sentence adjudged would have been of at least a certain severity.” United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986). See United States v. Moffeit, 63 M.J. 40, 43
(C.A.A.F. 2006) (Baker, J., concurring in the result). In this case, appellant would
remain convicted of the most significant offense, rape, with the maximum possible
punishment, confinement for life without the possibility of parole, unchanged.
Additionally, the military judge held that the rape and the adultery specifications
were multiplicious for sentencing purposes and instructed the members that they
must consider the two offenses as one offense in fashioning a sentence.
Accordingly, we are confident the court would still have adjudged a sentence of at
least a dishonorable discharge and confinement for three years.

                                  CONCLUSION

      On consideration of the entire record and in light of United States v.
Humphries, 71 M.J. 209 (C.A.A.F. 2012), we hold the findings of guilty as to
Charge II and its specification 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
                                       FOR THE
                                           THE COURT:
                                               COURT:



                                       JOANNE P. TETREAULT ELDRIDGE
                                       JOANNE
                                       Deputy ClerkP. TETREAULT ELD
                                                   of Court
                                       Court




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