UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           KERN, YOB, and ALDYKIEWICZ
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                      Sergeant TARRANCE D. HEYWARD
                         United States Army, Appellant

                                  ARMY 20100610

          Headquarters, United States Army Infantry Center of Excellence
              James L. Pohl and Stephen E. Castlen, Military Judges
                 Colonel Tracy A. Barnes, 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; Captain Chad M. Fisher, JA; Captain
John D. Riesenberg, JA.


                                   31 January 2012
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

YOB, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of one specification of assault with a means likely to produce
death or grievous bodily harm and one specification of adultery in violation of
Articles 128 and 134, Uniform Code of Military Justice, 10 U.S.C. § 928 and 934 1
[hereinafter UCMJ]. Appellant was sentenced to a bad-conduct discharge,
confinement for twelve months, and reduction to Private E1. The convening
authority approved so much of the sentence as provided for a bad-conduct discharge,
confinement for ten months, and reduction to Private E1.

      This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error which merits no relief. This assignment of
1
  These offenses were listed on the charge sheet as Charge II and Charge III,
respectively; Charge I alleged the offense of sodomy, but was dismissed on motion
of the government following arraignment but prior to entry of a plea.
HEYWARD—ARMY 20100610

error alleges that the specification of Charge III, charging appellant with committing
adultery, failed to state an offense because it did not contain words alleging the
terminal element of this offense. 2

                              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, 70 M.J. 550, 552 (Army Ct.
Crim. App. 2011). Together, a 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).

       Historically, neither this court nor our superior court required charges and
specifications alleging violations of Article 134, UCMJ, to expressly state the
terminal element. United States v. Fosler, 70 M.J. 225, 228 (C.A.A.F. 2011), (citing
United States v. Smith, 39 M.J. 448, 449-51 (C.M.A. 1994); United States v. Wolfe,
19 M.J. 174, 175-76 & n.1 (C.M.A. 1985); United States v. Mayo, 12 M.J. 286, 293-
94 (C.M.A. 1982); United States v. Maze, 21 C.M.A. 260, 45 C.M.R. 34 (1972);
United States v. Marker, 1 C.M.A. 393, 400, 3 C.M.R. 127, 134 (1952); United
States v. Herndon, 1 C.M.A. 461, 4 C.M.R. 53 (1952)). However, in Fosler, our
superior court set aside a conviction for an Article 134 adultery offense because the
specification and charge failed to allege the terminal element of the offense. The
court held that due to the reasoning of a line of recent cases drawing on the holding
of Schmuck v. United States, 489 U.S. 705, 718, 109 S.Ct. 1443, 103 L.Ed.2d 734
(1989), “the historical practice of implying Article 134’s terminal element in every
enumerated offense was no longer permissible.” (citations omitted).

       Although there is an adultery charge in this case that does not allege the
terminal element of the offense, the procedural posture and facts of the present case
are very different from those in Fosler. In this case, appellant did not object to the
adultery specification at trial. This is an important distinction and informs our
decision in 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). Fosler left open the possibility that
the terminal element of an Article 134, UCMJ, offense could be implied in cases
where the procedural posture is different, specifically where the charge is not
contested and no objection to the form of the charge and specification is raised at
trial. When a charge and its specification are not challenged at trial, its language is


2
 The terminal element of an adultery offense under Article 134, UCMJ is “that under
the circumstances, the conduct of the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to bring discredit upon the armed
forces.” Manual for Courts-Martial, United States 2008 ed.) Part IV, para. 62b.(3).
HEYWARD—ARMY 20100610

to be liberally construed. Roberts, 70 M.J. 550, 553 (Army Ct. Crim. App. 2011)
(citing United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986)). Cf. Fosler,
70 M.J. at 230. Moreover, absent an objection at trial, we will not set aside an
Article 134, UCMJ, specification unless it is “so obviously defective that it could
not be reasonably construed to embrace [the] terminal element.” Roberts at 553;
United States v. Watkins, 21 M.J. 208, 209-10 (C.M.A. 1986).

       In the present case, appellant did not object to the language of the adultery
specification, which stated that appellant, a married man, wrongfully had sexual
intercourse with SGT N.W., a woman not his wife. The charge clearly indicated the
act of adultery was between the appellant and a fellow service member. In addition,
the specification of Charge II, alleged that this act of adultery with his fellow
service member occurred at a time when appellant was a carrier of the human
immunodeficiency virus (also known as HIV) and that appellant engaged in sexual
intercourse without prophylactic protection. Under these facts, the adultery
allegation clearly is not so defective that it cannot be reasonably construed to imply
that appellant’s conduct was to the prejudice of good order and discipline of the
service and service discrediting where the named partner in the specifications was a
service member and was allegedly exposed to HIV during the act of sexual
intercourse, as can be derived from the allegation contained in Charge II.

       Furthermore, there is ample evidence in the record that appellant was
on notice of the charges against him. Appellant pleaded guilty to the adultery
specification. The military judge advised appellant of the elements of adultery—to
include the terminal elements—after which appellant described how his conduct was
prejudicial to the good order and discipline of the service and was service
discrediting. Finally, the factual allegations within the charge and specification,
along with the record of trial, sufficiently protect appellant against double jeopardy.

                                   CONCLUSION

      On consideration of the entire record, we hold the findings of guilty and
sentence as approved by the convening authority correct in law and fact.
Accordingly, those findings of guilty and the sentence are AFFIRMED.

      Senior Judge KERN and Judge ALDYKIEWICZ concur.

                                         FORTHE
                                        FOR  THECOURT:
                                                 COURT:




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