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

                            UNITED STATES, Appellee
                                         v.
                          Private E1 JOSHUA T. STUTTE
                           United States Army, Appellant

                                   ARMY 20100860

                       Headquarters, 25 th Infantry Division
                          Kwasi Hawks, Military Judge
           Lieutenant Colonel George R. Smawley, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Captain Barbara A.
Snow-Martone, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Major
Ryan R. McKinstry, JA (on brief).


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

YOB, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his plea, of one specification of adultery in violation of Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934 [hereinafter UCMJ]. The
military judge also convicted appellant, contrary to his plea, of one specification of
aggravated sexual assault of a child, in violation of Article 120, UCMJ, 10 U.S.C. §
920. Appellant was sentenced to confinement for sixty days and a bad-conduct
discharge. The convening authority approved the adjudged sentence.

       This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, only one of which merits discussion, but
no relief. This assignment of error alleges the specification of Charge II, charging
STUTTE—ARMY 20100860

appellant with adultery, failed to state an offense because it did not contain words
alleging the terminal element of this offense. *

                             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 in light of recent cases following 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.” Fosler at 228. (citations omitted).

       Although the adultery charge in this case 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 specification are not challenged at trial, their language is to be liberally
construed. Roberts, 70 M.J. 550, 553 (Army Ct. Crim. App. 2011) (citing United


*
 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).


                                           2
STUTTE—ARMY 20100860

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 Miss L.V., a woman not his wife. In addition, the specification of
Charge I stated that Miss L.V. had attained the age of twelve but had not attained the
age of sixteen years when sexual intercourse with the appellant occurred. Under
these facts, the adultery allegation is clearly not so defective that it cannot be
reasonably construed to imply that appellant’s conduct was service discrediting
where the named partner in the specifications was a minor, as can be derived from
Charge I.

       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

      We have reviewed the matters personally raised under United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) and find them to be without merit. On
consideration of the entire record, and those issues personally raised by the
appellant, 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.


                                        FOR THE COURT:




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




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