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

                           UNITED STATES, Appellee
                                        v.
                   Staff Sergeant ROBERT L. McCULLOUGH
                          United States Army, Appellant

                                    ARMY 20090206

           Headquarters, Joint Readiness Training Center and Fort Polk
                          Charles Hayes, Military Judge
    Lieutenant Colonel Paula Schasberger, Acting Staff Judge Advocate (pretrial
                               & recommendation)
             Colonel Keith C. Well, Staff Judge Advocate (addendum)


For Appellant: Frank J. Spinner, Esquire (argued); Captain Brent A. Goodwin, JA;
Frank J. Spinner, Esquire (on brief).

For Appellee: Major Adam S. Kazin, JA (argued); Colonel Michael E. Mulligan, JA;
Major Amber J. Williams, JA; Major Adam S. Kazin, JA; Captain Ryan D. Pyles, JA
(on brief).


                                     13 August 2012
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                        SUMMARY DISPOSITION ON 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 carnal
knowledge with a person under the age of sixteen 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 bad-
conduct discharge, confinement for three years and six months, forfeiture of all pay
and allowances, and reduction to the grade of E-1. The convening authority reduced
the sentence of confinement to three years and four months and disapproved the
adjudged forfeiture of all pay and allowances. The convening authority approved
the remainder of the adjudged sentence and granted appellant’s request to waive
automatic forfeitures for six months.
McCULLOUGH—ARMY 20090206

       On 7 June 2011, we issued an opinion in this case, affirming the findings of
guilty and the sentence. United States v. McCullough, ARMY 20090206, 2011 WL
2279623 (Army Ct. Crim. App. 7 June 2011) (mem. op.). On 29 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 19 December 2011, we
issued an opinion in this case, affirming the findings of guilty and the sentence.
United States v. McCullough, ARMY 20090206, 2011 WL 6400551 (Army Ct. Crim.
App. 19 Dec. 2011) (summ. disp.). On 10 July 2012, our 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.

        Much like the specification at issue in Humphries, it was plain and obvious
error for the government to fail to allege the terminal elements of Article 134,
UCMJ, in the adultery specification at issue in this case. See Humphries, 71 M.J. at
214. Nonetheless, while Charge II and its Specification was defective and this
defect affected appellant’s constitutional right to notice under the Fifth and Sixth
Amendments, “it does not constitute structural error subject to automatic dismissal.”
Id. at 212. Instead, we must resolve “whether the defective specification resulted in
material prejudice to [appellant’s] substantial right to notice.” Id. at 215. To
resolve this issue, we must closely review the trial record. Id.

       Close review of the trial record in this case reveals that appellant was on
notice of the missing terminal elements and that the terminal elements were
“essentially uncontroverted.” Id. at 215-16. The government called Special Agent
(SA) MB as its second witness. At one point during SA MB’s direct-examination,
the government asked him what effect appellant’s offenses had on the community.
Appellant’s defense counsel immediately objected, and the military judge sustained
this objection. The government then asked for an Article 39(a), UCMJ, session
outside the presence of the panel members. At this Article 39(a), UCMJ, session,
the government stated their intent to introduce evidence from SA MB in order to
prove the terminal elements associated with the adultery specification at issue.

       Ultimately, the military judge ruled that the government would have to prove
the terminal elements “in some other way from some other witness other than
Special Agent [MB].” After the military judge confirmed that the government
understood his ruling, the following exchange took place:

             CDC: Can I have one brief comment in the meantime,
             Your Honor.




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McCULLOUGH—ARMY 20090206

             MJ: You certainly may.

             CDC: And this is without even checking with co-counsel
             or my client. But we are here to stipulate that if indeed
             Sergeant McCullough had sexual intercourse with a 13
             year-old girl, that is—and I am not amending the exact
             words, but that is not good military actions.

             MJ: That it would be prejudicial to good order and
             discipline or service discrediting.

             CDC: It definitely would be. In my cross examination of
             the accuser, I said it’s disgusting it’s despicable. So if
             indeed the panel found out that he did this we are going to
             concede to that element.

       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
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.

                                  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 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:




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




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