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

                            UNITED STATES, Appellee
                                         v.
                           Specialist MAC D. WARNER
                           United States Army, Appellant

                                     ARMY 20100398

                              Headquarters, V Corps
                         Wendy P. Daknis, Military Judge
             Colonel Flora D. Darpino, Staff Judge Advocate (pretrial)
  Lieutenant Colonel Matthew M. Miller, Acting Staff Judge Advocate (post-trial)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on brief).

For Appellee: Major Amber J. Roach, JA; Major Katherine S. Gowel, JA; Captain
Kenneth W. Borgnino, JA (on brief).


                                       3 January 2013

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                         SUMMARY DISPOSITION ON REMAND
                       -----------------------------------------------------

HAIGHT, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of one specification of aggravated sexual contact with a child
and two specifications of indecent language, in violation of Articles 120 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (2006) [hereinafter UCMJ].
The military judge sentenced appellant to a dishonorable discharge, confinement for
eighteen months, total forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the adjudged sentence and deferred
forfeitures of pay and allowances effective 25 May 2010 until action on 22 October
2010.

       On 24 May 2012, we issued an opinion in this case affirming the findings of
guilty and the sentence. United States v. Warner, ARMY 20100398, 2012 WL
1944798, at *1 (Army Ct. Crim. App. 24 May 2011) (summ. disp.). On 14
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September 2012, our superior court reversed our decision as to Specifications 4 and
7 of Charge II 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). United States v.
Warner, 71 M.J. 399 (C.A.A.F. 2012) (summ. disp.). 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 element of Article 134, UCMJ,
in Specifications 4 and 7 of Charge II. See Humphries, 71 M.J. at 214. While
Specifications 4 and 7 of Charge II were defective, “it does not constitute structural
error subject to automatic dismissal.” Id. at 212. Instead, we must resolve “whether
the defective specification[s] 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. Id. at 215–16.

       First, the terminal element required for the Article 134, UCMJ, indecent
language specifications was discussed by the Article 32, UCMJ, investigating officer
(IO) in his memorandum to the appointing authority. Specifically, he recommended
maintaining Specification 7 of Charge II with the following rationale, “It is clear
that SPC Warner was representing himself as a member of the Armed Forces, as Ms.
[EH] visited the Baumholder military community, and was well aware that he was a
member of the Armed Forces.” In contrast, the IO recommended dropping
Specification 4 of Charge II because “[t]here is a lack of evidence to support that the
accused represented himself as a member of the Armed Forces, thereby, not bringing
discredit upon the Armed Forces.”

       Second, appellant’s defense counsel filed a pretrial motion to dismiss
Specification 7 of Charge II for failure to state an offense, alleging the language was
not indecent. Appellant’s pleading contained the following paragraph:

             The January 2010 DA PAM 27-9 lists the elements of
             Indecent Language Communicated to Another (Article
             134) as:

             (1) That (state the time and place alleged), the accused (in
             writing) communicated to (state the name of the alleged
             victim), certain language, to wit: (state the language
             alleged);

             (2) That the language was indecent; and



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             (3) 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.

The government responded to appellant’s motion to dismiss and, like the defense,
listed the required elements, to include the terminal element, of the indecent
language specifications.

       Third, Special Agent (SA) CS testified that he viewed appellant’s online
internet profiles during the course of his investigation. He stated appellant “had
many different profiles on social networking sites such as MySpace, Facebook . . .
MilitaryLoveLinks, TAG.com, BVO.com.” In fact, SA CS noticed photographs of
appellant in “semi-military attire” on his MySpace account and that appellant was in
“full military attire identifying himself in some cases as Mac Warner or
abbreviations of his name” in other online profiles. These profiles contained the
indecent chat logs at issue, and appellant met one of the recipients of his indecent
language on the website MilitaryLoveLinks.com. This aspect of SA CS’s testimony,
referring to appellant’s military status and uniform, would have been irrelevant but
for the need to prove the terminal element contained in Article 134, UCMJ.

       Fourth, appellant made a motion for a finding of not guilty pursuant to Rule
for Courts-Martial 917. During argument on the motion, appellant’s defense counsel
argued that “there was no evidence that [AD] had the actual chats, and that she heard
or read the chats that are listed in Charge II and Specification 4, or that it had a
service discrediting effect on her.” Likewise, with respect to Specification 7 of
Charge II, appellant’s defense counsel argued “there was no testimony by Ms. [EB]
that the chats that she had with the accused were service discrediting.” In response
to appellant’s motion, the government argued as follows:

             As far as the evidence of a service discrediting nature, the
             actual Manual, the UCMJ says that it doesn’t require you
             to actually show that there has been discredit, and that
             somebody can come in and say, ‘My view of the Army is
             now lower because of this chat.’ It’s any tendency to
             bring discredit upon the Armed Services, and there is
             plenty of evidence presented to you to show that there is a
             tendency to bring discredit.

     Fifth, the government addressed the terminal element during its findings
argument:

             The real question I guess is: Is the type of language that
             you see in those chats the type of language which has a



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             tendency to discredit the armed services? My question, I
             guess, is: Is there any real question that this type of
             online chatting would have a tendency to lower the esteem
             of the armed services? This type of chatting is so
             disgusting it’s criminal in any civilized society. That in
             of itself makes it service discrediting.

      Finally, appellant’s defense counsel presented the following during its
findings argument:

             As to the second charge, Specification 7, all of the
             writings between Specialist Warner and Mrs. [EB] if
             shown to the military community would not rise to the
             level of obscene. Furthermore, Mrs. [EB] never said she
             thought less of the military because of Specialist Warner’s
             writings.

             As to the other specifications, there is only one named
             recipient, Ms. [AD], and we don’t know because the
             government didn’t bring Ms. [AD] as a witness, if Ms.
             [AD] knew that Specialist Warner was in the military, nor
             do we know if she thinks less of the military because of
             the communication.

This argument by defense counsel was only germane to the terminal element and not
to either of the other elements of communicating indecent language to another as
clearly identified by both parties in the pretrial pleadings filed in this case.

       Under the totality of the facts of this case as identified above, we are
convinced that the record of trial demonstrates appellant had sufficient notice of the
terminal element and the theory of criminality pursued by the government as it
pertained to Specifications 4 and 7 of Charge II. 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”). In
fact, appellant’s primary trial strategy was to argue the lack of any link between the
indecent chats and the public’s perception of the military. Simply put, there was no
surprise or lack of notice as to the Article 134, UCMJ, terminal element in this case.
Therefore, appellant did not suffer prejudice due to the omission of the terminal
elements from Specifications 4 and 7 of Charge II.

                                   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



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sentence as approved by the convening authority correct in law and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge GALLAGHER concur.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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