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

                           UNITED STATES, Appellee
                                         v.
                     Private First Class TANNER P. FORRY
                         United States Army, Appellant

                                     ARMY 20080334

                             Headquarters, Fort Lewis
                          Michelle Shields, Military Judge
                  Colonel James K. Lovejoy, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Captain Shay Stanford, JA; Lieutenant
Colonel Jonathan F. Potter, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain
Benjamin M. Owens-Filice, JA (on brief).

                                     7 December 2011
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                         SUMMARY DISPOSITION ON REMAND
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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 attempted
carnal knowledge with a child over the age of twelve but under the age of sixteen,
one specification of possessing child pornography, one specification of distributing
child pornography, one specification of persuading, inducing, or enticing a minor to
engage in sexually explicit conduct, one specification of persuading, inducing, or
enticing a minor via the internet to engage in sexual intercourse, one specification of
traveling in interstate commerce for the purpose of engaging in illicit sexual
conduct, one specification of transferring obscene matter via the internet, two
specifications of communicating indecent language to a child in writing, and one
specification of knowingly executing computer programs of a forensically
destructive nature for the purpose of preventing or impairing the Government’s
lawful authority to take his computer into its custody and control in violation of
FORRY—ARMY 20080334

Articles 80 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 934
(2008) [hereinafter UCMJ]. * Appellant was sentenced to be confined for fifteen (15)
years and to be dishonorably discharged from the service. The convening authority
approved the adjudged sentence and credited appellant with thirty (30) days of
confinement against the sentence to confinement.

        On 7 June 2011, we issued a decision in this case, summarily affirming the
findings of guilty and the sentence. On 19 October 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). Consequently, appellant’s case is before this court for
a second review under Article 66, UCMJ. We have again considered the record of
trial, this time in light of our superior court’s decision in Fosler, and we hold that
Specifications 5 and 7 of Additional Charge II, when liberally construed, state the
offense of communicating indecent language in writing to a child under the age of
sixteen.

                              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, __ M.J. ___, slip op. at 4 (Army Ct.
Crim. App. 14 Oct. 2011). Together, the 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 (R.C.M.)
307(c)(3).

       Here, appellant pleaded not guilty to communicating indecent language in
writing to a child—specifications which in this case did not expressly allege that
appellant’s conduct was to the prejudice of good order and discipline in the armed
forces. However, appellant did not object to the language of these specifications at
trial. Where a charge and specification are not challenged at trial, their language is
to be liberally construed. Roberts, __ M.J. at ___, slip op. at 4 (citing United States
v. Watkins, 21 M.J. 208, 209–10 (C.M.A. 1986)). Cf. Fosler, 70 M.J. at 230. This
liberal rule of interpretation is applicable even where an appellant does not plead
guilty. United States v. Fox, 34 M.J. 99, 102 (C.M.A. 1992); Roberts, __ M.J. at
___, slip op. at 5; United States v. Berner, 32 M.J. 570, 572 (A.C.M.R. 1991).

       Facially, the language of Specifications 5 and 7 of Additional Charge II in
this case embraces allegations of conduct prejudicial to good order and discipline.

*
 Appellant was found not guilty of one specification of persuading, inducing, or
enticing a minor to engage in sexually explicit conduct in violation of Article 134,
UCMJ.



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FORRY—ARMY 20080334

In total, the specifications state that appellant, in writing, communicated to two
different children who had not attained the age of sixteen years, on separate
occasions, explicit words about sex acts he wanted to perform on them in violation
of Article 134, UCMJ. It is self-evident that describing explicit sexual acts he
wanted to perform with children under sixteen disrupts good order and discipline.
The written descriptions of sex acts with children necessarily imply conduct to the
prejudice of good order and discipline. Furthermore, this textual relationship of
necessary implication provided appellant with fair notice. The charge sets forth a
violation of Article, 134, UCMJ, and the specifications state the dates, locations, the
names of the intended victims, and the specific sexual acts appellant wanted to
perform on two children. See, e.g., United States v. Dear, 40 M.J. 196, 197 (C.M.A.
1994) (holding a maltreatment specification provided notice because “it set[] forth
the Article of the Code, name of the victim, the time frame of the offense, and the
comments alleged to have been made by appellant”). See also Manual for Courts-
Martial (MCM), 2002, Part IV, para. 60.c.(6)(a).

        The record reflects that appellant was on notice that he was charged with
indecent language proscribed by Article 134, UCMJ. Two weeks before his court-
martial, appellant submitted sample instructions to the military judge requesting that
the panel be specifically instructed on Clauses 1 and 2 of Article 134. Additionally,
the panel was instructed in open court, without comment from appellant or his
defense counsel, that the Article 134 offense contained terminal elements and
required proof of the same. “These two factors, taken together, underscore that at
trial the defense was not misled and did not regard the specifications as facially
deficient.” United States v. Crafter, 64 M.J. 209, 212 (C.A.A.F. 2006). Buttressed
by the presumption of the defense counsel’s competence, this is strong evidence that
appellant was not misled about the nature of the charge leveled against him. See
MCM, Part IV, paras. 60.c.(6)(a), and 62.b. In addition, eight of the ten Article 134
specifications, other than Specifications 5 and 7, did contain the terminal elements.
Finally, these very factual allegations combined with the record of trial sufficiently
protect appellant against double jeopardy.

                                   CONCLUSION
      On consideration of the entire record and in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011), 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
                                        FOR THE COURT:
                                                COURT:




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

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