United States v. Walthour

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Staff Sergeant THOMAS N. WALTHOUR
United States Air Force
ACM S32235
7 April 2015
Sentence adjudged 27 February 2014 by SPCM convened at Columbus
Air Force Base, Mississippi. Military Judge: Shaun S. Speranza
(sitting alone).
Approved Sentence: Bad-conduct discharge, confinement for 2 months,
and reduction to E-1.
Appellate Counsel for the Appellant: Major Anthony D. Ortiz.
Appellate Counsel for the United States: Major Robert Ramírez and
Gerald R. Bruce, Esquire.
Before
ALLRED, HECKER, and TELLER
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under Air Force Rule of Practice and Procedure 18.4.
HECKER, Judge:
A special court-martial composed of a military judge convicted the appellant,
pursuant to his pleas, of assault consummated by a battery and adultery, in violation of
Articles 128 and 134, UCMJ, 10 U.S.C. § 928, 934. Contrary to his pleas, he was
convicted of maltreating a subordinate, in violation of Article 93, UCMJ,
10 U.S.C. § 893. The adjudged and approved sentence consisted of a bad-conduct
discharge, confinement for 2 months, and reduction to E-1.
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the appellant
argues the maltreatment specification fails to state an offense and his conviction for that
specification is legally and factually insufficient. Finding no error that materially
prejudices a substantial right of the appellant, we affirm the approved findings and
sentence.
Background
The charges in this case stemmed from the appellant’s interactions with several
other Airmen between February and April 2013, with the majority of the misconduct
occurring on 12 February while he was traveling with them to a deployment as their team
leader. He engaged in sexual intercourse with one of the female Airmen despite both of
them being married to other individuals, resulting the adultery charge.
The appellant also admitted intentionally placing his hands on the buttocks of
another female Airman without her permission during the course of a game played in a
billeting room. Around the same time, the appellant bent a male Airman’s arm behind
his back, causing him pain. For these two incidents, the appellant pled guilty to two
specifications of assault consummated by a battery.*
Failure to State an Offense
In addition to assaulting a female Airman by touching her buttocks, the appellant
was also charged with maltreating her by making offensive comments of a sexual nature
between 1 February 2013 and 30 April 2013. A week before trial, the defense moved for
a bill of particulars, asking what comments served as the basis for this specification. The
following day, trial counsel notified the defense of three comments allegedly made by the
appellant. One comment was alleged to have occurred on 12 February 2013 and two
other comments came prior to the deployment. Just before trial, the government notified
the defense about an additional comment allegedly made on 12 February 2013.
At trial, the defense moved to dismiss this specification, contending the
specification as charged failed to provide sufficient specificity about the comments to
state an offense. The defense also argued that the specification alleged a single incident
of maltreatment and the government had improperly broadened the specification by
including multiple comments allegedly made on multiple occasions. The military judge
denied the defense motion. Pursuant to Grostefon, the appellant renews this motion on
appeal.
*
The appellant was charged with aggravated sexual contact for the buttocks incident in violation of Article 120,
UCMJ, 10 U.S.C. § 920. After he pled guilty to the lesser included offense of assault consummated by a battery, the
government elected to go forward with the greater offense. The military judge found the appellant not guilty of the
greater offense. The appellant also pled not guilty to two specifications of obstruction of justice charged under
Article 134, UCMJ, 10 U.S.C. § 934, and was acquitted of those offenses.
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Whether a specification fails to state an offense is a question of law that we review
de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). “The military is a
notice pleading jurisdiction.” United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011)
(citing United States v. Sell, 11 C.M.R. 202, 206 (C.M.A. 1953)). A specification states
an offense if it alleges every element of the charged offense expressly or by necessary
implication so as to give the accused notice and protection against double jeopardy.
Rule for Courts-Martial (R.C.M.) 307(c)(3); Crafter, 64 M.J. at 211. “A specification
that is susceptible to multiple meanings is different from a specification that is facially
deficient.” Crafter, 64 M.J. at 211.
As did the military judge, we conclude both elements of the maltreatment offense
were pled in the specification—that the female Airman was subject to the accused’s
orders and that he maltreated her by making offensive comments of a sexual nature
during a 60-day time frame. See Manual for Courts-Martial, United States, Part IV,
¶ 17.c.(2) (2012 ed.) (noting that deliberate or repeated offensive comments can
constitute this offense). We also find that the specification is adequate to provide the
appellant with notice and protection against double jeopardy. Furthermore, the bill of
particulars served “to inform the accused of the nature of the charge with sufficient
precision to enable the [appellant] to prepare for trial.” R.C.M. 906(b)(6), Discussion.
Sufficiency of the Evidence
Also pursuant to Grostefon, the appellant contends the evidence is factually and
legally insufficient to sustain the appellant’s conviction for maltreatment because there
were numerous inconsistencies in the female Airman’s testimony. We review issues of
legal and factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). “The test for legal sufficiency of the evidence is ‘whether, considering
the evidence in the light most favorable to the prosecution, a reasonable factfinder could
have found all the essential elements beyond a reasonable doubt.’” United States v.
Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner,
25 M.J. 324 (C.M.A. 1987)). “The test for factual sufficiency is whether, after weighing
the evidence . . . and making allowances for not having personally observed the
witnesses, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.”
United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting Turner, 25 M.J. at 325)
(internal quotation marks omitted).
We are convinced that the appellant did make offensive comments of a sexual
nature to this female Airman while she was subject to his orders. Viewing the evidence
in the light most favorable to the government, we are convinced a rational factfinder
could find beyond a reasonable doubt the appellant was guilty of the offense. Upon our
own review of the evidence in the record of trial, we are personally convinced of the
appellant’s guilt beyond a reasonable doubt.
3 ACM S32235
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and
sentence are
AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Deputy Clerk of the Court
4 ACM S32235