United States v. Specialist MALCOLM R. TURNER

CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BERGER, FEBBO, AND SCHASBERGER
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Specialist MALCOLM R. TURNER
United States Army, Appellant

ARMY 20160131

Headquarters, Fort Campbell
Matthew A. Calarco, Military Judge
Colonel Susan K. Arnold, Staff Judge Advocate

For Appellant: Captain Zachary A. Gray, JA! (argued)?; Colonel Mary J. Bradley,
JA; Captain Joshua B. Fix, JA; Captain Zachary A. Gray, JA (on brief); Lieutenant
Colonel Christopher D. Carrier, JA; Captain Heather M. Martin, JA; Captain
Zachary A. Gray, JA (on reply brief); Colonel Elizabeth Marotta, JA; Lieutenant
Colonel Tiffany D. Pond, JA; Major Todd W. Simpson, JA; Captain Zachary A.
Gray, JA (on brief on specified issue).

For Appellee: Captain Meredith M. Picard, JA (argued); Lieutenant Colonel Eric K.
Stafford, JA; Major Austin L. Fenwick, JA; Captain Joshua Banister, JA (on brief);
Colonel Steven P. Haight, JA; Major Hannah Kaufman, JA; Captain Meredith M.
Picard, JA (on brief on specified issue).

30 November 2018

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

! Corrected

2 The court heard oral argument on 26 September 2018 at Temple University
Beasley School of Law as part of the court’s oral outreach program.
TURNER—ARMY 20160131
FEBBO, Judge:

What started as a dispute over $200 a month in child support payments turned
into a conspiracy between appellant and his wife to murder his ex-girlfriend and the
mother of his child. In furtherance of their conspiracy, appellant shot his ex-
girlfriend three times. Fortunately, she survived.

At separate trials, appellant and his spouse were charged with attempting to
murder and other offenses, under both conspiracy and principal theories of liability.’
Both were convicted and received, as part of their punishment, confinement for life
without eligibility for parole. As proven by the government at the trials, appellant
was the brawn who pulled the trigger and his spouse was the so-called brains pulling
the strings.

This case is before us for review pursuant to Article 66(c), UCMJ, 10 U.S.C.
§ 866(c). Appellant raises seven issues on appeal, three of which merit discussion,
and two warrant relief. First, we resolve against appellant his claim that the
government impermissibly asserted different theories of criminality at the two trials.
Second, we address whether the evidence of obstruction of justice is factually
sufficient. Finding in favor of appellant, we grant relief. Third, we address whether
appellant’s convictions for maiming and attempted murder should be merged. We
accept the government’s concession at trial that the offenses were charged in the
alternative and conditionally dismiss the maiming specification. Finally, we discuss
one issue, raised personally by appellant that the charge of attempted premeditated
murder, the Specification of Charge I, fails to state an offense.* We find it states an
offense by necessary implication.

3 An enlisted panel sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of attempted premeditated murder, one specification
of maiming, one specification of conspiracy to commit premediated murder, and one
specification of obstruction of justice, in violation of Articles 80, 124, 81, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 880, 924, 881, and 934 (2012)
[UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement
for life without the eligibility for parole, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence and credited appellant with 599 days confinement against his sentence.

4 The remaining matters raised personally by appellant warrant neither discussion
nor relief. See United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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BACKGROUND

Appellant, Specialist (SPC) Malcolm Turner and the victim, SPC CSG, met in
Korea in December 2012 and developed a sexual relationship. At the time, SPC
CSG did not know appellant was married to Sergeant (SGT) Annelyntherese Turner,
his charged co-conspirator.” The relationship continued for several months until
appellant admitted he was married. Shortly afterward, SPC CSG learned she was
pregnant with appellant’s child.

Specialist CSG left Korea for Fort Campbell, Kentucky and gave birth to their
son in October 2013. Appellant also left Korea and was stationed at Fort Carson,
Colorado with his spouse. Specialist CSG got married and she and her husband
raised and supported appellant’s son.

Appellant and SPC CSG rarely spoke until she filed a formal claim for child
support. Appellant originally verbally agreed to pay $200 a month. However, after
paying $100, he stopped making any child support payments and tried to avoid
taking a paternity test. Appellant and SPC CSG continued to discuss the non-
payment of child support via social media. Sergeant Turner found out about
appellant’s relationship with SPC CSG and contacted her. Specialist CSG informed
SGT Turner that appellant was the father of her child and she was demanding child
support.

Upon learning of her husband’s infidelity, SGT Turner began a series of
manipulative text messages with appellant. These messages were introduced in SGT
Turner’s trial, but not in appellant’s trial. Sergeant Turner told appellant that SPC
CSG had hired a hitman to kill him. Sergeant Turner also texted appellant that SPC
CSG had sent someone to rape SGT Turner and nearly raped their daughter.
Sergeant Turner informed appellant that a “cartel” was going to kill him because he
had not retaliated against SPC CSG. Sergeant Turner later informed appellant that
the cartel decided to kill her instead as a swap for his life. In other messages, SGT
Turner expressed a belief that appellant had purchased bullets and was going to kill
SPC CSG on his return to Colorado from leave. When appellant did not do that, she
confronted him and accused him of falling in love with SPC CSG, getting her
pregnant, and not wanting to kill her. Appellant replied to SGT Turner that he did
not buy bullets just for show and would “handle” SPC CSG.

In October 2014, appellant accused SPC CSG of putting a hit on him and his
family. Specialist CSG denied any hit or threat to appellant and his family.

> For purposes of clarity we will refer to appellant only as “appellant” and will refer
to appellant’s wife as “SGT Turner.”
TURNER—ARMY 20160131

Specialist CSG suggested that if he believed the allegations, he should go to court.
Appellant responded that only “sissies” or “people that are scared” would go to
court.

Appellant had never visited his son and was not sending child support
payments. Therefore, he did not know SPC CSG’s address. In October 2014,
appellant contacted SPC CSG and asked for her address. At first, SPC CSG was
reluctant, but appellant explained that he needed the address to visit his son in the
future. After discussing the issue with her spouse, SPC CSG gave appellant her
address.

Appellant and SGT Turner then drove from Colorado, spent time in Georgia,
and arrived in Tennessee on 1 January 2015. Appellant knocked on SPC CSG’s
apartment door. Specialist CSG thought this was odd since appellant lived in
Colorado, had never visited before, and arrived unannounced. He explained he
wanted to meet his son. Specialist CSG allowed appellant into the apartment.
Appellant inquired whether SPC CSG’s spouse was home, looked around the
apartment, and asked to use the bathroom. While he was in the bathroom, appellant
texted SGT Turner the apartment number. Sergeant Turner then left her daughter in
the car and came to the apartment. Once inside, SGT Turner questioned SPC CSG
about her relationship with appellant. Appellant also asked questions about why
SPC CSG had placed a $20,000 hit on him.

After putting her son down on a couch, SPC CSG got angry about the false
allegations and told appellant, “You’re starting to piss me the fuck off. You came
into my house unannounced and you accused me of something that I don’t know
what you’re talking about.” In response, SGT Turner and appellant briefly discussed
something that SPC CSG could not hear. Afterward, SGT Turner told appellant,
“Well, the choice is up to you. What are you going to do about it?” Appellant
turned to SPC CSG and said, “You think you’re bad, huh? You think you’re bad?”
He pulled out a handgun and shot SPC CSG three times in quick succession from
seven to eight feet away. All three shots hit SPC CSG.

The first shot pierced SPC CSG’s arm. As she spun around from the impact,
appellant’s second shot struck her in the back. That round shattered a rib, hit her
lung and the sac around her heart, and perforated her chest. As SPC CSG fell
forward, appellant’s third shot hit her in the side of the head and knocked out her
teeth. After passing through SPC CSG’s face and chest, the second and third shots
both hit the couch, with appellant’s son nearby.

After the shooting, appellant and SGT Turner ran out of the apartment. In his
hurry to leave the crime scene, appellant dropped his phone outside the apartment.
TURNER—ARMY 20160131

Specialist CSG grabbed her phone, tried to call 911, and followed them out
the door. However, since SPC CSG was unable to actually dial the phone, she threw
the phone from the top of the apartment stairs at appellant at the bottom of the stairs.

The two neighbors below SPC CSG’s apartment, AW and JW, heard three
loud bangs and screams. AW went to the door and saw two people running down the
stairs. Both were wearing dark clothing. The individual, who was wearing a hoodie,
was carrying a large, black object that AW thought was a gun. Specialist CSG ran
down the stairs screaming, “He shot me, He shot me.” At the bottom of the stairs,
SPC CSG pointed to the two individuals who had just run down the stairs and then
she collapsed.

AW’s husband, JW, was a few seconds behind his wife. JW ran after the two
individuals who fled SPC CSG’s apartment, but was not able to catch them.
However, he was able to get a description of them and the car they were driving. JW
identified one of the two people as an African-American male wearing a gray
hoodie. He described the car as a Chrysler 300 with Georgia license plates. JW
called 911, gave the phone to his wife, and began administering first aid to SPC
CSG.° Specialist CSG told JW that her baby’s father, Malcolm Turner, shot her.

Within two or three minutes, Clarksville Police arrived at SPC CSG’s
apartment. She informed the first police officer who arrived at the scene that
appellant was the shooter. The police secured the area and found appellant’s cell
phone. They did not recover any weapon. The police put out a description of the
car that fled the scene as a Chrysler 300, with dark tinted windows, silver rims, and
Georgia plates. About an hour after the shooting, while police were canvassing the
neighbors, one of the neighbors identified the Chrysler 300 driving down the street.
A patrol vehicle stopped the Chrysler 300.

The vehicle had three occupants. Appellant was driving the vehicle and his
spouse, SGT Turner, and their young child were passengers. Police did not find any
weapons on appellant. They did find baby wipes with red-brown stains on them and
stains on the car seat. Since their initial flight from the apartment, appellant and
SGT Turner had changed clothes. Appellant was no longer wearing jeans and a
hoodie. Instead, he was wearing a gray tank-top and red pajama pants. Sergeant
Turner was wearing a black t-shirt and loose gray sweatpants. Police searched
appellant’s vehicle and no firearms were found.

6 At trial, the medical professionals who treated SPC CSG testified she would have
died without the first aid administered at the scene.
TURNER—ARMY 20160131

Appellant was charged with attempted murder with premeditation,’ maiming,
conspiring with SGT Turner to commit murder, reckless endangerment of his son,
and obstruction of justice by disposing of the firearm used to shoot SPC CSG.
Sergeant Turner was charged with attempted murder, conspiring with appellant to
commit murder, accessory after the fact, and a false official statement to a law
enforcement agent. Appellant was tried first, in March 2016, at a general court-
martial before an enlisted panel. Sergeant Turner was tried second, in May 2016, at
a general court-martial before a military judge alone. The lead government
prosecutor was the same in both cases.

A. Appellant’s Trial

At appellant’s trial, the government called SPC CSG and multiple witnesses
who testified about the shooting, SPC CSG’s injuries and medical treatment, crime
scene investigation, and digital forensic examination of appellant’s and SGT
Turner’s cell phones. The government introduced evidence linking the missing
firearm to appellant.

The government’s ballistics’ expert testified that the .40 caliber shell casings
and ammunition all exhibited characteristics of being fired from a Hi-Point brand
weapon. The ballistics’ expert also testified that hollow-point bullets were used in
the shooting. Hollow-point ammunition is specifically designed to expand on
impact, release the maximum kinetic energy, and inflict the maximum damage to
tissue. One of the exhibits the government admitted at trial was appellant’s Fort
Carson weapon’s registration for a Hi-Point JCP .40 caliber pistol.

The defense theory at trial was that there was no conspiracy or premediated
shooting. Through cross-examination, the defense advanced its theory that SPC
CSG was the aggressor in the apartment and the shooting was in self-defense and
during the heat of passion. Appellant argued there was no evidence that appellant
and his wife conspired to kill SPC CSG. Defense counsel argued that SGT Turner’s
statement was vague about giving appellant some type of choice. At trial, the
defense called a crime scene expert to testify about alleged errors in the police
department’s processing and preservation of the crime scene. The defense argued
that the police crime scene investigation was so faulty that the allegedly missing
handgun could have been overlooked at the crime scene.

Neither the government nor the defense introduced the text messages between
appellant and SGT Turner. As noted above, the text messages tended to demonstrate

7 Although the specification states “attempt to kill with premeditation,” we discuss
below that the specification sufficiently alleges attempted murder.
TURNER—ARMY 20160131

that SGT Turner had manipulated appellant into committing the offense. Each side
had their reasons for not introducing the evidence. The government correctly
thought they could prove the charges without the text messages from the strong
evidence, including eyewitness testimony from SPC CSG and the neighbors. For the
defense, the text messages would have undermined their theory that (1) appellant
acted in self-defense; (2) there was no conspiracy; and (3) the shooting was not
premeditated. Since the text messages disclosed that appellant purchased the
hollow-point bullets to shoot SPC CSG, this would have been particularly unhelpful
to appellant’s argument that he did not intend to kill SPC CSG.

Accordingly, there was scant evidence introduced at appellant’s trial about a
“hit man.” While the panel heard that appellant had accused SPC CSG of hiring a
hitman, this evidence was unconnected to SGT Turner’s manipulation of appellant.
Thus, during closing argument the government argued that instead of bringing a gift,
appellant had taken a gun to see his son for the first time. The government argued
the “hit man” issue was completely ridiculous. In summarizing the exchange about
his wife giving appellant a choice immediately prior to the shooting, the government
in closing argument argued to the panel that, “[SGT Turner has] given her husband
the option. Options had been discussed, Plan A, Plan B. She’s given her husband
permission to choose which options to take.” Furthermore, during argument on the
conspiracy charge, the government argued that SGT Turner “gave him the choice to
decide which one, and he chose to kill her.” The government argued that SGT
Turner had given him a green light and he took the opportunity to extinguish a
problem in his life. During rebuttal, the government, again, highlighted appellant’s
choice immediately prior to shooting SPC CSG.

During sentencing proceedings, the government argued appellant’s motive
was to avoid taking responsibility for his son and not wanting to pay child support.
The government argued appellant had “some evil inside him,” and was “cold,”
“calculating,” and “depraved.” The defense sentencing argument focused on
appellant’s upbringing, strong family network, and remorse.

B. SGT Annelyntheresse Turner’s Trial®

At SGT Turner’s trial, the government, again, called SPC CSG and multiple
witnesses who testified about the shooting, SPC CSG’s injuries and medical
treatment, crime scene investigation, and digital forensic examination of appellant’s
and SGT Turner’s cell phones. The government continued to maintain appellant was
the shooter and SGT Turner was responsible as both a principal and co-conspirator

8 On appeal, the court granted appellant’s motion to take judicial notice of SGT
Turner’s record of trial.
TURNER—ARMY 20160131

for the attempted murder. The government entered into evidence the text messages
between appellant and SGT Turner discussing their plan to murder SPC CSG and the
cartel’s threat to their family.

The defense theory at trial was that there was no conspiracy or premediated
shooting. The defense argued that all of the government evidence presented at trial
only supported that her husband, appellant, was responsible for the shooting. The
defense argued that, at most, SGT Turner only gave appellant a choice. In response
to this choice, the defense argued that appellant acted alone in shooting SPC CSG.

In response to the defense theory, the government argued during findings that
SGT Turner gave appellant a “Hobson’s choice where no matter what he chooses, he
loses ... He either does what [SGT Turner] wants, or either him [sic] of his wife is
going to be killed by the cartel. He has no choice at all, so he pulls out the gun and
he shoots [SPC CSG].” ,

LAW AND DISCUSSION
A. Conflicting theories of liability

Appellant asserts the government prejudiced appellant by presenting
inconsistent theories of culpability at his and his spouse’s trials. Appellant argues
that at his trial he was portrayed as a coldblooded killer, while at his wife’s trial he
was portrayed as just a “naive pawn.” However, in both cases, the government
proved that appellant was the shooter.

As best we can tell, this is an issue of first impression for military courts.
However, the United States Supreme Court and other federal appeals and district
courts have addressed the right and left limits of when the prosecution’s conflicting
theories of liability violate due process. See, e.g., Thompson v. Calderon; 120 F.3d
1045, 1058 (9th Cir. 1997) (stating “it is well established that when no new
significant evidence comes to light a prosecutor cannot, in order to convict two
defendants at separate trials, offer inconsistent theories and facts regarding the same
crime.”); Smith v. Groose, 205 F.3d 1045, 1053-54 (8th Cir. 2000) (finding due
process violation where prosecution used “inconsistent, irreconcilable” theories to
secure convictions against two defendants in different trials for the same offenses);
Johnson v. Horel, 2010 U.S. Dist. LEXIS 125005 at *43-49 (N.D. Cal. 2010)
(finding no due process violation because prosecutor’s statements and arguments are
inadmissible). Most courts hold that a due process violation will only be found
when the inconsistency exists at “the core” of the prosecution’s case. Sifrit v. Nero,
2014 U.S. Dist. LEXIS 145759 at *80 (D. Md. 2014). “Discrepancies based on
rational inferences from ambiguous evidence will not support a due process violation
provided the two theories are supported by consistent underlying facts.” Jd. at 82.
TURNER—ARMY 20160131

The United States Supreme Court has decided only one case involving
inconsistent prosecutions, Bradshaw v. Stumpf, 545 U.S. 175 (2005). In Bradshaw,
the Supreme Court considered a prosecutor's use of inconsistent theories involving
two co-defendants who were separately prosecuted. Jd. at 179-80. Stumpf pleaded
guilty to murder. Jd. At his sentencing hearing, Stumpf argued he only participated
in the conspiracy and another co-conspirator fatally shot the victim. Jd. The
government argued that the opposite was true and Stumpf was the shooter. Id.
Stumpf was sentenced to death. Jd. Afterward, Stumpf’s co-conspirator was tried
before a jury. /d. at 180. At the co-conspirator’s trial, the government presented
new evidence from a witness who testified that Stumpf’s co-conspirator admitted to
being the actual shooter. Jd. The prosecutor, who also prosecuted Stumpf, now
argued that the co-conspirator was the principle shooter. Id.

On appeal, the Sixth Circuit held that the prosecution's use of inconsistent
theories as to the identity of the shooter violated due process and required the
invalidation of Stumpf’s guilty plea. Bradshaw, 545 U.S. at 181-82. The Supreme
Court disagreed. Jd. at 182. It reasoned that the change in the prosecution’s theory
was made after the guilty plea and “the precise identity of the triggerman was
immaterial to [the petitioner’s] conviction for aggravated murder.”? Id. at 187. The
Court did observe, however, that the “use of allegedly inconsistent theories may
have a more direct effect on [the petitioner’s] sentence . . . for it [wa]s at least
arguable that the sentencing panel’s conclusion about [his] principal role in the
offense was material to its sentencing determination.” Jd. The Court remanded for a
further determination of the claim, “express[ing] no opinion on whether the
prosecutor’s action amounted to a due process violation, or whether any such
violation would have been prejudicial.”!° Id.

* The Court found Stumpf’s argument over who was the principle shooter was
immaterial because “Ohio law considers aiders and abettors equally in violation of
the aggravated murder statute, so long as the aiding and abetting is done with the
specific intent to cause death.” Bradshaw, 545 U.S. at 184.

0 “Before Bradshaw, the Supreme Court had not suggested that inconsistent
prosecutorial theories could constitute a due process violation.” DeCastro v.
Branker, 642 F.3d 442, 457-58 (4th Cir. 2011). Justice Thomas’s remarks in his
Bradshaw concurrence strongly evidence this: the “[Supreme] Court has never
hinted, much less held, that the Due Process Clause prevents a State from
prosecuting defendants based on inconsistent theories.” 545 U.S. at 190 (Thomas,
J., concurring); accord DeCastro, 642 F.3d at 457-58; Pondexter v. Quarterman, 537
F.3d 511, 526-27 (5th Cir. 2008).
TURNER—ARMY 20160131

The United States District Court of Oregon recently addressed the issue of
inconsistent theories of liability in Williams v. Belleque, 2018 U.S. Dist. LEXIS
136034 at *68-83 (D. Or. 2018). We find this case the most similar to appellant’s
case. In Williams, the prosecution first argued Williams was an “autonomous cold-
blooded killer” during his sentencing case. Jd. at *68-70. The prosecution later
argued at his co-accused’s trial that Williams was a robotic “follower” directed by
his co-accused to shoot the victim. /d. In addition to dealing with similar issues as
presented by appellant and persuasive analysis on how to fairly resolve the issue,
Judge Robert E. Jones provides an excellent summary of the law and federal cases
addressing alternate theories of liability.

First, as co-conspirators and under principal liability, appellant and SGT
Turner were equally culpable for the attempted murder. Similar to Bradshaw,
appellant is not less culpable than his co-conspirator. This is not a case of actual
duress. Appellant was not confronted with an actual choice of kill or be killed.
Specialist CSG, having the most wisdom of the trio, suggested appellant go to court
if he actually believed SPC CSG hired a hit man to kill his family. Appellant could
have chosen to pay support, go to his command for help, not travel to SPC CSG’s
apartment, and not shoot her.

Second, it is not unusual that evidence is somewhat different at each trial of
co-conspirators. In appellant’s case, defense counsel had a strategic reason for not
introducing the text messages between appellant and his spouse. Similarly, the
government focused on appellant’s actions in the conspiracy and shooting instead of
his spouse’s role. See Williams, 2018 U.S. Dist. LEXIS 136034 at *79 (recognizing
appropriateness for prosecutor to highlight different relevant evidence at co-
conspirators’ trials). Our review of both appellant’s record and his wife’s record
reveals there is evidence supporting an assertion that appellant was the lead actor
and that his wife manipulated him. See id. at *78 (finding that evidence can
accurately and reliably support different theories without being fundamentally
inconsistent).

Although the closing arguments by the same prosecutor in appellant’s and his
spouse’s cases highlighted different evidence supporting their degrees of culpability,
“this does not equate with presenting inconsistent theories in violation of
petitioner’s constitutional right.” Williams, 2018 U.S. Dist. LEXIS 136034 at *79.
In each case, the prosecution argued appellant and his wife conspired to murder SPC
CSG and appellant was the actual shooter. The prosecution did not present
fundamentally inconsistent theories. Although the prosecution emphasized different
facts at each trial, the underlying facts in evidence were consistent at both trials.
For example, at appellant’s trial, SPC CSG testified that appellant accused her of
hiring a hitman to kill him. At SGT Turner’s trial, the prosecution admitted into
evidence text messages between appellant and SGT Turner in which she tells
appellant that SPC CSG hired a hitman to kill him. At SGT Turner’s trial, the

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prosecution emphasized this fact in order to show her level of culpability in
manipulating appellant to kill SPC CSG. However, as appellant has demonstrated,
pawns can be just as deadly as a king or queen in the hands of a chess player and
equally culpable under the law.

B. Factual Sufficiency of Obstruction of Justice Conviction

Appellant was charged with obstructing justice for “disposing” of the firearm
he used to shoot SPC CSG. At trial, the government’s evidence essentially boiled
down to two facts: (1) appellant had the firearm when he shot SPC CSG; and (2)
appellant did not have the firearm one hour later when he was apprehended and the
car was searched. The government argued appellant must have disposed of the
firearm in the intervening hour.

Article 66(c), UCMJ, imposes on this court the duty to affirm only those
findings of guilty that we find correct in law and fact. The test for factual
sufficiency is “whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, [this court is]
convinced of [appellant’s] guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). The test for legal sufficiency is “whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Pabon, 42 M.J. 404, 405 (C.A.A.F. 1995)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

In appellant’s case, the government was required to prove, beyond a
reasonable doubt, the following elements to support a conviction of obstruction of
justice: “(1) The accused wrongfully did a certain act; (2) That he did so in the case
of a certain person against whom he had reason to believe there were or would be
criminal proceedings pending; (3) That the act was done with the intent to influence,
impede, or otherwise obstruct the due administration of justice; and (4) The conduct
was to the prejudice of good order and discipline or of a nature to bring discredit
upon the armed forces.” Manual for Courts-Martial, United States (2012 ed.)
[MCM/, pt. IV, 96.b.(1)-(4) (2012 ed.). Viewing the evidence in the light most
favorable to the prosecution, the evidence presented at trial supports a reasonable
inference that appellant hid the firearm after the shooting with the intent to
influence, impede, or otherwise obstruct the due administration of justice.
Therefore, we find appellant’s conviction for obstruction of justice is legally
sufficient. See, e.g., United States v. Davis, 2006 CCA LEXIS 56 (Army Ct. Crim.
App. 2006).

We conclude that the evidence reasonably supports that someone disposed of
the firearm after appellant shot SPC CSG. Indeed, before they returned to the crime
scene, appellant and SGT Turner changed clothes.and took other actions in order to

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hide their culpability. However, based on the testimony presented at trial, we are
not convinced that it necessarily was appellant who disposed of the firearm.

When appellant was arrested, his wife’s involvement in the crime was not
immediately apparent to law enforcement. Thus, while appellant was detained
almost immediately, it appears SGT Turner had relative freedom of movement. The
record is unclear whether, when, and where SGT Turner was searched. A reasonable
read of the facts, and one we cannot rule out, is that after appellant was arrested, and
after co-conspirator liability had terminated, it was SGT Turner who disposed of the
firearm. See Grunewald v. United States, 353 U.S. 391, 405 (1957) (holding a
conspiracy ends when the objectives thereof are accomplished). Although the record
reasonably suggests appellant hid the firearm after the shooting, we find the
government failed to prove beyond a reasonable doubt that that is the only
reasonable explanation for why the firearm was not in the vehicle or on appellant’s
person. Therefore, the evidence as developed on the record in this case is factually
insufficient to affirm appellant’s conviction of obstruction of justice.

C. Merger of Attempted Premeditated Murder and Maiming Specifications for
Findings

Appellant asserts the military judge erred when he failed to merge the
Specification of Charge II (maiming) with the Specification of Charge I (attempted
premeditated murder) for findings. On appeal, the government agrees that we should
dismiss the lesser offense of maiming.

At trial, after findings were announced, appellant moved to dismiss the
maiming specification as an unreasonable multiplication of charges for findings.
See Rule for Courts-Martial [R.C.M.] 307(c)(4). At trial after the panel’s findings
and prior to adjournment, appellant’s defense counsel also moved to dismiss the
attempted murder specification for failure to state an offense, under R.C.M.
907(2)(E). The military judge disagreed with appellant that the attempted
premediated murder specification failed to state an offense and denied the motion to
dismiss. The trial counsel acknowledged that the maiming and attempted
premediated murder specifications were charged in the alternative and did not object
to conditionally dismissing the offense of maiming for findings.

In our assessment, none of the factors announced by our superior court weigh
heavily in favor of any specifications being unreasonably multiplied.!! See United

'! The first Quiroz factor is whether appellant objected at trial. Quiroz, 55 M.J. at
339. Given appellant’s untimely, oral motion made after findings were announced,
this factor is neutral, at best.

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States v. Quiroz, 55 M.J. 334, 339 (C.A.A.F. 2011). We find there is no evidence of
any prosecutorial overreaching; as appellant was already facing life without the
possibility of parole for attempted premeditated murder, appellant’s punitive
exposure is not increased; and appellant’s criminality is not exaggerated were both
offenses to stand. See, e.g., id. Given the government’s concession both at trial and
on appeal, we determine that the lesser offense should be conditionally dismissed as
it “should [not] be approved.” UCMJ, art. 66(c).

D. Attempted murder - Failure to State an Offense

Appellant asserts in his Grostefon matters that the military judge abused his
discretion when he denied appellant’s motion to dismiss the Specification of Charge
I, a violation of Article 81, UCMJ, which charged appellant with attempting to kill
SPC CSG, with premeditation.”

In particular, the specification alleged that:

Appellant, did at or near Clarksville, Tennessee, on or about 1 January
2015, attempt to kill with premeditation, SPC CSG by means of
shooting her with a loaded firearm and causing grievous bodily harm.

Appellant argues that the specification does not allege that the premeditated
killing was unlawful. See Article 118(b)(1)(c), UCMJ; MCM (2012 ed.), pt. IV,
443.b. Appellant contends that servicemembers in the armed forces lawfully commit
premeditated killings of enemy combatants on the battlefield. As such, a killing
must be unlawful in order for it to be an offense under the UCMJ. See generally
United States v. Calley, 22 U.S.C.M.A. 534, 540-41 (1973).

The CAAF has held that specifications should be viewed with maximum
liberality when an accused pleads not guilty to the offense and only challenges the
specification for the first time on appeal. See United States v. Ballan, 71 M.J. 28,
33 (C.A.A.F. 2012); United States v. Watkins, 21 M.J. 21, 24-26 (C.M.A. 1986).
However, if an appellant challenges the specification at trial, then the specification
should be reviewed more narrowly on appeal. See United States v. Fosler, 70 M.J.
225, 231-32 (C.A.A.F. 2011). In this case, defense counsel strategically objected
prior to adjournment. As a result, appellant argues the specification should be read
narrowly because defense preserved the issue by objecting after findings and prior to
adjournment. See R.C.M. 907(b)(1)(B).

This court specified the issue and requested additional briefings from both parties
on 22 October 2018.

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If appellant raised the issue for the first time on appeal, under a plain error
analysis we would have easily dispensed with the issue since the specification was
sufficiently specific to apprise appellant of what appellant needed to defend against
and prepare for trial. Appellant cannot reasonably argue that he was surprised when
the military judge instructed the panel that he was charged with attempting an
unlawful killing when he shot SPC CSG three times. Appellant was not misled or
prejudiced in defending against the specification.

The record demonstrates appellant was on sufficient notice of the offense of
attempted premeditated murder. See United States v. Crafter, 64 M.J. 209, 211-12
(C.A.A.F. 2006). The military judge’s ruling highlighted several instances during
the court-martial proceedings that demonstrated appellant was on sufficient notice.

First, as the military judge noted in denying appellant’s motion to dismiss,
several pre-trial documents, such as the pre-trial confinement documents, Article
32(b), UCMJ, report, and appellant’s pre-trial motions stated appellant was charged
with attempted premeditated murder. Notably, in appellant’s pre-trial request for a
crime scene reconstruction and ballistics expert, appellant stated, “The Accused is
presently charged with attempted premeditated murder in violation of Article 80,
UCMJ.” (emphasis added). Looking elsewhere on the charge sheet, appellant was
charged, in the Specification of Charge HI, with conspiring with his wife to
“murder” SPC CSG on the same date, at the same location, and detailed the same
overt act as alleged in the Specification of Charge I. Defense never requested a bill
of particulars. Additionally, the first proposed voir dire question submitted to the
court by defense began, “One of the offenses alleged in this case is attempted
premeditated murder.”

Second, appellant’s entire theory of the case was premised on the idea that he
was defending himself against a charge of attempted murder. Through witness
testimony and in argument, appellant raised the issue of self-defense, demonstrating
he was aware the government had to prove the killing was without justification or
excuse. Appellant presented this theory through expert witness testimony of a crime
scene and blood spatter expert. Appellant argued this affirmative defense in closing
argument to the panel.

Third, the panel was instructed, without defense objection, on the elements of
the offense of attempted premeditated murder, including the requirement that the
killing “was done with specific intent to kill [SPC CSG]; that is, to kill without
justification or excuse.” See, e.g., Crafter, 64 M.J. at 212. Appellant was provided
an opportunity to review these instructions prior to the military judge instructing the
panel. Appellant did not object to these instructions and claim that the panel was
being instructed on an uncharged offense.

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Finally, appellant did not present any evidence at trial, or on appeal, that he
was hampered in any way in his preparation for trial. See United States v. Russell,
47 M.J. 412 (C.A.A.F. 1998). In Russell, the CAAF considered that, “at trial
appellant’s counsel conceded that he had not been hampered in his preparation for
trial by the perceived deficiency in the specifications. Thus, only legal, not actual,
knowledge is at issue here.” Jd. at 413.

Since the appellant objected to the specification at trial, we review more
narrowly the question of whether an attempted premeditated killing states an offense
under the UCMJ. “Whether a specification is defective and the remedy for such
error are questions of law, which we review de novo.” United States vy. Norwood, 71
M.J. 204, 206 (C.A.A.F. 2012), citing United States v. Ballan, 71 M.J. 28, 33
(C.A.A.F. 2012). A charge and specification “[are] sufficient if [they], first,
contain[] the elements of the offense charged and fairly inform[] a defendant of the
charge against which he must defend, and, second, enable[] him to plead an acquittal
or conviction in bar of future prosecutions for the same offense.” Hamling v. United
States, 418 U.S. 87, 117 (1974). “A specification is sufficient if it alleges every
element of the charged offense expressly or by necessary implication.” R.C.M.
307(c)(3).

In this case, where appellant was charged with an “attempt,” we disagree with
appellant and find the Specification of Charge I alleges words of criminality
sufficient to inform appellant that he was charged with the offense of attempted
premeditated murder. See R.C.M. 307(c)(3) discussion. See also United States v.
Bryant, 28 M.J. 504, 505 (A.C.M.R. 1989), aff'd, 30 M.J. 72, 73 (C.M.A. 1990)
(failure to allege that conspiracy to distribute drugs was “wrongful” did not make
the specification fatally defective). The Supreme Court and the CAAF have held
that when an accused is charged with an attempt, “the government need only allege
the elements of the inchoate offense.” United States v. Norwood, 71 M.J. 204, 205
(C.A.A.F. 2012); see also Wong Tai v. United States, 273 U.S. 77, 81 (1927). For
inchoate offenses, it is not essential to the validity of the charge that the offense be
charged with technical precision. See Bryant, 30 M.J. at 74. “Practical rather than
technical consideration govern the validity of the charge.” Jd. (internal quotations
and citations omitted).

The elements of attempted murder are: (1) the appellant did an overt act; (2)
the act was done with the specific intent to commit an offense under the code; (3)
the act was more than mere preparation; and (4) the act apparently tended to effect
the commission of the intended offense. MCM, Part IV, | 4b. In appellant’s case,
the Specification of Charge I informed appellant that he was accused of attempting
to kill with premeditation SPC CSG, at or near Clarksville, Tennessee, on or about 1
January 2015, by means of shooting her with a loaded firearm, causing grievous
bodily harm. The specification is sufficient since it alleged every element of the
charged offense expressly or by necessary implication. The inclusion of

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“premediated killing” establishes that appellant was defending against an intentional
criminal act. Not since the Civil War has Clarksville, Tennessee been close to a
combat zone where appellant might claim that an attempted premeditated killing of
a fellow American soldier could have been lawful.

Appellant was not charged with attempting to kill an enemy combatant. Here,
the specification charged appellant with the attempted killing of a fellow soldier,
“Specialist [CSG].” Either explicitly or by necessary implication, appellant was on
notice SPC CSG was not an enemy combatant, but rather another soldier serving in
the United States Army, and the mother of appellant’s eight-month-old child. Based
on the status of the shooting victim and location, appellant could not have been
acting in furtherance of a military mission. We are satisfied that the language in the
Specification of Charge I constitute words of criminality sufficient to apprise
appellant that his actions were unlawful and that he needed to defend against the
offense of attempted premeditated murder. !3

We note, as the CAAF held in Bryant, “[t]he proper conclusion in this case is
that, although [the Specification of Charge I] [was] challenged at trial, thus
requiring that the pleadings be examined with greater scrutiny on appeal, the result
is still that the pleadings adequately informed appellant of the offense against which
he had to defend.” Bryant, 30 M.J. at 75.

Accordingly, considering all of the aforementioned factors and considering
the issue de novo, we find no error in the military judge’s denial of the defense
motion to dismiss for failure to state an offense. The charge included the specific
intent, the specific overt acts, specific location, specific date, specific identity and
status of the shooting victim as a fellow American soldier, and specific means for
committing the offense of attempted premediated killing. We find the Specification
of Charge I adequately protects appellant from any future prosecution for the same
conduct. See Russell, 47 M.J. at 414.

'3, Although we find the Specification of Charge I states an inchoate attempt offense
with sufficient specificity, we remind trial counsel of the appellate risks of deviating
from the model specifications and not including words of criminality. In drafting
specifications for inchoate offenses, depending on the particular facts and offense, it
is normally preferable to charge the predicate offense under the UCMJ. If trial
counsel decide not to charge the predicate offense, the specification should allege
words of criminality. Counsel would be hard pressed to find appellate cases critical
of including words of criminality such as “wrongfully,” “without authority,” or
“unlawfully” in a specification. On the other hand, there are many appellate cases
focused on the legal consequences for excluding words of criminality from a charge.

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CONCLUSION

Upon consideration of the entire record, Specification 1 of Charge IV is SET
ASIDE and DISMISSED. The Specification of Charge II is conditionally SET
ASIDE and conditionally DISMISSED. Our dismissal is conditioned on the finding
of guilty to the Specification of Charge I surviving further appeal, if any to our
superior court. See United States v. Britton, 47 M.J. 195, 203 (C.A.A.F. 1997)
(Effron, J., concurring); United States v. Hines, 75 M.J. 734, 738 n. 4 (Army Ct.
Crim. App. 2016); United States v. Woods, 21 M.J. 856, 876 (A.C.M.R. 1986). The
remaining findings of guilty are AFFIRMED.

We reassess the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305,
307-08 (C.M.A. 1986).'4 We are confident the panel would have adjudged a
sentence at least as severe as the approved sentence absent appellant’s conviction for
obstruction of justice. While the conviction of Specification 1 of Charge IV
increased appellant’s maximum punishment that may be imposed by five years of
confinement, it is overshadowed by the maximum punishment of life without
eligibility for parole for each of appellant’s convictions for attempted premeditated
murder and conspiracy to commit murder.

The gravamen of appellant’s crimes was the attempted premeditated murder
and conspiracy to commit murder, not the obstruction of justice. The facts of this
case are particularly egregious considering the extent of SPC CSG’s injuries when
appellant shot SPC CSG three times, at close range, in front of his eight-month old
son. Appellant was sentenced to a dishonorable discharge, confinement for life
without the eligibility for parole, forfeiture of all pay and allowances, and reduction
to the grade of E-1. In light of the sentence received and the gravamen of the
remaining offenses of which appellant was convicted, we AFFIRM the approved
sentence. All rights, privileges, and property of which appellant has been deprived
by virtue of that portion of the findings set aside by this decision, are ordered to be
restored. See UCMJ, art. 58b(c) and 75(a).

'4 Since the military judge merged the attempted premediated murder and maiming
specifications for sentencing, we do not separately reassess the sentence based on
our conditionally setting aside and conditionally dismissing The Specification of
Charge II.

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Chief Judge BERGER and Judge SCHASBERGER concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

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