United States v. Milton

SULLIVAN, Judge

(concurring in the result):

Appellant pleaded guilty and admitted to assaulting Specialist (SPC) Lavender. See Art. 128, Uniform Code of Military Justice, 10 USC § 928. Moreover, he expressly admitted that when SPC Lavender turned and fled from him, he pursued this soldier. The record thus shows an argument between ap*320pellant and the victim, appellant showing a gun to the victim, and the subsequent flight of the victim and his pursuit by appellant. Quite simply, this conduct by appellant, viewed in its entirety, constituted an assault. See United States v. Jackson, 6 USCMA 193, 204, 19 CMR 319, 330 (1955) (Latimer, J., concurring in the result); United States v. Smith, 4 USCMA 41, 15 CMR 41 (1954). At this point, post-trial speculation on whether appellant’s display of his gun and conditional threat alone meet the requirements of an offer-type assault need not be entertained. See United States v. Harrison, 26 MJ 474, 476 (CMA 1988). Accordingly, I concur in the conclusion that appellant’s guilty pleas stand.