United States v. Outhier

MOLLISON, Senior Judge:

The principal issue in this appeal from a general court-martial conviction is whether the appellant’s plea of guilty to aggravated *629assault was providently entered. We conclude that it was and affirm.

The appellant was tried by general court-martial on 8 February 1994. Pursuant to a pretrial plea bargain, the appellant pled guilty to eight violations of the Uniform Code of Military Justice [UCMJ], including assault with a means or force likely to produce death or grievous bodily harm. UCMJ art. 128(b), 10 U.S.C. § 928(b) (1988). A military judge sitting alone accepted the appellant’s pleas of guilty and sentenced him to confinement for 2 years, forfeiture of all pay and allowances, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence; however, he suspended all confinement from the date of his action, 1 June 1994. The appellant’s case was automatically appealed to this court for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866 (1988) ,1

The appellant assigns two errors on appeal.2 He contends the military judge erred in accepting his plea of guilty to Charge III, alleging aggravated assault. He also contends the dishonorable discharge is inappropriately severe. The appellant seeks dismissal of Charge III and mitigation of his dishonorable discharge to a bad-conduct discharge.

I.

The Specification of Charge III alleges the following:

In that Private First Class Richard G. Outhier, U.S. Marine Corps, ... did, at Naval Station, Annapolis, Maryland, on or about 24 September 1993, commit an assault upon OCSN Anthony R. Avila, U.S. Navy, by telling him that he, Private First Class Outhier, was a qualified and certified Navy SEAL and Hospital Corpsman, that he was an expert in “drownproofing” techñiques, and wrongfully establishing a situation wherein OCSN Avila believed that he could rely upon Private First Class Outhier’s training, experience, and qualifications to put his life in his hands, thereafter caused OCSN Avila, trusting Private First Class Outhier’s presence, to jump into deep water with his hands and feet bound and become helpless to swim or survive in the water, a means or force likely to produce grievous bodily harm, to-wit: drowning.

Before accepting the appellant’s pleas of guilty, the military judge examined the appellant as required by Rule for Court-Martial [R.C.M.] 910 and United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247,1969 WL 6059 (1969). That examination reveals the following:

The accused, an E-2 in the Marine Corps, went on unauthorized absence from Camp Pendleton to settle some unspecified personal matters. He ended up in Annapolis, Maryland, because he was raised near there and was familiar with the area. On or about 22 September 1993, he reported to the United States Naval Academy and Naval Station, Annapolis, Maryland, posing as a Hospital Corpsman Petty Officer Second Class, named Jonathan Vincent Valjean.3 He claimed to be a member of a Navy SEAL team fresh from Somalia, sent to the Naval Academy to assist in recruiting Navy Seals. He wore a camouflage utility uniform with the insignia of an HM2 and a Navy SEAL. He attributed his inability to produce orders or an identification card to the fact that he had just returned from overseas and there were internal problems in his platoon. While still posing as HM2 Valjean, the accused became acquainted with a Seaman Avila of the Naval Station staff. On 24 September, the accused and SN Avila went to the *630Naval Academy pool to swim. The accused told SN Avila that he was a Hospital Corpsman and a certified Navy SEAL and that he was an expert in “drownproofing techniques,” which he then undertook to teach to SN Avila. To do this, the appellant bound SN Avila’s hands and feet, and SN Avila entered the pool in deep water. The accused admitted that he had no permission to do this exercise, that he was not qualified to do it, and that he had no legal justification or excuse for doing it. He also admitted that he caused SN Avila to rely on his claimed training, experience and qualifications, and thus caused SN Avila to place his life in the accused’s hands by jumping bound hand and foot into deep water, where SN Avila was helpless to swim or survive. Finally, the accused admitted that SN Avila would not have agreed to do this exercise had he been informed of the true situation and that under the circumstances the accused created a means or force likely to cause grievous bodily harm, drowning. No physical injuries resulted from the drownproofing exercise. The accused’s ruse was eventually discovered, and on 5 October 1993 he was apprehended.

II.

The appellant contends the foregoing facts do not present a legally sufficient basis on which to uphold appellant’s conviction for this offense because the underlying premise of the charge was that mere words are sufficient to constitute an assault.4 Appellant’s brief at 3. In assessing the merit of that claim, we apply the following principles:

(1) An accused may not enter inaccurate, inconsistent, improvident, or uninformed pleas of guilty, and the military judge may not permit the accused to do so. UCMJ art. 45, 10 U.S.C. § 845 (1988); see United, States v. Schwabauer, 37 M.J. 338 (C.M.A.1993).

(2) Therefore, before the military judge may accept the accused’s pleas of guilty, the military judge must personally inquire of the accused as to the factual basis for the plea. R.C.M. 910(e), (e); Care, 40 C.M.R. at 253; see also United States v. Craney, 23 C.M.A. 519, 50 C.M.R. 658,1 M.J. 142 (1975); United States v. Daniels, 39 M.J. 789 (N.M.C.M.R.1993).

(3) The facts revealed by the accused must objectively support the plea. Schwabauer, 37 M.J. at 341 (citing United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980)).

(4) The accused’s statements are taken at face value for this purpose. United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976).

(5) The accused’s legal conclusions alone are insufficient. United States v. Howajrah, 40 M.J. 672, 674 (N.M.C.M.R. 1994); United States v. Dunning, 40 M.J. 641, 645 (N.M.C.M.R.1994) (citing cases).

(6) Inconsistencies and apparent defenses must be resolved by the military judge, or the guilty pleas must be rejected. JeTurnings, 1 M.J. at 418; United States v. Dunbar, 20 C.M.A. 478, 43 C.M.R. 318, 1971 WL 12785 (1971); United States v. Jackson, 23 M.J. 650 (N.M.C.M.R.1986), petition denied, 24 M.J. 405 (C.M.A.1987).

(7) The military judge is not required to ferret out or negate all possible inconsistencies or defenses. Rather, the military judge is required to deal with potential issues raised during the providence inquiry or trial that indicate an inconsistency or a defense. Jackson, 23 M.J. at 652.

(8) When the accused’s responses reasonably raise the question of a defense, the *631military judge must make a more searching inquiry. United States v. Timmins, 21 C.MA. 475, 45 C.M.R. 249, 1972 WL 14168 (1972).

(9) A military court of criminal appeals may not set aside a finding of guilty on the basis of an error of law unless the error is materially prejudicial to the substantial rights of the appellant; therefore, it will not set aside a finding of guilty based on a guilty plea unless “the record of trial shows a ‘substantial basis’ in law and fact for questioning the guilty plea.” United States v. Newsome, 35 M.J. 749, 751 (N.M.C.M.R.1992), aff'd, 38 M.J. 464 (C.M.A. 1993) (quoting United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)); UCMJ art. 59(a), 10 U.S.C. § 959(a) (1988).

(10) A military court of criminal appeals “will not engage in ‘post-trial speculation’ concerning the factual basis for guiliy pleas.” See United States v. McGowan, 41 M.J. 406, 410 (U.S. Armed Forces 1995) (quoting United States v. Harrison, 26 M.J. 474, 476 (C.M.A.1988)).

III.

Article 128 of the Code proscribes assault and battery. The following principles of law apply to this offense:5

(1) A battery is the unlawful application of force to the person of another. UCMJ art. 128, 10 U.S.C. § 928 (1988); Manual for Courts-Martial, United States, 1984 [MCM], Part IV, ¶ 54e(2); Rollin M. Perkins & Ronald M. Boyce, Criminal Law 152 (3d ed. 1982); 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.15 (1986); Model Penal Code § 211.1, cmt. 1, reprinted in ALI Model Penal Code and Commentaries at 174 (1980); see generally Lamb v. State, 93 Md.App. 422, 613 A.2d 402 (1992), cert. denied, 329 Md. 110, 617 A.2d 1055 (1993), and cited with approval in United States v. Anzalone, 41 M.J. 142, 145 (C.M.A.1994).

(2) The force must be applied intentionally or through culpable negligence. MCM, Part IV, ¶ 54c(2)(d).

(3) The force may be applied directly or indirectly. MCM, Part IV, ¶ 54c(2)(b); Perkins & Boyce, supra at 153-54; see United States v. Banks, 39 M.J. 571 (N.M.C.M.R. 1993), aff'd, 40 M.J. 320 (C.M.A.1994) (summary disposition).

(4) There even may be a battery when one creates a situation whereby the victim injures himself. LaFave & Scott, supra at § 7.15(b).

(5) It is immaterial that an accused does not intend to harm anyone, for neither malice nor anger is necessary for a battery. 2 Charles E. Torcía, Wharton’s Criminal Law § 178 (14th ed. 1979).

(6) Battery requires an injury or a touching. See United States v. Schoolfield, 40 M.J. 132, 136 (C.M.A.1994) cert. denied, — U.S. -, 115 S.Ct. 1162, 130 L.Ed.2d 1118 (1995); MCM, Part IV, ¶ 54c(l); LaFave & Scott, supra at § 7.14(a).

(7) The slightest touching of another is a battery if the touching is unlawful. Perkins & Boyce, supra at 152.

(8) A touching is unlawful if it is offensive or injurious and without legal justification, excuse, or privilege. Perkins & Boyce, supra at 153-54,156,158, Chapter 10, passim. For example, subject to important limitations, a touching may be done lawfully *632in combat, in self-defense, in defense of another, in defense of property, to prevent the commission or consummation of a crime, in the apprehension of a suspect, in administering parental discipline, in administering medical treatment, when permitted in authorized training exercises, in the course of sporting events, to attract the attention of another, or to prevent injury. MCM, Part IV, ¶ 17, 54e(2)(d); Perkins v. Boyce, supra at 153-54, 156, 158, Chapter 10, passim; LaFave & Scott, supra at §§ 5.5-5.10; Torcia, supra at §§ 186-88, 192, 194-96; R.C.M. 302(d)(3), 916(c) & discussion, (e); United States v. Robertson, 36 M.J. 190 (C.M.A.1992); United States v. Rankins, 34 M.J. 326, 328 (C.M.A.1992); United States v. Shepherd, 33 M.J. 66 (C.M.A.1991); United States v. Regalado, 13 C.M.A.480, 33 C.M.R. 12, 1963 WL 4805 (1963); United States v. Hamilton, 10 C.M.A. 130, 27 C.M.R. 204, 1959 WL 3593 (1959); United States v. Fitten, 39 M.J. 659 (N.M.C.M.R.1993), petition for review granted, 40 M.J. 40 (C.M.A.1994); cf. United States v. Renton, 8 C.M.A 697, 25 C.M.R. 201, 1958 WL 3113 (1958).

(9) In some situations, consent of the victim may render an otherwise unlawful touching, lawful; however, consent will not have such an effect if the consent: (1) is coerced; (2) obtained by fraud; (3) given by someone legally incapable of consenting to the touching; or (4) relates to a matter as to which consent will not be recognized as a matter of law. United States v. Greaves, 40 M.J. 432, 433 (C.M.A.1994), cert. denied, -U.S.-, 115 S.Ct. 907, 130 L.Ed.2d 790 (1995); Perkins & Boyce, supra at 154; see also United States v. Brantner, 28 M.J. 941 (N.M.C.M.R.), petition denied, 29 M.J. 314 (C.M.A.1989); United States v. Wilhelm, 36 M.J. 891 (A.F.C.M.R.1993).

(10) Consent of the victim is not recognized as a defense to battery when the conduct involves serious bodily injury; therefore, consent is never a defense to an aggravated battery. Brantner, 28 M.J. at 944.

(11) Fraud, whether fraud in the inducement or fraud in the factum., vitiates any defense of consent to a battery. Perkins & Boyce, supra at 1082; LaFave & Scott, supra at § 5.11; see also Brantner, 28 M.J. at 943.

(12) For an assault with a means likely to produce grievous bodily harm, it is not necessary that grievous bodily harm actually be inflicted. MCM, Part IV, ¶ 54c(4)(a)(iv); Brantner, 28 M.J. at 944.

(13) Whether means are likely to produce grievous bodily harm is not established by the subjective state of mind of the victim or assailant, but objectively. Brantner, 28 M.J. at 944.

(14) In order for means to be likely to produce grievous bodily harm, the harm need only be more than merely a fanciful, speculative, or remote possibility. United States v. Joseph, 37 M.J. 392, 396-97 (C.M.A. 1993); United States v. Johnson, 30 M.J. 53, 57 (C.M.A.), cert. denied, 498 U.S. 919, 111 S.Ct. 294, 112 L.Ed.2d 248 (1990).

IV.

Based on his own admissions, the appellant unlawfully applied force to the body of SN Avila, both directly and indirectly, by binding SN Avila’s hands and feet and causing Avila to jump into deep water. These acts were done intentionally by the appellant. SN Avila was physically touched by both the bonds and the water. It is immaterial whether the appellant was motivated by a desire to harm SN Avila, by public-spiritedness, by a quest for adventure, or by self-aggrandizement. The appellant admitted he was not qualified to undertake this exercise, and he admitted he had neither authority nor legal justification or excuse for his acts. He also admitted that SN Avila would not have consented to this activity had he known the true facts. Hence, the elaborate fraud he perpetrated vitiated any claim of consent, a claim which we recall is unavailable as to an aggravated assault in any case. Finally, the appellant admitted that the means he employed were likely to produce grievous bodily harm. Based on his admissions, those means were the bonds and deep water—not one in isolation of the other. His admissions on all counts were objectively reasonable. He said nothing in the trial that *633was inconsistent with these admissions. We take them at face value. His admissions are complete. We will not speculate on what responses the appellant might have given to questions not put to him. Nor will we speculate on what findings might have been entered following a not guilty plea and a trial of the facts. In short, we find no substantial basis in law or fact for questioning the appellant’s plea of guilty to Charge III, and his plea to that offense will not now be rejected.6

V.

The appellant had two prior nonjudieial punishments for bad check offenses. He embarked on the foregoing endeavor scarcely three days after a prior special court-martial for unauthorized absence. He masqueraded as a petty officer with special knowledge and training as a SEAL and a hospital corpsman. He affirmatively exploited this impersonation for his own benefit and subjected other military personnel to unwarranted danger. We find the dishonorable discharge entirely appropriate in his ease.

VI.

The findings of guilty and sentence, as approved on review below, are affirmed.

REED, Senior Judge, concurs.

. Oral argument was heard on this case at the United States Naval Academy on 1 March 1995.

.

I.

THE MILITARY JUDGE ERRED IN ACCEPTING APPELLANT’S PLEA OF GUILTY TO CHARGE III.

II.

A DISHONORABLE DISCHARGE IS AN INAPPROPRIATELY SEVERE PUNISHMENT FOR THESE OFFENSES.

. The record elsewhere reflects the appellant called himself "HM2 Jon Valjean.” Jean Valjean, pronounced zhan válzhán, is the protagonist in Victor Hugo's Les Miserables. The record suggests the appellant pronounced his name as Hugo’s fictional hero would have. Record at 39.

. Appellant has not asserted that Charge III fails to state an offense. R.C.M. 907(b)(1)(B). In any case, a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence. United States v. Watkins, 21 M.J. 208, 209 (C.M.A.1986). Additionally, the standing to challenge a specification for the first time on appeal will be considerably less when an accused has pled guihy. Id. at 210; see also United States v. Bryant, 30 M.J. 72 (C.M.A.1990). The appellant was not apparently misled by the specification, as drafted; the record will protect him from further prosecution for the same offense; and the specification is not so defective that it cannot within reason be construed to charge a crime. Therefore, the specification is sufficient to withstand challenge at this stage of the proceedings. See Watkins, 21 M.J. at 210.

. A case of assault may proceed under three theories: the assault was an attempted battery, a threatened batteiy, or a consummated battery. Rollin M. Perkins & Ronald M. Boyce, Criminal Law 151 (3d ed. 1982); see also United States v. Anzalone, 41 MJ. 142, 145 (C.M.A.1994); United States v. Schoolfield, 40 MJ. 132, 134 (C.M.A. 1994); cert. denied,-U.S.-, 115 S.Ct. 1162, 130 L.Ed.2d 1118 (1995). The parties suggest, and we agree, the first two may be ruled out. An attempted battery is an unconsummated battery. An attempted batteiy occurs when the accused intends, but fails, to inflict a batteiy. Manual for Courts-Martial [MCM], United States, 1984, Part IV, ¶ 54c(l)(b)(i); Perkins & Boyce, supra at 151. A threatened battery, sometimes referred to as an offer-type assault, is an unlawful demonstration of violence which creates in the mind of the victim a reasonable apprehension of receiving a batteiy. MCM, Part IV, ¶ 54c(l)(b)(ii); Perkins & Boyce, supra at 159-63. In this case the appellant apparently did exactly what he intended to do. He either inflicted the bodily harm he intended or he did not. The record also suggests no creation of apprehension. In other words, there was either a consummated batteiy or there was nothing at all.

. If an accused pleads guilty and during the providence inquiry his responses establish a different but closely-related offense having a similar maximum punishment, the guilty plea may be affirmed on review. United States v. Hubbard, 28 MJ. 203, 206 (C.M.A.1989); United States v. Epps, 25 MJ. 319, 323 (C.M.A.1987); United States v. Felty, 12 M.J. 438 (C.M.A.1982). Having concluded there is no substantial basis for rejecting the plea of guilty as to Charge III, we need not address whether the finding of guilty might be affirmed on the basis that the appellant’s responses established a closely related offense, such as reckless endangerment. See United States v. Woods, 28 M.J. 318 (C.M.A.1989); United States v. Reyes, 37 M.J. 579, 581 (N.M.C.M.R.), petition denied, 39 M J. 39 (C.M.A.1993); cf. United States v. Sadler, 29 MJ. 370, 375 (C.M.A.1990); United States v. Irvin, 21 M.J. 184, 189 n. 9 (C.M.A.1986); United States v. White, 39 M.J. 796, 808 n. 11 (N.M.C.M.R.1994); Md.Ann.Code art. 27, § 120 (1994).