United States v. Hunt

PUBLISHED OPINION OF THE COURT

REISMEIER, Chief Judge:

A special court-martial composed of members convicted the appellant, contrary to his pleas, of attempted disobedience of a lawful general order, disobedience of a lawful order, and communication of a threat in violation of Articles 80, 90, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 890, and 934. The appellant was sentenced to confinement for 175 days, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority (CA) approved the sentence as adjudged. The appellant’s sole assigned error is that the specification alleging the communication of a threat failed to state an offense because the specification does not expressly allege the terminal element. We disagree.

Whether a specification states an offense is a matter we review de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.2006). A specification states an offense if it alleges every element of the offense, either expressly or by necessary implication. United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F.2012); United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F.2011); Crafter, 64 M.J. at 211; RULE FOR COURTS-MARTIAL 307(c)(3), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.). When a specification does not expressly allege an element of the intended offense, appellate courts must determine whether the terminal element was necessarily implied. Fosler, 70 M.J. at 230. The interpretation of a specification in such a *539manner as to find an element was alleged by necessary implication is disfavored. Ballan, 71 M.J. at 33. Nonetheless, the law still remains that there is no error when a specification necessarily implies all the elements of an offense.

The specification at issue reads as follows: In that Corporal Kalvin D. Hunt, U.S. Marine Corps, Marine All Weather Fighter Attack Squadron 225, Marine Aircraft Group 11, Third Marine Aircraft Wing, Marine Corps Air Station Miramar, California, on active duty, did, at Naval Medical Center, San Diego, California, on or about 8 July 2010, wrongfully communicate to Lieutenant [H], U.S. Navy, a threat, by saying to him, “You better back the [fxxk] up Lieutenant, or I’ll kick your ass too,” or words to that effect.

The specification alleges a violation of Article 134 by communicating a threat. The statutory elements of this offense are: (1) the appellant did or failed to do certain acts and (2) under the circumstances, the appellant’s conduct was either prejudicial to good order and discipline in the armed forces [a clause (1) offense ], of a nature to bring discredit upon the armed forces [a clause (2) offense ], or constituted a noncapital offense [a clause (3) offense ]. See Fosler, 70 M.J. at 228-30; United States v. Medina, 66 M.J. 21, 24-26 (C.A.A.F.2008). The MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part IV, ¶ 110b, further defines this particular offense in this case as follows: (1) the accused communicated certain language expressing a present determination or intent to wrongfully injure another person, presently or in the future; (2) the communication was made known to the person threatened, or a third party; (3) the communication was wrongful; and (4) under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Looking to the plain language contained within the four corners of the specification, we are unable to conclude that the specification alleges the terminal element expressly or by necessary implication. See United States v. Nealy, 71 M.J. 73, 77-79 (C.A.A.F. 2012). However, consistent with Nealy, having found error, we will test for prejudice.

The appellant has the burden of demonstrating prejudice. Ballan, 71 M.J. at 34 n. 6 (citing United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F.2011)). On this record, the appellant has failed to meet that burden. In fact, we can discern nothing from this record other than full awareness as to the crime alleged and the elements supporting that crime. There was no request for a bill of particulars, no argument as to whether the elements were supported, no surprise stated or objection raised when the elements were provided to the members in instructions before counsel arguments, no confusion or indication that the defense was misled by the pleadings, and no claim, prior to the pleadings before this court, that the specification was in any way defective. Proof of prejudice, in the air, so to speak, is insufficient to support a conclusion that the plain error test has been satisfied. Were we to conclude otherwise, we would be forced to embrace a presumption of prejudice because of speculation that, perhaps, a different trial tactic may have been employed, or a different trial scenario might have taken shape but for the error, a conclusion wholly unsupported in the law of plain error.

For these reasons, the specification was defective because it failed to articulate the elements of the offense, either explicitly or by necessary implication. The error was plain and obvious, as this case is before us on direct appeal after the Court of Appeals for the Armed Forces’ opinion in Fosler. However, we find no prejudice to the appellant, and decline to grant relief under our broader authority resting within Article 66(c), UCMJ, 10 U.S.C. § 866(c).

The findings and sentence are affirmed.