United States v. Barner

56 M.J. 131, 2001 CAAF LEXIS 1383, 2001 WL 1456295
CourtCourt of Appeals for the Armed Forces
DecidedNovember 16, 2001
Docket00-0431/AR
StatusPublished
Cited by438 cases

This text of 56 M.J. 131 (United States v. Barner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Barner, 56 M.J. 131, 2001 CAAF LEXIS 1383, 2001 WL 1456295 (Ark. 2001).

Opinions

Judge BAKER

delivered the opinion of the Court.

A general court-martial composed of officer and enlisted members convicted appellant, contrary to his pleas, of violating a lawful general regulation (seven specifications), assault consummated by a battery, adultery, indecent assault (four specifications), and obstruction of justice (two specifications), in violation of Articles 92, 128, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 928, and 934, respectively. He was sentenced to a dishonorable discharge, confinement for 4 years, total forfeitures, and reduction to grade E-l. The convening authority approved the sentence as adjudged, and the court below affirmed in a short-form, per curiam decision.

We granted review on the following issues, which relate only to the obstruction of justice offenses:1

I
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT A FINDING OF GUILTY OF SPECIFICATIONS 4 AND 5 OF ADDITIONAL [133]*133CHARGE V (OBSTRUCTION OF JUSTICE).
II
WHETHER SPECIFICATIONS 4 AND 5 OF ADDITIONAL CHARGE V MUST BE CONSOLIDATED AS ONE SPECIFICATION BECAUSE APPELLANT’S ALLEGED ACTS CONSTITUTED ONE VIOLATION OF A SINGLE PROVISION OF MILITARY LAW PROHIBITING OBSTRUCTION OF JUSTICE; CONSOLIDATION IS CONSISTENT WITH THIS COURT’S OPINION IN UNITED STATES V. GUERRERO, 28 MJ 223 (CMA 1989).

For' the reasons set forth, we resolve both issues adversely to appellant and affirm.

FACTUAL BACKGROUND

Appellant was the senior drill sergeant in the 2nd platoon of Alpha Company (A CO), 1st Battalion, 61st Infantry Regiment (1/61) at Fort Jackson, South Carolina. Over the span of three training cycles from July 1995 until April 1996, appellant engaged in a variety of unlawful and inappropriate contact with female trainees under his supervision.2 As a drill instructor, he was precluded by regulations from having personal relationships with the trainees. His misconduct went unreported until a trainee came forward and reported him to authorities.

Private (PVT) Qulandus Green was a trainee in the 1st platoon of appellant’s company in March 1996. On the evening of April 11, 1996, after PVT Green concluded her Charge of Quarters (CQ) duties, appellant followed her into the female sleeping bay. He intentionally rubbed his hand across PVT Green’s hair and breast. Upset, PVT Green rushed to the latrine, where she told PVT Luciana Mitchell of appellant’s actions. PVT Green also reported the incident to her mother that evening during a telephone call. The next day, PVT Green and PVT Mitchell reported the incident to their drill instructor, Sergeant First Class (SFC) Randy Bell.

SFC Bell testified that while he was discussing the incident with the two Privates, appellant arrived, at which point Bell excused the Privates and sent them to the CQ lounge. He then informed appellant of the allegation made against him by Green and Mitchell. Upon hearing this, appellant asked Bell if he could speak with the two Privates, and Bell reluctantly allowed him to do so.

Green testified that when appellant met with her and Mitchell in the lounge, he apologized and implored her “not to tell.” He also suggested that by pursuing her report, she would, in his words, be helping the “white man” who was “trying to destroy him.” Bell’s testimony, which is consistent with Green’s, is that when he joined the meeting in the lounge, he heard enough of the conversation to conclude that appellant “was trying to change the story.” As for appellant’s references to race, Bell characterized appellant’s statements to Green as “us as blacks, had to stick together,” because “the white [drill instructor] cadre were against the black cadre.” Shortly after hearing this, Bell terminated the meeting between appellant and the two Privates and reported Green’s allegation to the first sergeant of A CO.

Green also testified that about “two to three days later,” appellant approached her in the breezeway and continued his efforts to dissuade her from pursuing her allegation. PVT Mitchell was apparently not present during this encounter. On this occasion, Green stated that, among other things, appellant told her, “I’ll do anything, if you don’t tell.”

Mitchell testified to yet another encounter some time after the meeting in the CQ lounge wherein she and Green were called to appellant’s office while they were on kitchen police duty. In a further attempt to dissuade Green, appellant again raised the specter of race by stating that “they wanted him out” because “they didn’t want any blacks here.” According to Mitchell, appellant then directed his attention to her and asked if she would be willing to “write a statement against [134]*134Green,” and indicated he could get other soldiers to say that Green was a liar.

Appellant’s efforts were obviously unsuccessful and resulted in the two obstruction offenses of which he stands convicted.

ISSUE I

Appellant claims that the evidence is insufficient as a matter of law. The nature of such a claim requires us to examine the record to determine “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Turner, 25 MJ 324 (CMA 1987). Further, in resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution. United States v. Rogers, 54 MJ 244, 246 (2000); United States v. Blocker, 32 MJ 281, 284 (CMA 1991).

Paragraph 96b, Part IV, Manual for Courts-Martial, United States (1995 ed.),3 lists the elements of obstructing justice under Article 134 as follows:

(1) That the accused wrongfully did a certain act;
(2) That the accused did so in the case of a certain person against whom the accused 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) That, 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.

Appellant’s claim is that the evidence is insufficient as to all of the elements of both offenses.

Appellant relies on United States v. Asfeld, 30 MJ 917 (ACMR 1990), and to a lesser extent, United States v. Gray, 28 MJ 858 (ACMR 1989), to support his contention that his statements were not wrongful because they were no more than an attempt to conceal his misconduct by limiting other people’s knowledge of his illicit activities, and he did not request an affirmative act by the Privates, which would amount to an interference with or obstruction of the due administration of justice.

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Cite This Page — Counsel Stack

Bluebook (online)
56 M.J. 131, 2001 CAAF LEXIS 1383, 2001 WL 1456295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-barner-armfor-2001.