United States v. Brinson

49 M.J. 360, 1998 CAAF LEXIS 1776, 1998 WL 955563

• Court: Court of Appeals for the Armed Forces
• Decided: September 30, 1998
• Docket: No. 97-1008; Crim.App. No. S29228
• Status: Published

Opinions

Opinion of the Court

SULLIVAN, Judge:

In February 1996, appellant was tried by a special court-martial composed of officer and enlisted members at Spangdahlem Air Base, Germany. Contrary to his pleas, he was found guilty of assault upon a security police officer (2 specifications), communicating a threat (2 specifications), communicating indecent language, and failure to go to his appointed place of duty, in violation of Articles 128, 134, and 86, Uniform Code of Military Justice, 10 USC §§ 928, 934, and 886, respectively. He was sentenced to a bad-conduct discharge (BCD), confinement for 90 days, and forfeiture of $583.00 pay per month for 3 months. On May 13, 1996, the convening authority approved this sentence. On May 12, 1997, the Court of Criminal Appeals affirmed the findings of guilty and the approved sentence.

On November 6, 1997, this Court granted review of the following issue:

WHETHER THE EVIDENCE FAILS TO SUPPORT THE CONVICTION FOR INDECENT LANGUAGE, WHERE THE LANGUAGE ALLEGED AND PROVEN IS NOT “INDECENT” UNDER THE LAW.

When the Government makes speech a crime, the judges on appeal must use an exacting ruler. Therefore, we hold that the evidence in the record is not legally sufficient to support appellant’s conviction for communicating indecent language. See United States v. French, 31 MJ 57, 60 (CMA 1990)(particular-eircumstances test); see also United States v. Adams, 49 MJ 182 (1998). Nevertheless, we also hold that this evidence is legally sufficient to sustain a finding that appellant’s words constituted disorderly conduct under Article 134. See United States v. Choate, 32 MJ 423, 427 (CMA 1991).

The evidence of record in this case shows the following. At approximately 0312 hours on November 26, 1995, Technical Sergeant (TSGT) Thomas Cleveland, a law enforcement specialist as well as a certified emergency medical technician (EMT), received an emergency call from a pregnant female complaining of severe abdominal pain. TSGT Cleveland responded to the third floor of Dorm 225. TSGT Cleveland had also requested the presence of a female security police officer, Senior Airman (SrA) Shannon Landow, to assist him.

While on the scene, TSGT Cleveland gathered some necessary medical information from the pregnant female. He relayed this information to the medics. Then TSGT Cleveland stepped out of the woman’s room with another soldier who attempted to use a cellular telephone.

TSGT Cleveland testified that he then “saw a black female coming backwards” at the end of the hallway “as if she had been shoved,” and “then she lunged , back.” He also “heard a lot of yelling and screaming.” The noise that TSGT Cleveland heard was a disagreement between appellant and his fiancée, Airman (AMN) Braley. Appellant and AMN Braley had just returned from the NCO Club and were having an argument over appellant’s relationship with another woman.

TSGT Cleveland testified that when he and SrA Landow approached the corner at which appellant and AMN Braley were located, he observed appellant and AMN Braley “grabbing ..., struggling, yelling and screaming and swearing at each other.” TSGT Cleveland also testified that he then identified himself and “instructed” appellant and AMN Braley “to separate.” Both appellant and AMN Braley, however, testified that they were not involved in a physical altercation at the time TSGT Cleveland approached them. Moreover, appellant testified that TSGT Cleveland did not initially identify himself.

According to TSGT Cleveland, he next asked appellant for his identification card but appellant refused to provide it; appellant, stated that he did not need to show his “fucking ID card.” Furthermore, TSGT Cleveland testified that AMN Braley then approached him and asked why they were “getting involved” in appellant’s and AMN Braley’s “business.” TSGT Cleveland “told” AMN Braley “to step back around” the corner with SrA Landow. He then requested appellant’s identification card again. Appellant’s alleged response was that the sergeant “was a white mother fucker” and that he “was always treating black people like niggers.”

After another request for appellant’s identification card, appellant allegedly responded “fuck off.” TSGT Cleveland then told appellant that he would apprehend him for assault and being “drunk and disorderly” if he did not provide identification. TSGT Cleveland testified that appellant stated “that he was going to kick my fucking white ass.”

Next, appellant allegedly “drew his right hand back in a closed fist” position and went towards TSGT Cleveland. TSGT Cleveland then used a Personal Apprehension Restraint Technique to apply one handcuff on appellant. When TSGT Cleveland attempted to put the right handcuff on appellant, AMN Braley approached him and grabbed his right arm and chest area. Appellant then “struck” TSGT Cleveland “in the right jaw with his elbow, snapping” TSGT Cleveland’s head and “almost knocking” him “off balance.” AMN Braley, however, testified that when she approached TSGT Cleveland and appellant, TSGT Cleveland “pushed” her “back.” AMN Braley stated that she then was merely attempting “to cover” appellant’s mouth in order to “calm him.”

TSGT Cleveland testified that next he applied the right handcuff to appellant and “pushed” appellant “into the wall and told him to stay there” because SrA Landow “was having trouble restraining the female.” AMN Braley was “struggling and fighting” with SrA Landow and “grabbing her in the abdomen and in the pubic area, and trying to pinch her and fight her and kick at her. She was also calling Landow a bitch and calling [TSGT Cleveland] a mother fucker.”

TSGT Cleveland also provided the following testimony:

As I was taking him down the steps, he was telling me that I was a motherfucker, a son of a bitch. If he could get the handcuffs off, he’d kick my ass. I got him out to the parking lot. I told him to lean over the hood of the car, and he told me to fuck off and that he was going to kick my white fucking ass. I applied pressure, and I made him — forced him onto the hood of the car.

(Emphasis added.)

TSGT Cleveland testified further that when he and SrA Landow were escorting AMN Braley down the steps, he witnessed appellant kick Airman First Class (A1C) Smith “in the right kneecap area with his left foot.” TSGT Cleveland then “ran over to help” A1C Smith and, as he did, appellant “struck” TSGT Cleveland “just below the left kneecap with an outward motion with his right foot.”

TSGT Cleveland then recounted the following:

While we were cuffing [appellant] was telling me that he was — if he could get out of the irons, that he was going to kick my fucking ass. Then later he was telling me that it was cold, to take the leg shackles off; that he would walk to the car. Then in the very next breath while he was struggling against the shackles, that he was going to kick my ass.

[Appellant] ... looked up at Sergeant Crosby. As I was opening the car doors before they picked him up, he told Sergeant Crosby that if he could get the handcuffs and leg shackles off of him that he would kick his ass.

[Appellant] told Sergeant DeVries not to point his weapon at him; and Sergeant DeVries explained to him that his weapon was slung barrel down and that his weapon wasn’t pointing at him, his barrel was on the ground. He was looking at Sergeant DeVries and Sergeant Crosby and calling them mother fuckers and son of a bitches.

We put him in the patrol car. Airman Landow and Airman Kriger, after they got the shoes for the female, they retrieved Airman Brinson’s ID card and the young lady’s ID card and transported them to the Law Enforcement Desk.

Appellant testified on his own behalf. In general, he stated that he either did not remember using “profanity” or making threats, or that he did not in fact say the things other witnesses had alleged. Appellant admitted, however, that “depend[ing] on the circumstances” he would use profanity and that he did use “some profanity” the night of the arrest. Moreover, appellant stated that he called' TSGT Cleveland something to the effect of a “white fucking,” that he told TSGT Cleveland to “[g]et me the fuck off the ground. It’s cold. Take these fucking chains Off of me. I’m going to walk to the fucking car,” and that he told Staff Sergeant Crosby that he would “kick his ass.”

Appellant was found guilty of communicating indecent language as follows:

In that [appellant] did, at Spangdahlem Air Base, Germany, on or about 26 November 1995, orally communicate to Technical Sergeant Thomas Cleveland, certain indecent language, to wit: “fuck you, you white mother fucker”; “get me the fuck off the ground; it’s cold; take these fucking chains off of me, I’m going to walk to the fucking car”; “white mother fuckers”; and “you can’t treat me like niggers,” or words to that effect.

The record contains ample evidence that appellant uttered these words while being arrested. The pertinent question in this case, however, is whether the shouting of such epithets at a law enforcement official by an arrestee during his arrest constitutes indecent language as a matter of criminal law in the military. See also United States v. Adams, supra (whether certain words said to arresting officer constituted provoking speech).

The crime of communicating indecent language is not particularly delineated in the Uniform Code of Military Justice. Article 134, however, provides:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

The President in the Manual for Courts-Martial identifies the use of indecent language as such a disorder in violation of Article 134. He denotes its elements as follows:

(1) That the accused orally or in writing communicated to another person certain language;

(2) That such language was indecent; and

(3) 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.

Para. 89b, Part IV, Manual for Courts-Martial, United States (1995 ed.). His explanation of this offense further provides:

“Indecent” language is that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought. Language is indecent if it tends reasonably to corrupt morals or incite libidinous thoughts. The language must .violate community standards.

Para. 89c (emphasis added).

This authority, however, does not stand alone in explaining what indecent language is for purposes of Article 134. In this regard, we note that we have previously had occasion to consider the meaning of “indecent” as a matter of criminal law. In United States v. French, 31 MJ 57 (1990), we evaluated the sufficiency of a specification alleging indecent language. There, the accused had asked his 15-year-old stepdaughter “if he could climb into bed with her.” At trial, he “argued that the language pleaded was not indecent per se.” Id. at 58. We rejected that argument and instead reaffirmed our own test to determine if language is indecent for purposes of this military criminal offense. That test is “whether the particular language is calculated to corrupt morals or excite libidinous thoughts.” Id. at 60 (emphasis added), quoting United States v. Linyear, 3 MJ 1027, 1030 (NCMR 1977), pet. denied, 5 MJ 269 (1978); see also United States v. Hullett, 40 MJ 189, 194 (CMA 1994)(Sullivan, C.J., and Crawford, J., dissenting).

“Calculate[d]” is generally understood to mean “intend[edj” or “plan[ned]” to bring about a certain result. See Webster’s Ninth New Collegiate Dictionary 196 (1991). A determination whether language was intended to corrupt morals or excite libidinous thoughts cannot be made in isolation from the other evidence in the record. Instead, we must examine the entire record of trial to determine the precise circumstances under which the charged language was communicated. Cf. Adams, 49 MJ at 185 (a provoking-words case observing that “all the circumstances surrounding use of the words should be considered”). As stated by Justice Holmes in Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919), “[T]he character of every act depends upon the circumstances in which it is done.”

In the instant case, the following circumstances existed when appellant uttered the charged epithets. First, he had been previously involved in an emotional argument with his fiancée concerning his relationship with another woman. Second, appellant was forcefully prevented by TSGT Cleveland from resolving his differences with his fiancée. Third, appellant resisted TSGT Cleveland in a manner which escalated into a physical altercation. Fourth, appellant was handcuffed by TSGT Cleveland against his will and by force.

In addition, we note that appellant’s fiancée was “struggling and fighting” with another law enforcement official only a short distance away from him. Moreover, appellant was escorted down the stairs and forced onto the hood of a patrol car, after becoming physically involved with yet another law enforcement official. Finally, appellant was “take[n] down” to the ground and placed in leg shackles connected to the handcuffs on his wrists. In these circumstances, appellant’s use of coarse language was clearly calculated or intended to express his rage, not any sexual desire or moral dissolution. See also United States v. Guerrero, 33 MJ 295, 298 (CMA 1991)(noting significance of circumstances in which conduct occurred for purposes of determining whether a service disorder occurred), cert. denied, 502 U.S. 1096, 112 S.Ct. 1173, 117 L.Ed.2d 418 (1992).

Nevertheless, neither criminal law, as applied in the military through the UCMJ, nor this Court will condone appellant’s scurrilous public denunciation of this law enforcement officer. We conclude that his conviction for the lesser-included offense of disorderly conduct is not only authorized but required. See Arts. 59(b) and 79, UCMJ, 10 USC §§ 859(b) and 879, respectively.

More particularly, appellant was charged with using indecent language in circumstances where it was prejudicial to good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces, in violation of Article 134. See para. 89, Part IV. Such a charge necessarily includes an allegation of a simple military disorder. See Choate, 32 MJ at 427 (indecent-exposure charge broad enough to include simple military-disorder offense); see generally para. 73c(2) (“Disorderly conduct ... includes conduct that endangers public morals or outrages public decency and any disturbance of a contentious or turbulent character.”). Moreover, this Court has held that even if there is a failure of proof of one of the required elements of a crime, an appellate court may still affirm a finding of guilty to a lesser-included offense which is supported by the evidence. See generally United States v. Patterson, 14 USCMA 441, 444, 34 CMR 221, 224 (1964). Accordingly, although the evidence in this case was insufficient to show the language was indecent, we still conclude that it was sufficient to establish the offense of disorderly conduct. See United States v. Choate, supra.

Finally, our holding today does not require a sentence reduction on appellant’s behalf. He was sentenced for numerous other offenses, including two assaults on security police officers and two specifications of communicating a threat. The modification of this relatively minor offense could not reasonably be considered outcome-determinative. In any event, the military judge ruled that the charges of communicating indecent language and communicating a threat were multiplicious for sentencing and that they should be treated as one offense for purposes of sentencing. Finally, the sentence that appellant received as a result of his outrageous course of conduct was well below the maximum authorized punishment for these various offenses, whether at a special court-martial (BCD and confinement for 6 months) or a general court-martial (dishonorable discharge, 6-7 years confinement). Art. 19, UCMJ, 10 USC § 819; see paras. 54e(6) and 109(e), Part IV, Manual, supra. Furthermore, reduction of the adjudged sentence in this context would seem improbable. Accordingly, appellant was not prejudiced as to sentence by the above error.

DECISION

The specification of Charge III is amended to read as follows:

In that [appellant] was, at or near Spangdahlem Air Base, Germany, on or about 26 November 1995, disorderly by orally communicating to Technical Sergeant Thomas Cleveland, certain language, to wit: “fuck you, you white mother fucker”; “get me the fuck off the ground; it’scold; take these fucking chains off of me; I’m going to walk to the fucking car”; “white mother fuckers”; and “you can’t treat me like niggers,” or words to that effect, which conduct was to the prejudice of good order and discipline in the armed forces.

(Underlined language added or revised.)

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to Charge III and its specification as amended, as well as to the remaining Charges and their specifications and the sentence.

Judge EFFRON concurs.