United States v. Fetherson

8 M.J. 607, 1979 CMR LEXIS 562
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedNovember 13, 1979
DocketNCM 78 0434
StatusPublished
Cited by2 cases

This text of 8 M.J. 607 (United States v. Fetherson) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fetherson, 8 M.J. 607, 1979 CMR LEXIS 562 (usnmcmilrev 1979).

Opinion

GREGORY, Judge:

Contrary to his pleas, appellant stands convicted of being disrespectful in language to a superior noncommissioned officer (two specifications), violation of a lawful general order by possessing and consuming an alcoholic beverage in a bachelor enlisted quarters building, and assault on a noncommissioned officer, in violation of Articles 91, 92, and 128, Uniform Code of Military Justice (UCMJ), respectively. The sentence approved on review below provides for a bad-conduct discharge, confinement at hard labor for 3 months, and reduction to pay grade E-1. We previously returned the record of trial for compliance with the mandates of United States v. Goode, 1 M.J. 3 (C.M.A.1975), and United States v. Iverson, 5 M.J. 440 (C.M.A.1978). See United States v. Fetherson, No. 78 0434 (NCMR 18 December 1978).

Appellant now assigns the following errors for our consideration:

I
THE APPELLANT’S CONVICTION OF CHARGE IV AND ITS SPECIFICATION CANNOT STAND IN THAT THE GOVERNMENT’S EVIDENCE FAILS TO ESTABLISH THAT THE “VICTIM” WAS ACTING LAWFULLY IN REGARDS TO HIS ATTEMPT TO CONFINE THE APPELLANT.
II
INASMUCH AS THE SUPERVISORY AUTHORITY DISAPPROVED THE FINDINGS AS TO THE ELEMENTS OF ‘KNOWLEDGE OF SUPERIOR NCO’S RANK’ AND ‘THAT THE SUPERIOR NCO WAS IN THE EXECUTION OF HIS OFFICE,’ THE FINDINGS OF GUILTY AS TO SPECIFICATIONS 1 AND 2 UNDER CHARGE II CANNOT STAND.
III
. THE APPELLANT’S CONVICTION OF CHARGE II, SPECIFICATION 1, CANNOT STAND.
IV
THE GOVERNMENT’S EVIDENCE FAILS TO SUSTAIN THE APPELLANT’S GUILT BEYOND A REASONABLE DOUBT OF CHARGE III AND THE SPECIFICATIONS THEREUNDER.

We do not concur in the assignments of error and we affirm.

I

In the specification under Charge IV, appellant is alleged to have kicked a Sergeant Anderson. Appellant argues that the evidence fails to establish that he was not merely resisting an illegal apprehension. See United States v. Rozier, 1 M.J. 469 (C.M.A.1976); United States v. Nelson, 17 U.S.C.M.A. 620, 38 C.M.R. 418 (1968); United States v. Clansey, 7 U.S.C.M.A. 230, 22 C.M.R. 20 (1956).

The record of trial reveals that Sergeant Anderson was apprehending appellant at the direction of the Company Gunnery Sergeant in order to place appellant in correctional custody. Appellant had received seven days correctional custody at office hours on 2 February 1977; he had, however, appealed his punishment. Section OlOle (2) of the Manual of the Judge Advocate General proscribes the restraining of an individual who has appealed his nonjudicial punishment until such time as the appeal has been acted upon. It was stipulated at trial that appellant’s appeal was denied on 16 February 1977, the date on which the apprehension by Sergeant Anderson also occurred. The Company Gunnery Sergeant, the only [609]*609prosecution witness as to this alleged offense, was not asked, however, whether there was knowledge of the denial of the appeal at the time of apprehension.

Although there was no direct evidence that all parties were aware that appellant’s appeal of nonjudicial punishment had been denied prior to Sergeant Anderson’s attempted apprehension of appellant, there was more than adequate circumstantial evidence introduced to support the military judge’s conclusion that this was the case. For this reason, we concur in the military judge’s obvious finding that the apprehension was lawful.

Furthermore, even assuming that the apprehension might not have been lawful, we find no justification for the actions of appellant in kicking Sergeant Anderson. The facts of this case are easily distinguished from those of United States v. Rozier, supra, where the appellant was not only resisting an illegal apprehension but was also responding to a “brutal and needless assault.” In the instant case, Sergeant Anderson was merely conducting a routine search of appellant incident to the apprehension. Even if this apprehension had been illegal, it would not authorize appellant to respond in turn by assaulting Sergeant Anderson or by using provoking speech or gestures. See United States v. Lewis, 7 M.J. 348 (C.M.A.1979). Cf. United States v. Richardson, 7 M.J. 320 (C.M.A.1979); United States v. Clansey, supra.

The evidence supports the findings of guilty as to the alleged assault on Sergeant Anderson.

II

Specifications 1 and 2 under Charge II allege violations of Article 91, UCMJ, in that appellant was disrespectful in language toward a Corporal Ferrebee on 15 February 1977 and toward a Staff Sergeant Butson on 8 March 1977. These specifications properly allege that appellant knew Corporal Ferrebee and Staff Sergeant But-son to be his superior noncommissioned officers and to be in the execution of their office at the time of the offenses.

In his action on the record of trial, the supervisory authority stated that:

[O]nly so much of the finding of guilty of specification 1 of Charge II is approved as finds that the accused was, at Marine Corps Base, Camp Pendleton, Calfornia, on the date alleged, disrespectful in language toward Corporal E. R. FERREBEE, U. S. Marine Corps; and only so much of the finding of guilty of Specification 2 of Charge II is approved as finds that the accused was, at Marine Corps Base, Camp Pendleton, California, on the date alleged, disrespectful toward Staff Sergeant G. BUTSON. . . .

Appellant asserts that the supervisory authority, by his action, impliedly disapproved two essential elements of the alleged offenses, that is, knowledge of the rank of the two noncommissioned officers and the requirement that these noncommissioned officers be in the execution of their office.

The action of the supervisory authority is inartfully drawn and does generate some ambiguity. Such ambiguity is dispelled, however, by reference to the post-trial review of the staff judge advocate, and the obvious intent of the supervisory authority then becomes clear.

The staff judge advocate, in his review, noted that the specifications alleged that the offenses occurred at Buildings 2242 and 22211, Marine Corps Base, Camp Pendleton, California, respectively. He indicated that the evidence did not support the allegation of these specific buildings, and he recommended the findings as to the specifications be approved, except for the words and figures “Building 2242” and “Building 22211.” (SJAR 11,13, 21). He also recommended a modification to the findings as to another specification and a specific reduction in the adjudged sentence. (SJAR 21).

Closer examination of the supervisory authority’s action reveals that he followed the recommendation of his staff judge advocate completely. He modified the findings to indicate the location in each instance merely to be “Marine Corps Base, Camp Pendle-ton, California.” The supervisory authority [610]*610also followed the recommendation of his staff judge advocate as to the findings as to the specification under Charge IV and the sentence.

We will interpret the action of the supervisory authority to give effect to his obvious intention. United States v. Nastro, 7 U.S.C.M.A. 373, 22 C.M.R. 163 (1956).

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