United States v. Johnson

61 M.J. 195, 2005 CAAF LEXIS 729, 2005 WL 1606015
CourtCourt of Appeals for the Armed Forces
DecidedJuly 8, 2005
Docket04-0611/AF
StatusPublished
Cited by12 cases

This text of 61 M.J. 195 (United States v. Johnson) 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. Johnson, 61 M.J. 195, 2005 CAAF LEXIS 729, 2005 WL 1606015 (Ark. 2005).

Opinions

Judge CRAWFORD

delivered the opinion of the Court.

Contrary to her pleas, Appellant was convicted by a general court-martial of officer and enlisted members of two specifications of assault consummated by battery, one specification of assault on a security forces member in the execution of her duties, and two specifications of assault with intent to commit voluntary manslaughter, in violation of Afi-eles 128 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 128, 134 (2000), respectively. The convening authority approved the adjudged sentence of confinement for fourteen years, forfeiture of all pay and allowances, reduction to E-l, and a dishonorable discharge.

[196]*196The United States Air Force Court of Criminal Appeals found both the findings and sentence correct in law and fact, but reduced the confinement to ten years. United States v. Johnson, No. ACM 34889, 2004 CCA LEXIS 133, 2004 WL 1238955 (A.F.Ct.Crim. App. May 21, 2004). On November 16, 2004, this Court granted review of the following issue:

WHETHER THE LOWER COURT AND MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR A NEW TRIAL.

For the reasons discussed below, we hold that neither the military judge nor the Court of Criminal Appeals erred, and we affirm.

FACTS

We accept and incorporate the lengthy but critical factual account of the court below:

The appellant was stationed at Spang-dahlem Air Base, Germany, and assigned to the 52d Equipment Maintenance Squadron. She met Airman First Class (A1C) Amy Wheeler, a security forces member, and they began a lesbian relationship that lasted about one year. The relationship was turbulent, resulting in arguments and physical confrontations. When A1C Wheeler tried to end the relationship in January 2000, the appellant took an overdose of pills in an apparent suicidal gesture. Thereafter, they resumed their relationship.
A1C Wheeler served at a deployed location between May and September 2000. Upon her return, A1C Wheeler broke off the affair with the appellant. In late September 2000, A1C Wheeler met Airman (Amn) Nichole Wesolowski, another security forces member, and they became friends. The appellant suspected that A1C Wheeler was romantically involved with Amn Wesolowski, and was jealous and angry. This led to the two incidents that formed the basis for the charges in this case.
The first incident occurred in A1C Wheeler’s dormitory room in late September or early October 2000. The appellant was upset about A1C Wheeler’s relationship with Amn Wesolowski. They argued and the appellant choked A1C Wheeler. This incident formed the basis for one specification of assault consummated by a battery on A1C Wheeler.
The appellant made another suicidal gesture in October 2000. A1C Wheeler found her when she returned a vehicle to the appellant’s home and got medical assistance. As a result, the appellant faced administrative discharge from the Air Force.
The second incident occurred at the armory in the early morning hours of 21 October 2000. Amn Wesolowski was visiting A1C Wheeler, who was on duty as the armorer for the security forces squadron, responsible for safeguarding and issuing small arms. The appellant called A1C Wheeler and they argued. The appellant went to the armory, and a physical altercation ensued between the appellant, A1C Wheeler, and Amn Wesolowski. The appellant attempted to take A1C Wheeler’s handgun but was unsuccessful. She then seized a handgun from the storage racks, inserted a loaded magazine, chambered a round, and pointed the weapon at A1C Wheeler and Amn Wesolowski. A1C Wheeler aimed her service weapon at the appellant and warned her repeatedly to drop the gun. The appellant did not comply. A1C Wheeler shot the appellant in the leg, incapacitating her.
At the outset of the trial, it was apparent that the relationships between the appellant, A1C Wheeler, and Amn Wesolow-ski would be matters of concern. The government acknowledged that the nature of the relationship between A1C Wheeler and the appellant would be relevant, but moved to keep out evidence of specific acts, to which the defense agreed. The government also moved to exclude evidence of the relationship between A1C Wheeler and Amn Wesolowski. The defense maintained that it was relevant and necessary to show bias under Mil. R. Evid. 608(c). The military judge agreed, and [197]*197allowed the defense to explore the nature of the relationship generally.
The evidence presented at trial included testimony about these relationships. A1C Wheeler testified about her lesbian relationship with the appellant and the disputes between them. The cross-examination of A1C Wheeler focused on her lesbian affair with the appellant. The trial defense counsel asked A1C Wheeler if she started dating Amn Wesolowski “right after the incident at the armory,” but she denied it. A1C Wheeler denied kissing Amn Wesolowski, but explained that Amn Wesolowski tried to kiss her; she demurred and Amn Wesolowski kissed her on the cheek. She admitted that she and Amn Wesolowski had changed dormitory rooms to share adjoining rooms after the incident. Trial defense counsel’s cross-examination challenged Amn Wheeler extensively about false statements to investigators about her lesbian relationship, and alleged inconsistencies in her prior statements. The defense called as a witness A1C Jessica Ackerman, a security forces investigator, who related that Amn Wesolowski said she had started dating A1C Wheeler shortly after the armory incident.
Both parties rested on 4 May 2001. Due to conflicting commitments, the trial judge recessed the trial for three weeks. The proceeding resumed with oral arguments on findings on 29 May 2001.
During the recess, Air Force investigators looked into an allegation that A1C Wheeler had stolen a television belonging to the appellant. During the previous summer, the appellant agreed to purchase a television from another airman for $200.00. Delivery was an issue, because of conflicting leave and deployment schedules. They worked out an arrangement where the appellant mailed her check to the seller, who cashed it. Just before deploying, the seller left a note and his room key, inviting A1C Wheeler or the appellant to get the television from his room. When he returned in December, the television was gone and the key was returned, so the seller assumed all was in order. By then, the appellant was in pretrial confinement resulting from the incident at the armory. While making arrangements to store her property, the appellant realized the television was missing, and reported it stolen. On 10 May 2001, the investigators questioned A1C Wheeler about the missing television. She made a written statement denying any knowledge of its location.
Trial resumed on 29 May 2001 with arguments on findings. The court-martial found the appellant guilty as noted above, and the sentencing hearing followed. Both A1C Wheeler and Amn Wesolowski testified during the sentencing case concerning the impact of the offenses on them.
After trial, the investigators questioned Amn Wesolowski about the television. She indicated she helped A1C Wheeler move a television to a dormitory room.

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Cite This Page — Counsel Stack

Bluebook (online)
61 M.J. 195, 2005 CAAF LEXIS 729, 2005 WL 1606015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnson-armfor-2005.