United States v. Outhier

42 M.J. 626, 1995 CCA LEXIS 111, 1995 WL 137457
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMarch 31, 1995
DocketNo. NMCM 94 01468
StatusPublished
Cited by2 cases

This text of 42 M.J. 626 (United States v. Outhier) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Outhier, 42 M.J. 626, 1995 CCA LEXIS 111, 1995 WL 137457 (N.M. 1995).

Opinions

MOLLISON, Senior Judge:

The principal issue in this appeal from a general court-martial conviction is whether the appellant’s plea of guilty to aggravated [629]*629assault was providently entered. We conclude that it was and affirm.

The appellant was tried by general court-martial on 8 February 1994. Pursuant to a pretrial plea bargain, the appellant pled guilty to eight violations of the Uniform Code of Military Justice [UCMJ], including assault with a means or force likely to produce death or grievous bodily harm. UCMJ art. 128(b), 10 U.S.C. § 928(b) (1988). A military judge sitting alone accepted the appellant’s pleas of guilty and sentenced him to confinement for 2 years, forfeiture of all pay and allowances, reduction to pay grade E-l, and a dishonorable discharge. The convening authority approved the sentence; however, he suspended all confinement from the date of his action, 1 June 1994. The appellant’s case was automatically appealed to this court for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866 (1988) ,1

The appellant assigns two errors on appeal.2 He contends the military judge erred in accepting his plea of guilty to Charge III, alleging aggravated assault. He also contends the dishonorable discharge is inappropriately severe. The appellant seeks dismissal of Charge III and mitigation of his dishonorable discharge to a bad-conduct discharge.

I.

The Specification of Charge III alleges the following:

In that Private First Class Richard G. Outhier, U.S. Marine Corps, ... did, at Naval Station, Annapolis, Maryland, on or about 24 September 1993, commit an assault upon OCSN Anthony R. Avila, U.S. Navy, by telling him that he, Private First Class Outhier, was a qualified and certified Navy SEAL and Hospital Corpsman, that he was an expert in “drownproofing” techñiques, and wrongfully establishing a situation wherein OCSN Avila believed that he could rely upon Private First Class Outhier’s training, experience, and qualifications to put his life in his hands, thereafter caused OCSN Avila, trusting Private First Class Outhier’s presence, to jump into deep water with his hands and feet bound and become helpless to swim or survive in the water, a means or force likely to produce grievous bodily harm, to-wit: drowning.

Before accepting the appellant’s pleas of guilty, the military judge examined the appellant as required by Rule for Court-Martial [R.C.M.] 910 and United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247,1969 WL 6059 (1969). That examination reveals the following:

The accused, an E-2 in the Marine Corps, went on unauthorized absence from Camp Pendleton to settle some unspecified personal matters. He ended up in Annapolis, Maryland, because he was raised near there and was familiar with the area. On or about 22 September 1993, he reported to the United States Naval Academy and Naval Station, Annapolis, Maryland, posing as a Hospital Corpsman Petty Officer Second Class, named Jonathan Vincent Valjean.3 He claimed to be a member of a Navy SEAL team fresh from Somalia, sent to the Naval Academy to assist in recruiting Navy Seals. He wore a camouflage utility uniform with the insignia of an HM2 and a Navy SEAL. He attributed his inability to produce orders or an identification card to the fact that he had just returned from overseas and there were internal problems in his platoon. While still posing as HM2 Valjean, the accused became acquainted with a Seaman Avila of the Naval Station staff. On 24 September, the accused and SN Avila went to the [630]*630Naval Academy pool to swim. The accused told SN Avila that he was a Hospital Corpsman and a certified Navy SEAL and that he was an expert in “drownproofing techniques,” which he then undertook to teach to SN Avila. To do this, the appellant bound SN Avila’s hands and feet, and SN Avila entered the pool in deep water. The accused admitted that he had no permission to do this exercise, that he was not qualified to do it, and that he had no legal justification or excuse for doing it. He also admitted that he caused SN Avila to rely on his claimed training, experience and qualifications, and thus caused SN Avila to place his life in the accused’s hands by jumping bound hand and foot into deep water, where SN Avila was helpless to swim or survive. Finally, the accused admitted that SN Avila would not have agreed to do this exercise had he been informed of the true situation and that under the circumstances the accused created a means or force likely to cause grievous bodily harm, drowning. No physical injuries resulted from the drownproofing exercise. The accused’s ruse was eventually discovered, and on 5 October 1993 he was apprehended.

II.

The appellant contends the foregoing facts do not present a legally sufficient basis on which to uphold appellant’s conviction for this offense because the underlying premise of the charge was that mere words are sufficient to constitute an assault.4 Appellant’s brief at 3. In assessing the merit of that claim, we apply the following principles:

(1) An accused may not enter inaccurate, inconsistent, improvident, or uninformed pleas of guilty, and the military judge may not permit the accused to do so. UCMJ art. 45, 10 U.S.C. § 845 (1988); see United, States v. Schwabauer, 37 M.J. 338 (C.M.A.1993).

(2) Therefore, before the military judge may accept the accused’s pleas of guilty, the military judge must personally inquire of the accused as to the factual basis for the plea. R.C.M. 910(e), (e); Care, 40 C.M.R. at 253; see also United States v. Craney, 23 C.M.A. 519, 50 C.M.R. 658,1 M.J. 142 (1975); United States v. Daniels, 39 M.J. 789 (N.M.C.M.R.1993).

(3) The facts revealed by the accused must objectively support the plea. Schwabauer, 37 M.J. at 341 (citing United States v. Davenport, 9 M.J. 364, 367 (C.M.A.1980)).

(4) The accused’s statements are taken at face value for this purpose. United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976).

(5) The accused’s legal conclusions alone are insufficient. United States v. Howajrah, 40 M.J. 672, 674 (N.M.C.M.R. 1994); United States v. Dunning, 40 M.J. 641, 645 (N.M.C.M.R.1994) (citing cases).

(6) Inconsistencies and apparent defenses must be resolved by the military judge, or the guilty pleas must be rejected. JeTurnings, 1 M.J. at 418; United States v. Dunbar, 20 C.M.A. 478, 43 C.M.R. 318, 1971 WL 12785 (1971); United States v. Jackson, 23 M.J. 650 (N.M.C.M.R.1986), petition denied, 24 M.J. 405 (C.M.A.1987).

(7) The military judge is not required to ferret out or negate all possible inconsistencies or defenses. Rather, the military judge is required to deal with potential issues raised during the providence inquiry or trial that indicate an inconsistency or a defense. Jackson, 23 M.J. at 652.

(8) When the accused’s responses reasonably raise the question of a defense, the [631]*631military judge must make a more searching inquiry. United States v. Timmins,

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United States v. Gutierrez
74 M.J. 61 (Court of Appeals for the Armed Forces, 2015)
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45 M.J. 326 (Court of Appeals for the Armed Forces, 1996)

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Bluebook (online)
42 M.J. 626, 1995 CCA LEXIS 111, 1995 WL 137457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-outhier-nmcca-1995.