United States v. Williamson

42 M.J. 613, 1995 CCA LEXIS 106, 1995 WL 137459

Opinions

LARSON, Chief Judge:

Pursuant to his pleas, the appellant was convicted of assault upon a superior petty officer in the execution of his office and of carrying a concealed weapon, in violation of Articles 91 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 891, 934, respectively. He was sentenced to confinement for 5 months, forfeiture of $500.00 pay per month for 5 months, reduction to pay grade E-l, and a bad-conduct discharge. The convening authority approved the sen tence and the case is now before us for review under Article 66, UCMJ, 10 U.S.C. § 866.

The appellant assigns three errors on review.¹ In his concurring opinion, Judge McLaughlin addresses the third assigned error; I concur with his resolution of that issue and will fashion the ultimate disposition of this case in accordance with his reasoning. The second assigned error is rejected as devoid of merit without further comment. As to the first assignment of error, we concur with the appellant’s position and find that the record did not establish an adequate factual basis for a finding of guilty to an attempt-type assault. Accordingly, we will set aside the findings of guilty to Charge II and the specification thereunder. Our reasoning is set forth below.

I.

The appellant was charged with assaulting his superior petty officer by “running after him with two knives with blades in excess of three inches exposed and yelling ‘I’m going to kill you.’ ” He pleaded guilty, by exceptions and substitutions, to assault by “going after him with two knives.” Although the appellant was charged under Article 91, UCMJ, the “assault” version of that offense is identical to that charged under the generic assault statute, Article 128, UCMJ, 10 U.S.C. § 928. Manual for Courts-Martial, United States, 1984 [MCM], Part IV, ¶ 15c(3). Under that article, this was an “attempt” type assault, vice an “offer” type. MCM, Part IV, ¶ 54c(l)(b). The key element of an attempt-type assault, and the one that concerns us here, is that the accused “attempted to do bodily harm” to the victim.

The military judge correctly tailored this element of the offense to conform to the appellant’s plea. He also defined an “attempt to do bodily harm” as an “overt act which amounts to more than mere preparation.” Record at 18. After the appellant agreed that the elements accurately described his conduct, the military judge then asked him to describe in his own words what happened. The appellant then set forth the following facts. He and the assault victim, Petty Officer First Class C, engaged in an argument in the engine room of their ship after which C left the engine room. The appellant, who already had one knife in his pocket, obtained a second knife from a shipmate, put that knife in his pocket, and proceeded out of the engine room in search of C about 3 minutes after C departed. His purpose was, in his own words, to “hurt Petty Officer [C].” Record at 20. He apparently went up a ladder and determined that C was not in the passageway. No other fact pertinent to this issue was developed on the record.

On appeal, the appellant argues that the inquiry is insufficient because it reveals that he was never in a position to effect a battery upon his victim. Specifically, there is no indication that, once he commenced his search, the appellant ever actually approached C or that the appellant ever removed the knives from his pockets. The Government counters with the argument that the appellant’s acts of obtaining an extra knife and proceeding to a location where he expected to confront C went well beyond “mere preparation.”

II.

Rule for Courts-Martial [R.C.M.] 910(e) and United States v. Care, 18 C.M.A 535, 40 C.M.R. 247, 1969 WL 6059 (1969), require the military judge to elicit a factual basis for each element of the offense before he may accept the plea and enter a finding of guilty based upon the plea. United States v. Chambers, 12 M.J. 443 (C.MA.1982); United States v. Evans, 35 M.J. 754 (N.M.C.M.R. 1992). In response to an assertion on appeal that the factual basis for the plea is inade quate, we will search the record of trial to determine whether we have a substantial basis to question the providence of the plea. United States v. Newsome, 35 M.J. 749 (N.M.C.M.R.1992), aff'd, 38 M.J. 464 (C.M.A. 1993).

To determine whether the appellant’s acts were sufficient to amount to an attempt-type assault, we look to the law of attempt under Article 80, UCMJ, 10 U.S.C. § 880, and its interpretation in the Manual for Courts-Martial and the case law. An overt act is sufficient to constitute an attempt if it “goes beyond preparatory steps and is a direct movement toward the commission of the offense.” MCM, Part IV, ¶ 4c(2). Furthermore, the overt act must amount to a “substantial step” toward commission of the intended crime, and it must be an act that is strongly corroborative of the firmness of the accused’s criminal intent. United States v. Byrd, 24 M.J. 286 (C.M.A.1987); United States v. Mandujano, 499 F.2d 370 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); United States v. Wilmoth, 34 M.J. 739 (N.M.C.M.R.1991).

III.

In United States v. Anzalone, 41 M.J. 142 (C.M.A.1994), our superior Court found certain overt acts, that were similar in many respects to the acts in this case, to be sufficient to establish the providence of the accused’s guilty plea to an attempt-type assault. In that case, following a verbal confrontation with the victim, Anzalone retrieved his rifle, chambered a round of ammunition, and headed for the tent where he knew the victim to be. He was intercepted some 20-50 yards away from the victim by two other noncommissioned officers. Id. at 143. The Court concluded that Anzalone went beyond mere preparation, pointing specifically to the accused’s own admission, made during the Care inquiry, that he had done “all [he] could do” short of accomplishing the crime. Id. at 146.

There are two significant features of Anzalone that are not present in the record in this ease. Anzalone knew where his victim was, and he would have completed the assault if he had not been prevented from doing so by the intervention of the two noncommissioned officers. It is evident that these particular features were factors in the majority’s conclusion that Anzalone went beyond mere preparation. See also United States v. Church, 32 M.J. 70, 73 (C.M.A.) (where accused’s completion of all acts he believed necessary to complete contract murder of his wife held sufficient to constitute attempted murder), cert. denied, 501 U.S. 1231, 111 S.Ct. 2853, 115 L.Ed.2d 1021 (1991); United States v. Crocker, 35 C.M.R. 725, 1964 WL 4970 (A.F.B.R.1964) (accused’s act of advancing toward his intended victim with an open knife displayed at a time when an affray was imminent went beyond mere preparation). Even with these facts, the majority opinion by Judge Wiss prompted a strong dissent, in which Judge Gierke, joined by Judge Cox, labeled Anzalone’s acts as no more than an “attempted attempt,” which is not a crime. Anzalone, 41 M.J. at 149 (Gierke, J., dissenting with Cox, J., concurring). See also Lamb v. State, 93 Md.App. 422, 613 A.2d 402 (1992) (lengthy discussion of law of attempt which concludes that there is no such crime as an attempted attempt-type assault), cert. denied, 329 Md. 110, 617 A-2d 1055 (1993).

We do not read Anzalone to mean that, in order to be guilty of an attempted battery, the appellant had to place himself in measurable physical proximity to the victim or establish that he would have completed the crime but for external intervention. The law is clear that the accused need not reach the doorstep of completion of the crime, nor is it required that the appellant be prevented from completion only by forces beyond Ms control. United States v. Schoof, 37 M.J. 96 (C.M.A.1993); Wilmoth, 34 M.J. at 745; United States v. Miller, 30 M.J. 999 (N.M.C.M.R.1990); United States v. Gugliotta, 23 M.J. 905 (N.M.C.M.R.1987). However, both these factors—physical proximity and the presence or absence of intervention— play heavily in determining whether the acts constitute a substantial step toward commission of the crime, particularly when the intended crime is an attempt-type physical assault. Anzalone; see also 2 Wayne R. La-Fave and Austin W. Scott, Jr., Substantive Criminal Law § 7.16(a), at 313 (1986) (stat ing that “assault of the attempted-battery type is committed only when the defendant gets near to committing a battery.”).

IV.

We recognize that the line between a preparatory step and a substantial step toward the commission of the crime is often difficult to draw.² A common thread through the case law and the commentary that discuss where that line should be drawn is that each case must be decided on its own facts. See United States v. Choat, 7 C.M.A. 187, 21 C.M.R. 313, 317, 1956 WL 4584 (1956) (holding that the distinction between a preparatory step and a substantial step constituting a direct movement toward commission of the intended offense is one of fact, not law); Rollin N. Perkins and Ronald R. Boyce, Criminal Law 619 (3d ed. 1982) (“Each case, it must be emphasized, must be considered in light of all the facts involved.”). Also, it is apparent that the term “substantial” is a relative one so that what may constitute a substantial step toward commission of the intended crime under one set of facts may be mere preparation under another.

V.

Applying the applicable law to the facts of record in this case, we find the factual basis for a plea to an attempted battery to be substantially incomplete and therefore insufficient to support the plea. Its shortcoming is the total absence of any indication of what happened beyond the discovery by the appellant that his intended victim was not in the immediate vicinity. We cannot even determine whether the appellant actually expected to find C waiting for him in the passageway and intended his attack to occur there. Considering the facts that passageways are ordinarily used for transit and that a few minutes had lapsed between C’s exit from the engine room and the appellant’s, it is unlikely that he actually expected to find C waiting for him there. We only know that C was not there; we do not know where on the ship he was, or even if he was still aboard (the ship was not at sea), and what further steps, if any, were taken by the appellant to locate him.³ Furthermore, the record does not show whether the appellant ever came anywhere near C, whether he was prevented from completing the assault by external forces, whether he was persuaded to desist by a friend, or whether he quit the search of his own accord, and, if so, whether he simply put his planned retaliation on “hold” or whether he voluntarily and permanently renounced his criminal intent.⁴ Likewise, we do not know whether the appellant ever removed his weapons from his pocket and, if he did, whether he displayed them in a threatening manner. Like our Air Force brethren in United States v. Phrampus, 84 M.J. 607 (A.F.C.M.R.1992) (concerning an inadequately developed factual basis of a plea to writing a worthless check), we are left with too many questions. Unlike the majority in Anzalone, we do not know all the facts we need to know in order to determine whether the appellant crossed the line between preparation and a substantial step toward commission of the intended crime. We are left to speculate about what happened and speculation is not an adequate substitute for the factual basis required by R.C.M. 910(e).

It is important to stress that we do not hold that the appellant’s acts of putting a second knife in his pocket and “going after” his intended victim are merely preparatory, as a matter of law. What we do hold is that, without some indication of how close he came to completing the crime or, at least without knowing why he failed to complete it, we cannot say that his acts amount to a substantial step toward commission of the intended offenses, as a matter of fact. Accordingly, the findings of guilty to that offense cannot stand.

VI.

Turning now to the matter of appropriate relief, I would normally be in favor of authorizing a rehearing for the assault offense. However, I am persuaded by Judge McLaughlin’s treatment of the question of prejudice arising from the post-trial delay in this case that a rehearing would not be appropriate.

Our next logical focus is the sentence. As in like eases, we first determine if we can validly reassess the sentence. United States v. Dresen, 40 M.J. 462 (C.M.A.1994); United States v. Jones, 39 M.J. 315 (C.M.A.1994); United States v. Peoples, 29 M.J. 426 (C.MA.1990); United States v. Sales, 22 M.J. 305 (C.M.A.1986). Under the circumstances of this ease, we find that we can, and we will, reassess. In doing so, we note that, after having granted a defense motion to consider the concealed weapon offense and the assault on a superior petty officer to be multiplieious for sentencing purposes, the military judge further stated to the appellant that “you will be sentenced for one offense, that is, an assault upon Petty Officer [C] involving concealed weapons, the two knives.” Record at 37. This statement evinced an intent by the judge to disregard the concealed weapon offense in fashioning an appropriate sentence.

In addition, the concealed weapon offense carries a maximum permissible sentence at general court-martial of, inter alia, a bad-conduct discharge and 1 year confinement. By the available definitions of major/minor offenses contained in the MCM, Part IV, ¶ 95c(2) and Part V, ¶ l(3)e, this is not a serious offense.⁵

Based on the above, we cannot determine with any confidence that, absent the assault offense, the appellant’s sentence would have contained its most serious component—a punitive discharge. We conclude this notwithstanding Prosecution Exhibit 6, the record of a summary court-martial of 10 April 1990, at which the appellant was convicted of carrying a concealed weapon and communicating a threat.⁶

VII.

Accordingly, the findings of guilty to Charge II and the specification thereunder are set aside. Charge II and its specification are dismissed. The findings of guilty to Charge IV and its specification are affirmed. Only so much of the sentence as provides for confinement for 5 months, forfeiture of $500.00 pay per month for 5 months, and reduction to pay grade E-l is affirmed.

Footnotes

1

. I. APPELLANT’S GUILTY PLEA TO AN ATTEMPT-TYPE ASSAULT WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO ELICIT A FACTUAL PREDICATE FOR AN OVERT ACT BEYOND MERE PREPARATION.

II. THE MILITARY JUDGE ERRED BY ADMITTING PROSECUTION EXHIBIT 5 INTO EVLDENCE DURING PRESENTENCING INASMUCH AS APPELLANT’S BODY FAT WAS IRRELEVANT TO THE OFFENSES AT HAND AND WAS UNFAIRLY PREJUDICIAL.

III. APPELLANT HAS BEEN PREJUDICED BY THE TWO-YEAR POST-TRIAL DELAY IN THIS CASE. (Citations omitted.)

2

. Indeed, the facts may reveal that the line of demarkation is not a line at all hut a murky "twilight zone." Schoof, 37 M.J. at 103 (citing Rollin N. Perkins and Ronald R. Boyce, Criminal Law 617 (3d ed. 1982)). Yet, despite its murky nature, our task remains to determine where in the factual spectrum that zone lies before we determine whether the appellant's conduct falls within it.

3

. Cf. O'Dell v. Armontrout, 878 F.2d 1076 (8th Cir.1989), cert. denied, 493 U.S. 1037, 110 S.Ct. 760, 107 L.Ed.2d 776 (1970). In O’Dell, the Court of Appeals held that the evidence was sufficient for a jury to find a "substantial step” toward inflicting bodily injury in the defendant’s acts of arming himself with a loaded shotgun, proceeding to the victim’s house in a car, and honking to lure him outside even though the defendant, himself, never actually fired his weapon at the victim. O’Dell is typical of the case law that addresses this subject—particularly attempt-type assault cases—in the sense that the appellate court is provided with the entire factual scenario so that it can place the appellant’s acts in proper perspective in determining whether they exceed mere preparation.

4

. This possibility raises the issue of voluntary abandonment of the attempted assault as a defense, assuming that the crime was complete in the first place. See United States v. Rios, 33 M.J. 436 (C.M.A.1991). We cannot determine if this affirmative defense is even available to the appellant because, to make that determination, we would have to know whether the appellant’s abandonment of his intended crime manifested a complete and voluntary renunciation of his purpose. Model Penal Code § 5.01(4) cmt., reprinted in ALI Model Penal Code And Commentaries, at 296-97 (1985). To do so, we would have to speculate as to what happened after the appellant discovered that his intended victim was absent. For the same reason that we decline to speculate that the appellant completed his crime of attempted battery, we will not speculate that voluntary abandonment was the outcome either. Schoof, 37 M.J. at 104.

5

. We recognize that the definitions have limitations, but practice reveals they are used as a rule-of-thumb when trying to answer questions of what is a felony-type offense and what is a misdemeanor-type offense.

6

. This record of summary court-martial was admitted without defense objection. The record contains no evidence of the required review under Rule for Courts-Martial 1001(b)(3)(B) that would make this evidence admissible. The failure to object waives the error for our current review. Mil.R.Evid. 103.