UNITED STATES, Appellee 

v. 

Jessie C. SIMMONS, Corporal 

U. S. Marine Corps, Appellant 

No. 05-0263 

Crim. App. No. 200300528 

United States Court of Appeals for the Armed Forces 

Argued December 7, 2005 

Decided April 24, 2006 

BAKER, J., delivered the opinion of the Court. GIERKE, C.J., 

filed a separate concurring opinion. EFFRON, J., filed a 

separate opinion concurring in the result. CRAWFORD, J., and 

ERDMANN, J., each filed a separate dissenting opinion. 

Counsel

For Appellant: Lieutenant Anthony Yim, JAGC, USNR (argued). 

For Appellee: Lieutenant TyQuili R. Booker, JAGC, USNR 

(argued); Commander Charles N. Purnell, JAGC, USN (on brief); 

Colonel William K. Lietzau, USMC, and Major Raymond E. Beal II, 

USMC. 

Military Judge: A. Diaz 

THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION. 
United States v. Simmons, No. 05-0263/MC

2 

Judge BAKER delivered the opinion of the Court. 

Appellant was tried by special court-martial before a 

military judge alone. Pursuant to his pleas, Appellant was 

convicted of two specifications of failure to obey a lawful 

order in violation of Article 92, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 892 (2000), and one specification of 

assault in violation of Article 128, UCMJ, 10 U.S.C. § 928 

(2000). Appellant was sentenced to a bad-conduct discharge, 

confinement for 100 days, partial forfeitures, and reduction to 

E-1. The convening authority approved the sentence as adjudged 

and, with the exception of the bad-conduct discharge, ordered it 

executed. The Navy-Marine Corps Court of Criminal Appeals found 

no error and affirmed. United States v. Simmons, No. NMCCA 

200300528 (N-M. Ct. Crim. App. Nov. 15, 2004) (unpublished). We 

granted review of the following issue: 

WHETHER A DUTY TO INTERVENE ARISES FOR PURPOSES OF 

AIDER AND ABETTOR LIABILITY WHEN A SUPERIOR WITNESSES 

THE COMMISSION OF AN OFFENSE BY OR AGAINST A SERVICE 

MEMBER IN HIS CHAIN OF COMMAND. 

We hold that such a duty may arise, however, it must be 

accompanied by shared criminal intent for aider and abettor 

liability to attach. 

Background

Appellant’s conviction grew out of an incident in 

Appellant’s barracks room between two members of his platoon, 
United States v. Simmons, No. 05-0263/MC

3 

Corporal (CPL) Schuknecht and Private First Class (PFC) 

Whetstone. During the providence inquiry, the military judge 

asked Appellant about the facts leading up to the assault. 

Appellant responded: 

ACC: It was one of our friend’s birthday [sic] that 

night, sir; and we were getting ready to go out; 

and Corporal Schuknecht -- well, me and Whetstone 

had got in an argument because I told him to 

leave the room and he wouldn’t leave, sir, 

because he was drunk and I told him to leave; and 

when he walked away from me, he, like, mumbled 

something; and I didn’t hear him mumble anything. 

That’s just what I was told, and Corporal 

Schuknecht got in his face and grabbed him by the 

neck and threw him against the rack and yelled at 

him; and they went outside, sir. 

Appellant pled guilty to aiding and abetting CPL Schuknecht’s 

assault of PFC Whetstone consummated by a battery. 

While explaining the elements of the offense to Appellant,1

the military judge noted the following: 

MJ: An aider or abettor must knowingly and willfully 

participate in the commission of the crime as 

something that he or she wishes to bring about, 

and must aid, encourage, or incite the person to 

commit the criminal act. . . . 

. . . . 

Now, normally, presence at the scene of a crime 

is not enough, nor is failure to prevent the 

 

1

 The charge sheet states: “CHARGE III: VIOLATION OF THE UCMJ, ARTICLE 128. 

. . . SPECIFICATION 2: In that Corporal Jessie C. SIMMONS, JR., U.S. Marine 

Corps, 3d Battalion, 8th Marine Regiment, 2d Marine Division, Camp Lejeune, 

North Carolina, did, on board Camp Lejeune, North Carolina, between about 

January 2002 and 9 April 2002, standby and do nothing to prevent the

unlawful[ly] grabbing of Private First Class Robert L. WHETSTONE, U.S. Marine 

Corps, around his throat[.] by the hand of Corporal David E. SCHUKNECHT, U.S 

Marine Corps. The additions and deletions were noted on the record after a 

conference pursuant to Rule for Courts-Martial (R.C.M.) 802. 
United States v. Simmons, No. 05-0263/MC

4 

commission of an offense. It must be an intent 

to aid or encourage the persons who commit the 

crime. 

On the other hand, if the accused witnessed the 

commission of the crime and had a duty to 

interfere but did not because he wanted to 

protect or encourage, in this case Corporal David 

E. Schuknecht, then he or she is considered to be 

a principal. 

After explaining these elements, the military judge asked 

Appellant whether “these elements that I just described to you . 

. . correctly describe what happened to [sic] this occasion?” 

Appellant responded, “Yes, sir.”2

In response to the military judge’s specific question as to 

how he thought he was “criminally responsible” for the assault, 

Appellant offered the following: “Because my inaction 

encouraged it, sir, because I’m an NCO [noncommissioned officer] 

in Whetstone’s platoon and I should have stepped in and stopped 

it, sir; but I didn’t.” Appellant further indicated that the 

assault lasted “for about ten seconds” and that he “had time to 

step in” but did not. However, when the military judge asked 

Appellant, “[d]id you know that Corporal Schuknecht was going to 

grab PFC Whetstone about the throat?,” Appellant responded, 

 

2

 Even if we were to accept that in responding “yes,” Appellant was admitting 

to each of the elements without actually revealing the factual basis for his 

response, thereby satisfying the requirements of R.C.M. 910(e), there would 

still be a substantial basis in fact to question the providency of the plea 

based on Appellant’s later, inconsistent statements with regard to his 

intent. United States v. McCrimmon, 60 M.J. 145, 152 (C.A.A.F. 2004) 

(quoting Article 45, UCMJ, 10 U.S.C. § 845 (2000); United States v. Outhier, 

45 M.J. 326, 331 (C.A.A.F. 1996)). 
United States v. Simmons, No. 05-0263/MC

5 

“[n]o sir.” 

The military judge revisited the issue of Appellant’s 

intent and the two had the following exchange: 

MJ: And during the ten-second interval, rather than 

stepping in and trying to prevent harm to your 

junior Marine, you just sat there and watched? 

ACC: Yes, sir. 

MJ: Did you actively encourage Corporal Schuknecht to 

assault -- 

ACC: By not doing anything, sir, I think that -- 

MJ: But you didn’t yell at him and say, [sic] Get him 

or do it some more,” did you? 

ACC: No, sir. 

MJ: You just sat there and did nothing? 

ACC: Yes, sir. 

With regard to his duty to intervene, the military judge 

and Appellant had the following exchange: 

MJ: And do you believe that and admit that even 

though you may not have anticipated that Corporal 

Schuknecht was going to do what he did, that when 

he did do that, that you had an obligation and a 

legal duty to stop that from happening? 

ACC: Yes, sir. 

MJ: And you had the obligation why? 

ACC: I was the NCO in PFC Whetstone’s platoon, sir; 

and I should have stepped in. 

On review, the lower court concluded that Appellant’s 

guilty plea to assault was provident: 

[A]ppellant admitted that, as the noncommissioned 

officer directly supervising the victim, he had a duty 

to intervene to stop another corporal from grabbing a 

junior Marine by the throat, and that his inaction 

operated to encourage his friend’s misconduct. 

Although the military judge could have conducted a 

more thorough inquiry regarding this charge, we find 

the facts the appellant admitted to fairly met the 

requirements of the Manual for Courts-Martial . . . . 
United States v. Simmons, No. 05-0263/MC

6 

Simmons, No. NMCCA 200300528, slip op. at 2. 

Appellant challenges his conviction on the basis that he 

did not share CPL Schuknecht’s criminal intent when the latter 

assaulted PFC Whetstone in Appellant’s barracks room. According 

to Appellant, by affirming his conviction, the lower court 

failed to follow the mandate of Article 77, UCMJ, 10 U.S.C. § 

877 (2000), and created a new standard of liability that ignores 

the concept of mens rea necessary to establish aider and abettor 

liability. 

Appellant, in his brief, concedes that he had a duty to 

intervene in the fight between CPL Schuknecht and PFC Whetstone. 

However, according to Appellant, federal law also requires 

knowledge on the part of the accused that he is sharing in the 

criminal venture and its purpose as an essential element of the 

crime of aiding and abetting. Appellant cites United States v. 

Jackson, 6 C.M.A. 193, 201, 19 C.M.R. 319, 327 (1955), for the 

proposition that mere inactive presence at the scene of a crime 

does not establish guilt. 

In response, the Government argues that Appellant’s failure 

to intervene served as encouragement, which is in and of itself 

sufficient to sustain the conviction for assault on the theory 

of aiding and abetting. In support of its position, the 

Government cites two lower court cases, United States v. Void, 

17 M.J. 740, 743 (A.C.M.R. 1983), and United States v. Toland, 
United States v. Simmons, No. 05-0263/MC

7 

19 C.M.R. 570 (N.B.R. 1955). According to the Government, both 

cases stand for the proposition that inaction can lead to an 

inference of aid or encouragement and therefore liability as a 

principal under Article 77, UCMJ. 

Discussion

“Pleas of guilty should not be set aside on appeal unless 

there is ‘a substantial basis in law and fact for questioning 

the guilty plea.’” United States v. Eberle, 44 M.J. 374, 375 

(C.A.A.F. 1996) (quoting United States v. Prater, 32 M.J. 433, 

436 (C.M.A. 1991) (quotation marks omitted)). “A military 

judge’s decision to accept a guilty plea is reviewed for an 

abuse of discretion.” Id. (citing United States v. Gallegos, 41 

M.J. 446 (C.A.A.F. 1995)). 

A military judge may not accept a guilty plea unless he 

makes “such inquiry of the accused” that satisfies him of a 

“factual basis for the plea.” R.C.M. 910(e). See United States 

v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969) (“[T]he 

record of trial . . . must reflect . . . that the military trial 

judge . . . has questioned the accused about what he did or did 

not do, and what he intended . . . .”). “[T]he accused must 

admit every element of the offense(s) to which the accused 

pleads guilty.” R.C.M. 910(e) Discussion. See United States v. 

Barton, 60 M.J. 62, 64 (C.A.A.F. 2004) (“[The] factual predicate 

is sufficiently established if ‘the factual circumstances as 
United States v. Simmons, No. 05-0263/MC

8 

revealed by the accused himself objectively support that plea.’” 

(quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 

1980)); see also United States v. Jordan, 57 M.J. 236, 239 

(C.A.A.F. 2002) (finding that “‘mere conclusions of law recited 

by an accused . . . are insufficient to provide a factual basis 

for a guilty plea’” (quoting United States v. Outhier, 45 M.J. 

326, 331 (C.A.A.F. 1996)). 

According to the explanation accompanying Article 77, UCMJ, 

to be guilty as a principal under an aiding and abetting theory, 

a person must: 

(i) Assist, encourage, advise, instigate, 

counsel, command, or procure another to commit, or 

assist, encourage, advise, counsel, or command another 

in the commission of the offense; and 

 

(ii) Share in the criminal purpose of design. 

 

. . . In some circumstances, inaction may make 

one liable as a party, where there is a duty to act. 

If a person . . . has a duty to interfere in the 

commission of an offense, but does not interfere, that 

person is a party to the crime if such a 

noninterference is intended to and does operate as an 

aid or encouragement to the actual perpetrator. 

 

Manual for Courts-Martial, United States pt. IV, para. 1(b)(i), 

(ii) (2005 ed.) (MCM); see United States v. Crouch, 11 M.J. 128 

(C.M.A. 1981) (upholding an aiding and abetting conviction where 

appellant had a duty to act because, while performing guard 

duty, he failed to stop two servicemembers from breaking into a 

military motor pool). However, “[m]ere presence at the scene of 
United States v. Simmons, No. 05-0263/MC

9 

a crime does not make one a principal.” MCM pt. IV, para. 

1.b.(3)(b), cited in United States v. Pritchett, 31 M.J. 213, 

217 (C.M.A. 1990). 

In United States v. Thompson, this Court inferred criminal 

intent from the appellant’s affirmative acts, including 

contributing to the rape victim’s intoxication and providing the 

condom to his friend responsible for the actual assault. 50 

M.J. 257, 258 (C.A.A.F. 1999). Furthermore, this Court found 

that Thompson “knew SGT [Sergeant] Timmons was going to have 

intercourse with PFC K” and he encouraged SGT Timmons by failing 

to dissuade him. Id. (emphasis added). 

Similarly, in United States v. Jackson, this Court upheld 

Jackson’s conviction by inferring shared criminal purpose from 

the circumstances surrounding the murder of a German national by 

Jackson’s companion. Burns, 6 C.M.A. 193, 203, 19 C.M.R. 319, 

329 (1955). “Both accused were armed with knives; both were 

aggressive; and Jackson knew that Burns had a predisposition to 

‘fool’ with his knife. A homicide resulting from an assault 

under such circumstances is sufficient to support a conviction 

for murder.” Id. In support of this same principle of law, the 

Government also cites Void and Toland. 

By contrast, in United States v. Lyons, this Court found 

insufficient evidence from which to infer criminal intent to 

steal a truckload of coffee. 11 C.M.A. 68, 71, 28 C.M.R. 292, 
United States v. Simmons, No. 05-0263/MC

10 

295 (1959). “[T]he only circumstance tending to show 

participation by the accused is his acceptance of [the] offer of 

a bribe. That connection is insufficient to establish a 

conscious sharing of the alleged intent of the co-actors.” Id. 

Analysis

Article 77, UCMJ, first element

Before this Court, Appellant adopts his concession to the 

military judge that he had a duty to intervene and stop the 

fight between CPL Schuknecht and PFC Whetstone on the basis that 

Appellant “was the NCO in PFC Whetstone’s platoon” and he 

“should have stepped in.” As to Appellant’s admission of duty, 

we conclude there is no substantial basis in law and fact to 

question the sufficiency of the plea under the first element of 

Article 77, UCMJ. 

Indeed, applicable Navy and Marine Corps regulations 

evidence 230 years of the custom and tradition of the service 

creating the type of duty espoused by Appellant before this 

Court and in his colloquy with the military judge. See U.S. 

Marine Corps, Leading Marines, MCWP 6-11, paras. 

1100.2.d.(1),(3), 1100.4.b., 1100.5. (Nov. 27, 2002); Dep’t of 

the Navy, Regs. 1990, paras. 1023, 1034.1., 1034. 2., 1037, 1131 

(Sept. 14, 1990); see also Dep’t of the Navy, Marine Corps 

Manual, paras. 0002.1., 0003.2., 1000.1.b., 1002.3.a., 8.a.1., 
United States v. Simmons, No. 05-0263/MC

11 

1301.1. (Mar 21, 1980) (making Navy regulations applicable to 

Marine Corps personnel). 

Article 77, UCMJ, second element

Appellant focuses his argument on the second element of 

Article 77, UCMJ. Specifically, Appellant points to his lack of 

knowledge with regard to CPL Schuknecht’s intent prior to the 

assault and the relative quickness of the entire incident. As 

noted, during the providence inquiry, Appellant specifically 

disavowed any prior knowledge of the assault and testified that 

the entire event took about ten seconds. 

The Government asserted in its brief that “absence of 

action where there is a clear duty and ability to act is akin to 

an affirmative act and equally indicative of the requisite mens 

rea.” However, this argument goes too far. Establishment of a 

duty to intervene, without more, does not per se satisfy the 

requirement of a shared purpose under Article 77, UCMJ. Both 

parties cite cases in which this Court found aider and abettor 

liability premised on inaction. Failure to act in accordance 

with a legal duty can reflect criminal intent. However, this is 

a fact-specific inquiry and the facts of this plea inquiry fail 

to establish such shared intent. As such, we find that there is 

a substantial basis in fact to question the sufficiency of 

Appellant’s guilty plea. 
United States v. Simmons, No. 05-0263/MC

12 

Here, the facts on the record do not establish that 

Appellant shared CPL Schuknecht’s criminal intent. Although he 

might have intended to haze PFC Whetstone, a charge he also pled 

guilty to, this does not necessarily mean that he intended for 

CPL Schuknecht to assault PFC Whetstone. By contrast to 

Thompson, Appellant did not know of CPL Schuknecht’s plan to 

assault PFC Whetstone (in fact, even CPL Schuknecht may not have 

known of his intent to do so until the moment he engaged in the 

assault), nor did he provide any affirmative assistance to CPL 

Schuknecht in the ten seconds it took CPL Schuknecht to assault 

PFC Whetstone. The Government argues that Appellant, by his 

inaction, encouraged CPL Schuknecht. However, the Government is 

mistaking intent and result. Article 77, UCMJ, is conjunctive; 

it requires a finding of encouragement, for example, a result 

plus an intent. Here, while the facts on the record might 

support a finding of a result, they do not support a finding of 

intent. Here, Appellant specifically denied any knowledge of 

CPL Schuknecht’s intent to assault PFC Whetstone. Although 

Appellant may have shared Schuknecht’s intent, without further 

factual development on the record, CPL Schuknecht’s actions were 

too spontaneous and too quick to draw such an inference without 

further inquiry into the facts. As a result, Appellant’s case 

is distinguishable from the circumstances present in Thompson

and Jackson. If the assault had lasted longer, or if the record 
United States v. Simmons, No. 05-0263/MC

13 

reflected some affirmative action on Appellant’s part, then, 

perhaps this Court could infer shared criminal intent. However, 

those are not the facts of this case.3

As a result, because Appellant did not admit on the record 

to all the elements of the offense, in this case the requisite 

mens rea, we hold that there is a substantial basis in law and 

fact to question the guilty plea. 

The parties raised the issue of whether dereliction in the 

performance of duty is a lesser included offense that can be 

affirmed in this case. We need not reach this issue because, 

even assuming it is a lesser included offense in this case, 

affirming it would have no effect on Appellant’s sentence.4

 

Therefore, we do not address the parties’ arguments on this 

point. 

 

3

 As noted, in support of its argument, the Government also cites to two other 

lower court cases, Void and Toland. However, the Government’s argument is 

misplaced with regard to both cases. In Void, the facts were similar in that 

the accused did not actively engage in the multiple assaults for which he was 

found guilty of aiding and abetting. 17 M.J. at 741-42. In Void, the 

accused was a bystander in a series of assaults, all occurring within a short 

period of time. As the court noted, after the first assault, “appellant had 

no doubts about the intentions and activities of the others.” Id. at 743. 

From those facts, the court could properly infer encouragement and shared 

criminal intent, even absent active participation in the subsequent assaults. 

Likewise, in Toland, although the accused did not ultimately participate in 

the theft of items from the ship’s store, he knew of his cohorts’ plan; it 

was the accused who, with his keys to the store, left it open for them to 

carry out the plan. Furthermore, the accused originally intended to 

participate, although he later changed his mind. 19 C.M.R. at 571. 

4

 The maximum punishments for dereliction of duty through neglect and simple 

assault are the same. Compare MCM pt. IV para. 16(e)(3)(A), with MCM pt. IV 

para. 54(e)(1)(A). 
United States v. Simmons, No. 05-0263/MC

14 

DECISION 

For the reasons stated, the decision of the United States 

Navy-Marine Corps Court of Criminal Appeals is reversed as to 

specification 2 of Charge III and that specification and the 

charge are dismissed. The decision as to the remaining findings 

and the sentence is affirmed. 
United States v. Simmons, No. 05-0263/MC 

GIERKE, Chief Judge (concurring): 

 I concur with the lead opinion that merely failing to 

intervene when one may have a duty to do so does not make one 

culpable as an aider and abettor. 

 I further agree with the conclusion of the lead opinion that 

Article 77 liability may attach if the failure to intervene is 

intended to and actually does aid or encourage the perpetrator. 

 The lead opinion concludes that the providence inquiry fails 

to establish Appellant’s intent to aid the perpetrator. I concur 

fully in that conclusion. 

 The concurring opinion of Judge Effron concludes that the 

providence inquiry fails to establish that Appellant’s inaction 

actually did encourage the perpetrator. I write separately only 

to indicate that I agree with Judge Effron, who has provided an 

additional reason why Appellant’s plea is improvident. 
United States v. Simmons, 05-0263/MC 

EFFRON, Judge (concurring in the result): 

 The crime of aiding and abetting through nonperformance of 

a duty has four components: (1) duty (the accused has “a duty 

to act”); (2) inaction (the accused “has a duty to interfere in 

the commission of an offense, but does not interfere”); (3) 

intent (the “noninterference is intended to . . . operate as an 

aid or encouragement to the actual perpetrator” of the 

underlying crime); and (4) effect on the perpetrator (the 

“noninterference . . . does operate as an aid or encouragement 

to the actual perpetrator”). Manual for Courts-Martial, United 

States pt. IV, para. 1.b.(2)(b) (2005 ed.). Each of these 

components is essential. Regardless of whether the prosecution 

demonstrates duty, inaction, and intent, that is insufficient if 

the inaction does not actually aid or encourage the perpetrator. 

For example, it is not an offense under this provision if the 

perpetrator has no awareness of the presence of the person with 

the duty or if the perpetrator testifies that he or she acted 

without perceiving any aid or encouragement from the inaction. 

 In the context of a guilty plea, each of the four 

components must be addressed by the military judge and the 

accused. First, the military judge must explain the four 

components in the course of explaining the elements. 
United States v. Simmons, 05-0263/MC 

2

Second, the military judge must engage in a dialogue with the 

accused and ensure that there is a factual basis for the plea. 

Rule for Courts-Martial 910(e) and accompanying Discussion. 

 Here the plea was improvident because the military judge 

did not explain to Appellant that it was necessary for the 

perpetrator to be aware of Appellant’s nonperformance of a duty. 

In that context, the statements of Appellant during the plea 

colloquy did not address whether the perpetrator was, in fact, 

aware of Appellant’s inaction. 
United States v. Simmons, No. 05-0263/MC 

 CRAWFORD, Judge (dissenting): 

 Appellant’s testimony under oath before the military judge 

established that Appellant was involved in a continuous course 

of conduct as a principal in misusing and abusing members of the 

unit including choking Private First Class (PFC) Whetstone. 

Appellant admitted that between January 2002 and April 2002, he 

violated a general order by hazing PFC Whetstone by having him 

drink an excessive amount of alcoholic beverages, attaching and 

using an electronic muscle contracting device attached to PFC 

Whetstone’s face, referring to PFC Whetstone as being a “boot,” 

“weak,” and other terms, and impeding the investigation into his 

misconduct by threatening to injure PFC Whetstone and others. 

Appellant described one of the drinking events: “[W]e had 

younger Marines [including PFC Whetstone] come in and sit in the 

chair and they would hold their heads back and we poured alcohol 

down their mouth for a couple of seconds and then get them up 

and bring another one in . . . .” Appellant also admitted that 

on March 2, 2002, the following took place: “We were sitting at 

the barracks again, we were drinking beers; and one of the guys 

had a one of those half stimulators . . . . muscle stimulators . 

. . . and we hooked it up to Palencia’s face and told him it 

wouldn’t hurt; did Whetstone’s face; and then we sent them to go 

find more new Marines to come sit in the chair and put it on 

their face also, sir.” 
United States v. Simmons, No. 05-0263/MC 

2

 Moments before the choking incident occurred, Appellant and 

the victim, Whetstone, got in an argument. Appellant told PFC 

Whetstone to leave the room because he was drunk. Then PFC 

Whetstone walked away from Appellant mumbling something. 

Appellant testified that “Corporal [CPL] Schuknecht got in [PFC 

Whetstone’s] face and grabbed him by the neck and threw him 

against the rack and yelled at him; and they went outside . . . 

.” The military judge asked Appellant if he was “willing to 

admit . . . [that he] violated Article 128 of the Uniform Code 

of Military Justice [10 U.S.C. 928 (2000)] by allowing and not 

preventing Corporal Schuknecht from committing assault and 

battery upon PFC Whetstone?” Appellant replied “Yes, sir.” He 

testified that there was no doubt in his mind that he violated 

Article 128. After the inquiry set forth by the military judge 

and the responses just mentioned, both the trial counsel and the 

defense counsel agreed that no further inquiry was needed to 

establish the providency of the plea. Id.; cf. Bradshaw v. 

Stumpf, 125 S. Ct. 2398, 2406 (2005) (“Where a defendant is 

represented by competent counsel, the court usually may rely on 

that counsel’s assurance that the defendant has been properly 

informed of the nature and elements of the charge to which he is 

pleading guilty.”). 

 Mere presence is not enough to constitute a principal. 

Manual for Courts-Martial, United States pt. IV, para. 1.b.(3) 
United States v. Simmons, No. 05-0263/MC 

3

(2005 ed.). But a principal is criminally liable for crimes 

committed by another “if such crimes are likely to result as a 

natural probable consequence of the criminal venture or design.” 

Id. at para. 1.b.(5).∗ Appellant’s conduct in this case 

established that he associated and participated with those 

engaging in the unlawful acts charged and was not an innocent 

bystander. These acts taking place over a sixty-day period of 

time establish a common understanding for misuse of the junior 

members of the unit, the assault by CPL Schuknecht being one of 

these instances. This is not a single, spontaneous, and 

isolated incident that took place within ten seconds, but a 

continual course of conduct. As a result, I would hold there is 

not a substantial basis in law or fact to set aside this plea. 

See United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991). 

Thus, I respectfully dissent from setting aside the plea. 

 

∗

 If one is not a perpetrator, to be guilty of an 

offense committed by the perpetrator, the person must: 

(i) Assist, encourage, advise, instigate, counsel, 

command, or procure another to commit, or assist, 

encourage, advise, counsel, or command another in the 

commission of the offense; and (ii) share in the 

criminal purpose of design. 

Id. at para. 1.b.(2)(b). 
United States v. Simmons, 05-0263/MC 

ERDMANN, Judge (dissenting): 

The majority finds no substantial basis in law or fact to 

question the sufficiency of Corporal (CPL) Simmons’ plea under 

the first element of Article 77, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 877 (2000), dealing with criminal 

liability as a principal for an offense committed by another. 

See Manual for Courts-Martial, United States pt. IV, para. 

1.b.(2)(b)(i) (2005 ed.) (MCM). The majority ultimately finds 

that the plea is improvident as the plea inquiry failed to 

establish the requisite shared intent under the second element 

of Article 77, UCMJ. See id. para. 1.b.(2)(b)(ii). Under the 

circumstances of this guilty plea case, I agree that the record 

establishes Simmons’ duty to act and that the providence inquiry 

is adequate as to the first element of Article 77, UCMJ. I 

further conclude that the record is adequate to support Simmons’ 

plea with respect to the second element of Article 77, UCMJ, 

which requires a shared criminal purpose or design. 

This specification arose from an assault committed by CPL 

Schuknecht on Private First Class (PFC) Whetstone in Simmons’ 

presence. As a result of that incident Simmons was charged with 

assault consummated by a battery under an aiding and abetting 

theory. This charge relied on the theory that Simmons, as a 

corporal, had a legal duty to intervene and stop the assault 

because he was a noncommissioned officer in Whetstone’s platoon. 
United States v. Simmons, 05-0263/MC 

2 

In order to establish liability under an aiding and 

abetting theory under Article 77, UCMJ, two elements must be 

established: (1) that the defendant assisted, encouraged, 

advised, instigated, counseled or commanded the commission of an 

offense; and (2) that the defendant shared the criminal purpose 

or design of the perpetrator. Id. para. 1.b.(2)(b); United 

States v. Gosselin, 62 M.J. 349, 351-52 (C.A.A.F. 2006). 

Generally, mere presence at the scene of a crime or the failure 

to prevent the commission of a crime is not enough to make one a 

principal to the offense under Article 77, UCMJ. Id. para. 

1.b.(3)(b). However, where there is a clear duty to act, 

inaction that is “intended to and does operate as an aid or 

encouragement to the actual perpetrator” may make one liable 

under Article 77, UCMJ, as a principal. Id. para. 1.b.(2)(b); 

see also United States v. Shearer, 44 M.J. 330, 335 (C.A.A.F. 

1996). 

At the providence inquiry Simmons admitted without 

qualification that he had a duty and knew he had a duty to 

intervene. As this court said in Shearer: 

Appellant himself admitted that he had a 

duty and knew he had a duty to report 

Fireman Atwood’s identity as the driver of 

the vehicle involved in the accident to the 

Japanese. “Post-trial speculation” as to 

the precise source of this duty need not be 

“countenanced” at this late stage of the 

proceedings. See United States v. Harrison, 

26 M.J. 474, 476 (C.M.A. 1988). Moreover, 
United States v. Simmons, 05-0263/MC 

3 

the prosecution may have been induced by the 

defense to plea to forgo presenting its 

entire case concerning appellant’s duty to 

report accidents in this foreign country. 

See United States v. Burnette, 35 M.J. 58, 

60 (C.M.A. 1992[]); see generally United 

States v. Dupree, 24 M.J. 319, 322 (C.M.A. 

319, 322). 

44 M.J. at 335. I have reservations about the existence of a 

clear legal duty to intervene under such circumstances and I do 

not view this case as conclusively establishing such a duty.1

 

However, as this is a guilty plea there is no legal basis upon 

which to question Simmons’ factual recitation with respect to 

his duty to intervene in the assault. 

 I do not agree with the majority’s conclusion that the 

facts as set forth by Simmons fail to establish the second 

element of Article 77, UCMJ. Simmons admitted that the elements 

as described by the military judge correctly described what 

happened with respect to this offense. The military judge 

explained that in order to be guilty Simmons had to “participate 

in the commission of the crime as something that he or she 

 

1 There may well be a custom in the Marine Corps that a 

noncommissioned officer has a legal duty to intervene in every 

situation where a subordinate enlisted member is subject to an 

assault. However, that custom may not exist in every situation 

and I question whether it is capable of accurate and ready 

determination by a twenty-one-year-old corporal in the Marine 

Corps without further instruction by the military judge. 

Military judges would be well advised to identify this legal 

duty and inform an accused as to the nature and scope of this 

legal duty so that the accused can make an informed decision as 

to whether that duty applied to him in a given situation. 
United States v. Simmons, 05-0263/MC 

4 

wishes to bring about, and must aid, encourage, or incite the 

person to commit the criminal act.” Simmons was told that his 

presence would make him a principal to the offense if he had “an 

intent to aid or encourage the person who commit[s] the crime” 

or if he failed to perform a duty to interfere in order to 

“protect or encourage” CPL Schuknecht. 

 Article 77, UCMJ, can be satisfied by inaction where there 

is a duty to act and the inaction “is intended to or does 

operate as an aid or encouragement to the actual perpetrator.” 

MCM pt. IV para. 1.b.(2)(b)(ii). The majority finds that “CPL 

Schuknecht’s actions were too spontaneous and too quick” to 

infer that Simmons shared intent in this case. That conclusion 

is at odds with Simmons’ own words. The providence inquiry 

reflects that the assault lasted “about ten seconds.” While on 

review this might not appear to be an extensive period, Simmons 

was there and said that he “had time to step in, sir; but I did 

not.” Rather than taking any steps pursuant to his duty, 

Simmons “just sat there and watched.” I find no basis in this 

record to second-guess Simmons’ own words. 

 Simmons agreed when the military judge asked if the 

elements the military judge had described, including that he 

wanted to bring about the commission of the assault, correctly 

described what happened. Later, in response to a question from 

the military judge as to how he actively encouraged CPL 
United States v. Simmons, 05-0263/MC 

5 

Schuknecht to assault PFC Whetstone, Simmons responded “[b]y not 

doing anything, sir.” Taken in context with the military 

judge’s explanation of the offense, Simmons’ statements of fact 

clearly support an inference that he shared the criminal design 

or purpose in this instance. 

 Simmons’ providence inquiry reflects that: (1) he had a 

duty to act; (2) he saw the assault that lasted about ten 

seconds; (3) he had the opportunity to intervene but did not do 

so; (4) he merely sat and watched the assault; and (5) he 

admitted his inaction encouraged the assault. In my view, the 

providence inquiry adequately establishes both elements of 

Article 77, UCMJ, and there is no substantial basis in law or 

fact to question the providence of this plea. While I may not 

find a duty to intervene or shared criminal intent in other 

circumstances, I find no basis to dispute or contest Simmons’ 

direct factual statements in support of this plea. I would 

affirm the Court of Criminal Appeals and therefore respectfully 

dissent.