UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

KERN, BERG, and YOB 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 ANTHONY J. CRUSE 

United States Army, Appellant 

ARMY 20080148 

Headquarters, I Corps and Fort Lewis 

Debra Boudreau, Military Judge 

Colonel James K. Lovejoy, Staff Judge Advocate 

For Appellant: Gregory M. Gagne, Esquire (argued); Captain Jennifer A. Parker, 

JA; Keith Scherer, Esquire (on brief); Captain E. Patrick Gilman, JA. 

For Appellee: Captain Edward J. Whitford, JA (argued); Colonel Michael E. 

Mulligan, JA; Major Amber J. Williams, JA; Major LaJohnne A. White, JA; Captain 

Benjamin M. Owens-Filice, JA (on brief). 

17 November 2011 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

YOB, Judge: 

A panel of officer and enlisted members, sitting as a general court-martial, 

convicted appellant, contrary to his plea, of one specification of premeditated 

murder in violation of Article 118, Uniform Code of Military Justice, 10 U.S.C. § 

918 (2008) [hereinafter UCMJ]. Appellant was sentenced to be reduced to the grade 

of Private E1, total forfeitures of all pay and allowances, to be discharged with a 

dishonorable discharge, and to be confined for life with the possibility of parole. 

The convening authority approved the finding and the adjudged sentence. 

This case is before this court for review pursuant to Article 66, UCMJ. 

Appellant raised four assignments of error, only one of which merits discussion, but 

no relief. This assignment of error alleges the military judge deprived appellant of a 
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2 

fair trial by failing to instruct the members on fear, anger and adequate provocation 

and the lesser included offenses of voluntary manslaughter and negligent homicide. 

BACKGROUND

The charge stemmed from a stabbing that occurred at Fort Lewis during the 

pre-dawn hours of 15 June 2007. After spending several hours drinking alcoholic 

beverages in a barracks room, appellant, PV2 Jack Allen, and a third Soldier walked 

to a courtyard adjacent to another barracks and began talking to other Soldiers who 

were socializing outside. The third Soldier soon departed leaving the appellant and 

PV2 Allen amongst the other Soldiers. Appellant engaged in offensive behavior, to 

include urinating on the outside of the barracks building and holding himself out as 

a non-commissioned officer and harassing other Soldiers. 

Appellant upset another Soldier, PFC Evans, by taunting him. PFC Evans 

responded with comments that upset PV2 Allen. After exchanging words, PFC 

Evans and PV2 Allen moved to a grassy area in anticipation of a fistfight. PV2 

Allen had a bottle in his hand but he set this aside when someone stated it should be 

a fair fight. PV2 Allen also discarded a folding knife and appellant picked it up. A 

female Soldier tried to calm PV2 Allen by standing in front of him and talking to 

him. When she moved out of the way, the victim approached PV2 Allen in an 

attempt to calm him down. The victim had his empty hands raised in front in a 

gesture that indicated he was trying to calm PV2 Allen. At this point there was a 

group of Soldiers standing behind PFC Evans and appellant stood behind PV2 Allen. 

As the victim stood before PV2 Allen, appellant grasped the now open knife he had 

retrieved and plunged it into the victim’s neck with such force that the blade reached 

the victim’s spine. The stabbing severed the carotid artery in the victim’s neck. The 

victim immediately collapsed and bled to death in a matter of a few minutes. As 

soon as the victim fell, appellant and PV2 Allen fled from the scene on foot. 

Appellant and PV2 Allen spent the next several hours in the woods deciding 

what to do. Appellant suggested going AWOL or concocting a story claiming that 

the victim was aggressively approaching PV2 Allen with a bottle in his hand, and 

that appellant was defending his fellow Soldier. After turning themselves in to 

appellant’s squad leader, appellant and PV2 Allen did claim the victim approached 

PV2 Allen with a bottle immediately before the stabbing. Appellant also made this 

assertion to Criminal Investigation Division (CID) agents at the outset of his 

interrogation. However, when an agent confronted appellant with the information 

that other witnesses at the scene saw nothing in the victim’s hands, appellant 

abandoned this claim. Appellant’s written, sworn statement did not indicate the 

victim had anything in his hand prior to being stabbed or that he made any 

aggressive action against PV2 Allen or appellant. PV2 Allen testified at trial under 

a grant of immunity, and made no claim that the victim either had anything in his 

hand or approached PV2 Allen in an aggressive manner. While there were clearly 
CRUSE – ARMY 20080148 

3 

heated words exchanged between PFC Evans and PV2 Allen and the situation had 

the potential to erupt into a fistfight, there was no evidence of any physical assault, 

other than appellant stabbing the victim. 

LAW AND DISCUSSION 

“Whether a panel was properly instructed is a question of law reviewed de 

novo.” United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011) (quoting United 

States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)). A three-pronged test determines 

whether failure to give an instruction is error: “(1) the requested instruction is 

correct; (2) it is not substantially covered in the main instruction; and (3) it is on 

such a vital point in the case that the failure to give it deprived the accused of a 

defense or seriously impaired its effective presentation.” United States v. Gibson, 

58 M.J. 1, 7 (C.A.A.F. 2003) (citing United States v. Damatta-Olivera, 37 M.J. 474, 

478 (C.M.A. 1993) (quoting United States v. Winborn, 14 C.M.A. 277, 282, 34 

C.M.R. 57, 62 (1963))). 

Our superior court has noted that military law “requires a trial judge to 

give...an instruction on a lesser included offense ‘sua sponte...for which there 

is...some evidence which reasonably places the lesser included offense in issue.’ ” 

United States v. Wells, 52 M.J. 126, 129 (C.A.A.F. 1999) (citing United States v. 

Staten, 6 M.J. 275, 277 (C.M.A. 1979)). “A matter is ‘in issue’ when some 

evidence, without regard to its source or credibility, has been admitted upon which 

members might rely if they chose.” Wells at 129-130 (citing United States v. 

Johnson, 1 M.J. 137 (C.M.A. 1975)). 

In cases involving murder charges, the lesser included offense of voluntary 

manslaughter is in issue when there is evidence that the killing of another occurred 

while the accused was in the heat of passion, accompanied by adequate provocation. 

United States v. Stark, 19 M.J. 519, 523 (A.C.M.R. 1984) (citing United States v. 

Maxie, 23 C.M.R. 942, 951 (A.F.B.R. 1957), aff’d, 25 C.M.R. 418 (C.M.A. 1958)); 

Manual for Courts-Martial (2008 ed.), para. 44c.(1)(b). “Although heat of passion 

is a subjective determination, adequate provocation is an objective concept.” Stark at 

523 (citing United States v. Seeloff, 15 M.J. 978 (A.C.M.R. 1983)). 

In this case there was no evidence introduced on the issue of adequate 

provocation. Nothing in the record indicates there were any acts by the victim or 

bystanders that would provoke a reasonable person to the heat of passion required to 

support a conviction of voluntary manslaughter. Appellant’s counsel points out that 

there was a suggestion at trial that both appellant and PV2 Allen had made 

statements early on that appellant stabbed the victim only after the victim raised his 

arm in an attempt to hit PV2 Allen with a broken bottle. However, evidence 

indicated appellant and PV2 Allen had merely concocted this story to justify the 

stabbing. In addition, both appellant and PV2 Allen abandoned the claim that the 
CRUSE – ARMY 20080148 

4 

victim had a bottle in his hand in their subsequent statements and PV2 Allen utterly 

abandoned this claim when he testified at trial. 

The military judge instructed the panel on defense of another under the theory 

that appellant may have perceived that PV2 Allen was about to engage in a fight and 

appellant may have perceived the victim to be an aggressor. However, the evidence 

presented at trial did not raise the issue as to whether this constituted adequate 

provocation of appellant from the perspective of a reasonable person. In the absence 

of any evidence that the victim’s conduct raised the rage in appellant or otherwise 

provided adequate provocation, it was not error to refuse appellant’s requested 

instruction on voluntary manslaughter. Under the evidence presented, no rational 

fact-finder would have concluded there was adequate provocation under a reasonable 

person standard. 

Given our superior court’s holdings in United States v. Miller, 67 M.J. 385, 

387 (C.A.A.F. 2009) and United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011), the 

Article 134, UCMJ, offense of negligent homicide is not a lesser included offense of 

a premeditated murder charge under Article 118, UCMJ. Even if negligent homicide 

were considered a lesser-included offense under the law, the facts raised at trial 

would not warrant an instruction that this is a lesser-included offense at issue in this 

case. 

Therefore, we conclude that instructions on voluntary manslaughter and 

negligent homicide were not required. Because the first prong of the Gibson test is 

not met, we conclude that the failure of the military judge to give the instruction on 

involuntary manslaughter was not error. Even if the first prong of the Gibson test 

was met and the military judge should have given the voluntary manslaughter 

instruction, we would find no prejudice in a failure to instruct, given the lack of 

evidence for a rational fact-finder to conclude the killing occurred in the heat of 

passion, accompanied by adequate provocation. 

CONCLUSION 

 We have considered the record of trial, the briefs submitted by the parties, 

and oral arguments by both parties on the assignments of errors raised. On 

consideration of the entire record, we hold the finding of guilty and sentence 

adjudged and as approved by the convening authority to be correct in law and fact. 

Accordingly, the finding of guilty and the sentence are AFFIRMED. 

 Senior Judge KERN and Judge BERG concur. 
CRUSE – ARMY 20080148 

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 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: