-UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

K.J. BRUBAKER, M.C. HOLIFIELD, A.C. RUGH

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JOSEPH R. FRANKLIN

SERGEANT (E-5), U.S. MARINE CORPS

NMCCA 201500130

GENERAL COURT-MARTIAL

Sentence Adjudged: 4 December 2014.

Military Judge: Col D.J. Daughtery, USMC.

Convening Authority: Commanding General, 3D Marine 

Division, Okinawa, Japan.

Staff Judge Advocate's Recommendation: LtCol K.T. Carlisle, 

USMC.

For Appellant: CDR Ricardo Berry, JAGC, USN.

For Appellee: LCDR Justin Henderson, JAGC, USN; LT James 

Belforti, JAGC, USN.

6 October 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

 

PER CURIAM:

A military judge, sitting as a general court-martial, found 

the appellant guilty, pursuant to his pleas, of one 

specification of assault with a weapon likely to produce 

grievous bodily harm, in violation of Articles 128, Uniform Code 

of Military Justice, 10 U.S.C. §§ 928, and adjudged a sentence 

of 60 days’ confinement, reduction to pay grade E-3, and a bad-
2

conduct discharge. The convening authority approved the 

sentence as adjudged.1 

On appeal, the appellant alleges his guilty plea was not 

provident. The appellant argues the military judge failed to 

elicit facts to establish the appellant used a weapon, a camp 

chair, in a manner likely to produce death or grievous bodily 

harm. We disagree. 

Background

On 16 May 2014 in celebration of the 12th Marines 

Regimental Highlands Games on Camp Hansen, Okinawa, Japan, the 

appellant and Corporal (Cpl) JB engaged in a long day of 

friendly drinking. Shortly after midnight, Cpl JB drunkenly 

spilled his beer on the appellant. In response the appellant 

picked up a camp chair and threw it at Cpl JB.

[T]here was a cooler and some chairs set up, sir. I 

walked over there and I grabbed the chair and I turned 

and I threw it at him, sir.2

After the appellant hit him with the chair, Cpl JB covered his 

face with his hands, stumbled several steps and first sat and 

then lay on the ground.

As a result of the strike, Cpl JB’s left eye was severely 

damaged. His sclera, the white part of the eye, ruptured from 

the nine o’clock to the twelve o’clock position and all the way 

back to the muscle joining the eye to the socket. One-third of 

his iris and lens were destroyed. The retina detached and part 

of the retina came out of the eye through the opening wound. 

Cpl JB was taken by ambulance to U.S. Naval Hospital Okinawa by 

which time his eye had completely filled with blood.

As described by an Army Medical Corps ophthalmologist and 

an expert in retinal ophthalmology, this was a blunt trauma 

injury, “like a water balloon is being squished to the point 

that it ruptures.”3 

 

1 Pursuant to a pretrial agreement, automatic forfeitures were deferred and 

waived for the benefit of the appellant’s family.

2 Record at 30.

3 Id. at 81.
3

Cpl JB was medically evacuated to Tripler Army Medical 

Center, Honolulu, Hawaii, where he underwent a series of 

delicate surgeries in an attempt to save his eye. One such 

surgery, a seven-hour ordeal, was one of the longest procedures 

the surgeon had ever performed. At the time of surgery, there 

was a 72% chance of blindness in that eye.4

For a year after the assault, there remained the 

possibility of blindness in both eyes, the result of a condition 

called sympathetic ophthalmia in which the body’s immune system 

attacks the retinas of both eyes after surgery. Regardless, Cpl 

JB’s left eye will never be correctable to better than 20/80 

vision. The fat around the injured eye atrophied and will never 

regenerate. As a result, his left eye will always have a sunken 

appearance. 

Standard of Review

We review a military judge’s decision to accept a guilty

plea for an abuse of discretion. United States v. Inabinette, 

66 M.J. 320, 322 (C.A.A.F. 2008). A military judge abuses this

discretion when accepting a plea if he does not ensure the

accused provides an adequate factual basis to support the plea

during the providence inquiry. See United States v. Care, 40

C.M.R. 247 (C.M.A. 1969). 

In establishing a factual basis, the military judge must

explain each element of the offense charged and question “the

accused about what he did or did not do, and what he intended .

. . .” United States v. Davenport, 9 M.J. 364, 366 (C.M.A.

1980). We will not reject the plea unless there is a substantial 

basis in law or fact for questioning the guilty plea. United 

States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United 

States v. Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)).

The Providence Inquiry

At the beginning of the providence inquiry, the military 

judge explained to the appellant the elements of the offense:

[First,] [t]hat on or about 17 May 2014, while on 

active duty at Camp Hansen, Okinawa, Japan, you did 

bodily harm to [Cpl JB]; 

 

4 Id. at 82.
4

Second, that you did so with a certain weapon to wit: 

a chair and by striking him in the face with a chair; 

Third, that the bodily harm was done with unlawful 

force or violence; 

And, fourth, that the weapon was used in a manner 

likely to produce death or grievous bodily harm.5 

The military judge further explained, “[a] weapon is 

dangerous when used in such a manner that it is likely to 

produce death or grievous bodily harm. . . . A weapon or means 

or force is likely to produce death or grievous bodily harm when 

the natural and probable results of its particular use would be 

death or grievous bodily harm, although this may not be the use 

to which the object is ordinarily put.”6

Additionally, the military judge defined grievous bodily 

harm as, “serious bodily injury. Grievous bodily harm does not 

mean minor injuries such as a black eye or a bloody nose, but it 

does mean f[r]acture or dislocated bones, deep cuts, torn 

members of the body, serious damaged internal organs, or other 

serious bodily injuries.”7

During the Care inquiry the appellant admitted to picking

up the chair and throwing it at Cpl JB, “I did grab the chair

and I did throw it at [Cpl JB], sir.”8 He reiterated, “... I

grabbed the chair and I turned and I threw it at him, sir.”9 

These admissions were reinforced by statements he made to

Sergeant FG in which he acknowledged that he knocked Cpl JB

over;10 the stipulation of fact in which he agreed, “I believe I

threw the chair in a manner likely to cause grievous bodily

harm;”11 and his statement made to a Naval Criminal Investigative

Service agent.12

 

5 Id. at 27-28.

6 Id. at 28.

7 Id.

8 Id. at 29.

9 Id. at 30.

10 Id. at 64.

11 Prosecution Exhibit 1 at 2.

12 Prosecution Exhibit 2 at 2.
5

Subsequently, the military judge asked the appellant on two 

separate occasions whether throwing the chair at Cpl JB amounted 

to using a weapon “in a manner likely to produce death or 

grievous bodily harm?” The appellant responded, “yes, sir,” 

both times.13 

When ask about the nature of the grievous bodily harm Cpl 

JB suffered, the appellant offered, “[t]he damage that he 

suffered on his eye, sir, cost him to have multiple 

surger[ies].”14 Shortly thereafter, the following colloquy 

ensued:

MJ: And have you seen all of the medical reports or 

have you discussed the medical reports and the 

injuries with your counsel?

ACC: I review them with my counsel and expert, sir.

MJ: Okay. And that was the expert ophthalmologist 

that the Court appointed to the defense team. Is that 

correct?

ACC: Yes, sir.

. . . .

MJ: Thank you. And, sergeant, based on everything 

that you have reviewed with your counsel, the medical 

records, and reviewing with the ophthalmologist, do 

you believe that the injuries suffered constitute 

grievous bodily harm as I’ve defined them for you?

ACC: Yes, sir, I do.

MJ: Did you intentionally do this; that is, you 

intentionally picked up the chair and threw it at him?

ACC: Yes, sir.15

 

13 Record at 31-33.

14 Id. at 31.

15 Id. at 31, 32.
6

Finally, the military judge asked the appellant if he 

understood the elements of the offense and if, taken together 

with the stipulation of fact, they correctly described what he 

did. The appellant answered both questions in the affirmative.16

Analysis

The appellant asserts that the military judge failed to 

elicit facts sufficient to establish that grievous bodily harm 

was likely to result from the appellant’s act. In determining 

whether grievous bodily harm is likely, “the ultimate standard 

. . . remains whether-in plain English-the charged conduct was 

‘likely’ to bring about grievous bodily harm. . . . [T]he 

question is: was grievous bodily harm the likely consequence of 

[a]ppellant’s . . . activity?” United States v. Gutierrez, 74 

M.J. 61, 66 (C.A.A.F. 2015). Put in other words, “one 

conception is whether grievous bodily harm is the ‘natural and 

probable consequence’ of an act.” Id. (citing United States v. 

Weatherspoon, 49 M.J. 209, 211 (C.A.A.F. 1998) (quoting MANUAL FOR 

COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 54c(4)(a)(ii) ). 

Factors helpful in determining whether grievous bodily harm 

was the likely consequence of an act include the circumstances 

surrounding the act and resulting harm, the degree of force 

used, the foreseeability of the harm, whether grievous bodily 

harm actually occurred, and the nature of the weapon. However, 

the nature of the weapon is not conclusive. “The crucial 

question is whether [the weapon’s] use, under the circumstances 

of the case, is likely to result in. . . grievous bodily harm.” 

United States v. Vigil, 13 C.M.R. 30, 32-33 (C.M.A. 1953). 

After evaluating the evidence adduced during the Care inquiry in 

this case, we answer that question in the affirmative. 

After correctly defining “likely,”17 the military judge 

elicited from the appellant that he intentionally threw the 

chair at Cpl JB; that Cpl JB was then facing the appellant when 

he threw the chair; that Cpl JB was extremely intoxicated at the 

time; that the chair did, in fact, hit Cpl JB in the face; and 

that grievous bodily harm resulted from Cpl JB being struck in 

the face with the chair. The appellant’s statements were 

corroborated by his pretrial admissions and the stipulation of 

fact. 

 

16 Id. at 35.

17 Id. at 28.
7

The military judge sufficiently established that serious 

harm to Cpl JB’s eye was a natural and probable consequence of 

throwing the chair at Cpl JB.18 As a result, we find no 

substantial basis in law or fact for questioning the appellant’s 

plea.

Conclusion

The findings and the sentence are affirmed.

 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court

 

 

18 As the appellant points out, the eye is an extremely delicate organ, easily 

damaged. Appellant’s Brief of 16 Jul 2015 at 11. This makes serious injury 

to the eye even more likely and a natural and probable consequence of an act 

like throwing a chair at someone who is facing you. As the old saw goes, “be 

careful or you’ll put your eye out.”