## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant WILLIAM L. MITCHAM United States Army, Appellant

ARMY 20140969

Headquarters, Joint Readiness Tr aining Center and Fort Polk Randall L. Fluke, Milit ary Judge (arraignment) Wade N. Faulkner, Mi litary Judge (trial)

Colonel Jan E. Al dykiewicz, Staff Judge Advocate

For Appellant: Captain Jennif er K. Beerman, JA; Mr. Se an A. Marvin , Esquire (on brief); Captain Matthew L. Jalandoni, JA; Mr. Sean A. Marvin, Esquire (on reply

brief and on motion fo r reconsideration).

For Appellee: Colonel Mark H. Sydenh am, JA; Major Cormac M. Smith, JA; Captain Linda Chavez, JA (on brief); Colo nel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith, JA; Captai n Linda Chavez, JA (on response for motion for reconsideration).

30 January 2017

---------------------------------------------------------------------------------- MEMORANDUM OPINION ON REMAND ON RECONSIDERATION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A panel with enlisted re presentation acquitted ap pellant of stealing and mistreating a dog. The pane l convicted appellant of disrespecting a superior commissioned officer, assault consummate d by battery, aggrav ated assault with force likely to produce deat h or grievous bodily harm , and communicating indecent language in violation of Arti cles 89, 128, and 134, Uniform Code of Milita ry Justice, 10 U.S.C. §§ 889, 92 8, 934 (2012) [hereinafter UC MJ]. The convening authority approved the adjudged senten ce of a dishonorab le discharge, confinement for two years, and reduction to the grade of E-1.MITCHAM—ARMY 20140969

2 In our earlier decision, United States v. Mitcham , ARMY 20140969, 2016 CCA LEXIS 697 (Army Ct. Crim. App. 30 N ov. 2016) (mem. op.), we set aside the finding of guilty to indecent language but affirmed the lesser-included offense of general disorder under Artic le 134, UCMJ. We affirmed the remaini ng findings of guilty, reassessed the sentence, and affi rmed the sentence as adjudged. On 28 December 2016, appellant as ked that we reconsider our decision. We grant appellant’s motion for reconsideration, and for the reasons explai ned below, provide appellant with some of hi s requested relief.

BACKGROUND

During a mandatory trai ning session appellant made offensive sexist

comments. 1 Specifically, appellant stated that he could not trust women because, in a reference to women’s menstrual cycles, he didn’t trust anything that bled for seven days and didn’t die. Appellant’s battal ion commander directed Captain (CPT) Chase to counsel appellant regarding his comm ent. While being counseled appellant refused to sign the co unseling form and said to CPT Chase “Fuck this shit, I’m not going to sign this.”

For this language, appell ant was charged with disrespecting a superior

commissioned officer. Afte r reviewing the evidence we found the specification to be factually and lega lly sufficient.

DISCUSSION

A. The Evidence is Factually Sufficient

In United States v. Najera , 52 M.J. 247 (C.A.A.F. 2000) the accused was

ordered to attend unit training. The accused refused, and stated “you can’t make me go.” That accused was subsequently co nvicted of disrespecting a superior

commissioned officer. The Court of Crim inal Appeals found th e evidence legally and factually sufficient, a nd the Court of Appeals fo r the Armed Forces (CAAF) affirmed the finding of guilty for disrespecting a s uperior commissioned officer as legally sufficient.

Here, appellant testified re garding this offe nse. He stated during direct examination that he regarded the counseling as “political stuff that somebody wanted

to have done” and that he didn’t believe he had done anything wrong. He testified

1 Appellant was convicted of using indecent languag e for his comments at the training session. As expl ained in our original deci sion, we found appellant’s comment to be highly offensive but not “inde cent.” We therefor e affirmed a lesserincluded offense of a general disorder.MITCHAM—ARMY 20140969

3 that the counseling session interfered with “t hings I needed to go take care of and do . . . .” Appellant’s disdain for the counseling session is palpable and leaps off the page. Regarding the statement in question, appell ant testified on direct as follows:

Well, I was frustrated at the si tuation. I sa t back in my chair, and I th ought about it for a moment. I pondered. And I said, “You know what,” to myself. I looked at Captain Chase, and he was just kind of waiting for what I was going to say. And, I said, “Sir, this is bullshit.” I said, “You know it, I know it , Sergeant Crawford knows

it. Fuck this. I’m not signing it, sir.”

Appellant’s counsel then qu estioned him about his actual words, and appellant clarified: “I’m pretty sure what I said, “F uck this shit. I’m not going to sign this

because this is basi cally bullshit, sir.”

In his own words, appellant “sat back in chair,” “pondered,” and then decided to launch his verbal tirade at his superior commissioned officer. Additionally, this was one of the few part s of appellant’s testim ony that struck us as credible; most of the rest being obvious baloney. Captain Chas e also testified abou t the exchange. He was asked: “The phrase, ‘Fuc k that shit,’ who was that comment directed at?” Captain Chase responded, “It was at me.” 2

Disrespectful behavior is defined as that which:

detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts of language, however expr essed, and it is immaterial whether they refer to the superior commissioned officer as an officer or as a private indi vidual. Disrespect by words may be conveyed by abus ive epithets or other contemptuous or den unciatory language.

Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM ], Part IV, para. 13c(3).

2 On cross examination, CPT Chase te stified that he personally—that is, subjectively—did not feel disrespected. Whether wo rds are disrespectful is determined objectively, not on how thick (or thin) the skin of the recipient may happen to be. A statemen t does not become disrespectful me rely because the recipient is particularly sensitive. Nor does a disrespectful statement lose its disrespectful nature merely because the recipient happens to be desensi tized to its disrespectful nature.MITCHAM—ARMY 20140969

4 We continue to find the o ffense of disrespect to be factually sufficient. Appellant’s words are clearly disrespectful, especially given the context in which he

said them. See Najera , 52 M.J. at 247 (s tating a reviewing co urt may consider the

context in which a statement is made when assessing whether it was disrespectful). After making a highly offensive and sexist comment at a unit mandatory training session, appellant was being counseled for his co nduct. He then, intentionally and after contemplation, directed a profanity laced tirade at CPT Chase in front of at

least one other non-commissioned officer . In his own word s, and on direct examination, he testified that CPT Chase’s ac tion in counseling him was “bullshit.” We have no hesitation in finding the evidence factually sufficient.

Moreover, we are not the initial find ers of fact. In assessing factual sufficiency we must acknowledge that the trial court saw and heard the witnesses. In assessing factual sufficiency we give no deference to th e trial court’s findings of guilty, but we do “recogn ize” their ability to see the witnesses testify. See generally United States v. Washington , 57 M.J. 394 (C.A.A.F. 200 2). To the extent that different weight coul d be given to the wi tness testimony dependin g on its in-court delivery, the court-mart ial was able to assess this evid ence. Our recogn ition that the trial court saw the witnesses further weighs in favor of finding the evidence factually sufficient in this case.

B. Should the Offense Be Approved?

Unusually, and the reason we granted reconsider ation, the government on appeal has conceded that the evidence was factually insufficient. In our initial opinion we ignore d this concession as we clearly came to the o pposite conclusion. On reconsideration, however, we have come to view this concession in a different light.

Clearly the offense in question is legally sufficient, and a reasonable factfinder could determine that appellant is guilty. Nonetheless, the government

argues against affirmance. While government could make a non-frivolous argument in favor of affirmance, the government has chosen instead to argue the opposite. We did not fully appreciate th e uniqueness of the government’s concession during our

initial review. 3 When an offense is legally su fficient but the go vernment argues factual insufficiency, it is clearly a discretionary deci sion. The gover nment asks us to set aside the specification no t because it has to, but because it wants to, make that argument. The government’s concession is struct urally similar to the prosecutor at

3 We directed the gover nment to respond to appellant’s motion fo r reconsideration. The government argued in favor of granting the moti on, and again argu ed that we should find appellant no t guilty of the offense.MITCHAM—ARMY 20140969

5 trial, while having sufficient evidence to easily surviv e a Rule for Courts-Martial [hereinafter R.C.M.] 917 moti on and having proven the o ffense beyond a reasonable doubt in the mind of the pane l, nonetheless arguing in favor of the court-martial returning a verdic t of not guilty on the merits.

The government’s concession, to be sure, does not alter our determination that the specification is fact ually sufficient. The UC MJ prohibits appellant’s disrespectful conduct towards his commander. 4 However, it does alter our analysis on whether the specification “s hould be approved.” Here, the United States, through counsel who are professionally obligated to represent the government’s interests,

asks this court to set aside the conviction. 5 “Our adversary system is designed around the premise that the pa rties . . . are responsible for advancing the facts and arguments entitling them to relief.” United States v. Blazier, 68 M.J. 439, 443 (C.A.A.F. 2010) (quoting Greenlaw v. United States , 554 U.S. 237 (2008)), but cf.

United States v. Budka , 74 M.J. 220 (C.A.A.F. 2015) (C ourts of criminal appeals, nor CAAF, are not bo und by government conces sions.). Viewed in this new light, we considered two options.

First, we considered se tting aside the convening authority’s action and returning the case to him so that he may ex ercise clemency author ity on behalf of the United States. The convening authority is likely the person best empowered to

address this issue as it borders on nullifica tion and equity . We rejected this option for reasons of judi cial economy.

The second option, and the one we take today, is simply to disapprove the finding because it should no longer be approved. UMCJ art. 60(c). This option is likely at the outside edge of our authority, and but fo r the government’ s concession, would likely be beyond it. See United States v. Nerad , 69 M.J. 138 (C.A.A.F. 2010).

We do not believe ou r decision is based in equity, as Nerad would prohibit, although perhaps it is a close call. Ra ther, in a system which pins its accuracy on the benefits

4 If not prohibited by the UC MJ, the conduct is likely lawful—most certainly when concerning issues of speech . In other words, the UCMJ is not just how we punish soldiers who disobey their commander or leav e their unit without authority, it is the authority for why a soldier must obey his commande r and not go AWOL. Stated yet another way, the UCMJ is not merely the me thod of enforcing nor ms of acceptable

behavior—it establishes them.

5 Again this is a significant point. It is not government counse l who ask us to set

aside the conviction because of their personal assessment of the evidence, it is the

United States as sovereign.MITCHAM—ARMY 20140969

6 of an adversarial cont est, we should not a pprove a finding that ne ither side supports;

at least on the facts of this case. 6

CONCLUSION

The Specification of Charge IV and Char ge IV are set aside and DISMISSED. We AFFIRM our previous decision as to th e remaining charges and specifications.

We are able to reassess th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed by our superior

court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and

United States v. Sales , 22 M.J. 305 (C.M.A. 1986). Included in our consideration is our prior decision setting asid e the offense of indecent language and affirming the lesser-included offense of a general disord er. We are confiden t that based on the entire record and appellant’s misconduct , the court-martial would have imposed a

sentence of at least a dishonorable disc harge, twenty months confinement, and

reduction to E-1. Accordingly, we AFFIRM only so much of the sentence as provides for a dishonor able discharge, confinement fo r twenty months, and reduction to E-1. All rights, privileg es, and property, of which a ppellant has been deprived by

virtue of this decision se tting aside portions of th e findings and sentence, are

ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

Senior Judge MULLIGAN an d Judge FEBBO concur.

FOR THE COURT:

JOHN P. TAITT Deputy Clerk of Court

6 We view the government’s concession here as fundamentally di fferent from when the government concedes legal error. See Marsical v. United States , 449 U.S. 405 (1981) (Rhenquist, J. dissenting). JOHN P. TAITT Deputy Clerk of Court FOR THE COURT: