UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

TOZZI, CAMPANELLA, and CELTNIEKS 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant BARTHOLOMEW D. VIERS 

United States Army, Appellant 

ARMY 20130847 

Headquarters, U.S. Army Maneuver Center of Excellence 

Steven E. Castlen, Military Judge (arraignment) 

 Charles A. Kuhfahl, Jr., Military Judge (trial) 

Colonel James F. Garrett, Staff Judge Advocate (pretrial) 

Lieutenant Colonel John M. McCabe, Staff Judge Advocate (recommendation) 

For Appellant: Captain Patrick J. Scudieri, JA (argued); Colonel Kevin Boyle, JA; 

Major Amy E. Nieman, JA; Captain Patrick A. Crocker, JA (on original brief); 

Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on supplemental 

brief). 

For Appellee: Captain Robyn M. Chatwood, JA (argued); Colonel Mark H. 

Sydenham, JA; Major A.G. Courie III, JA; Major John K. Choike, JA; Captain 

Robyn N. Chatwood, JA (on original brief); Colonel Mark H. Sydenham, JA; Major 

John K. Choike, JA; Captain Robyn N. Chatwood, JA (on supplemental brief). 

30 November 2015 

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OPINION OF THE COURT 

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CAMPANELLA, Judge: 

A panel consisting of officer and enlisted members sitting as a general courtmartial convicted appellant, contrary to his plea, of one specification of 

communicating a threat in violation of Article 134, Uniform Code of Military 

Justice, 10 U.S.C. § 934 (2012) [hereinafter UCMJ].1

 The panel sentenced appellant 

 

1

 Appellant was acquitted of one specification of attempted sexual assault, one 

specification of willful disobedience of an officer, one specification of abusive 

sexual contact, and one specification of assault consummated by battery in violation 

of Articles 80, 90, 120, and 128, UCMJ. 
VIERS —ARMY 20130847 

2

to a bad-conduct discharge, 302 days of confinement, total forfeitures, and reduction 

to the grade of E-1. The military judge granted 302 days of pretrial confinement 

credit and 365 days of Article 13 credit. The convening authority approved the 

sentence as adjudged and credited appellant with 667 days of confinement credit. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises five assignments of error, one of which warrants discussion and relief. Our 

disposition of that issue renders the remaining issues moot.2 Specifically, we find 

the military judge erred by failing to provide panel instructions, sua sponte, on the 

special defenses of self-defense and defense of property as these defenses relate to 

communicating a threat, Article 134, UCMJ, after these defenses were reasonably 

raised by the evidence. 

BACKGROUND 

Appellant and his wife, J.V., were engaged in a verbal altercation in the 

upstairs bedroom and hallway of their home. As they quarreled, the argument turned 

physical. Toilet bowl cleaner and suntan lotion were doused about the upper floor 

by one or both of them. A glass vase was also broken during the exchange. At trial, 

each spouse accused the other of breaking the vase. Both parties agree, however, 

that after these items were tossed about the bedroom, bathroom, and hallway, J.V. 

went downstairs and returned upstairs, wielding a capped bottle of liquid bleach. 

Appellant grabbed J.V. by the wrist and hand in which she held the bleach and 

uttered words to the effect of: “if you don’t put down the bleach, I will break your 

f***ing hands.” J.V. ultimately let go of the bleach and the scuffle came to an end. 

Appellant then went downstairs and was taken into custody by police who arrived on 

the scene. Despite appellant’s threat during the struggle, appellant did not actually 

break or injure J.V.’s hands.3

At trial, J.V. agreed with defense counsel that she was threatening appellant 

with the bleach and that bleach can be a “dangerous” substance. She also testified 

she intended to destroy appellant’s property with the bleach. By the same token, 

appellant testified he was worried for his personal safety and concerned J.V. would 

get bleach in his eyes or on his person.4

 

2

 We do not address the sufficiency of evidence related to the terminal element of 

the offense as to whether appellant's utterances prejudiced good order and discipline 

under the circumstances of this case. UCMJ art. 66(c). 

3

 We note with interest that appellant was not charged with assault, Article 128, UCMJ, 

for grabbing and squeezing J.V.’s hand and wrist – only communicating a threat. 

4

 Appellant also testified he was worried for J.V.’s safety, although this statement 

was never fully expounded upon by appellant during the trial. 
VIERS —ARMY 20130847 

3

As a result of this event, the government charged appellant with 

communicating a threat as follows: 

CHARGE V: VIOLATION OF ARTICLE 134, UCMJ. 

THE SPECIFICATION: In that [appellant], U.S. Army, 

did, at or near Fort Benning, Georgia, on or about 3 June 

2012, wrongfully communicate to [J.V.] a threat by 

saying, “I will break your hands”, or words to that effect, 

and that said conduct was to the prejudice of good order 

and discipline in the armed forces [sic]. 

At trial, the military judge instructed the members on the elements of 

communicating a threat, which included the element that the accused's 

communication must have been wrongful. He did not, however, define the concept 

of “wrongfulness” or further explain that threats made for a legitimate purpose are 

not wrongful. The defense did not object to the instructions regarding the offense of 

communicating a threat, nor did they request inclusion of other instructions, such as 

self-defense or defense of property as it related to that crime.5

In closing argument on the merits, the defense argued appellant’s threatening 

language was not “wrongful” because appellant only uttered the words to defend 

himself and make J.V. let go of the bleach. In rebuttal, the government argued “selfdefense” did not apply to appellant’s language because appellant was considerably 

larger than J.V. and appellant’s assertion that the situation required appellant to 

defend himself was an unreasonable belief. 

LAW AND DISCUSSION 

A military judge has a sua sponte duty to instruct on a special defenses 

reasonably raised by the evidence. United States v. Hearn, 66 M.J. 770, 776 (Army 

Ct. Crim. App. 2008) (citing United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 

2000); see also Rule for Courts-Martial [hereinafter R.C.M.] 916). The military 

judge must tailor special defense instructions to the facts of the case. United States 

v. Murray, 43 M.J. 507, 513 (A.F. Ct. Crim. App. 1995) (citing United States v. 

Martinez, 40 M.J. 426, 431 (CMA 1994) (internal citations omitted). In accordance 

with R.C.M. 920(f), appellant’s failure to properly object to or request a mandatory 

instruction forfeits the error, absent plain error. United States v. Payne, 73 M.J. 19, 

23 (C.A.A.F. 2014); See United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011); 

See also United States v. Davis, __ M.J. __ (Army Ct. Crim. App. 25 Nov. 2015). 

“The plain error standard is met when: (1) an error was committed; (2) the error was 

 

5

 The military judge did, however, give a self-defense instruction for the Article 128, 

UCMJ offense, of which appellant was acquitted. 
VIERS —ARMY 20130847 

4

plain, or clear, or obvious; and (3) the error resulted in material prejudice to 

substantial rights.” United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) 

(citation and internal quotation marks omitted). 

The offense of communicating a threat requires the government to 

demonstrate beyond a reasonable doubt: 

(1) that the accused communicated certain language 

expressing a present determination or intent to wrongfully 

injure the person, property, or reputation of another 

person, presently or in the future; 

(2) that the communication was made known to that 

person or to a third person; 

(3) that the communication was wrongful; and 

(4) that, under the circumstances, the conduct of the 

accused was to the prejudice of good order and discipline 

in the armed forces or was of a nature to bring discredit 

upon the armed forces. 

Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 110.b. (emphasis 

added). 

The government need not refute all conceivable legitimate purposes for 

communicating a threat in its case-in-chief. Murray, 43 M.J. at 512. Once evidence 

raises an issue of a legitimate purpose, however, the government has the burden to 

disprove it beyond a reasonable doubt. R.C.M. 916(b). 

Whether a threat is wrongful depends on the circumstances in which the words 

were uttered as well as the intent and purpose behind the statement. United States v. 

White, 62 M.J. 639, 642 (N.M. Ct. Crim. App. 2006). See R.C.M. 916(a) and R.C.M. 

916(e).6

 If a threat is uttered, for example, in jest or for a legitimate purpose, it is 

not wrongful as contemplated under Article 134, UCMJ. United States v. Brown, 65 

M.J. 227, 231 (C.A.A.F. 2007); United States v. Schmidt, 16 U.S.C.M.A. 57, 36 

C.M.R. 213 (1966) (soldier's threat to expose commander's abusive treatment to 

newspapers was not wrongful); see also United States v. Greer, 43 C.M.R. 801 

(A.C.M.R. 1971). In Murray, the Air Force court held that a threat to kill someone 

communicated in lawful self-defense or in defense of another is for a legitimate 

 

6

 There are two different theories of defense of property – imminent threat to 

property and prevention of trespass. United States v. Davis, 73 M.J. 268, 271 

(C.A.A.F. 2014). 
VIERS —ARMY 20130847 

5

purpose and is not wrongful for purposes of proving the offense of communicating a 

threat. Murray, 43 M.J. at 512. 

Here, appellant testified he uttered the threatening words to keep J.V. from 

attacking him with the liquid bleach. Appellant’s words were not spoken in a 

vacuum. J.V. testified both that she was threatening appellant with the bleach and 

that her intention was to destroy his property. The matters of self-defense and 

defense of property were undeniably raised by the evidence. The government’s 

argument that appellant was much larger than J.V. does not vitiate appellant’s claims 

of either self-defense or defense of property – especially in light of J.V.’s 

admissions as to her intentions with the bleach.7 The credibility of the assertions by 

appellant or J.V. are irrelevant regarding whether the matter was at issue because the 

evidence could have been relied upon by the panel members if they had been fully 

and properly instructed. See Davis, 73 M.J. at 272. 

“Legitimate purpose” is not explicitly listed as a defense available to the 

charge of communicating a threat. Based on the plain reading of R.C.M. 916(e) 

however, the rule recognizes one’s ability to threaten force in excess of the amount 

of force one could legally use to defend oneself as long as the force is not actually 

used. R.C.M. 916(e)(2) allows for the defense of self-defense to a charge of 

aggravated assault by means likely to produce grievous bodily harm in 

circumstances where an accused (1) reasonably apprehended that bodily harm was 

about to be inflicted on the accused, and (2) in order to deter the assailant, offered 

but did not actually apply or attempt to apply such means of force as would be likely 

to cause grievous bodily harm.8

 Under R.C.M. 916(e), an accused may threaten 

more force than can actually be used in self-defense for offenses charged under 

Articles 90, 91, 118, and 128, but not Article 134, communicating a threat.9 

Applying the plain language of R.C.M. 916(e), appellant could avail himself of selfdefense under identical facts if the government had chosen to charge appellant with 

 

7

 We also note that J.V. went downstairs to retrieve the bleach. As such, appellant 

did not lose his right to self-defense because he was not the aggressor or engaged in 

mutual combat at that point in the argument. See R.C.M. 916(e)(4). 

8

 The facts of this case do not convince us that appellant attempted to apply force in 

excess of what was deemed necessary for self-defense. 

9

 An accused is permitted to create an apprehension in an attacker that if the assault 

does not stop, the accused would follow through with his offer and use deadly force. 

United States v. Richards, 63 M.J. 622, 627 (Army Ct. Crim. App. 2006); see also

Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 5-2-5 

(1 Jan. 2010). A person may lawfully defend himself by offering, but not actually 

using, such deadly force if he reasonably believes that an attacker is about to inflict 

bodily harm. 
VIERS —ARMY 20130847 

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Article 128, UCMJ, instead of communicating a threat.10 Such a literal reading 

would lead to incongruent results. 

To the extent that it has not explicitly been stated previously, we hold threats 

made in self-defense are not “wrongful” within the statutory meaning because the 

words are spoken for a legitimate purpose. We further hold that threats made in 

defense of property may not be “wrongful” as they may be spoken for a legitimate 

purpose. These two defenses constitute “special defenses” to the crime of 

communicating a threat, thus requiring a judge to sua sponte instruct if the defenses 

are raised by some evidence, as was the case here. See Murray, 43 M.J. at 513. 

Applying the plain error standard to the facts of this case, we find the military 

judge committed error when he failed to instruct on the special defenses reasonably 

raised by the evidence related to a legitimate purpose. We find the error to be plain, 

obvious, and substantial as illustrated by the evidence reasonably raising the 

defenses as well as counsel’s arguments implicating the defenses. Lastly, we find 

the error “had an unfair prejudicial impact” on the panel’s deliberation. See United 

States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986). As a result, we are left to 

speculate as to whether a panel would have found appellant’s threatening declaration 

to be justified. We are convinced that appellant stated to J.V., "I will break your 

hands" or words to that effect. Whether that language was wrongful, however, 

remains in question. 

CONCLUSION 

Upon consideration of the entire record, the findings of guilty and sentence 

are set aside. A rehearing may be ordered by the same or different convening 

authority. All rights, privileges, and property, of which appellant has been deprived 

by virtue of the findings and sentence set aside by this decision are ordered restored. 

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

Senior Judge TOZZI and Judge CELTNIEKS concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

10 We note that the MCM actually labels the combination of threatening words with 

actions (such as grabbing another’s wrists) as an assault, not a mere threat.

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: