## UNITED STATES ARMY COUR T 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 Ma neuver Center of Excellence Steven E. Castlen, Mil itary 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: Captai n Patrick J. Scudieri , JA (argued); Colone l Kevin Boyle, JA; Major Amy E. Nieman, JA; Ca ptain Patrick A. Crocker, JA (on original brief); Major Christopher D. Colema n, JA; Captain Patrick J. Sc udieri, JA (on supplemental brief).

For Appellee: Captain Ro byn M. Chatwood, JA (argued); Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA ; Major John K. Ch oike, JA; Captain Robyn N. Chatwood, JA (on original brief); Co lonel Mark H. Sydenham, JA; Major John K. Choike, JA; Capt ain 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 offi cer 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 sent enced appellant

1 Appellant was acquitted of one specification of attemp ted sexual assault, one specification of willful disobe dience of an offi cer, one specifica tion of abusive sexual contact, and one specification of as sault consummated by battery in violation of Articles 80, 90, 120, and 128, UCMJ.VIERS —ARMY 20130847

2 to a bad-conduct discha rge, 302 days of conf inement, total forfeitures, and reduction to the grade of E-1. The m ilitary judge grante d 302 days of pret rial confinement credit and 365 days of Artic le 13 credit. The conven ing authority approved the sentence as adjudged and credited appellan t with 667 days of confinement credit.

This case is before us for review pursuant to Ar ticle 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 fa iling to provide panel instru ctions, sua sponte, on the special defenses of se lf-defense and defense of property as these defenses relate to communicating a threat , Article 134, UCMJ, after thes e defenses were reasonably raised by the evidence.

BACKGROUND

Appellant and his wife, J. V., were engaged in a ve rbal altercation in the upstairs bedroom and hallway of their home. As they quarreled, the argument turned physical. Toilet bowl cleane r and suntan lotion were doused about th e upper floor by one or both of them. A glass vase was also broken during the ex change. At trial, each spouse accused the other of breaking the vase. Both parties agree, however,

that after these items were tossed abou t the bedroom, bathroom , and hallway, J.V. went downstairs and returned upstairs, wiel ding a capped bottle of liquid bleach. Appellant grabbed J.V. by the wrist and hand in whic h she held the bleach and

uttered words to the effect of: “if you don’t put down the bleac h, I will break your f***ing hands.” J.V. ultimately let go of the bleach and th e scuffle came to an end. Appellant then went downstairs and was ta ken into custody by police who arrived on the scene. Despite appellan t’s threat during th e struggle, appellant did not actually break or injure J.V.’s hands. 3

At trial, J.V. agreed with defense co unsel 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 proper ty with the bleach. By the same token, appellant testified he was wo rried for his person al safety and concerned J.V. would get bleach in his eyes or on his person. 4

2 We do not address the sufficiency of evid ence related to the terminal element of the offense as to whether appellant's uttera nces prejudiced good order and discipline

under the circumstance s 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 co mmunicating a threat.

4 Appellant also testified he was worried for J. V.’s safety, althou gh this statement was never fully expound ed upon by appellant during the trial.VIERS —ARMY 20130847

3 As a result of this event, the government charged appellant with communicating a th reat as follows:

CHARGE V: VIOLATION OF ARTICLE 134, UCMJ.

THE SPECIFICATION: In that [appellant], U.S. Army, did, at or near Fort Bennin g, Georgia, on or about 3 June 2012, wrongfully communicate to [J.V.] a threat by saying, “I will break your hands”, or word s to that effect,

and that said conduct was to the prejudice of good order and discipline in the armed forces [sic].

At trial, the milit ary judge instructed the me mbers on the elements of communicating a threat, which included the element that the accused's

communication must ha ve been wrongful. He did no t, however, defi ne the concept of “wrongfulness” or further explain that threats made for a le gitimate purpose are not wrongful. The defense did not object to the instructions regard ing the offense of communicating a threat, nor di d they request inclusion of other instructio ns, such as self-defense or defense of proper ty as it related to that crime. 5

In closing argument on the merits, the defense argued appellant’s threatening language was not “wrongful” because appe llant only uttered the words to defend himself and make J.V. let go of the bleach. In rebuttal , the government argued “selfdefense” did not appl y to appellant’s language beca use appellant was considerably larger than J.V. and appellant’s assert ion 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 [hereina fter 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 19 94) (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 erro r, 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, howeve r, give a self-defense inst ruction 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 thre at requires the government to demonstrate beyond a reasonable doubt:

(1) that the accused comm unicated certain language expressing a present determinat ion or intent to wrongfully injure the person, property, or reputa tion of another person, presently or in the future;

(2) that the comm unication was made known to that person or to a third person;

(3) that the communication was wrongful ; and

(4) that, under the circumst ances, the conduct of the

accused was to the prejudice of good or der 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 re fute all conceivable le gitimate purposes for communicating a threat in its case-in-chief. Murray , 43 M.J. at 512. Once evidence raises an issue of a legiti mate purpose, howe ver, the government has the burden to disprove it beyond a reasonab le doubt. R. C.M. 916(b).

Whether a threat is wrongf ul depends on the circumst ances 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 comma nder'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 theo ries of defense of proper ty – imminent threat to property and preventi on of trespass. United States v. Davis , 73 M.J. 268, 271 (C.A.A.F. 2014).VIERS —ARMY 20130847

5 purpose and is not wr ongful for purposes of proving the offens e 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. testif ied both that she was threateni ng appellant with the bleach and

that her intention was to de stroy his property. The ma tters 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-defen se or defense of property – es pecially 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 irrele vant regarding whether the ma tter was at issue because the

evidence could have been re lied upon by the panel member s if they had been fully and properly instructed . See Davis , 73 M.J. at 272.

“Legitimate purpose” is not explicitly li sted as a defense available to the charge of communicating a threat. Based on the plai n reading of R.C.M. 916(e) however, the rule recogn izes 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) allo ws for the defense of self -defense to a charge of aggravated assault by means likely to produce grievous bodily harm in

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

about to be inflicted on the accused, and (2) in order to deter th e assailant, offered but did not actually apply or attempt to apply such means of force as would be likely to cause grievou s 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, an d 128, but not Article 134 , communicating a threat. 9 Applying the plain language of R.C.M. 916(e), appellant co uld avail himself of selfdefense under identical facts if the governm ent had chosen to ch arge appellant with

7 We also note that J.V. we nt downstairs to retrieve th e bleach. As such, appellant did not lose his right to self -defense because he was not the aggres sor 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 accuse d would follow throu gh with his offer and use deadly force.

United States v. Richards , 63 M.J. 622, 627 (Arm y Ct. Crim. App. 2006); see also Dep’t of Army, Pam. 27-9, Le gal Services: Military Judg es’ Benchbook, para. 5-2-5 (1 Jan. 2010). A person ma y 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

6 Article 128, UCMJ, instead of communi cating a threat. 10 Such a literal reading

would lead to inc ongruent results.

To the extent that it has not explicitly been stated previous ly, 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 th at threats made in defense of property ma y not be “wrongful” as they ma y be spoken for a legitimate purpose. These two defenses constitute “special de fenses” to the crime of communicating a threat, thus requiring a judg e to sua sponte instruct if the defenses are raised by some eviden ce, as was the case here. See Murray , 43 M.J. at 513.

Applying the plain error stan dard 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 purp ose. 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 im plicating the defenses . Lastly, we find the error “had an unfair prejudicial impact” on the pane l’s deliberation. See United

States v. Fisher , 21 M.J. 327, 328 (C.M.A . 1986). As a resu lt, we are left to speculate as to whether a pa nel would have fou nd appellant’s threatening declaration to be justified. We are convinced that appellant stat ed 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 gu ilty and sentence

are set aside. A re hearing may be orde red by the same or different convening authority. All rights , privileges, and property, of wh ich 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 Ju dge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

10 We note that the MCM actua lly labels the combination of threatening words with actions (such as grabbing another’s wris ts) as an assault, not a mere threat. MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: