## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Specialist RONNI E M. ROGERS

United States Army, Appellant

ARMY 20131074

Headquarters, Fort Campbell Tyesha L. Smit h, Military Judge

Lieutenant Colonel Sebastian A. Edwards, Staff Judge Advocate

For Appellant: Lieutena nt Colonel Charles D. Lozano, JA; Major M. Patrick Gordon, JA; Captain Ryan T. Y oder, JA (on brief).

For Appellee: Major A.G. Courie, III, JA; Major Da niel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief).

18 December 2015

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HAIGHT, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of two specifications of failure to obey a lawful general regulation, wrongful use of marijuana, wrongful use of methiopropamine, wrongful introduction of methiopropam ine, one specification of wr ongful communication of a threat, and one specification of wrongful communication of a threat to ha rm a person or property by means of an explosive, in violation of Articles 92, 112a, 134,

Uniform Code of Militar y Justice, 10 U.S.C. §§ 892, 912a, and 934 (2012) [hereinafter UCMJ]. The military judge sentenced ap pellant to a bad-conduct discharge, confinement for 35 months, forfeitu re of all pay a nd allowances, and reduction to the grade of E- 1. The convening authority, consistent with a pretrial agreement, approved only 18 months of conf inement but otherwise approved the adjudged sentence.

This case is before us for review under Article 66, UCMJ. Appellate defense counsel raises two assignments of error, both of which me rit discussion and relief.ROGERS—ARMY 20131074

2 Appellant personally subm itted matters pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), none of whic h merits discussion or relief.

LAW AND DISCUSSION

1. Chemical Analogues

Appellant was charged with , pleaded guilty to, and co nvicted of wrongfully using methiopropamine, a Schedul e II controlled substance, as well as introducing methiopropamine, “a Schedule II controlled substance onto an installation used by the armed forces, to wit: Fo rt Campbell, Kentucky.” Ap pellant now asserts crimes involving chemical analogues, such as methiopropamine, should not be charged under Article 112a, UC MJ. The government concedes the milit ary judge committed “error by accepting appellant’s guilty plea to a violation of Ar ticle 112a, UCMJ for

use and introduction of meth iopropamine onto Fort Campbe ll.” We agree and accept the government’s concession.

Methiopropamine is not a Schedule II controlled substance; it is a methamphetamine analogue. During the providence i nquiry, its status as a controlled drug analogue wa s discussed and agreed upon by all parties. We find no support that analogue drugs ar e covered by Article 112a. See United States v.

Reichenbach , 29 M.J. 128 (C.M.A. 1989). Accordingly, we will set aside the findings of guilty to Spec ifications 2 and 3 of Charge II and dismiss those same specifications. We expressly decline to follow the gover nment’s proposal to affirm

a conviction of th e “lesser-included offense” of wrongful possession of methiopropamine “under clause 3 of Article 134, UCMJ.” See United States v.

Jones , 68 M.J. 465 (C.A.A.F. 2010); United States v. Medina , 66 M.J. 21 (C.A.A.F. 2008).

2. Communicating a Threat

Upon execution of a comm ander’s search authori zation, drugs and drug paraphernalia were fo und in appellant’s barracks room. Also discovered were boxes

of 45 caliber ammuniti on, an ordnance explosive dispos al bomb suit, a breach kit, and copies of The Anarchist Cookbook

, Mein Kampf , and The Communist Manifesto

. Criminal Investigation Command (CID) call ed appellant in to discuss what was

found in his room. After a proper rights advise ment and waiver, appellant made

statements to CID. It is these statements that form the basis for the two threat specifications.

Appellant was charged with, plea ded guilty to, and convicted of communicating to “Special Agen t [ZPC] a threat to torture and kill Sergeant [LC] if he pushed him too far” as we ll as communicating “certain information to Special Agent [ZPC], to wit: ‘I buried two [improvised explosiv e devices] in the HohenfelsROGERS—ARMY 20131074

3 Training Area.’” Appellant now asserts that the military judge ab used her discretion in accepting his gu ilty pleas to these threat offenses.

a

. Threat to Kill Sergeant LC

First, appellant claims he never stated the alleged words, “I will kill Sergeant [LC] if he pushes me too far,” or words to that effect, during his CID interview. During the providence inquiry, appellant explained he had ha rbored thoughts of violence in the past , prior to his CID interview, stating:

I fell out of the [formation] run . . . . [Sergeant LC] proceeded to initiate a smoke fe st on me. A smoke fest is non-stop [physical trai ning] for as long as he wanted. I am used to smoke fests, unfort unately with him, it was to the point, even when other [noncommissioned officers] were there laughing, they started walking away because they knew it was wr ong. It continued on until he finally got in my face and told me if I wanted to quit, just quit. I stopped what I was do ing after an initial period and I told him “I quit.” He asked me what I was talking about.

“You told me if I wanted to quit, tell you I quit.” So, I stood there, and he had me fa ce around and face the wall for long enough. The day after, they had a meeting with

me and a bunch of th e other NCOs. After more or less he got done smoking me, at the time , I wanted to kill [Sergeant LC], Your Honor.

The above statement made by appellant during the providence inquiry clearly indicates that he, at one point in the past , may have wanted to kill Sergeant (SGT) LC. However, this explanation does not support the notions th at appellant either

voiced his homicidal desire to anybody when he harbored it or that any pl an to carry out that intent persisted up until the time of his CID interview. Notwithstanding, during the providence in quiry, appellant agre ed that he told Agent ZPC that SGT LC “pissed me off and I wa nted to kill him.” Appellant further agreed that the agent

could have “surmised” from that statement during the interview that appellant “still planned on killing” SGT LC.

In direct contrast to th e providence inquiry, the vi deo recording of the CID interview, admitted into evidence and attached to the st ipulation of fact, reveals that appellant never said he was go ing to kill or torture SGT LC. Nor did appellant, at

the time of his statem ent to Agent ZPC, express a presen t or future intent to kill SGT LC. This plain inconsistency betwee n the providence inqu iry and the video recording, admitted as part of the stipulation of fact , was never addressed or resolved. The government now concedes th at appellant did not make the allegedROGERS—ARMY 20131074

4 threat against SGT LC during his interview with CID an d agrees that Specification 1 of Charge III should be dismissed. We agree, accept the gov ernment’s concession, and will set aside the finding of guilty to this threat offense.

b. Bomb Threat

Second, appellant cl aims there is a substantial basis in law and fact to question his guilty plea to the bomb threat as he never expressed during his CID interview a present determination or intent to kill, injure, or intimidate anybody or damage or destroy any property, presently or in the future.

During the providence in quiry, appellant explained hi s alleged bomb threat, as communicated to CID, in the following manner:

ACC: Myself and two friends experimented with making different pyro elements, mainly incendiary, like [napalm] and so on, and making bombs , blowing stuff up on our free time, while bein g Soldiers in Hohenfels. We actually made up to a number of di fferent explosives and we

detonated a few of th em. These two, we did not. When we more or less figured, we were not going to detonate them, we dismantled them as be st as we coul d then buried

them in the Hohenfels Tr aining Area, Your Honor.

MJ: So what exactly did you state to Special Agent [ZPC]?

. . . .

ACC: “I buried two IEDs in the Hohenfels Training Area,” Your Honor. To me though, at the time, whenever I said that, the explosives were -- aside from being dismantled, they were inacti ve, Your Honor, is how I was taking it to him.

. . . .

MJ: Did you believe that th e language that you used or

communicated amount ed to a threat?

ACC: At the time, I didn’t believe it would amount to a

threat. He was aski ng me questions; I was answering as truthfully as I could, Your Honor. But now, seeing it, it would be a threat, Your Honor.ROGERS—ARMY 20131074

5 . . . .

MJ: It is reasonab le for him to conclude that those IEDs presented a continuing threa t; would you agree with that?

ACC: I would agree with that, Your Ho nor. Except with, if there’s no primer on them , they cannot go off, Your Honor, and being th at it’s been 8 mont hs ago, they would have decayed to the point be yond anything, Your Honor.

Throughout appellant’s interview with CI D, he makes it ab undantly clear that

he “does not care if innocen t people are hurt or die.” In response to appellant’s assignment of error, the government contends that we should equate appellant’s reprehensible apathy for the potentially tragic results if the abandon ed and buried IEDs accidentally went off some time in th e future with an expressed intent to do harm. Although we find appe llant’s voiced sen timents to be spec tacularly craven, we cannot legally equate his lack of concern with the requisite intent.

Our legal analysis of a th reat takes into account “b oth the words used and the surrounding circumstances.” United States v. Brown , 65 M.J. 227, 232 (C.A.A.F. 2007). After viewing the vide o recording of the CID interview, it is clear that appellant, as he himself admitted, posses ses deeply troubling, demented, and dark aspects to his personality. However, it is equally clear that during his interview with CID, appellant was admitting those asp ects and confessing to past misconduct – he was not communicating a th reat to do harm in the fu ture. Although admitting to profound behavior al instability and a disconcertin g lack of empathy, he never expressed a present intent to do harm by m eans of the buried expl osives, presently or in the future. Accordingly, we will set aside the finding of guilty to the bomb threat

offense.

CONCLUSION

The findings of guilty to Sp ecifications 2 and 3 of Charge II are set aside and those specifications are DISMISSED. The find ings of guilty to Specifications 1 and 3 of Charge III are set as ide and those specifications and that charge are DISMISSED. The remaining findi ngs of guilty are AFFIRMED.

The sentence is set aside. In accordan ce with Rule for Co urts-Martial 810, a rehearing is authorized. Al l rights, privileges , and property, of which appellant has been deprived by virtue of that portion of the findings and senten ce set aside by our decision, are or dered restored. See UCMJ arts. 58b(c) and 75(a).

Judge PENLAND and Judge WOLFE concur.ROGERS—ARMY 20131074

6 FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: