## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, BERG, and YOB Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant JUSTIN A. BOYLE United States Army, Appellant

ARMY 20090893

Headquarters, 82nd Airborne Division Gary Brockington, Military Judge Lieutenant Colonel Jeffrey Ha gler, Staff Judge Advocate

For Appellant: Mr. Daniel S. Conway, Es quire (argued); Major Richard E. Gorini, JA; Captain Matthew T. Grady, JA; Mr. Daniel S. Conway, Esquire (on brief).

For Appellee: Captain Stephe n E. Latino, JA (argued); Major Amber J. Williams, JA; Major Ellen S. Jenning s, JA; Captain Stephen E. Latino, JA (on brief).

14 December 2011

--------------------------------- SUMMARY DISPOSITION

--------------------------------- YOB, Judge:

A panel of officer an d enlisted members, sitting as a gene ral court-martial, convicted appellant, contra ry to his pleas, of conspiracy to commit assault consummated by a battery and involuntary manslaughter in violat ion of Articles 81 and 119, Uniform Code of Military Justice, 10 U. S.C. §§ 881 and 919 (2008) [hereinafter UCMJ], respectively. Appellant was se ntenced to be reduced to the grade of E1, total forfeiture of all pay and allowances, to be discharged with a badconduct discharge, and to be confined for twenty-fou r months. The convening authority approved th e findings and the ad judged sentence.

We review this case pursuant to Artic le 66, UCMJ. Appe llant raised five assignments of error, only one of which merits discussion, but no relief. This assignment of error alleges the evidence is factually and legally insufficient to support the findings of guil ty to both charges. Regarding the conspiracy charge, appellant contends there was no evidence of an agreement to commit an assault consummated by a battery. As to the involuntary mans laughter charge, appellantBOYLE—ARMY 20090893

2 contends the evidence was insufficient to demonstrate that appellant caused or was the proximate cause of the death of the victim in this case.

BACKGROUND

The evidence shows th at on the evening of 20 July 2008, a number of Soldiers

from the 82nd Airborne Divi sion, includin g appellant and the vi ctim, were drinking at an off-post bar in Fayette ville, North Carolina. The victim was six-feet three inches tall and weighed 250 pounds. At about 0200 in the morn ing, the victim started sulking and provoked a confrontation when he drank another patron’s beer without permission. Appellan t and other Soldiers defused the situation and took the victim from the bar as they left. Once ou tside, the victim, who appeared intoxicated, wanted to go back and figh t the bar security staff. After his fellow Soldiers discouraged him from doing this, the victim ran away from the group down a road. While running, the vi ctim stopped long enough to pick up a Soldier, who was merely a bystander, and the victim threw him into a parked truck. The vi ctim then ran into nearby woods and was pursued by several other Soldiers.

At first the victim hid under a trailer in a fenced area. Afte r he was discovered by the pursuing Soldiers, the victim began to run around in side of the enclosure.

The Soldiers decided to wait until the vic tim got tired, but the victim escaped under

the fence and ran into the woods. The Soldiers pursued and caught the victim several times, only to have him break free. The victim acted violently during these struggles, choking on e of the other Soldie rs before he resu med his flight, and throwing punches and ki cking when he was re strained. At one point, at least four

Soldiers held the victim as appellant wrapped his le gs around the victim and

executed a “rear naked” choke hold while te lling the victim to “go to sleep.” Once the victim passed out, they carried him back toward a vehi cle. He began to regain

consciousness so the Soldiers resumed their positions hold ing him down while appellant applied the choke hold a se cond time, again rend ering the victim

unconscious.

The Soldiers acquired zip-tie restraints from the bar security staff and bound

the victim’s hands and feet be fore putting him in the back seat of a car. When the

victim was in the car he ma de gurgling and snoring sound s and muttered. When they arrived at Fort Bragg, the victim was unre sponsive and ha d no pulse. The Soldiers removed the zip-ties and performed CPR on the victim until para medics arrived. Emergency responders transp orted the victim to a hospi tal where he was pronounced

dead a short time later.

LAW AND DISCUSSION

The standard of review for factual and legal sufficiency by this Court is de

novo. United States v. Beatty , 64 M.J. 456, 459 (C.A.A.F. 2007); United States v.BOYLE—ARMY 20090893

3 Craion , 64 M.J. 531, 534 (Army Ct . Crim. App. 2006). In resolving questions of legal sufficiency, this court “is bound to draw every reasonable infe rence from the evidence of record in favor of the prosecution.” Craion , 64 M.J. at 534. In weighing factual sufficiency, we apply “n either a presumption of innocence nor a presumption of guilt,” and we make an “independent dete rmination as to whether the

evidence constitutes proof of each required elemen t beyond a reas onable doubt.” United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002).

Applying these standards, we find the evidence factua lly and legally sufficient to sustain a finding of guilt as to conspi racy to commit an as sault consummated by a battery. It is well settled that the agreement in a cons piracy need not be in any “particular form or be mani fested in any formal words, ” and that “a conspiracy may be contemporaneous with th e substantive offense.” United States v. Matias , 25 M.J. 356, 362 (C.M.A. 1987) (quoting United States v. Jackson , 20 M.J. 68, 69 (C.M.A. 1985)). Evidence cl early showed that th e victim was intentio nally strangled to unconsciousness by appellant while other So ldiers held the vict im down. Shortly after the first strangulation, as the victim began to regain consciousness, the Soldiers “resumed the positions” they had take n before and again strangled him to

unconsciousness. Restrain ing a person while strangli ng him is a harmful and offensive touching of another sufficient to find there was an assault consummated by a battery, regardless of the intent to ha rm. While some amount of restraint of the

victim would have been lawful under these circumstances to provide for the safety of the victim or others, restra int and strangula tion constituted an excessive amount of

force for the Soldiers to use in this circumstance. Whil e leaving their fellow Soldier in an impaired state in a wooded area in th e middle of the night would not have been an appropriate action, these Soldiers had other options sh ort of strangulation, including enlisting the aid of others, to incl ude local civil author ities or members of

their chain of command. We find sufficient evid ence that there was an implicit understanding among the participants to resume their restraining pos itions to carry out the second strangulation, which constituted a conspira cy to commit the unlawful act, and there is proof of each element of the offense of cons piracy to commit an

assault consummated by a battery.

We also hold that the evid ence finding appellant’s acti ons to be the proximate cause in the involuntary manslaughter is factually and legall y sufficient. The medical examiner who performed the auto psy provided her e xpert opinion that appellant’s choke hold strang led the victim and led to death by asphyxiation. The examiner based this opin ion on several factors, to include her post-mortem examination of the injuries to the victim’s neck as well as in-court and out-of-court descriptions from eye-witnesses of the even ts leading to the vi ctim’s death. A defense expert testifie d that the victim ma y have had an enlarg ed heart and opined that this was the likely cause of deat h. This testimony wa s contradicted by a government rebuttal expert in forensic patholo gy who detailed reas ons to support his conclusion that the victim died proxi mately from asphyx iation caused byBOYLE—ARMY 20090893

4 strangulation, and who noted that under th ese circumstances, an enlarged heart would not have contributed significantl y to death. The evid ence was clearly sufficient to support proximate cause, and the totality of evidence was sufficient to prove each element of the offens e of involuntary manslaughter.

CONCLUSION

We have considered the record of trial, the assi gned errors, the briefs submitted by the partie s, and oral arguments by both parties on the assignments of

errors raised. On consideration of the entir e record, we hold the findings of guilty and sentence adjudged and appr oved by the convenin g authority to be correct in law and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.

Senior Judge KERN and Judge BERG concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: