## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before WOLFE, SALUSSOLIA, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Master Sergeant OMAR A. VELEZ-PAGAN United States Army, Appellant

ARMY 20160209

Headquarters, Fort Bragg Christopher T. Fredr ikson, Military Judge Colonel Michael O. Lacey, Staff Judge Advocate (pretrial)

Lieutenant Colonel W illiam E. Mullee, Sta ff Judge Advocate (pos t-trial)

For Appellant: Captain Matthew D. Bernstein, JA; William E. Ca ssara, Esquire (on brief); Captain Augustus Turner, JA; William E. Cassara, Esquir e (on reply brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major C ormac M. Smith, JA; Captain Jeremy Watf ord, JA (on brief).

30 August 2018

--------------------------------- MEMORANDUM OPINION

---------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

SCHASBERGER, Judge:

Master Sergeant Omar A. Velez-Pa gan appeals his convictions fo r murder and assault. Appellant alleges that errors of trial counsel and th e military judge denied him a fair trial and the governme nt did not meet i ts burden of proof. We disagree. We find the military judge’s denial of appellant’s request for a mistrial was not error. The trial counsel’s argument was not improper, and even if it was, the instructions by the military judge ensured appellant was not pr ejudiced. Finally, appellant’s convicti ons are legally and fac tually sufficient.

A military judge sitti ng as a general court-martial convicted appellant, pursuant to hi s pleas, of possessing an d using a controlled sub stance, adultery, and obstructing justice, in violation of Artic les 112a, and 134, Un iform Code of Military Justice (UCMJ), 10 U. S.C. §§ 912a, and 934. An officer panel s itting as a general court-martial convicted appellan t, contrary to his pleas, of on e specification ofVELEZ-PAGAN—ARMY 20160209

2 unpremeditated murder, and one specification of assault, in vio lation of Articles 118, and 128, UCMJ. The panel sen tenced appellant to a dishono rable discharge, confinement for thirty years, for feiture of all p ay and allowan ces, and a reduction to the grade of E-1. The military j udge credited appellant with 8 28 days toward his sentence to confinement for pret rial confinement and unlawful p re-trial punishment. The convening authority appr oved the adjudge d sentence.

This case is before us under Ar ticle 66, UCMJ. Appellant raise s five assignments of error, two of which merit d iscussion but no reli ef. 1 We also considered the matters persona lly asserted by ap pellant under United States v. Grostefon , 12 M.J. 431 (C.M.A. 19 82); they merit neither disc ussion nor relief. 2

1 Appellant’s other three as signments of error are:

First, appellant arg ues the military judge abused his discretio n by precluding the defense from introducing a “prior consistent statement” of appe llant. We disagree. The military judge co rrectly ruled the sta tement—made by appell ant to his defense counsel—did not fit under the prior consistent statement rule a nd was inadmissible.

Next, appellant argues he is entitled to a new trial because th e special court-martial convening authority (SPCMCA) was disqualified and failed to inf orm the general court-martial convening author ity (GCMCA) of his disqualificati on. We disagree. At trial, appellant intentiona lly chose to proce ed with arraign ment without moving for relief, stating that, if the error was jurisdictional, the error could not be waived. The error, however, is not jurisdictional . Any objection, ther efore, was waived. Further, we are pers uaded, given the grava men of the charges, t he recommendation

of the SPCMCA was not influential in the GCMCA’s decision to re fer the charges to a general court-martial.

Finally, appellant argu es the military magi strate abused her di scretion by placing appellant in pretrial confinem ent and the milita ry judge erred by considering

evidence outside of w hat the military magi strate considered whe n he continued the

confinement. We fin d no abuse of discreti on by the m ilitary ma gistrate.

2 As part of his unsworn s ubmission pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), appella nt personally asserts, inter alia , his defense counsel were

ineffective because his defense counsel did not ob ject to evide nce about appellant’s adultery. Upon review of the entire recor d, we disagree with a ppellant’s assertion.

We see no need to order affidavi ts from counsel o r a hearing un der United States v. DuBay , 17 U.S.C.M.A. 147, 37 C .M.R. 411 (1967). I t is clear from th e record the evidence was admissible and obje ction would serve no tactical p urpose. We have considered appellant’s full submission under Grostefon and find it merits no relief.VELEZ-PAGAN—ARMY 20160209

3 BACKGROUND

In early 2014, appell ant served on a train ing team operating o ut of the U.S. Embassy in Panama. Appellant had several adulter ous relationsh ips while in Panama, including one with Ms. R odriguez-Chavarria. Appellant’ s wife knew of

some of his affairs bu t not the one with Ms. Rodriguez-Chavarri a. During the affair, Ms. Rodriguez-Chavarria would con tinually ask appellant for mon ey, and on 19 June

2014 threated to ca ll his wife. Appellan t’s response was to te ll Ms. RodriguezChavarria “don’t do anything crazy.” Appellant introduced Ms. R odriguez-Chavarria to his U.S. and Panamanian co-workers; they knew her as “La Chi ricana.” 3

One of appellant’s missions was to train the Panamanian Police (PNP). In June of 2014, appellan t and other team memb ers went to Las Tabl as, Panama, to conduct marksmanship t raining with a PNP un it. Appellant and S ergeant First Class (SFC) Esteras-Palos, another tra iner at the Emba ssy, stayed in a local hote l for the training. Appellant ha d the use of a pick up truck, a Toyota Hi lux, to perform his job.

On Sunday, 22 June 2014, appellant, SFC Est eras-Palos and sever al PNP

instructors went to the beach on their d ay off. Ms. Rodriguez- Chavarria joined appellant for the da y at the beach. She d rank whisky and becam e increasingly

intoxicated and obnoxiou s as the day p rogressed.

In the evening, the group decided to head b ack to the hotel and watch the U.S. versus Portugal soccer game. A ppellant and Ms. R odriguez-Chava rria got in the Hilux, alone, and began arguin g. Afraid Ms. Rodriguez-Chavarri a would make a scene, appellant decided not to w atch the game but instead woul d drive somewhere

else.

Appellant drove while he and Ms . Rodriguez-Chavarria continued to argue. Appellant drove past a town and continue d through an undevelope d and relatively uninhabited part of Panama. Appellant pulled onto a paved trai l and stopped the truck. The argum ent turned physical when appellant punched Ms. RodriguezChavarria in the face , causing her to have b lack eyes and a spl it lip. 4

3 More or less meaning “the woma n from Chiriquí,” a province in Panama.

4 Appellant claims Ms. Rodriguez- Chavarria struck him in the fac e and the force of

the blow caused him to bite his o wn lip. Appellant did not app ear to have any injuries except for on his right hand, which was injured striki ng at Ms. RodriguezChavarria. Ms. Rodriguez-Chavarri a’s fingernails were not brok en and did not have any DNA or skin of a ppellant on them.VELEZ-PAGAN—ARMY 20160209

4 Appellant offered several differe nt versions of what happened n ext. 5 The evidence, however , shows Ms. Rodriguez-Ch avarria lost conscious ness and appellant drove over her body with the truck.

Ms. Rodriguez-Chavarria died as a result of a brain stem injury when the Toyota Hilux drove ove r her head. Her other injuries included a broken nose and jaw, and injuries to her thora x, pelvis, abdo men, and legs. He r injuries were not consistent with jump ing out of a moving vehi cle or being knocke d to the ground by a moving vehicle.

Appellant collected Ms. Rodriguez-Chavarri a’s body and placed h er in the vehicle. Appellant dr ove to the PNP traini ng area an d parked o n a trail leading into

the woods. He ca rried Ms. Rodriguez-Chava rria’s body into the woods and left her. Appellant removed the battery of her cell phone. As he was bac king away, he hit a tree damaging the truck and breaking a taillight. Appellant re turned to the hotel and jumped into the pool w earing his clothes.

Early the next mornin g, appellant drove to the training area an d covered Ms. Rodriguez-Chavarria wi th branches. As he de parted, a PNP train er saw him and asked why he was ther e. Appellant told him he was doi ng physic al training.

Appellant purchased carpet cleane r and tried to clean the blood stains in the truck. He bought ten pou nds of lime from a l ocal hardware stor e. Appellant went to the police station and asked for a shovel and pic k axe. They l ent him a shovel but did not have a pick ax e, so appellant returned to the hardware store and bought one.

Appellant next drove back to the training area, where SFC Ester as-Palos and the PNP had begun training. He parked away from the other vehi cles, near the

entrance to the trail where he l eft Ms. Rodriguez -Chavarria’s c orpse. He told the officers he was not feeling well. As there were no latrines at the training area, people used the woods to take care of the ir personal needs. Ap pellant took his tools

into the woods and d ug a hole near Ms. Rodriguez-Chavarria’s bo dy. While digging,

he went back to his truck to tak e a break, leavin g his tools ne ar the hole and corpse.

Officer Gonzalez needed to re lieve himself. He went to appella nt’s truck to get toilet paper. After entering the woods, he saw the tools, hole, and d ead body. He drew his weapon and rushed back, ye lling for back up. He ai med his weapon at appellant and told him to come with him. A ppellant told him to calm down, and

admitted he had killed “La Chirica na.” Lieutenant Acuna-Maure of the PNP rushed

over to assist Officer Gonzalez, and appellant told him “I kill ed her. I k illed her.” Lieutenant Reyes-Ala rcon of the PNP also heard appellant say he killed her.

5 Appellant’s inconsistent version s of events are a central feat ure of the case.VELEZ-PAGAN—ARMY 20160209

5 The PNP discussed who should arre st appellant an d what to do. The other U.S. Soldier, SFC Esteras-Palos t ook appellant’s uniform jacket and went to place it in the truck, where he noticed a foul smell an d blood. When SF C Esteras-Palos heard appellant say he killed “La Chiricana ,” SFC Esteras-Palos told him to be quiet.

At the police station, appellant continued to mak e statements a bout killing Ms. Rodriguez-Chavarria. By tele phone, appellant told his comm ander, Lieutenant Commander (LCDR) Ojeda, Ms. Rodr iguez-Chavarria hit him and cau sed him to crash the truck. Appellant told his commander, he hit Ms. Rodr iguez-Chavarria in the face, she never regained cons ciousness, and s he “stopped br eathing.”

Appellant told SFC Esteras-Palos another version of events, in which, Ms. Rodriguez-Chavarria pu lled on the steering w heel, causing the v ehicle to roll off the

road. In this alter nate version of event s, after appellant hit Ms. RodriguezChavarria, she jumped out of the t ruck and appella nt hit his ha nd on the truck frame attempting to hit her again. C ontrary to the st ory he told LCD R Ojeda, appellant told SFC Esteras-Palos he got out of the truck, went around the vehicle, sa w the rear wheels roll over Ms. Rodriguez-Ch avarria, ran to get back in th e cab, but felt the

front wheels also roll over her b efore he could s top the truck. Appellant also told SFC Estras Palos, “[Ms. Rodrigu ez-Chavarria] was blackmailing m e. She was threatening to tell m y wife about our rela tionship. She was go ing to bring it to the embassy. She was going to ruin my career.”

The PNP conducted an initial inve stigation of the death. The m edical

examiner’s conclusion was that Ms. Rodriguez-Chavarria was stru ck with a fist one

or two times in the fa ce. The rest of her i njuries were attrib utable to bein g run over by two separate tires. One whi ch traversed her head and one wh ich traversed her pelvis and leg. The c ause of death was the head injury.

At trial, appellant testified he committed adultery with sever al women and his

wife was aware of his infidelitie s. His testimony confirmed wh at happened at the beach, his jumping i nto the pool, buying lim e and a pick axe, b orrowing a shovel, and his various statements to the PNP. Appellant admitted to p unching Ms. Rodriguez-Chavarria i n the face. Appellant testified that afte r he punched Ms. Rodriguez-Chavarria in the fa ce she calmed down and they both s at in the truck. He then began driving sl owly looking for a pla ce to turn around, t he next thing he heard

was the cab door c losing as Ms. R odriguez-Chavarri a exited the cab. He then jumped out of the truck, took several steps, realized the truck was rolling backward and, before he could s top the vehicl e, both wheels rolled over Ms. RodriguezChavarria.

Appellant testified he placed Ms. Rodriguez-Chavarria in the fr ont seat to drive her to a hospit al, but realizing sh e was dead, he moved h er to the floor in the back of the cab. Appellant then drove to the training area and dumped her body.VELEZ-PAGAN—ARMY 20160209

6 The defense introduce d a video showing the road where appellant testified Ms. Rodriguez-Chavarria died.

As part of his direct examina tion, appellant acknowledged he l ied to LCDR Ojeda, lied to SFC Esteras-Pal os, and lied to var ious members o f the PNP. On cross-examination, the appellant admitted he lied to various ot her people, including his wife. Appellant neverthele ss called several witnesses to t estify he had a

character for truthfulness.

In closing argument, the government argu ed appellant’s initial statements that he killed Ms. Rodrigu ez-Chavarria were acc urate, and he subsequ ently invented new versions, including h is testimony in court , in an attempt to co ver-up his crime. Appellant did not obje ct during the govern ment’s closing argume nt. In closing, the defense argued Ms. Rodr iguez-Chavarria’s death was a tragic acc ident that caused appellant to pan ic and make bad d ecisions. The d efense argued: “[Appellant] took

the stand and told you exactly what happe ned.” The defense cont inued: “ And he is the only one who know s what happened there .” (emphasis added).

During the government’ s rebuttal, the trial counsel argued: “[A ppellant’s] story is support ed by one thin g. The [appellant’s] self-servin g statements. You saw it, a scripted performance.” 6 Trial counsel also argued in rebuttal: “The location. The defense makes a big deal out of the fact that we never foun d the location. You know why we never found the locat ion. There’s on ly two people who knew where

that location was and one of the m is dead.” The defense counse l objected on the basis it was improper commentar y on the accused’ s invocation of his Fifth Amendment rights. The military j udge sustained th e objection a nd instructed the panel to disregard the comment made by counsel. Appellant move d for a mistrial,

which the milita ry judge denied.

To address appellant’s objection to the government’s argument, the military judge held a hearing outside the presence of the members. The military judge sustained appellant’s objection t o the statement, “[t]here’s on ly two people who

knew where that location was an d one of them is dead.” After d iscussing remedies for that statement, th e military judge aske d defense counsel wh ether the trial counsel had also stated, “the defense rather than the accused had plent y of time to put on a scripted performance .” The defense counse l said he thought the trial counsel said both appellant and hi s defense team had “s cripted” appellant’s testimony. Based on

defense counsel’s recollection of the government’s argument, th e military judge asked the defense what remedy it sought. The defense counsel a sked for additional curative instructions and the go vernment’s argum ent be curtaile d.

6 The trial counsel ch aracterized app ellant’s testimony as “scri pted” six times in his rebuttal argument. Appellant di d not object to this argument w hen it was made.VELEZ-PAGAN—ARMY 20160209

7 The military judge ag reed to give an additi onal curative instru ction. When the panel was recalle d, he told them, “I in structed you that th e trial counsel had made an improper argum ent. I will instruct you that you must c ompletely disregard that argument.” The panel members agree d to follow that instru ction. The military judge also gave the following instruction: “Members, defense c ounsel have an ethical obligation not to knowingly elicit f alse testimony; the refore, any comment by the trial counsel that the defense scripted the accused’s testi mony was improper and must be completely disregarded by you. Can each of you comply with that

instruction?” 7 All members answered affirmativ ely. The milita ry judge direc ted the trial counsel to “wrap up” his re buttal argument i n “two senten ces.”

LAW AND DISCUSSION

A. Denial of the Motion for Mistrial

We review a military j udge’s ruling on a m otion for mistrial f or abuse of discretion. Appellate military courts, “will not reverse a mil itary judge’s

determination on a mistrial abse nt clear eviden ce of an abuse o f discretion.” United

States v. McFadden , 74 M.J. 87, 90 (C.A .A.F. 2015) (quoting United States v. Ashby , 68 M.J. 108, 122 (C.A .A.F. 2009)) (citation s omitted). “A cu rative instruction is prefe rred to granting a mi strial, which should o nly be grant ed ‘when inadmissible matters so prejudicial that a curative instruction would be in adequate are brought to the attent ion of the members.’” Id . at 89-90 (quoting United States v.

Diaz , 59 M.J. 79, 92 (C.A.A.F. 2 003)) (citations omitted).

We therefore must dec ide: Were inadmissible matters brought t o the attention of the members? If so, were the y so prejudicial the curative i nstructions were inadequate? As discus sed below, we answer both questions in th e negative.

1. Was Government Counsel ’s Argument Improper?

The military judge found it was i mproper for the trial counsel to argue, “[t]here’s only two people who know where that location was and one of them is dead.” The military judge also f ound it was improper for the t rial counsel to repeatedly argue appellant’s t estimony was “scripted.” The mil itary judge found the first statement was an improper reference to the appellant’s ri ght to remain silent and the second impugned the ethi cs of the defens e team. We add ress each in turn.

It is unjust to argue any negative inferenc e should be drawn fr om the invocation of an individual’s constitutional rights. “Whether there has been

7 The defense provided the wordi ng of the additional instruction , and the military judge added the word “knowingly.”VELEZ-PAGAN—ARMY 20160209

8 improper reference to an accused ’s invocation of his constituti onal rights is a question of law that we review de novo.” United States v. Moran , 65 M.J. 178, 181 (C.A.A.F. 2007) (citing United States v. Alameda , 57 M.J. 190, 198 (C.A.A.F. 2002)). As our predec essor court held in United States v. Carr , “it is inappropriate that any party to a court-martial should be allowed to profit, directly or indirectly, by argument on findi ngs or sentence regardi ng an exercise of a constitutionally protected criminal due process right.” 25 M.J. 637, 639 (A.C.M .R. 1987).

Though precluded from commentin g on a protected r ight, the gove rnment is allowed to make “a fair response” to statements made by the def ense. This is true even when a constitutional right is implicated. United States v. Robinson 485 U.S. 25, 32-33 (1988). T o determine whether or not comments are fai r, they must be

examined i n context. United States v. Lewis , 69 M.J. 379, 384 (C.A.A.F. 2011) (citations omitted).

At first glance, the s tatement “only two p eople know where the location was

and one is dead” might appear to be a te xtbook example of comme nting on an accused’s right to remain sile nt. Appellant, however, did not remain silent. Appellant made statements starti ng the first mom ent he was caug ht with Ms. Rodriguez-Chavarria’s corpse. 8 He continued making s tatements after being cautioned to keep silen t, and he testif ied in his own defense a t trial. Further,

defense counsel state d in his closing argumen t “[Appellant] too k the stan d and told you exactly what happen ed. And he is the only one who knows wh at happened there.” The government’s comme nt was on appellant’s testimony and defense’s
argument, not on appe llant’s right to be s ilent. In this conte xt, the government’s argument was not improper. It was a fair response to appellant ’s various statements

and defense coun sel’s argument.

We next turn to whether it was im permissible for the government to describe appellant’s testimony as “script ed.” We conclude it was not un der the facts of this case. The government’ s argument was a fair response to defense counsel’s
argument.

The military judge stated “I ho pe I misheard it. But I think I heard [trial counsel] say the defen se rather than the acc used had plenty of time to put on a scripted performance.” He then asked the defense counsel, who replied he also

believed the trial cou nsel accused both co unsel and th e accused of a scripted performance. Our review of the r ecord, however, shows the gove rnment counsel

8 For example: “I kille d her.” “[S]he was blackmailing me.” “[I ] punched her in the face, and she never came to.”VELEZ-PAGAN—ARMY 20160209

9 never directly accused the defen se counsel of scripting the wor ds of appellant. 9 Rather, the government’ s accusation was sim ply that appellant g ave a scripted performance.

As a general rule, di sparaging an accused “is a ‘dangerous pr actice that

should be avoided.’” United States v. Fletcher 62 M.J. 175, 182 (C.A.A.F. 2005) (qouting United States v. Clifton , 15 M.J. 26, 30 n.5 (C .M.A. 1983)). In Fletcher

, our superior court fo und calling the accuse d a liar was imprope r argument. Id. This case is distinguishable, however , as the defens e counsel opened the door when they

first elicited testimo ny appellant lied rep eatedly, and then ar gued, “[o]ne thing the government’s evidence did show . . . [appellan t], is a terrible liar. He’s a terrible

liar.”

The defense’s theory was, essent ially, appellant’s prior lies w ere so obviously false that anything appellant says, which is not obviously false, must therefore be true. The governm ent countered by asserting appe llant had more time to perfect his story prior to trial, but he wa s no more candid at trial than w hen first caught. We find the government’s argument was not out side the bounds of wh at is permissible.

2. Was the Curative In struction Inadequate?

Even assuming, arguend o, trial counsel made improper arguments, we find the arguments did not mate rially prejudice appellant’s substantial rights, and we are

confident the member s convicted appellant on the basis of the e vidence alone. See generally Fletcher , 62 M.J. at 184.

First, even if we assu me the government’s argument was improper , it was not egregious. The milit ary judge found both t he statement “only t wo people know and one is dead,” and the references to “scripted” pe rformance erro r. Appellant argues the government’s statements were akin to a bell that cannot be un-rung. In this case, however, the argument was more aki n to the governm ent re-ringin g a bell the

defense alread y rang louder.

Second, we find the mili tary judge’s curativ e measures were ade quate. The military judge gave a n instruction immediat ely, which ensured t he panel members

9 To be sure, the trial counsel walked a fin e line, but in our v iew he did not stray over it. Appellant ar gues the obviou s implication of the gover nment’s argument was that defense counsel scripted a ppellant’s testimony. In the co ntext of the government’s whole argument, we do not find it so obvious. The government’s theory was that appellant evolve d his story to a ccount for the evidence against him. The evolution of appellant’s s tory began long be fore he had def ense counsel. Thus,

it is not obvious the government was accus ing defense counsel o f unethical behavior.VELEZ-PAGAN—ARMY 20160209

10 knew what part of the government’s argument was improper. He t hen followed-up

with a second instruct ion when the panel w as recalled. The mil itary judge ensured the panel members unde rstood the instructi ons and agreed to fol low them. Finally, the military judge curt ailed the trial counsel’s rebuttal argum ent.

Third, the overwhelming weight of the evidence supports a convi ction. The government introduced ample evi dence, including m ultiple admiss ions by appellant, blood splatters in the truck, and video of appellant buying lim e and a pick axe. The

uncontroverted medical examiner ’s testimony established the cau se of death, and ruled out Ms. Rodrigue z-Chavarria jumping from a moving vehicle or getting hit while standing.

Accordingly, we conclude appella nt received a fair trial and th e military judge

did not abuse his disc retion by denyi ng the motion f or mistrial

.

B. Factual Sufficiency

Appellant asserts the evidence is factually insufficient to pro ve, beyond a

reasonable dou bt, the death of Ms. Rodriguez-Chavarria was not an accident, within the meaning of R.C.M. 916(f), and he was not acting in self-def ense when he hit Ms. Rodriguez-Chavarria’s face with hi s hand.

We conduct a de novo review of factual sufficiency. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The tes t is, “whether, after weighing

the evidence in the r ecord of trial and making allowances for n ot having personally observed the witnesses,” we are “convinced of the accused’s gui lt beyond a

reasonable doubt.” United States v. Turner , 25 M.J. 324, 325 (C.M.A. 1987).

1. Appellant’s Clai m of Accident

“A death, injury, or other eve nt which occurs as the unintenti onal and unexpected result of doing a lawful act in a lawful manner is a n accident and is excusable.” R.C.M. 916(f). In t he context of dri ving a vehicl e, “the evidence must

show that ‘the driver was driving carefully , lawfully, and with out neglect.’” United

States v. Davis 53 M.J. 202, 205 (C.A. A.F. 2000) (quoting United States v. Curry

, 38 M.J. 77, 80 n.6 (C.M.A. 1993).

The defense of accident require s appellant must not have been negligent. Curry , 38 M.J. at 80. Negli gence is “the absenc e of the degree of c are for the safety

of others which a reasonably careful per son would have exercise d under the same or

similar circumstances.” United States v. Gordon , 31 M.J. 30, 34 (C.M.A. 1990) (citation, alterations, and internal quotation marks omitted).VELEZ-PAGAN—ARMY 20160209

11 Appellant’s convicti on of unpremeditated m urder, under Article 118, UCMJ, required proof , beyond a reasonable doubt, appellant intended to kill Ms. RodriguezChavarria or inflict grie vous bodily harm upon her. 10 Appellant invites us to assess

whether the defense of accident applies to his conviction of mu rder. Appellant’s conviction, however, req uired proof of specifi c intent—a far-hi gher mens rea than negligence—and mere negligence renders the defense of accident inapplicable.

Our superior court has noted t hat, although found in the R.C.M. among “defenses,” “accident is, in reality, merely the absence of mens rea .” Curry , 38 M.J.

at 80. If a crime re quiring specific inten t is prove d beyond a reasonable doubt, the

defense of accident has been dis proved. Overwhe lming evidence disproves appellant’s defense of accident. 11 More to the point, the e vidence proves, beyond a

reasonable dou bt, appellant intended to kill Ms. Rodriguez-Chav arria when he ran

over her with the tru ck. Appellant’s convic tion for murder is legally and factually

sufficient.

b. Appellant’s Clai m of Self-Defense

To successfully meet the elemen ts of self-defense , appellant m ust have both: “[1] Apprehended, upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on [him];” a nd “[2] [b]elieved that the fo rce that [he] used was necessary for prot ection against bodil y harm . . . .” R.C.M. 91 6(e)(3).

“The first element . . . has an objective compone nt, involving the perception of a reasonable pers on under the circumst ances. The second elem ent . . . is wholly subjective, involving the person al belief of the accused, even if not objectively

reasonable.” United States v. Dobson , 63 M.J. 1, 11 (C .A.A.F. 2006).

Appellant’s claim of self-defense to striking Ms. Rodriguez-Cha varria with

his hand is root ed in his testim ony that she assau lted him firs t. When an accused testifies, he does s o at his own peril. “ [A] statement by a de fendant, if disbelieved by the jury, m ay be considered as substantive evidence of the d efendant’s guilt.”

United States v. Pleasant , 71 M.J. 709, 713 (Army Ct. Crim . App. 2012) (quoting

United States v. Brown , 53 F.3d 312, 314 (11th Cir. 1995)). Th e panel di d not have to “accept and believe the self-s erving stories of [appellant]. [His] evidence may not only be disbelieved, b ut from the totality of the circumstances , including the manner in which [he testified], a con trary conclusion ma y be properly drawn.” Id . at 714

10 Article 118, UCMJ, defines three other kinds of murder, but th is was the only theory of murder on wh ich the military judge instructed the pan el.

11 Even under appellant’s version o f the facts, his claimed failu re to put the vehicle in the proper gear and apply the parking br eak while on a hill would be ne gligent.VELEZ-PAGAN—ARMY 20160209

12 (quoting United States v. Cisneros , 448 F.2d 298, 305-06 (9th Cir. 197 1). The panel

was free to draw an adverse conc lusion from appe llant’s testimo ny, and so are we.

Given appellant’s differing versi ons of events, and how Ms. Rod riguezChavarria was killed, appellant’s testimony is si mply not credi ble, and it is not supported by the rest of the evidence in this case. Without an y credible evidence appellant reasonably a pprehended an assaul t by Ms. Rodriguez-Ch avarria, we find, beyond a reasonable doub t, appellant did not apprehend any bodi ly harm. Thus, appellant’s claim of self-defense fails.

Even if we had reason able doubt as t o whether appellant reasona bly apprehended Ms. Rodriguez-Chava rria assaulting him, we also fin d, beyond a

reasonable dou bt, appellant did not sub jectively believe his ac tions were necessary for his own protectio n. Appellant’s overall course of conduct demonstrates his intent to harm Ms. Rodriguez-Chav arria, not to protect himself. Further, appellant was a large, muscular, trained w arfighter. Ms. R odriguez-Chava rria was a much smaller woman. The overwhelming force used by appellant was in consistent with a subjective intent mere ly to defend himself.

CONCLUSION

Upon consideration of the entire record, the find ings and sent ence are AFFIRMED.

Senior Judge WOLFE and J udge SALUSSOLIA concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR. FOR THE COURT: