UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J.A. FISCHER, B.T. PALMER

Appellate Military Judges

UNITED STATES OF AMERICA

v.

SABRIE C. ASHBURN

AVIATION BOATSWAIN'S MATE HANDLING THIRD CLASS (E-4), 

U.S. NAVY

NMCCA 201500038

SPECIAL COURT-MARTIAL

Sentence Adjudged: 18 November 2014.

Military Judge: CAPT Andrew H. Henderson, JAGC, USN.

Convening Authority: Commanding Officer, Naval Base Kitsap, 

Bremerton, WA.

Staff Judge Advocate's Recommendation: LTJG Lauren E. 

Brinker, JAGC, USN.

For Appellant: LT Jacqueline Leonard, JAGC, USN; LT 

Jennifer M. Pike, JAGC, USN.

For Appellee: LT James M. Belforti, JAGC, USN; CDR Eric 

Roper, JAGC, USN.

24 September 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS 

PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

 

PER CURIAM:

 

A military judge sitting as a special court-martial 

convicted the appellant, contrary to her pleas, of one 

specification of making a false official statement, three 

specifications of writing fraudulent checks, and four 
2

specifications of dishonorably failing to pay debts in violation 

of Articles 107, 123a, and 134 Uniform Code of Military Justice, 

10 U.S.C. §§ 907, 923a, and 934. Following announcement of 

findings, the military judge, sua sponte, merged Specifications 

2, 3, and 4 of Charge II (Art. 123a, UCMJ) with Specifications 

2, 3, and 4 of Charge III (Art. 134, UCMJ) for sentencing 

purposes. The military judge sentenced the appellant to 280 

days’ confinement, reduction to pay grade E-2, and a bad-conduct 

discharge. The convening authority (CA) approved the sentence 

as adjudged and, except for the bad-conduct discharge, ordered 

the sentence executed.

The appellant raises three assignments of error: (1) that 

the appellant’s convictions for check fraud were factually 

insufficient, (2) that the appellant’s convictions for failing 

to pay a debt were factually insufficient, and (3) that the 

military judge abused his discretion when he failed to find the 

specifications under Charges II and III were an unreasonable 

multiplication of charges for findings.1

 

After careful consideration of the record of trial, the 

appellant’s assignments of error, and the pleadings of the 

parties, we find that the trial court erred by failing to 

dismiss Specifications 2, 3, and 4 under Charge III and we take 

corrective action in our decretal paragraph. Following our 

corrective action we find that no error materially prejudicial 

to the substantial rights of the appellant remains. Arts. 59(a) 

and 66(c), UCMJ. 

Background

During 25-28 May 2014, the appellant wrote 13 personal 

checks totaling over $27,000.00, to the Army and Air Force 

Exchange (AAFES) at Joint Base Lewis-McCord (JBLM). Items 

purchased included televisions, computers, electronic gaming 

devices, furniture, appliances, and jewelry. Similarly, from on 

25-26 May 2014, the appellant wrote four checks, totaling 

$286.25 and a $47.40 check to FM and PJ respectively.2

 

Additionally, from 23-27 October 2013, the appellant wrote six 

checks totaling $3,104.04 to the Navy Exchange (NEX) at Naval 

 

1 The appellant asserts no assignments of error in relation to Charge I and 

the specification thereunder.

2 These checks comprise the offenses listed in Specifications 2, 3, and 4 of 

Charge II and Specifications 2, 3, and 4 of Charge III. 
3

Base Kitsap.3

 Each check was written against insufficient funds 

in a Navy Federal Credit Union (NFCU) account, for which she was 

the only account holder.

A forensic document examiner expert concluded the maker’s 

signatures on the checks bore a “strong probable,” or “probable” 

match to the appellant’s signature. The appellant admitted 

writing all of the May 2014 checks when interviewed by law 

enforcement.

Additional facts necessary for the resolution of particular 

assignments of error are included below. 

Factual Sufficiency 

The appellant’s first and second assignments of error claim 

the findings of guilt to both Charge II and Charge III are 

factually insufficient. Under Article 66(c), UCMJ, we conduct a 

de novo review of factual sufficiency of each case before us. 

United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 

The test for factual sufficiency is “whether, after weighing the 

evidence in the record of trial and making allowances for not 

having personally observed the witnesses,” we are ourselves 

convinced of the accused’s guilt beyond a reasonable doubt. 

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

States v. Reed, 54 M.J. 37, 41, (C.A.A.F. 2000). “Such a review 

involves a fresh, impartial look at the evidence, giving no 

deference to the decision of the trial court on factual 

sufficiency beyond the admonition in Article 66(c), UCMJ, to 

take into account the fact that the trial court saw and heard 

the witnesses.” Washington, 57 M.J. at 399. Proof beyond a 

reasonable doubt does not mean, however, that the evidence must 

be free from conflict. United States v. Goode, 54 M.J. 836, 841 

(N.M.Ct.Crim.App. 2001). 

Charge II – Article 123a, UCMJ

The appellant argues the Government failed to prove she 

knew she had insufficient funds in her account and that she 

possessed the intent to defraud with each of the specifications

under Charge II.4

 The appellant claims a mistake of fact defense 

 

3 These checks comprise the offenses listed in Specification 1 of Charge III.

4 The elements to make, draw, or utter a check without sufficient funds are: 

1) the accused made, drew, uttered, or delivered a check for the payment of 

money payable to a named person or organization; 2) that the accused did so 

for the purpose of procuring an article or thing of value; 3) that the act 
4

based on her honestly held belief that her account had or would 

have sufficient funds in her bank account to cover her checks. 

As support, she offered the following at trial: (1) she had poor 

math skills; (2) her mother was previously a joint account 

holder who made occasional deposits to prevent the appellant 

from overdrawing her account; and (3) her husband5 was a “con 

artist” who falsely told her that he had a million-dollar trust 

fund, that his adoptive mother periodically gave him money, and

that he received $32,000.00 from his mother before the appellant 

wrote the May 2014 checks. A defense forensic psychology expert

testified the appellant had difficulty with abstraction and that 

numbers, math, and banking would be challenging for her; that 

she had a low IQ; that she was gullible, easily manipulated, 

immature, insecure, and a follower; and that she had a strong 

desire to please those whom she loves.6

Beyond the largely unchallenged evidence that between 25-28 

May 2014 the appellant wrote more than $27,000.00 in unfunded 

checks, the Government presented evidence that the appellant’s 

base pay was $2,328.00; that her husband was unemployed and she 

had no other income sources; that on 25 May 2014, (before she 

wrote the bad checks to AAFES, FM, and PJ’s) she attempted to 

write two checks totaling $3,779.00 at the NEX, but both were 

immediately declined due to her NEX checking history; that in 

2013, the appellant and her husband used various installment 

contracts to purchase four cars worth $95,000.00 before each was

subsequently repossessed; that she previously wrote checks on 

insufficient funds resulting in over $3,800.00 in NFCU returned 

check fees; that before writing the May 2014 checks, she had 

received financial and budget counseling; that she earned a “B” 

grade in a 2010 college algebra class; that in November/December 

2013 her father-in-law told her that her husband did not have a 

trust fund or an adoptive mother, and that there was no 

inheritance or money from his family; that when first 

 

was committed with the intent to defraud; and 4) that at the time of the

making, drawing, uttering, or delivering the instrument the accused...knew 

that the accused had not or would not have sufficient funds in or credit with 

the bank...upon presentment. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),

Part IV, ¶ 49(b)(1).

5 The appellant’s marriage was later annulled after it was discovered that her 

husband was still married to another woman.

6 On cross-examination the defense expert also acknowledged the appellant has 

feelings of inadequacy, overcompensates by denying problems, that she sees 

herself as being unjustly blamed for others problems, and that she is 

impulsive. Record at 388. He also determined the appellant was competent to 

stand trial. Id. at 374.
5

interviewed by law enforcement she variously explained she wrote 

the May 2014 checks because she expected money from her 

husband’s adoptive mother, a trust fund, and a tax refund, none 

of which was true; that she admitted she did not verify whether 

sufficient funds were in the account before she began writing 

checks; and that she had check writing problems in the past 

because her husband had falsely told her money was in the 

account. 

Following our review of the above evidence, and applying 

the standards in Turner and Reed, we conclude the first two 

elements of the charged offense are met; the appellant uttered 

all the checks for which she was found guilty and did so for the 

purpose of procuring articles or things of value. Art. 123a, 

UCMJ. As to the remaining elements, the Government bears the 

burden of disproving the appellant’s asserted mistake of fact 

beyond a reasonable doubt. RULE FOR COURTS-MARTIAL 916(b), MANUAL FOR 

COURTS-MARTIAL, UNITED STATES (2012 ed.). After carefully reviewing 

the record, and being especially mindful of the evidence as 

highlighted above, we find the Government has met its burden.7

 

The appellant wrote the checks; she did so knowing she had 

insufficient funds in the account; and did so with the intent to 

defraud. Her assertion that she wrote the checks trusting that 

her unemployed husband had or would put funds in her account is, 

under the circumstances, neither reasonable nor believable.

Additionally, the appellant claims the military judge erred 

by applying the Article 123a, UCMJ “statutory rule of evidence,”8

 

7 Prior to the court-martial closing for deliberations, the trial defense 

counsel asked the military judge to issue “special findings . . . rather than 

just a simple . . . guilty or not guilty plea (sic).” Record at 429. The 

military judge issued his special findings on 6 January 2015, and noted that

findings on special matters were not included because they were not requested 

by the defense. He further states he “considered all legal and competent 

evidence, the applicable presumptions, [and] the reasonable inferences to be 

drawn therefrom . . . .” Appellate Exhibit XXII at 1 n.1. The special 

findings do not mention the appellant’s mistake of fact affirmative defense, 

so the appellant argues this court should accord his findings minimal 

deference. This issue, however, is mooted by our de novo review. As noted 

above, and in our decretal paragraph, we find the Government’s evidence 

disproves the appellant’s mistake of fact defense beyond a reasonable doubt.

8 In pertinent part, the MCM defines the statutory rule of evidence as “The 

failure of an accused who is a maker . . . to pay the holder the amount due 

within 5 days after receiving either oral or written notice from the holder 

of the check . . . or from any other person having knowledge that such check

. . . was returned unpaid because of insufficient funds, is prima facie

evidence (a) that the accused had the intent to defraud . . . as alleged; and 

(b) that the accused knew at the time the accused made . . . the check . . .
6

which permits the court to infer the appellant’s intent to 

defraud and her knowledge of insufficient funds due to her 

failure to pay the check holder within 5 days of receiving 

notice the checks were not paid on presentment. Specifically, 

the appellant asserts she was not provided required notice. We 

disagree. The evidence shows that the appellant received notice 

on 29 May 2014, when she was interviewed by law enforcement 

personnel.9

 Record at 216-18. We find no authority that renders 

law enforcement personnel ineligible as “any other person having 

knowledge” to notify an accused that their checks were “returned 

unpaid” for insufficient funds.10 Thus, we find no error in the 

trial court’s reliance on the inference.11 

Charge III – Article 134, UCMJ

The appellant argues the Government did not to prove beyond 

a reasonable doubt that her failure to maintain sufficient funds 

was dishonorable in the specifications under Charge III.12 As 

discussed in our decretal paragraph, we dismiss Specifications 

2, 3, and 4 of Charge III. But as the appellant’s second 

assignment of error covers all the specifications under Charge 

III, we still address her claims regarding Specification 1. 

 

that the accused did not have or would not have sufficient funds in, or 

credit with the bank . . . for the payment of such check . . . upon its 

presentment for payment.” MCM, Part IV, ¶ 49c(17).

9 During her 29 May 2014 interview by an Army criminal investigator, after 

being advised of her Article 31, UCMJ rights, the appellant acknowledged she 

did not verify her account balance status for all the checks she wrote on 

“Sunday, Monday, Tuesday, and Wednesday” [25-28 May 2014]. Prosecution 

Exhibit 30. 

10 MCM, Part IV, ¶ 49c(17).

11 Although we found the inference unnecessary (due to the strength of the 

Government’s case), the inference is nonetheless still available for our use 

in our factual sufficiency assessment. See United States v. Smith, 49 M.J. 

279, 281-82 (C.A.A.F. 1998). 

12 The elements of dishonorably failing to maintain funds are: (1) That the 

accused made and uttered a certain check; (2) That the check was made and 

uttered for the purchase of a certain thing, in payment of a debt, or for a 

certain purpose; (3) That the accused subsequently failed to place or 

maintain sufficient funds in or credit with the drawee bank for payment of 

the check in full upon its presentment for payment; (4) That this failure was 

dishonorable; and (5) 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. MCM, Part IV,

¶ 68(b).
7

The appellant points to a variety of cases where military 

appellate courts held a failure to maintain sufficient funds was 

dishonorable when characterized by false representations, 

deceitful promises, absence of partial payments, ignoring pastdue notices, and making payment with “bad” checks. Although the 

appellant acknowledges the dishonor element also can be proven

by a gross indifference toward one’s financial obligations, she 

argues that, here too, the Government failed to meet its burden. 

In particular, she cites United States v. Hurko, 36 M.J. 1176, 

1178 (N.M.C.M.R. 1993), in which convictions for failure to 

maintain sufficient funds under Article 134, UCMJ, were, in 

part, set aside because, when this court found his reliance on 

his spouse to deposit funds into his account was “certainly 

careless and irresponsible,” it was not dishonorable. The 

appellant argues her reliance on her husband’s claim that he 

placed sufficient funds in her account was reasonable and 

therefore not dishonorable. 

Beyond arguing her lack of knowledge of the insufficient 

funds and any fraudulent intent at the time she signed the 

checks, the appellant also argues that $200.00 was transferred 

into her checking account in May 2014; that several thousand 

dollars of debt, including all the checks written in October 

2013, were ultimately paid via wage garnishment; and that she 

had no other means to pay the earlier debt.13

The Government, in addition to relying on evidence the 

appellant wrote the checks knowing the account had no funds and 

did so with the intent to defraud (see Charge II discussion 

above), also provided evidence that 89 deposited and redeposited checks were returned for insufficient funds between 28 

August 2013 and 10 July 2014; that in November 2013, the 

appellant stopped direct deposit of her pay and allowances into 

her NFCU account; and that other means existed to return items 

to AAFES notwithstanding her debarred status.

We believe the appellant’s reliance on Hurko is misplaced. 

In Hurko, the court found the accused and his spouse had an 

agreement in which she would regularly place funds in his 

account during his 1989 deployment; that during the deployment 

their communication was limited to brief phone calls; that he 

did not receive any mail so was unaware of the contents of his 

bank statements; and that the total amount of checks written 

 

13 Although the appellant provided other evidence (e.g., her JBLM debarment, 

which hampered her ability to personally return some items), that evidence 

pertained only to the now-dismissed specifications under Charge III. 
8

would have been covered had his spouse made deposits per their 

agreement. Id. at 1177. Thus, the court found Hurko’s “honest 

reliance” on the anticipated deposits was not dishonorable. Id.

at 1178. We distinguish the appellant’s case from Hurko with 

little difficulty. The appellant and her spouse lived together 

during the period when all the checks were written; NFCU issued 

her regular written statements containing the bounced check 

fees; she terminated her direct deposit to NFCU; she admitted to 

investigators that her husband had made a prior false claim 

about placing funds in the account; she did not check the status 

of the account before writing the 2014 checks (which further 

degraded her means to pay the 2013 checks); and other than 

transferring $200.00 into the account in May 2014, all other 

funds remitted to NFCU occurred via involuntary garnishments. 

In order for the appellant to benefit from her claim of honest 

reliance, “the expectation of anticipated deposits must be 

believable [and] [w]hether the expectation is believable rests 

largely on how reasonable it is.” Id. 

We find the appellant’s stated expectations, under the 

facts of her case, to be unreasonable. Accordingly, after 

weighing the evidence and making allowances for not having 

observed the witnesses, we are convinced of the appellant's 

guilt to Specification 1 of Charge III beyond a reasonable 

doubt. Reed, 54 M.J. at 41.

Unreasonable Multiplication of Charges

Although the appellant argues, primarily relying on United 

States v Quiroz, 55 M.J. 334 (C.A.A.F. 2001), that Charge II and 

Charge III constitute an unreasonable multiplication of charges, 

we moot the issue with our holding below. 

Specifically, though only raised as a postscript to the 

appellant’s third assignment of error, we address her argument 

that Charge II and Charge III were charged in the alternative 

for contingencies of proof and therefore required the trial 

judge to either consolidate or dismiss the alternative 

specifications. United States v. Elespuru, 73 M.J. 326, 329

(C.A.A.F. 2014). Although not addressed in the Government’s 

brief, the record is clear that the prosecution intentionally 

pled the offenses under Charge II and Charge III for 

contingencies of proof. Even though the Government’s response 

to the trial motion for unreasonable multiplication discusses 

how the actus reas of the two charged offenses could occur over 

a protracted time period (implying two distinctly separate 

criminal acts), the trial counsel, nevertheless concludes if the 
9

defense motion were granted, “it would take away from the 

[G]overnment’s right to charge under alternate theories of 

criminality.” Appellate Exhibit VII at 4. During oral argument 

on the motion, trial counsel repeatedly states the offenses were 

charged in the alternative, and went so far as to tell the 

judge, “[t]hey are two alternate theories of liability, and we’d

agree with the court [on] . . . instructing [the members] . . . 

that they couldn’t find guilt on -- of (sic) both 134 and 123a 

in both scenarios . . . .” Record at 42-43. The trial judge 

apparently agreed, deciding, due to the difficulty in 

determining whether the Article 134, UCMJ, offense was a lesser 

included offense of Article 123a, UCMJ, that “they may be 

charged in anticipation of varying contingencies of proof . . . 

because the finder of fact will be charge with an either/or 

decision on each specification.” AE X at 5 (emphasis added). 

In Elespuru, the court held even when the appellant waived 

his right to assert multiplicity on appeal, and even if the 

charges were merged for sentencing, that where it is clear the 

Government charged offenses in the alternative for exigencies of 

proof, the remaining offense should be dismissed. Elespuru, 73 

M.J. at 329. Significantly, for our purposes here, the Court of 

Appeals for the Armed Forces dismissed the lesser offenses 

charged in the alternative after concluding the appellant was 

not prejudiced with regard to his sentence. Id. at 330. We are 

similarly bound. Accordingly, the findings of guilty to 

Specifications 2, 3, and 4 of Charge III are set aside and those 

specifications are dismissed. 

Applying the analysis set forth in United States v. Sales, 

22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 

40 (C.A.A.F. 2006), and after carefully considering the entire 

record and specifically noting the trial judge merged the 

relevant specifications of Charge II and Charge III for 

sentencing, we conclude that there has not been a dramatic 

change in the penalty landscape and are confident that the trial

judge would have adjudged, and the CA would have approved, a

sentence at least as severe as was awarded even absent the three

specifications under Charge III. Art. 66(c), UCMJ; United

States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); Sales, 22 

M.J. at 308.

Conclusion

The findings of guilty to Specifications 2, 3, and 4, of 

Charge III are set aside and those specifications are dismissed
10

with prejudice. The remaining findings are affirmed. The 

sentence as reassessed is affirmed. 

For the Court

 

 

 

R.H. TROIDL

Clerk of Court