### 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 Recomme ndation:**  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

.

**2 4**  **September 2015**

**-------------------------------- -------------------**  **OPINION OF THE COURT**

**---------------------------------------------------**

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 four2 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, 923 a , and 934. Following announcement of findings, the military judge, sua sponte , merged Specifications 2, 3, and 4 of Charge II (Art. 123a, UCM J) 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 Charge s II and III were an unreasonable multiplication of charges for findings. 1

A fter 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

c hecks 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 201 4, 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 relatio n 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 t o 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 ap pellant’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 acc used ’ 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, t hat 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** 

T he 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 specification s under Charge II

. 4 The appellant claims a mistake of fact defense

3 These checks comprise the offenses listed in Specification 1 of Charg e 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 act4 based on her honestly held belief that her account had or would

h ave sufficient funds in her bank account to cover he r 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 husband 5 was a “co n artist” who falsely told her that he had a million

- dollar trust fund, that his adoptive mother periodically gave him money, and
that he receiv ed $32,000 .00 from his mother before the appellant wrote the May 2014 checks

. A defense forensic psychology exp ert 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 wa s gullible, easily manipulated, immature, insecure, and a follower; and that she ha d a strong
de sire 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 ch ecking 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
i nsufficient 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 husba nd 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 sufficien t funds in or credit with the bank...upon presentment. M ANUAL FOR C OURTS

- M ARTIAL , U NITED S TATES (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 als o 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 h usband 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 w hich 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 G overnment bears the burden of disproving the appellant’s asserted mistake of fact beyond a reasonable doubt

. R ULE FOR C OURTS

- M ARTIAL 916(b)

, M ANUAL FOR
C OURTS

- M ARTIAL , U NITED S TATES (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 wro te the checks; she di d 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 circumstan ces, 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 finding s 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 beyo nd 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 t he 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 t o defraud and her knowledge of i nsufficient funds due to her failure to pay the check holder with in 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 a ppellant receive d notice on 29 May 2014, when she was interviewed by law enforcement

person nel

. 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 the ir 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** 

T he 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 s pecifications under Charge III, we still address her claims regard ing 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 assessme nt. See United States v. Smith , 49 M.J. 279, 2 81

- 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 cer tain 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 fa ilure 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 wh ere military appellate courts held a failure to maintain sufficient funds was dishonorable when characterized by false repr esentations, deceitful promises, absence of partial payments, ignoring past

due notices, and making payment with “bad” checks. Although the appellant acknowledges the dishonor element also can be prove n by a gross indifference toward one ’ s financial oblig ations, 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
hi s 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 s ufficient funds in her account was reasonable and
therefore not dishonorable.

Beyond argu ing her lack of knowledge of the insufficient
funds and any fraudulent intent at the time she signed the checks, the appellant also argues t hat $200 .00 was transferr ed into her checking account in May 2 0 14; 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 addi tion 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 re

deposited checks were returned for insuffici ent funds between 28 August 2013 and 10 July 2014; that i n November 2013, the appellant stopped direct deposit of her pay and allowances in to her NFCU account; and that other means existed to return items to AAFES notwithstanding her debar red status.

We b elieve 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. T hus

, the court found Hurko’s “honest reliance” on the anticipated deposits was not dishonorable. Id.
at 1178. We distinguish t he appellant’s case f rom Hurko with little difficulty. The appellant and her spouse lived together during the period when all t he 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 involunta ry 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 t he appellant argues , primarily relying on United States v Quiroz

, 55 M.J. 33 4 (C.A.A.F. 2001)

, that Charge II and Charge III constitute an unreasonabl e 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 i s 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 charg ed offenses could occur over a protracted time period (implying two distinctly separate criminal acts), the trial counsel, nevertheless concludes if the9 defense motion were granted, “it would take away from the [G]overnment’s right to charge under alternat e 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 liabilit y, and we ’d agree with the court [on] . . . instructing [the members]

. . . that they could n’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
d etermining whether the Article 134, UCMJ

, offense was a less e r 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 of fenses 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 less e r offenses charged in the alternati ve 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 sp ecifications 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 sever e 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 dismissed10 with prejudice. The remaining findings are affirmed. The
sentence as reassessed is affirmed.

For the Court

R.H. TROIDL
Clerk of Court