## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 TAYLOR J. CRAWFORD United States Army, Appellant

ARMY 20120527

Headquarters, V Corps Christopher T. Fredrikson and Wendy P. Daknis, Military Judges
Colonel Mark D. Maxwel l, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; JA; Major Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues, JA; Captai n Steve T. Nam, JA (on brief).

30 September 2014

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

--------------------------------- Per Curiam:

A panel of officer an d enlisted members, sitting as a gene ral court-martial, convicted appellant, contra ry to his pleas, of one specification of willful disobedience of a superior commissioned o fficer, one specificati on of assault by intentionally inflicting grievous bodil y harm, one specifi cation of assault consummated by battery, one sp ecification of drunk and di sorderly conduct, and two specifications of obstructi on of justice, in violati on of Articles 90, 128, and 134, Uniform Code of Military Ju stice, 10 U.S.C. §§ 890, 928, 934 ( 2006) [hereinafter “UCMJ”]. The convenin g authority approved the adjudged sentence of a dishonorable discharge, confinement for fi ve years, and forfei ture of al l pay and
allowances.

This case is before us for review under Article 66, UCMJ. One of appellant’s assignments of error warrants discussion and relief. In pa rticular, appellant’s claim that the military judge should have given instructions regardi ng conflicting orders has merit. Appellant’s person al submissions pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982) do not warrant relief.CRAWFORD—ARMY 20120527

2 BACKGROUND

In July 2011, appe llant savagely beat a Germ an national, TM. After consuming a significant amount of alcohol, appell ant and some fellow soldiers began walking down a German street, acting aggr essively toward others and damaging a vehicle. Eventually, appellant walked up behind TM an d tapped him on the
shoulder. As TM turned around to lo ok, appellant punched TM in the face. Appellant and TM had never me t before this moment. TM stumbled to the ground and appellant began kicking him. TM manage d to throw his wallet in the air, get up, and try to run away. Appellant chased hi m across the street and began kicking him again. After the beating stopped, appellant tu rned to his confeder ates and said, “Did y’all see me fuck that guy up?” TM suffered a multiple upper arm fracture on his right side and a massive soft part injury on his upper arm.

As a result of this a ttack on TM, appellant’s co mpany commander issued a written order to appell ant to, among other restrictions, not to have a ny contact with Specialist (SPC) TMcC. Appe llant was to stay at leas t fifty feet away from SPC TMcC. However, less than two weeks later, appell ant and SPC TMcC were placed
on a work detail to clean and organize a CONEX box . Both appellant and SPC TMcC were aware of the order to stay at least fifty feet away from each other. While working on the detail, appellant pu lled SPC TMcC aside, put his arm around his shoulder, and sai d, “So what are you talking to CID about? You shouldn’t be talking to them. If it’s about me, that’s bullshit . You know, you shouldn’t screw your friends over.” This conduct formed the basis for appellant’s conviction for
willful disobedience of a superior commissioned offi cer (Specificati on 1 of Second Additional Charge I) and one of appell ant’s obstruction of justice convictions (Specification 1 of Addition al Charge II).

The government charged appellant with willfully disobe ying the lawful
command “to remain at least 50 feet away from [SPC TM cC],” but the specification did not state with particularity how appellant willfully disobeyed the order. At trial,
SPC TMcC admitted that he knew that working on the CONEX box detail would place him within fifty feet of appellant. However, SPC TMcC thought that “because [the CONEX box detail order] was given to me by my chai n of command . . . that was all right.” Either a pl atoon sergeant or a platoon leader ga ve SPC TMcC the
order to work on th e CONEX box detail.

At the conclusion of the government’s case-in-chief, appellant’s civilian
defense counsel raised a Rule for Courts-Martial [h ereinafter R.C. M.] 917 motion for a finding of not guilty for willful disobedience of a superior commissioned
officer. Civilian defense c ounsel specifically raised th e conflicting orders as the basis for the motion. The government ar gued that appellant broke the no-contact order when he placed his arm around SPC TMcC and spok e to him. Viewing the evidence in the light most favorable to the government, the military ju dge denied theCRAWFORD—ARMY 20120527

3 motion, stating “[t]here was testimony that [appel lant] pulled him as ide and that may
be the moment the accused willfully disobeye d the no contact order.”

When instructing the pane l for findings, th e military judge instructed the panel that the no-contact order was a lawf ul command as a matter of law. Although
civilian defense counsel challe nged the lawfulness of the no-contact or der, he did not ask for, and the military judge did not provide, an instruction on any special or
affirmative defense for this Article 90 offense. Civili an defense coun sel argued at findings that appellant was in a “Catch-22” between two orders.

LAW AND DISCUSSION

Military law has long re cognized that a “cri minal prosecution for
disobedience of an or der cannot be ba sed upon a subordinate's election to obey one of two conflicting orders when simultaneous complian ce with both orders is impossible. An individual cannot be expected to remain and de part at the same
time.” United States v. Patton , 41 C.M.R. 572, 57 3 (A.C.M.R. 1969); United States
v. Clausen , 20 U.S.C.M.A 288, 289 43 C.M.R. 128, 129 (1971) (app ellant entered improvident plea of guilty where he disobeyed an orig inal order by following a countermanding order); see also William Winthrop, Military Law and Precedents 40 (2d ed. 1920 reprint) (noting that orders cannot confli ct with the Constitution, statutes, and regulations ). The precise contour s of conflicting orde rs as a defense or defense tactic are less clear. Conflicting or ders may be relevant to the defense in several ways. First, conflicting orders possibly can raise reasonable doubt to the evidence, particularly the element as to whether appellant willfully disobeyed. Second, an issue of conflicting orders possibly could raise a question as to the legality of an order. 1 Third, conflicting orders po ssibly can create an affirmative defense, where, while “not denying that an accused committed the objective acts constituting the offense, deni es, wholly or partially, crim inal responsibility for those
acts.” 2 R.C.M. 916(a). Our reasoning in Patton indicates that conf licting orders can
establish such an affirmative defense. 3 These possibilities are not necessarily mutually exclusiv e, nor are they present in every case.

1 Although appellant challenged the lawf ulness of the no-cont act order, we are
convinced that both the no -contact order and the CONEX box detail orders were lawful. The problem is not the lawfulness of the orders, but the conflict between
two lawful orders.

2 Conflicting orders possibly could raise a mistake of fact as to whether one of the orders was no longer in effect.

3 Put another way, in the general context of conflicting orders, a rational panel might conclude that by obeying on e order, an accused necessarily yet intentionally defies the authority of the other order. Despit e this factual finding, criminal liability

(continued . . .)CRAWFORD—ARMY 20120527

4 In this case, the governm ent did not specify on the charge sh eet how appellant willfully diso beyed the lawful comma nd. Neither R.C.M. 307 (c)(4), nor the model specification in the Manual for Courts-Martial , nor the model sp ecification in the Military Judge’s Be nchbook require such specificity. See Manual for CourtsMartial, United States (2008 ed.), pt. IV, ¶ 14.f.(4); Dep’t of Army, Pam. 27-9, Legal Services: Military Ju dges’ Benchbook [her einafter Benchbo ok], para. 3-14-2. b. (1 Jan. 2010). The effect of this charging decisio n, however, is an am biguity as to how appellant disobeyed the order. The defense argue d that appellant co uld not help but disobey the no-contact order by partic ipating in the CONEX box detail. The government argued that the willful disobe dience occurred when appellant put his arm around SPC TMcC and spoke to him about talking to CID.

We need not decide the precise limits of how an accused can use conflicting orders in his or her defense. However, und er the facts of this case, two matters are clear. First, appellant ca nnot be guilty of willful disobedience under Article 90 because the panel is convinced appellant came within fifty feet of SPC TMcC solely because of the duty to part icipate in the CONEX box deta il. Second, appellant can be guilty under Article 90 under the govern ment’s more limited theory, if the panel is persuaded beyond a reasonab le doubt. The military judge did not instruct the panel on this distinc tion, and failure to do so is erro r under the facts of this case. 4 Put another way, to the exte nt that the orders were conflicting, appellant had an
affirmative defense to Article 90. Criminal liability shou ld not attach under Article 90, simply because a panel determined th at appellant willfu lly disobeyed the no contact order by participating in the CONE X box detail. Appellant could also argue – and did argue – that the conflicting orde rs raised reasonable doubt as to the strength of the gov ernment’s case. At the same time, the government’s limited theory of criminality was a viable gr ound for the panel to convict.

If an affirmative defense is reasonably raised by the evid ence, the military judge has a sua sponte du ty to instruct the members on that defense.” 5 United States
v. MacDonald , 73 M.J. 426, slip op. at 22 (C.A.A .F. 2014) (citing United States v.
Davis , 53 M.J. 202, 205 (C.A.A.F. 2000)); see also R.C.M. 920(e). Although appellant did not specifically request an instruction about the conflicting orders,

(. . . continued)
should not attach in this general context. Hence, conflicting orders might be an
affirmative defense.

4 Although the Benchb ook does not have an instruction for th is situation, the military judge could have crafted one based in pa rt on the language in Patton

.

5 In MacDonald , our superior court rece ntly noted that the special defens es listed in
R.C.M. 916 are an illustrative rather than exhaustiv e list of defenses. Slip op. at 23-
24.CRAWFORD—ARMY 20120527

5 “waiver does not apply to ‘required instructio ns . . . such as affi rmative defenses[.]’” United States v. Stanley , 71 M.J. 60, 63 (C.A .A.F. 2012) (quoting Davis , 53 M.J. at 205). “Where an instructiona l error raises constitutional implications, this Court has traditionally tested the er ror for prejudice us ing a “‘harmless beyond a reasonable
doubt’ standard.” United States v. Davis , 73 M.J. 268, 271 (C .A.A.F. 2014) (quoting United States v. Wolford , 62 M.J. 418, 420 (C.A.A.F. 2006)).

We are not convinced that this error was harmless. In denying appellant’s R.C.M. 917 motion, the mil itary judge noted that “[ t]here was testimony that [appellant] pulled him aside and that may be the moment the accused willfully disobeyed the no contact orde r” (emphasis added). As our superior court noted in
MacDonald

, “[w]here the evidence can support mult iple arguments, the accused is
entitled to have the trie r of fact, in this ca se the members, and no t an appellate court, hear and test the credibility of the evidence based on proper instructions.” Slip op.
at 36. We are not confident that the panel convic ted appellant sole ly based upon the government’s th eory.

We are able to reassess th e sentence on the basis of the errors noted, and do so after conducting a thorough analysis of the totality of circum stances presented by appellant’s case and in accordance wi th the principles articulated in United States v.
Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305 (C.M.A. 1986). The grav amen of appellant’s crimin al conduct is unchanged, and appellant remains convicted of obstruct ing justice fo r his conduct in the CONEX box. Thus, we find no dramatic change in the penalty landscap e. Lastly, based on our experience, we are familia r with the remainin g offenses so that we may reliably
determine what sentence would have been imposed at trial.

CONCLUSION

On consideration of the entire recor d, the matters submitt ed pursuant to Grostefon , and the assigned errors, the findin gs of guilty of Sp ecification 1 of Second Additional Charge I and Second Addition al Charge I are set aside. Second Additional Charge I and Sp ecification 1 of Second Additional Charge I are dismissed. The remaining findings of guilty are AF FIRMED. Reassessing the sentence on the basis of the error noted and the principles of Winckelmann , the
sentence is AFFIRMED. All rights, privileges, and propert y, of which appellant has been deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.

FOR THE COURT:

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