## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, FEBBO, and PENLAND Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 STEVEN M. TUCKER

United States Army, Appellant

ARMY 20150634

Headquarters, United States Army Cadet Command and Fort Knox S. Charles Neill, Military Judge Colonel E. Edmond Bowen, Jr ., Staff Judge Advocate

For Appellant: Colo nel Mary J. Bradley, JA; Ma jor Andres Vazquez, Jr., JA; Captain Amanda R. McNeil Williams, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Cormac M. Smith, JA; Captai n John Gardella, JA (on brief).

28 October 2016

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OPINION OF THE COURT

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CAMPANELLA, Senior Judge:

In this case, we explor e whether the military judg e erred in accepting the appellant’s plea to a genera l article violation for provid ing alcohol to a person under the age of twenty-one , premised upon the mens rea of negligence. Finding no error,

we affirm. Because Article 134, Uniform Co de of Military Justic e, 10 U.S.C. § 934 (2012) [hereinafter UCMJ], specifi cally criminalizes “disorders and neglects ” that are prejudicial to good order an d discipline or which tend to discredit the service, we find the Article 134, UCMJ, offense falls outside the Su preme Court’s decision in

United States v. Elonis , 135 S. Ct. 200 1 (2015).

A military judge, sitting as a general court-martia l convicted appellant, pursuant to his pleas, of one specificat ion of conspiracy to obstruct justice, one specification of sexual assaul t, two specifications of unlawfully providing alcohol to a person under the age of tw enty-one, and one sp ecification of obstruction of justice in violation of Articles 81, 120, and 134, UCMJ. The militar y judge sentenced appellant to a bad-conduct discharge and conf inement for forty-two months. In accordance with a pret rial agreement, the convening au thority approved only so muchTUCKER—ARMY 20150634

2 of the sentence as provide d for a bad-conduc t discharge and thirty-six months

confinement.

Appellant’s case is before us for review pursuant to Article 66(c), UCMJ. Appellant raises two assignmen ts of error, one of which requires discussion but no relief. Specifically, appellant avers hi s plea was improvident because, during the providence inquiry, the militar y judge instru cted on the mens rea of negligence,

when he should have instructed on the mens rea of recklessness, as it relates to the Article 134, UCMJ offense of providing alcoholic be verages to pe rsons under twenty-one years of age. Appellant also rais es matters personal ly pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) whic h, upon consideration, we find

have no merit.

BACKGROUND

In Specification 1 of Charge IV, ap pellant was charged with and pleaded guilty to providing alcohol to Private (PV2) TG, a person under the ag e of twentyone. The specification alle ged a general disorder unde r Article 134, UCMJ. During the providence inquiry, appellant stated he gave alcohol to anyone at the party without inquiring as to their age. 1 He also stat ed he knew some in the barracks were under twenty-one years of age but he had no reason to believe PV2 TG was under the age of twenty-one.

Upon hearing this info rmation, the military ju dge inquired into the government’s theory of the case and asked defense counsel whether appellant was provident to this specification. Trial co unsel asserted that the Article 134, UCMJ, specification was a general intent crime a nd hence, appellant’s plea was provident based on his own description of his mental state. Defe nse counsel agreed with the government that the Article 134 specification was a general intent crime and appellant could be criminally liable for “deliberate ignoran ce” of PV2 TG’s age.

With that, the military judge instructed appellant that “negli gence is the lack of that degree of ca re that a reasonably prudent person would have exercised under

the same or similar circumstances.” Appellant agreed he was negligent by providing PV2 TG alcohol without ascertaining her age.

LAW AND DISCUSSION

This court reviews a military judge’s deci sion to accept a plea for an abuse of

discretion. United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F . 2008). It is an

1 During the plea inquiry as to Specificat ion 2 of Charge IV, alleging a similar Article 134, UCMJ, violat ion by providing alcoho l to PV2 TM, appellant acknowledged he knew PV2 TM was under the age of twenty-one.TUCKER—ARMY 20150634

3 abuse of discretion for a mi litary judge to acce pt a guilty plea wi thout an adequate factual basis to support it . . . [or] if the ruling is based on an e rroneous view of the

law.” United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 2012) (citation omitted).

Appellant argues the mili tary judge’s reliance on a negligence standard renders his plea to Sp ecification 1 of Charge IV improvident. Appe llant, in reliance

on United States v. Elonis , 135 S. Ct. 2001 (2015), and United States v. Gifford , 75 M.J. 140 (C.A.A.F. 2016), asserts the language of Article 134, UCMJ omits a mens

rea element, and theref ore, the appropriate mens rea standard is recklessness. While the government concedes this point, we disagr ee, as we find Elonis and Gifford inapplicable to the fa cts of this case.

What mens rea applies to Article 134, UCMJ, is a question of law which we

review de novo. United States v. Serianne , 69 M.J. 8, 10 (C .A.A.F. 2010).

In United States v. Elonis , the Supreme Court was fa ced with interpreting a criminal statute, 18 U.S.C. § 875(c), that was silent on the mens rea required to commit the offense. The Supreme Court emphasized that “[w] hen interpreting

federal criminal statutes that are silent on the re quired mental stat e, we read into the statute only that mens rea which is necessar y to separate wron gful conduct from

otherwise innocent co nduct.” 135 S. Ct . at 2010 (quoting Carter v. United States

, 530 U.S. 255, 269 (2 000)) (internal quotation marks omitted). The Court concluded that when a statute is silent in this regard, the mens rea required to commit the offense must be greater th an simple negligence. Elonis , 135 S. Ct. at 2010. 2

In United States v. Gifford, the Court of Appeals for the Armed Forces (CAAF) applied Elonis to a violation of a lawful ge neral order, Article 92, UCMJ, where the order failed to state any mens rea requirement and determined the

minimum mens rea is “recklessness.” 75 M.J. at 148 (C.A.A.F. 2015 ). Under this

mens rea standard as it applies to Article 92, UCMJ, lawful c onduct, such as providing alcohol to one ’s friends or guests while honestly believi ng them to be of legal age, would be excluded from proscription under the general order. The CAAF decision, however, did not ap ply an analysis of the st atutory language of Article 134 itself which proscribes “neglect[ful]” conduct. 3

The Supreme Court’ s decision in Elonis and the CAAF’s decision in Gifford are predicated on the absence of a statutory mens rea requirement. The Supreme Court

2 Thus the offenses of missing moveme nt (Article 87, UC MJ) and im proper hazarding of vessel (Article 110, UCMJ) ma y be committed by simple negligence.

3 Consistent with this statutory construct, the President has, for example, under his Article 56 authority included the Article 134 offense of negligent homicide. See

U.S. v. Bivens , 49 M.J. 328 (C .A.A.F. 1998).TUCKER—ARMY 20150634

4 created a “gap-filli ng rule” for a mens rea requirement when an offense is otherwise

silent

. Elonis , 135 S. Ct. at 2010-11. However, Article 134, UCMJ, is not silent, for it specifically criminalizes “disorders and neglect s” that are prejudicial to good order and discipline, or which tend to discredit the service. UCMJ ar t. 134. For those offenses where the crime clearly states a negligence standard, Elonis is inapplicab le.

In United States v. Rapert , our superior co urt determined Elonis was not applicable to the offense of communicati ng a threat under Arti cle 134, UCMJ, as articulated by the Pres ident. 75 M.J.164 (C .A.A.F. 2015). While Elonis involved communicating a threat , the military offens e of communicating a th reat contains an

element—absent in the federal offens e—that the conduct be “wrongful.” Compare 18 U.S.C. § 875(c) with Manual for Courts-Marti al, United States (2012 ed.) [hereinafter MCM ], pt. IV, ¶ 110.b. In Rapert , our superior court found the requirement that th e accused's acts be “wrongful ” put the offens e outside the holding in Elonis. 75 M.J.at 168. Although Rapert did not discuss the statutory language of Article 134, nothing in the court’s reasoning would preclude our analysis here.

In short, we find the offens e of providing alcohol to a person unde r the age of twenty-one under Article 134 , UCMJ, falls outside the Su preme Court’s decision in

Elonis . Article 134, UCMJ, specifically crimin alizes “disorders and neglects” that are prejudicial to good order and discipline or which tend to discredit the service.

MCM , pt. IV, ¶ 60.c.(2). For those offenses where the statute clearly includes a negligence standard, Elonis is inapplicable. Accordi ngly, we find the military judge

did not abuse his discre tion in accepting appell ant’s plea of guilty to Specification 1 of Charge IV.

CONCLUSION

The findings and sentence are AFFIRMED.

Judge FEBBO and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: