UNITED STATES, Appellee 

v. 

Kevin D. BROWN, Senior Airman 

U.S. Air Force, Appellant 

No. 06-0857 

Crim. App. No. 36195 

United States Court of Appeals for the Armed Forces 

Argued April 25, 2007 

Decided June 22, 2007 

BAKER, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Captain Christopher L. Ferretti (argued); 

Lieutenant Colonel Mark R. Strickland and Major Christopher S. 

Morgan (on brief). 

For Appellee: Captain Nicole P. Wishart (argued); Colonel 

Gerald R. Bruce and Major Matthew S. Ward (on brief). 

Military Judge: Print R. Maggard. 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Brown, No. 06-0857/AF 

2

Judge BAKER delivered the opinion of the Court. 

Appellant was a Senior Airman assigned to the 58th 

Maintenance Operations Squadron at Kirtland Air Force Base, New 

Mexico. Before a general court-martial composed of officer and 

enlisted members, Appellant was tried for ten specifications 

arising from three charges: willful damage to others’ property 

(three specifications), assault (five specifications), 

wrongfully communicating a threat and kidnapping in violation of 

Articles 109, 128, and 134, Uniform Code of Military Justice 

(UCMJ), 10 U.S.C. § 909, 928, 934 (2000). Appellant pled guilty 

to one of the three specifications under Article 109, UCMJ, and 

was convicted contrary to his pleas regarding one other. 

Appellant pled not guilty to the five assault specifications but 

was convicted of one of these offenses. He pled not guilty to 

both specifications under Article 134, UCMJ, and was found 

guilty of wrongfully communicating a threat. Appellant was 

sentenced to a bad-conduct discharge and confinement for twelve 

months. The convening authority approved the sentence and the 

United States Air Force Court of Criminal Appeals affirmed. 

United States v. Brown, No. ACM 36195, 2006 CCA LEXIS 157, 2006 

WL 1976241 (A.F. Ct Crim. App. Jun. 20, 2006). 

We granted review of the following issue: 

WHETHER APPELLANT’S CONTINGENT DECLARATION CONSTITUTES 

COMMUNICATING A THREAT. 
United States v. Brown, No. 06-0857/AF 

3

 We conclude that the United States Air Force Court of 

Criminal Appeals did not err in finding Appellant’s declaration 

a threat under Article 134, UCMJ. As a result, we affirm. 

BACKGROUND 

 Appellant and Staff Sergeant (SSgt) S were involved in an 

intermittent, intimate, and often combustible relationship 

during the two-and-a-half years before Appellant communicated 

the contested threat. In July 2003, SSgt S gave birth to a son, 

the paternity of, and child support for, was often at the heart 

of the friction between Appellant and SSgt S. 

 Appellant deployed to Iraq from November 2003 until January 

2004. SSgt S testified that Appellant threatened to kill her 

during an April 2004 argument in which Appellant expressed 

indignation over SSgt S’s admitted lack of faithfulness to him 

during his deployment. 

 Assistant trial counsel asked SSgt S about threats made in 

the course of the argument: 

Q. What did [Appellant] say? 

A. He was just going on and on about how he 

couldn’t believe that I did that to him and he 

said that if he ever saw the guy again that he 

would kill him and he said that if I wasn’t his 

baby’s mother that he would kill me too and a few 

minutes later he changed it and said that if my 

son wasn’t there then I would be dead 

. . . . 
United States v. Brown, No. 06-0857/AF 

4

Q. Now you mentioned [Appellant’s] comment . . . 

that if you weren’t my baby’s mom, you would be 

dead and he changed it later to if the baby 

wasn’t here, you would be dead. How did that 

comment make you feel? 

A. I was scared to death. He had already [been 

violent] that night and he’d never threaten[ed] 

to kill me before. 

 

On cross-examination, defense counsel continued to flesh out the 

context in which Appellant’s statements were made: 

Q. Now, you mentioned in your testimony that [Appellant] 

stated to you that, “If I wasn’t the baby’s mother he would 

kill you”, right? 

A. He said, “If I wasn’t his baby’s mother then I would be 

dead”. 

Q. But you are his baby’s mother, correct? 

A. Yes, I am. 

Q. And then he changed his statement to say, “If the baby 

wasn’t here, you’d be dead”, correct? 

A. Yes, sir. 

Q. But the baby was there, is that correct? 

A. Yes, sir. 

Appellant testified at trial and denied making any threats 

against SSgt S. On appeal, he challenges the legal sufficiency 

of the members’ guilty finding, contending the statements, even 

if made, did not constitute a threat under Article 134, UCMJ. 
United States v. Brown, No. 06-0857/AF 

5

DISCUSSION 

 We review the legal sufficiency of findings of guilt using 

the standard developed in Jackson v. Virginia, 443 U.S. 307 

(1979); see also United States v. Turner, 25 M.J. 324 (C.M.A. 

1987). In Jackson, the Court held that: 

The critical inquiry on review of the sufficiency of 

the evidence to support a criminal conviction must be 

not simply to determine whether the jury was properly 

instructed, but to determine whether the record 

evidence could reasonably support a finding of guilt 

beyond a reasonable doubt. But this inquiry does not 

require a court to ask itself whether it believes that 

the evidence at the trial established guilt beyond a 

reasonable doubt. Instead, the relevant question is 

whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the 

crime beyond a reasonable doubt. 

443 U.S. at 318-319 (1979)(citations omitted and emphasis 

added). 

 The specification did not delineate the words of the 

purported threat(s). At trial and again on appeal the 

Government pointed to two separate alleged threats based upon 

SSgt S’s testimony. First, the Government asserted that 

Appellant’s statement to SSgt S that he would kill her if she 

was not his baby’s mother, was a threat. Second, the Government 

contended that Appellant’s statement that if his son (the baby) 

was not present then he would kill SSgt S, was a threat. The 

Court of Criminal Appeals held that the first statement did not 

“amount to a present determination or intent to wrongfully 
United States v. Brown, No. 06-0857/AF 

6

injure SSgt S.” 2006 CCA LEXIS 157, at *7, 2006 WL 1976241, at 

4. The Government did not certify an issue regarding this 

conclusion. As a result, we address only the second statement 

made by Appellant. See United States v. Adcock, 65 M.J. 18, 21 

n.3 (C.A.A.F. 2007); United States v. Lewis, 63 M.J. 405, 412 

(C.A.A.F. 2006) (citing United States v. Parker, 62 M.J. 459, 

464 (C.A.A.F. 2006)). 

 The offense of communicating a threat requires the 

Government to demonstrate beyond a reasonable doubt: 

(1) that the accused communicated certain language 

expressing a present determination or intent to 

wrongfully injure the person, property, or 

reputation of another person, presently or in 

the future; 

(2) that the communication was made known to that 

person or to a third person; 

(3) that the communication was wrongful; and 

(4) 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. 

Manual for Courts-Martial, United States pt. IV, para. 110.b. 

(2005 ed.) (MCM). 

Appellant argues that the second threat does not evince a 

“present determination” to harm SSgt S. Rather, the threat was 

explicitly contingent on the absence of Appellant’s son, which 

legally negated its threatening content. 
United States v. Brown, No. 06-0857/AF 

7

In support of this argument Appellant cites United States 

v. Shropshire, 20 C.M.A. 374, 43 C.M.R. 214 (1971). A confined 

inmate, Shropshire was restrained when he rattled his handcuffs 

as a guard came near. The guard said, “Go ahead, Shropshire, 

reach out and grab me and I’ll put you in the hospital.” 20 

C.M.A. at 375, 43 C.M.R. at 215. Shropshire responded: “I have 

more muscle in my little finger than you have in your whole body 

and if you take this restraining gear off, I’ll show you what I 

will do to you.” 20 C.M.A. at 374, 43 C.M.R. at 214. The 

Shropshire Court held that the contingency (“if” the guard 

removed the prisoner’s restraints) indicated a limitation on the 

detainee’s action, a limitation that was solely in the hands of 

the allegedly threatened guard. Specifically, the Court held, 

“The words uttered expressed a contingency that neutralized the 

declaration, since there was not a reasonable possibility the 

uncertain event would happen . . . [No] reasonable guard would 

have removed the restraining gear in order to permit an attack 

on himself.” 20 C.M.A. at 375-76, 43 C.M.R. at 215-16. 

Appellant claims that these facts parallel his case. In 

Appellant’s view, the threat to kill SSgt S was conditioned on 

the absence of a 10-month-old infant, and given that the child 

was being held by SSgt S, in theory that absence could only have 

come about if SSgt S chose to physically remove her child. 

Accordingly, the statement was not a threat at all. Much as no 
United States v. Brown, No. 06-0857/AF 

8

reasonable guard would have acted to remove a threatening 

prisoner’s restraints, no reasonable person would have removed 

her baby so that she could return to test the veracity of the 

threatened violence. According to Appellant, the “contingency . 

. . neutralized the declaration, since there was not a 

reasonable possibility the uncertain event would happen.” 

Stropshire, 20 C.M.A.at 376, 43 C.M.R. at 216. 

The Government disagrees with Appellant’s focus on the 

presence or absence of a stated contingency in a communication, 

a proposition for which the Government also relies on 

Shropshire. The Shropshire Court cited a concurring opinion in 

United States v. Humphrys, 7 C.M.A. 306, 22 C.M.R. 96 (1956), in 

which Judge Latimer placed less emphasis on the grammatical and 

linguistic structure of threats and contingencies and more on 

the perceptions of a reasonable person.1 Thus, the Shropshire

Court noted that a threat exists “so long as the words uttered 

could cause a reasonable person to believe that he was 

wrongfully threatened.” Stropshire, 20 C.M.A. at 375, 43 C.M.A. 

at 215. The Government also cites United States v. Phillips, in 

which the Court put the matter more starkly, stating, “Our only 

 

1

 We recognize that Humphrys examined the issue of the 

threatening purpose behind a contested statement rather than the 

threatening nature of contested language itself. However, as 

the Shropshire Court implies and both sides impliedly concede, 

we find that analyzing whether the purpose behind a statement is 

threatening requires a similar examination as to assessing 

whether a statement itself is threatening. 
United States v. Brown, No. 06-0857/AF 

9

concern is whether a reasonable fact finder could conclude 

beyond a reasonable doubt that a reasonable person in the 

recipient’s place would perceive the contested statement by 

appellant to be a threat.” 42 M.J. 127, 130 (C.A.A.F. 1995); 

see also United States v. Cotton, 40 M.J. 93, 95 (C.M.A. 1994). 

In this light, the Government argues that Appellant 

misreads Shropshire, and in particular, misunderstands the role 

of the guard in that case. For Appellant, the guard in 

Shropshire was not legally threatened due to the near 

impossibility of the stated threat from happening. However, for 

the Government, the impossibility was not conditioned on the 

words themselves, but rather the circumstances surrounding the 

use of the words. The prison guard would have had to remove 

Shropshire’s restraints before he could be harmed. Moreover, 

the guard’s initial statement to the inmate indicated that he 

did not feel physically threatened, at least not as long as 

Shropshire was restrained. In other words, it was not the 

literal words spoken that caused it not to be a threat, but 

rather the surrounding circumstances in which the threat was 

made. 

Thus, in this case, the Government focuses on the fact that 

unlike the guard in Shropshire, SSgt S was not solely in control 

of the factors that may have rendered the statement truly 

threatening. The Government contends that Appellant had the 
United States v. Brown, No. 06-0857/AF 

10

power to remove the infant from SSgt S’s arms and take him out 

of the room so that Appellant could return and consummate his 

threat. Or, given the infant’s age, the child himself could 

potentially have crawled or walked to another room of his own 

volition. The Government points to SSgt S’s testimony that she 

became scared to put down her baby and that the only way she 

felt safe was with her son on her lap. Moreover, the 

“contingent fact” itself may have been threatening in tone. 

Both parties rely on Shropshire, but with too close a focus 

on certain sentences in the opinion and not enough focus on the 

overall rationale. Shropshire itself recognizes the very middle 

ground between text and context that both sides appear to have 

overlooked. Indeed, even apart from Shropshire, this Court has 

consistently ruled that examination of threats under Article 

134, UCMJ, must pay due regard to any concretely expressed 

contingency associated with a threat, while remaining aware that 

all communication takes place within a context that can be 

determinative of meaning. See, e.g., Cotton, 40 M.J. at 95 

(“[b]oth the circumstances of the utterance and the literal 

language must be considered”); United States v. Gilluly, 13 

C.M.A. 458, 461, 32 C.M.R. 458, 461 (1963) (“the surrounding 

circumstances may so belie or contradict the language of [a 

seemingly threatening] declaration as to reveal it to be a mere 
United States v. Brown, No. 06-0857/AF 

11

jest or idle banter”). We reaffirm this long-standing principle 

today. Context gives meaning to literal statements. 

With respect to the specific threat uttered by Shropshire, 

the Court concluded, “the words uttered expressed a contingency 

that neutralized the declaration.” Shropshire, 20 C.M.A. at 

376, 43 C.M.R. at 216. At the same time, the Court concluded 

that “so long as the words uttered could cause a reasonable 

person to believe that he was wrongfully threatened” contingent 

words could communicate a threat under Article 134, UCMJ. 20 

C.M.A. at 375, 43 C.M.R. at 215. Thus, the Court indicated “the 

understanding of the person to whom the statement is 

communicated and the circumstances of the communication may be 

significant in contradicting or belying the language of the 

declaration.” Id. We hasten to add that this latter statement 

cuts both ways. 

Consider the following examples. If a drunken, forty-yearold bar patron wields an axe while running around menacingly 

shouting that if he were twenty years old he would kill a 

proximate individual, a legalistic analysis of the words of the 

threat would result in a conclusion that no threat existed. A 

forty-year old can never be a twenty-year-old and thus the 

impossible contingency would presumably negate the threat. 

This, however, is somewhat nonsensical. It belies the fact that 

the individual is nonetheless behaving and speaking in a 
United States v. Brown, No. 06-0857/AF 

12

threatening manner despite the stated explicit contingency that 

seemingly limits the forty-year-old’s ability to consummate the 

threat.2

 

That the opposite is true, in which clearly non-contingent 

threats are not legally threatening, is also plain. If someone 

were to approach a putative victim and coldly stare her down 

while solemnly stating that he was going to kill her within the 

next five minutes, it would seem that the elements of the 

offense of communication of a threat would be met in spades. 

However, if we learn that the “threatening” individual is a 

small child with no clear ability to consummate his threat, or 

if the threatening individual has a history of tantrum threats 

but has never acted on them, the calculus of the alleged threat 

changes. To not engage in such a recalibration in light of 

present circumstances and past behavior would fail the 

“straight-face” test. Francisco v. Comm’r, 370 F.3d 1228, 1231 

(D.C. Cir. 2004); see also Humphrys, 7 C.M.A. at 311, 22 C.M.R. 

at 101 (Latimer, J., concurring) (allegedly threatening language 

was deemed nonthreatening because, inter alia, witnesses agreed 

that when the statements were made, the accused was in a highly 

emotional, almost irrational state); United States v. Davis, 6 

C.M.A. 34, 37, 19 C.M.R. 160, 163 (1955)(suggesting the defense 

 

2

 We leave aside whether the individual in such a circumstance 

could also be charged with assault under Article 128, UCMJ. 
United States v. Brown, No. 06-0857/AF 

13

of “jest” can be available to the charge of making a threatening 

statement regardless of the explicitly threatening language used 

in the contested communication); see also United States v.

Rutherford, 4 C.M.A. 461, 463, 16 C.M.R. 35, 37 (1954). 

The words communicated certainly matter because they are 

the starting point in analyzing a possible threat. But words 

are used in context. Divorcing them from their surroundings and 

their impact on the intended subject is illogical and unnatural. 

Legal analysis of a threat must take into account both the words 

used and the surrounding circumstances. Without such a subtle 

examination absurd results might arise, defeating both the text 

and purpose of paragraph 110.b. of the Manual for CourtsMartial. 

The Nature of the Threat in This Case

In the present context the literal words of the threat 

consist of Appellant’s statement that he would kill SSgt S if 

his son were not present. As discussed, the impossibility or 

unlikelihood of this eventuality occurring is uncertain. It is 

equally unclear exactly who in the exchange had the power to 

make the contingency occur or prevent it from occurring. Even 

if one concludes the words themselves are not sufficient to 

constitute an unlawful threat, the combination of words and 

circumstances are sufficient. 
United States v. Brown, No. 06-0857/AF 

14

For example, SSgt S testified that Appellant’s statement 

that he would kill her was new in their exchanges. He “had 

never said anything like that [before] and the way that he said 

it . . . made [SSgt S] think that he would kill [her].” 

Moreover, the statement was made within minutes of a violent 

outburst by Appellant. The backdrop of significant violent 

exchanges between Appellant and SSgt S provided further basis 

for a reasonable person, including SSgt S in particular, to 

consider the statement threatening. 

The record indicates that the history of violence and 

heated exchanges between the two was substantial:3

In October 2003 SSgt S and Appellant were involved in 

such a raucous argument at SSgt’s apartment that the 

police were called and SSgt S received a citation from 

her landlord threatening eviction. 

During the October 2003 exchange, Appellant threw his 

cell phone against the wall, punched a hole in a door, 

and grabbed SSgt S’s shirt . . . . 

One month prior to the incident in question SSgt S and 

Appellant had had another exchange which became 

violent. Appellant punched a hole in SSgt S’s door 

 

3

 We recognize that Appellant was acquitted of some of the 

violent acts most proximate to the contested statement (notably 

the two specifications that alleged he had strangled SSgt S 

twice immediately prior to making the threatening statement to 

her), but we note without deciding that the fact that the 

Government was unable to show Appellant committed these acts 

beyond a reasonable doubt may not necessarily mean that the acts 

could not meet a lower standard of proof allowing their use in 

analyzing their impact on making the surrounding context of a 

statement threatening. However, even apart from the acts of 

which he was acquitted, there was enough uncontested history and 

context to render the threat legally threatening. 
United States v. Brown, No. 06-0857/AF 

15

and another airman was forced to physically intervene 

in order to halt further escalation of violence 

between the two. 

Moreover, at the time of the incident Appellant was 

drinking (and had imbibed an unknown amount) and was 

convicted of both unlawfully grabbing SSgt S’s 

shoulder, pushing her up against the closet door and 

refusing to unhand her, ripping SSgt S’s shirt, and 

shattering SSgt S’s cell phone by smashing it against 

the wall. Appellant had also hit the wall of SSgt S’s 

bedroom with such force that a framed picture was 

dislodged. Appellant seemed unconcerned that shards 

of glass from the picture landed on his infant son and 

Appellant subsequently further damaged the fallen 

picture by picking it up and hitting it against a 

chair. 

Viewing these facts -- the words communicated and the 

context within which the statement was made -- in the light most 

favorable to the prosecution, it is clear that a rational trier 

of fact could have found each element of the offense beyond a 

reasonable doubt. Appellant expressed an intent to wrongfully 

injure SSgt S, the statement was made known to SSgt S, the 

statement was wrongful, and the statement was manifestly 

prejudicial to the good order and discipline of the armed forces 

or was of the nature to bring discredit upon the armed forces. 

DECISION 

The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.