             U NITED S TATES AIR F ORCE
            C OURT OF C RIMINAL APPEALS
                        ________________________

                            No. ACM 39217
                        ________________________

                          UNITED STATES
                              Appellee
                                   v.
                        Logan P. MARTIN
            Senior Airman (E-4), U.S. Air Force, Appellant
                        ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 13 June 2018
                        ________________________

Military Judge: Mark W. Milam (arraignment); Vance H. Spath.
Approved sentence: Dishonorable discharge, confinement for 3 years,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 9 November 2016 by GCM convened at Minot Air Force Base,
North Dakota.
For Appellant: Major Allen S. Abrams, USAF; Major Jarett F. Merk,
USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
James S. Vicchairelli, USAF; Mary Ellen Payne, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
                        ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                        ________________________
                   United States v. Martin, No. ACM 39217


HARDING, Senior Judge:
    A general court-martial composed of a military judge found Appellant, con-
trary to his pleas, guilty of one specification of aggravated assault in violation
of Article 128, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928, and
of one specification of failure to obey a lawful order in violation of Article 92,
UCMJ, 10 U.S.C. § 892. The military judge sentenced Appellant to a dishonor-
able discharge, confinement for three years, forfeiture of all pay and allow-
ances, and reduction to the grade of E-1. The convening authority disapproved
and waived the adjudged and automatic forfeitures, respectively, but otherwise
approved the sentence as adjudged.
    Appellant raises two errors on appeal: (1) whether the finding of aggra-
vated assault is ambiguous, thus preventing this court from conducting a fac-
tual sufficiency review under Article 66, UCMJ, 10 U.S.C. § 866; and (2)
whether his conviction for violating a no-contact order is legally and factually
sufficient. We find no prejudicial error and affirm.

                                I. BACKGROUND
    After returning to their apartment from a party at a friend’s house, Appel-
lant and Airman First Class (A1C) AG were involved in an argument that
turned physical. While straddling A1C AG as she was on the ground, Appellant
placed his hands around her throat. A1C AG managed to buck Appellant off of
her by thrusting her hips and then she went into the bathroom. While in the
bathroom, A1C AG coughed up mucus containing some amount of blood. After
A1C AG came out of the bathroom, Appellant placed her in a chokehold by
placing her neck between his forearm and bicep. A1C AG lost consciousness as
a result. A1C AG testified that at some point after she came out of the bath-
room, although she was not sure whether this occurred before or after she lost
consciousness, Appellant placed a gun to his head and threatened to kill him-
self. A1C AG took the gun away from Appellant and hid it.
    After being strangled by Appellant and observing his suicidal gesture, A1C
AG called their roommate for help. The roommate did not answer his cellphone;
but HO, the friend who hosted the party, did. HO and her husband, WO, then
drove to the apartment as requested by A1C AG. Once there, WO checked on
Appellant and found him sleeping on the floor. A1C AG left with HO and WO
to go back to their home. After observing A1C AG’s bloodshot eyes, HO and WO
encouraged A1C AG to get medical treatment. A1C AG initially declined, but
went to the emergency room later that day after she was strongly urged to do
so by her supervisor. As a result of the strangulation, A1C AG suffered subcon-
junctival hemorrhaging, the bursting of blood vessels, in both eyes.




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                   United States v. Martin, No. ACM 39217


    Appellant was ordered into pretrial confinement and remained in that sta-
tus until 10 May 2016, when he was released and restricted to the limits of
Minot Air Force Base, North Dakota. Also on 10 May 2016, Appellant’s squad-
ron commander, Lieutenant Colonel (Lt Col) KE, issued Appellant a no-contact
order both orally and in writing. Appellant was “ordered to cease all contact
with A1C AG” and notified that any communication with A1C AG, including
by e-mail, social media, text-messaging, or phone, would constitute a violation
of the order. The written order concluded with a statement that the order
would remain in effect until “10 Nov 15.” At trial Lt Col KE testified that the
“5” in the “10 Nov 15” was a typographical error and that Appellant received a
supplemental order with the correct expiration date of 10 November 2016. On
multiple occasions after 10 May 2016, Appellant communicated with A1C AG
by sending her text messages, calling her cell phone, and upon seeing her at
the base fitness center, mouthing the words “I’m sorry, can we talk?”

                               II. DISCUSSION
A. Ambiguous Finding
    Appellant contends the excepting of the phrase “on divers occasions” and
substitution of the phrase “spit up and cough” rendered the finding of guilty
for the charge of aggravated assault ambiguous, and incapable of factual suffi-
ciency review. We disagree.
    “Whether a verdict is ambiguous and thus precludes a [court of criminal
appeals (CCA)] from performing a factual sufficiency review is a question of
law reviewed de novo.” United States v. Ross, 68 M.J. 415, 417 (C.A.A.F. 2010).
A military CCA, in the course of its review process, cannot conduct a factual
sufficiency review of an accused’s conviction when “the findings of guilty and
not guilty do not disclose the conduct upon which each of them was based.”
United States v. Trew, 68 M.J. 364, 366 (C.A.A.F. 2010) (quoting United States
v. Walters, 58 M.J. 391, 397 (C.A.A.F. 2003)). However, the general verdict rule
provides that when a “factfinder returns a guilty verdict on an indictment
charging several acts, the verdict stands if the evidence is sufficient with re-
spect to any one of the acts charged.” United States v. Rodriguez, 66 M.J. 201,
204 (C.A.A.F. 2008) (citing Griffin v. United States, 502 U.S. 46, 49 (1991)).
   On 3 June 2016, Lt Col KE preferred the following specification, among
others, against Appellant:
       In that SENIOR AIRMAN LOGAN P. MARTIN, United States
       Air Force, 91st Missile Security Forces Squadron, Minot Air
       Force Base, North Dakota, did, at or near Minot, North Dakota,
       on or about 15 October 2015, on divers occasions, commit an as-
       sault upon Airman First Class AG with a means or force likely


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                    United States v. Martin, No. ACM 39217


       to produce death or grievous bodily harm, to wit: strangling her,
       and did thereby intentionally inflict grievous bodily harm upon
       her, to wit: causing bleeding underneath the surface of her eyes,
       and causing her to vomit blood and mucus and lose conscious-
       ness.
    On 3 August 2016, the Government amended the specification by striking
the language “on divers occasions,” and “causing bleeding underneath the sur-
face of her eyes, and” from the specification. Thus, Appellant was arraigned on
29 August 2016 on the following specification;
       In that SENIOR AIRMAN LOGAN P. MARTIN, United States
       Air Force, 91st Missile Security Forces Squadron, Minot Air
       Force Base, North Dakota, did, at or near Minot, North Dakota,
       on or about 15 October 2015, commit an assault upon Airman
       First Class AG with a means or force likely to produce death or
       grievous bodily harm, to wit: strangling her, and did thereby in-
       tentionally inflict grievous bodily harm upon her, to wit: causing
       her to vomit blood and mucus and lose consciousness. 1
    Appellant asserts that Walters and its progeny require us to set aside and
dismiss the aggravated assault Charge and its Specification. In Walters, the
appellant was charged with using ecstasy on divers occasions. The members
found appellant guilty except the words “on divers occasions.” The findings,
however, did not indicate the single occasion on which the conviction was
based. The United States Court of Appeals for the Armed Forces held that as
a result, the CCA could not perform its factual sufficiency review under Article
66(c), UCMJ, because the CCA could not determine which one of the possible
incidents of misconduct the members relied on in finding the appellant guilty.
Walters, 58 M.J. at 397.
   While the specification of aggravated assault of which Appellant was
charged did contain the phrase “on divers occasions” at preferral, it did not
contain that phrase at arraignment. The words “on divers occasions” were not
present in the specification at findings, and therefore there was no possibility


1The specification contained two theories for aggravated assault: means or force likely
to produce death or grievous bodily harm, and intentional infliction of grievous bodily
harm. The Government in its opening statement and in motion practice made clear
that its primary theory was intentional infliction of grievous bodily harm. When asked
by the military judge about lesser included offenses, the Government asserted two:
aggravated assault by means or force likely to produce death or grievous bodily harm,
and assault consummated by a battery. Appellant’s trial defense counsel agreed.




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                    United States v. Martin, No. ACM 39217


for them to be excepted nor the accompanying potential for ambiguous find-
ings. The Government proceeded to trial on Appellant’s strangling of A1C AG
as a single occasion and continuing course of conduct. The military judge en-
tered a general verdict 2 finding Appellant guilty of the specification except the
word “vomit.” Consistent with the testimony at trial, the military judge substi-
tuted the words “spit up and cough” for “vomit” and found Appellant guilty of
those words. 3
    Importantly, unlike in Walters and its progeny, the factfinder in Appel-
lant’s case did not except the words “on divers occasions” from a specification
thereby indicating a finding of guilt on only one occasion, and a finding of not
guilty of the other occasions. “[T]he difference in the verdicts of the factfinders
is the dispositive distinction between this case and Walters . . . .” Rodriguez, 66
M.J. at 202. The rule from Walters “applies only in those ‘narrow circum-
stance[s] involving the conversion of a ‘divers occasions’ specification to a ‘one
occasion’ specification through exceptions and substitutions” by the members.
United States v. Brown, 65 M.J. 356, 358 (C.A.A.F. 2007) (alteration in origi-
nal) (citing Walters, 58 M.J. at 396)). In the present case, there is no ambiguity.
This is not a Walters case. We are not left to speculate as to what the military
judge found Appellant guilty of. By a general verdict, he found Appellant guilty
of strangling A1C AG.
B. Legal and Factual Sufficiency
    Appellant asserts that, due to the typographical error in the written no-
contact order, the order was not in effect during the period of time when Ap-
pellant communicated with A1C AG, and therefore the evidence failed to
demonstrate that Appellant was issued a certain lawful order and that Appel-
lant had actual knowledge of the order. We disagree.
    We review issues of legal and factual sufficiency de novo. Article 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). Our
assessment of legal and factual sufficiency is limited to the evidence produced
at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omit-
ted).
   The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United


2Special findings were not requested by either party. See Rule for Courts-Martial
918(b).
3 During her testimony, A1C AG never used the word “vomit” to describe what hap-
pened and agreed on cross-examination that she did not vomit. She did testify to cough-
ing up mucus and blood.


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                   United States v. Martin, No. ACM 39217


States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). The “reasonable doubt” standard does not require that
the evidence be free from conflict. United States v. Wheeler, 76 M.J. 564, 568
(A.F. Ct. Crim. App. 2017), aff’d, United States v. Wheeler, 77 M.J. 289
(C.A.A.F. 2018) (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.
1986)). “[I]n resolving questions of legal sufficiency, we are bound to draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
    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] convinced of the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. “In conducting this unique appellate role, we
take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption
of innocence nor a presumption of guilt’ to ‘make [our] own independent deter-
mination as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.’” Wheeler, 76 M.J. at 568 (alteration in original)
(quoting Washington, 57 M.J. at 399).
    In order to prove the charged offense, failure to obey a lawful order in vio-
lation of Article 92, UCMJ, the Government was required to prove beyond a
reasonable doubt: (1) that a member of the armed forces issued a certain lawful
order to Appellant; (2) that Appellant had knowledge of the order; (3) that Ap-
pellant had a duty to obey the order; and (4) that at a certain time and place,
Appellant failed to obey the order. Military Judges’ Benchbook, Dept. of the
Army Pamphlet 27-9 at 259 (10 Sep. 2014).
    Contrary to the importance placed on “10 November 2015” by Appellant,
we deem critical the date of 10 May 2016. On that date, Appellant was released
from pretrial confinement, but remained subject to lesser forms of pretrial re-
straint. On 10 May 2016, Appellant was restricted to the limits of Minot Air
Force Base and was issued a no-contact order both orally and in writing. The
written no-contact order stated, “in order to ensure good order and discipline,
YOU ARE HEREBY ORDERED to cease all contact with A1C AG.” The written
order also instructed Appellant what to do should he enter a public place where
A1C AG was present or if she initiated contact. A specific order to refrain from
future contact with A1C AG is the reasonable interpretation of the order even
with the typographical error of its expiration date, specifically, the year. Fur-
ther, Lt Col KE testified that the typographical error had been addressed with
Appellant.
   Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” we conclude the evidence was legally sufficient to support
Appellant’s conviction of failure to obey a lawful order beyond a reasonable
doubt. Barner, 56 M.J. at 134 (citations omitted). Moreover, having weighed

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                     United States v. Martin, No. ACM 39217


the evidence in the record of trial and having made allowances for not having
personally observed the witnesses, we are convinced of Appellant’s guilt be-
yond a reasonable doubt. See Turner, 25 M.J. at 325. Appellant’s conviction of
failure to obey a lawful order is therefore both legally and factually sufficient.

                                  III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED. 4


                   FOR THE COURT



                   CAROL K. JOYCE
                   Clerk of the Court




4 The court-martial order fails to include a specification on which Appellant was ar-
raigned. In addition to the offenses addressed in this opinion, Appellant was also ar-
raigned for a second specification of aggravated assault committed against another
person. This specification, listed as Specification 2 of Charge II on the original charge
sheet, was withdrawn and dismissed on 7 November 2016 prior to the entry of pleas.
We order a corrected court-martial order.


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