                       UNITED STATES, Appellee

                                    v.

                     Brandon I. MILLER, Private
                        U.S. Army, Appellant

                              No. 08-0580
                       Crim. App. No. 20060224

       United States Court of Appeals for the Armed Forces

                       Argued February 25, 2009

                        Decided June 10, 2009

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.


                                 Counsel


For Appellant: Captain Melissa E. Goforth Koenig (argued);
Lieutenant Colonel Mark Tellitocci and Major Bradley M. Voorhees
(on brief); Colonel Christopher J. O’Brien, Lieutenant Colonel
Steven C. Henricks, and Major Teresa L. Raymond.

For Appellee: Captain Patrick G. Broderick (argued); Colonel
Denise R. Lind, Lieutenant Colonel Mark H. Sydenham, and Captain
Philip M. Staten (on brief); Major Michael C. Friess.

Military Judge:   Patrick J. Parrish


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, 08-0580/AR


     Judge RYAN delivered the opinion of the Court:

     This case presents the question whether the Courts of

Criminal Appeals, after finding the evidence factually

insufficient to support a finding of guilty to a charged

violation of an enumerated article of the Uniform Code of

Military Justice (UCMJ), may affirm a conviction to a “simple

disorder,” under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as

an offense necessarily included in the enumerated articles.1    See

Article 79, UCMJ, 10 U.S.C. § 879 (2000) (“An accused may be

found guilty of an offense necessarily included in the offense

charged.”); Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2000) (“Any

reviewing authority . . . may approve or affirm . . . so much of

the finding as includes a lesser included offense.”).    We hold

that Article 134, UCMJ, is not an “offense necessarily included”

under Article 79, UCMJ, of the enumerated articles and may not

be affirmed under Article 59, UCMJ.

                     I.   Factual Background

     The charge at issue in this appeal stems from conduct that


1
  On Appellant’s petition, we granted review of the following
issue:

     WHETHER AFTER FINDING THE EVIDENCE FACTUALLY
     INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE
     III AND ITS SPECIFICATION (RESISTING APPREHENSION),
     THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING
     OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT
     PRESENTED TO THE TRIER OF FACT.


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United States v. Miller, 08-0580/AR


occurred at Camp Red Cloud, South Korea, on March 11, 2005.

Early that morning, MPs were called to take custody of Appellant

from the Korean National Police (KNP), who had apprehended

Appellant for an alleged assault.       The MPs arrived at the KNP

guard box at the gate of Camp Red Cloud and proceeded to take

Appellant into military custody.        As the MPs went to place hand

irons on Appellant, he ran to the door of the room, but was

unable to leave because it was locked.       Appellant struggled with

the MPs and members of the KNP -- hitting one KNP investigator

-- and was eventually subdued.

     At Appellant’s subsequent court-martial, the panel

convicted him, contrary to his pleas, inter alia, of resisting

apprehension in violation of Article 95, UCMJ, 10 U.S.C. § 895

(2000).2   On appeal, the United States Army Court of Criminal

Appeals (CCA) found the evidence factually insufficient to prove

the resisting apprehension charge, as Appellant was already in

custody when the MPs came to the KNP guard box.       United States

v. Miller, No. ARMY 20060224, slip op. at 4 (A. Ct. Crim. App.

Mar. 24, 2008).   The CCA stated:

         The panel convicted appellant of resisting
     apprehension by Private First Class (PFC) ES, a
     military police officer (MP) at the Korean National

2
  Appellant does not challenge his convictions of unrelated
charges of going absent without leave, assaulting a
noncommissioned officer, and using provoking words in violation
of Articles 86, 91, and 117, UCMJ, 10 U.S.C. §§ 886, 891, 917
(2000), respectively.


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United States v. Miller, 08-0580/AR


     Police (KNP) “box” outside the gate of Camp Red Cloud
     (CRC), Republic of Korea on 11 March 2005. Private
     First Class ES, his partner, and Mr. H, a Korean
     National Investigator, responded to a radio call to
     take custody of appellant at the CRC gate. Upon their
     arrival, appellant was in hand irons in the custody of
     the KNPs. Once the hand irons were removed, PFC ES
     testified that appellant “sprinted to the door[.]”
     While the MPs continued their efforts to put the
     accused in hand irons, he kept “trying to fight us”
     and was “swinging his arms around . . . kept turning,
     making it hard for [the MPs] to grab his arms” at
     which time appellant hit Mr. H. The KNPs again put
     appellant in custody until he was taken to the KNP
     station later that night.

           Based on these facts and the definitions
     described above, at the time of the offense, the KNPs
     had placed appellant in custody and were transferring
     custody of appellant to the MPs. Consequently, the
     evidence is factually insufficient and we cannot
     affirm appellant’s conviction to resisting
     apprehension. See United States v. Chavez, 6 M.J. 615
     (A.C.M.R. 1978) (holding that because the guards
     already apprehended the accused and had him in
     custody, a conviction for resisting apprehension fails
     for factual insufficiency[]).

Id. at 4 (first set of brackets and ellipsis in original).

     The CCA, however, proceeded to find Appellant guilty of a

simple disorder under Article 134, UCMJ, as a lesser included

offense, asserting that this Court has:

           long recognized that an appellate court may
           disapprove a finding because proof of an
           essential element is lacking or, as a result of
           instructional errors . . . may substitute a
           lesser-included offense for the disapproved
           findings. This is true even if the lesser-
           included offense was neither considered nor
           instructed upon at the trial of the case.

      United States v. McKinley, 27 M.J. 78, 79 (C.M.A.
      1988) (emphasis added). . . .


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United States v. Miller, 08-0580/AR



           The evidence presented at trial firmly
      established that appellant’s conduct was prejudicial
      to good order and discipline or service discrediting
      and constituted a simple disorder under Article 134,
      UCMJ. See United States v. Fuller, 54 M.J. 107, 112
      (C.A.A.F. 2000) (holding evidence in a contested
      trial failed to support maltreatment offense, but was
      sufficient support for reviewing court to affirm a
      violation of Article 134, UCMJ); United States v.
      Augustine, 53 M.J. 95 (C.A.A.F. 2000) (holding
      admissions during providence inquiry sufficient for
      reviewing court to affirm a violation of Article 134,
      UCMJ); United States v. Sapp, 53 M.J. 90 (C.A.A.F.
      2000) (affirming a violation of the general article,
      simple disorder, when insufficient evidence existed
      to support the greater offense of violation of 28
      U.S.C. § 2252 (a)(4)(A)). “Conduct is punishable
      under Article 134 if it is prejudicial to good order
      and discipline in the armed forces or is of a nature
      to bring discredit upon the armed forces.” Fuller,
      54 M.J. at 112. Appellant’s conduct was both, when
      in the presence of the KNPs appellant hit Mr. H and
      struggled with the MPs at the CRC gate. Furthermore,
      “appellant was clearly on notice of this lesser-
      included offense because every enumerated offense
      under the UCMJ is per se prejudicial to good order
      and discipline or service-discrediting.” Id.
      (citing United States v. Foster, 40 M.J. 140, 143
      (C.M.A. 1994)). As such, we affirm the lesser-
      included offense of simple disorder.

Id. at 4-5 (emphasis in original).

                         II.   Discussion

     The threshold question is whether a simple disorder under

Article 134, UCMJ,3 was a lesser included offense of the


3
  Elements of Article 134, clauses 1 and 2, are: (1) the accused
did or failed to do certain acts; and (2) under the
circumstances, the accused’s conduct was to the prejudice of
good order and discipline or was of a nature to bring discredit
upon the armed forces. Manual for Courts-Martial, United States
pt. IV, para. 60.b (2002 ed.) (MCM).


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United States v. Miller, 08-0580/AR


violation of Article 95, UCMJ,4 in this case.   Whether an offense

is a lesser included offense is a question of law we review de

novo.    United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F.

2004); United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.

2002).

     The Constitution requires that an accused be on notice as

to the offense that must be defended against, and that only

lesser included offenses that meet these notice requirements may

be affirmed by an appellate court.    Jackson v. Virginia, 443

U.S. 307, 314 (1979) (“It is axiomatic that a conviction upon a

charge not made or upon a charge not tried constitutes a denial

of due process.”); In re Winship, 397 U.S. 358, 364 (1970)

(“[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is

charged.”); Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No

principle of procedural due process is more clearly established

than . . . notice of the specific charge, and a chance to be

heard in a trial of the issues raised by that charge . . . .”)

(emphasis added).   “[A]ppellate courts are not free to revise

the basis on which a defendant is convicted simply because the

4
  Elements of resisting apprehension under Article 95, UCMJ, are:
(1) a certain person attempted to apprehend the accused; (2) the
said person was authorized to apprehend the accused; and (3) the



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United States v. Miller, 08-0580/AR


same result would likely obtain on retrial.”   Dunn v. United

States, 442 U.S. 100, 107 (1979); see also Chiarella v. United

States, 445 U.S. 222, 236-37 (1980) (stating that the Court

would not affirm a conviction based on a theory not presented to

the jury).   “To uphold a conviction on a charge that was neither

alleged in an indictment nor presented to a jury at trial

offends the most basic notions of due process.”   Dunn, 442 U.S.

at 106.

     Article 79, UCMJ, which provides that an accused “may be

found guilty of an offense necessarily included in the offense

charged,” is consonant with these constitutional principles, and

applies at both the trial and appellate levels.   See Article 59,

UCMJ (allowing an appellate court to affirm a conviction to a

lesser included offense).   In the explanation of Article 79,

UCMJ, the President advises that “[a] lesser offense is included

in a charged offense when the specification contains allegations

which either expressly or by fair implication put the accused on

notice to be prepared to defend against it in addition to the

offense specifically charged.”   MCM pt. IV, para. 3.b(1).5

     The notice requirement is met when “the elements of the



accused actively resisted the apprehension. MCM pt. IV, para.
19.b(1).
5
  “Although MCM explanations of offenses are not binding on this
Court, they are generally treated as persuasive authority, to be
evaluated in light of this Court’s precedent.” United States v.
Miller, 67 M.J. 87, 89 (C.A.A.F. 2008) (citations omitted).


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United States v. Miller, 08-0580/AR


lesser offense are a subset of the elements of the charged

offense.”   Schmuck v. United States, 489 U.S. 705, 716 (1989);

see United States v. Weymouth, 43 M.J. 329, 331-34 (C.A.A.F.

1995) (analyzing lesser included offenses in the military under

the Schmuck test).    An accused is “by definition on notice” of a

lesser included offense “because it is a subset of the greater

offense alleged.”    United States v. Medina, 66 M.J. 21, 27

(C.A.A.F. 2008).

     Appellant argues that, in this case, simple disorder is not

an offense necessarily included in resisting apprehension under

the Schmuck test, because Article 134, UCMJ, has an element not

present in Article 95, UCMJ.   We agree that Article 134, UCMJ,

clauses 1 and 2 include the element that, in addition to doing

or failing to do a certain act, “under the circumstances, the

accused’s conduct was to the prejudice of good order and

discipline or was of a nature to bring discredit upon the armed

forces” -- an element not contained in the textual exposition of

Article 95, UCMJ.

     To be sure, language in United States v. Foster and its

progeny suggests that a charged violation of an enumerated

article, without more, provides sufficient notice of the element

of prejudice to good order and discipline or service

discrediting conduct.   See Foster, 40 M.J. 140, 143 (C.M.A.

1994) (stating that an accused is on notice of an Article 134,


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United States v. Miller, 08-0580/AR


UCMJ, lesser included offense because every enumerated offense

under the UCMJ is “per se” prejudicial to good order and

discipline or service discrediting); see also United States v.

Fuller, 54 M.J. 107, 112 (C.A.A.F. 2000) (“[E]very enumerated

offense under the UCMJ is per se prejudicial to good order and

discipline or service-discrediting.”); United States v. Sapp, 53

M.J. 90, 92 n.2 (C.A.A.F. 2000) (“[T]he elements of prejudice to

good order and discipline and discredit to the armed forces are

implicit in every enumerated offense.”); United States v.

Britton, 47 M.J. 195, 198 (C.A.A.F. 1997) (“[A]n offense under

Article 134 can be a lesser-included offense of an offense under

an enumerated Article, notwithstanding the requirement under

Article 134 to prove that the conduct was prejudicial or

service-discrediting.”).

     But as our opinion last term in Medina made clear, the

principle of fair notice mandates that “an accused has a right

to know to what offense and under what legal theory” he will be

convicted and that a lesser included offense meets this notice

requirement if “it is a subset of the greater offense alleged.”

66 M.J. at 26-27.   This precedent is consistent with the

Constitution and Supreme Court precedent regarding due process.

Id. at 24 (citing Schmuck, 489 U.S. at 716); see also United

States v. Wilcox, 66 M.J. 442, 448 (C.A.A.F. 2008) (noting that

“[t]o satisfy the due process requirements of the Fifth


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United States v. Miller, 08-0580/AR


Amendment, the Government must prove beyond a reasonable doubt

every element of the charged offense” (citing In re Winship, 397

U.S. at 364)).   In contrast, the above cited language from

Foster and its progeny is at odds with these principles.      To the

extent those cases support the proposition that clauses 1 and 2

of Article 134, UCMJ, are per se included in every enumerated

offense, they are overruled.

     Article 134, UCMJ, is not an offense necessarily included

in Article 95, UCMJ.6   Consequently, the CCA was not authorized

to affirm a finding of guilt to a simple disorder under Article

134, UCMJ.   See United States v. Riley, 50 M.J. 410, 415

(C.A.A.F. 1999) (“An appellate court may not affirm an included

offense on ‘a theory not presented to the’ trier of fact.”

(quoting Chiarella, 445 U.S. at 236)).

     The decision of the United States Army Court of Criminal

Appeals is reversed.    The finding of guilty of Charge III and


6
  Our opinion in Medina also noted that when comparing the
elements of two offenses reveals that one offense is not
necessarily a lesser included offense of the other, the
requirement of notice to an accused may be met if the charge
sheet “make[s] the accused aware of any alternative theory of
guilt.” Medina, 66 M.J. at 27; see also MCM pt. IV, para.
3.b.(1) (“The notice requirement may also be met, depending on
the allegations in the specification, even though an included
offense requires proof of an element not required in the offense
charged.”). In this case, the charged offense as presented to
the members did not reference the elements of prejudice to good
order or service discrediting conduct such that the
specification would have put Appellant on notice of Article 134,
UCMJ, as a lesser included offense.


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United States v. Miller, 08-0580/AR


its specification are set aside and Charge III is dismissed.

The sentence is set aside and the case remanded to the United

States Army Court of Criminal Appeals for sentence reassessment

or to order a rehearing on sentence.




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