UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            LIND, KRAUSS, and PENLAND
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                        Private E1 KENDRICK J. SNEED
                         United States Army, Appellant

                                  ARMY 20131062

                             Headquarters, Fort Bliss
                       Timothy P. Hayes, Jr., Military Judge
                  Colonel Karen H. Carlisle, Staff Judge Advocate


For Appellant: Captain Heather L. Tregle, JA (argued); Lieutenant Colonel Charles
D. Lozano, JA; Major Aaron R. Inkenbrandt, JA; Captain Heather L. Tregle, JA (on
brief).

For Appellee: Captain Jihan Walker, JA (argued); Colonel John P. Carrell, JA;
Major John K. Choike, JA; Captain Jihan Walker, JA (on brief).


                                    27 March 2015

                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

KRAUSS Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of three specifications of aggravated assault with a means
likely to cause death or grievous bodily harm, seven specifications of assault
consummated by a battery, and one specification of kidnapping in violation of
Articles 128 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§ 928, 934 (2012). Appellant was sentenced to a dishonorable discharge
and confinement for nine years. Pursuant to a pretrial agreement, the convening
authority approved only so much of the sentence as provided for a dishonorable
discharge and confinement for six years.
SNEED—ARMY 20131062

       This case is before the court for review under Article 66, UCMJ. 1 Appellant
argues there is substantial basis in law and fact to question his plea to kidnapping
because the judge failed to properly define an element of the offense of kidnapping
and because the record established that the victim’s holding was merely incidental to
appellant’s attempted robbery of her debit card. We find appellant’s assignment of
error warrants discussion but no relief.

                                       FACTS

       Over the course of a year, appellant repeatedly subjected his girlfriend,
Specialist (SPC) BG, to a variety of emotional and physical abuse. This abuse
included an incident where, in the midst of yet another argument, appellant shoved a
pregnant SPC BG into his closet in the barracks and locked her in for, as he stated,
not more than 10 minutes. This act was charged as an act of kidnapping under
Article 134, UCMJ. Appellant pled guilty to the kidnapping as charged.

      The stipulation of fact provides the following:

             In September 2012, when SPC [BG] was almost nine
             months pregnant she was in the accused’s barracks room
             getting ready for work after physical training.           The
             accused demand [sic] she give him her debit card to buy a
             plane ticket for his brother to visit El Paso from Houston.
             SPC [BG] refused explaining she needed to save money
             for the baby. The accused persisted and the two began to
             argue. Finally, the accused grabbed her and threw her in
             his closet. She landed on her very pregnant stomach and
             the accused locked the closet. She was tr apped; she
             banged on the door and begged him to let her out. He
             refused; he kept her locked in the closet. She kept yelling
             and banging on the door. He told her he would release her
             when she would stop and give him her debit card. With no
             choice, she relented and said she would give him her debit
             card. He let her out and was sitting at a computer desk in
             his Army combat uniform and boots. When she walked
             past him, he kicked her on the leg so hard that it caused
             her to fall over on her pregnant stomach . She tried to give
             him her debit card to stop the violence, but he refused to
             take it, stating that he should not have to do all that to get
             money from her, she should just give it to him.

1
 Oral argument in this case was heard in Waco, Texas on 18 February 2015 at
Baylor Law School as part of the “Outreach Program” of the United States Army
Court of Criminal Appeals.


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      One of the aggravated assaults in this case was based on appellant’s kicking
of SPC BG after he released her from the closet.

      During the providence inquiry the appellant stated in pertinent part:

            I confined my girlfriend, Specialist [BG].        When I
            confined her, I did so against her will. The way I did this
            was when I pushed her into my closet, I shut the door and
            prevented her from leaving. My actions were intentional.
            By that, I mean, I specifically intended to hold her in my
            closet against her will. Holding her in my barracks room
            closet was wrongful because I had no justification or
            excuse for my actions.

            When I held [SPC BG] in my closet, I know she feared for
            her safety.     She was between eight and nine -months
            pregnant, and I believe she feared for her safety. My
            actions caused her emotional stress, likely affected her
            ability to perform her duties as a Soldier. It also could’ve
            resulted in premature birth of our son, and that could have
            brought on complications that affected her ability to ret urn
            to duty after the birth. These things had an impact on
            good order and discipline.

            Additionally, my actions were of a nature to bring
            discredit upon the armed forces. The act of kidnapping
            and holding a pregnant woman against her will in a closet
            is a type of misconduct that would reasonably tend to
            bring the service in disrepute and lower it in public
            esteem.

      Subsequently, the following exchange between the military judge and
appellant occurred:

            MJ: And, when you pushed her in there and locked it, you
            intended to keep her in there against her will for a period
            of time?

            ACC: Yes, sir.

            MJ: I believe you were trying to get her to give you some
            information?

            ACC: Yes, sir.



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             MJ: Was it a credit card number, debit card number, or
             something like that?

             ACC: Yes, sir.

             MJ: So, were you intending to hold her in there until she
             gave it to you?

             ACC: Yes, sir.

             ....

             MJ: Did she give it to you while she was still in there, or
             did she say, “I’ll give it to you if you let me out”?

             ACC: She said that she would give it to me if she got out,
             sir.

             MJ: And she did?

             ACC: Yes, sir.

             MJ: Or, at that point, didn’t you tell her that you didn’t
             want it anymore?

             ACC: Yes, sir.

             MJ: And, you agree that it was wrong to detain her that
             way, to confine her in the closet?

             ACC: Yes, sir.

       The judge described the elements and definitions of kidnapping, in pertinent
part, as follows:

             First, that at or near Fort Bliss, Texas, between on or
             about 15 September 2012 and on or about 19 October
             2012, you confined [SPC BG];

             Second, that you held her against her will;

             Third, that you did so willfully and wrongfully; and




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             Fourth, that under the circumstances your conduct was to
             the prejudice of good order and discipline in the armed
             forces, or of a nature to bring discredit upon the armed
             forces.

             ....

             “Confined” means to forcibly and unlawfully carry away
             another person and detain, keep, or confine that per son
             against their will.

             “Held” means detained;

             “Against the person’s will” means the victim was held
             involuntarily;

             “Wrongfully” means without justification or excuse.

                                 LAW & ANALYSIS

       Appellant now complains there is a substantial basis in law and fact to reject
his plea because: (1) the judge failed to fully and properly define the offense of
kidnapping, and (2) the providence inquiry and stipulation of fact establish ed that
appellant’s holding of SPC BG was merely incident al to his attempt to obtain
SPC BG’s debit card. See generally United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008); United States v. Jeffress, 28 M.J. 409, 412-14 (C.M.A. 1989);
Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV,
¶ 92.c.(2).

       We agree with appellant that the judge failed to fully define the offense by
failing to provide that the “holding” required to constitute kidnapping under Article
134, UCMJ, “must be more than a momentary or incidental detention.” MCM,
pt. IV, ¶ 92.c.(2); see also Jeffress, 28 M.J. at 414. This limit to the scope of
kidnapping under Article 134 is essential to the offense. Otherwise, as to incidental
detentions, 2 a soldier would be subject to conviction and life in prison under Article
134, UCMJ, for an act better described by offenses carrying far lesser punishment.
Jeffress, 28 M.J. at 413.

      A classic illustration of this limit, and one employed in the MCM and Military
Judges’ Benchbook, is robbery:



2
  Appellant does not contend, and we find no reason to consider, that his holding of
the victim in this case was merely a momentary detention.


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SNEED—ARMY 20131062

             [A] robber who holds the victim at gunpoint while the
             victim hands over a wallet . . . does not, by such acts,
             commit kidnapping. On the other hand, if, before or after
             such robbery . . . , the victim is involuntarily transported
             some substantial distance, as from a housing area to a
             remote area of the base or post, this may be kidnapping, in
             addition to robbery . . . .

MCM, pt. IV, ¶ 92.c.(2); Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook [hereinafter Benchbook], para. 3-92-1.d (1 Jan. 2010).

                        Kidnapping as a Stand Alone Offense

       We do not agree with appellant that the facts he admitted at trial establish that
his confinement of SPC BG was “incidental” to an attempted robbery. To begin
with, we conclude that appellant’s admissions establish that he was indifferent to the
ostensible reason given for confining SPC BG in his closet—that is, to forcibly take
her debit card from her. Rather, the demand for SPC BG’s debit card was merely
pretext to further abuse her. The particular form of abuse in this instance was
forcible confinement in a locked closet for a sufficient amount of time to constitute
kidnapping under Article 134, UCMJ. As such, it can properly be considered an
offense that stands on its own, unrelated to the commission of any other offense.
See United States v. Dickey, 41 M.J. 637, 643 (N.M. Ct. Crim. App. 1994), set aside
and remanded on other grounds, 43 M.J. 170 (C.A.A.F. 1995) (summ. disp.), aff’d,
46 M.J. 123 (C.A.A.F. 1996) (summ. disp.) (“[I]ndependent crime of kidnapping . . .
can be committed without other criminal activity when there is more than momentary
detention or movement, and the requisite intent. ”).

                      Detention “Incidental” to Another Offense

       Secondly, the question is not whether the alleged detention was associated
with commission of another crime but, rather, whether it was merely incidental to
that crime. Kidnapping is frequently associated with the commission of other
offenses. Our superior court adopted a six factor framework within which to resolve
whether detention is merely incidental to another defense. Jeffress, 28 M.J. at 413-
14. Those factors are:

             [1.] The occurrence of an unlawful seizure, confinement,
             inveigling, decoying, kidnapping, abduction or carrying
             away and a holding for a period. Both elements must be
             present. [3]

3
 This first factor seems merely to reiterate essen tial elements of the kidnapping
offense and would therefore be considered in any event.


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SNEED—ARMY 20131062

             [2.] The duration thereof. Is it appreciable or de minimis?
             This determination is relative and turns on the established
             facts.

             [3.] Whether these actions occurred             during   the
             commission of a separate offense.

             [4.] The character of the separate offense in terms of
             whether the detention/asportation is inherent in the
             commission of that kind of offense, at the place where the
             victim is first encountered, without regard to the particular
             plan devised by the criminal to commit it. . . .

             [5.] Whether the asportation/detention exceeded that
             inherent in the separate offense and, in the circumstances,
             evinced a voluntary and distinct intention to move/detain
             the victim beyond that necessary to commit the separate
             offense at the place where the victim was first
             encountered. . . .

             [6.] The existence of any significant additional risk to the
             victim beyond that inherent in the commission of the
             separate offense at the place where the victim is first
             encountered. It is immaterial that the additional harm is
             not planned by the criminal or that it does not involve the
             commission of another offense.

United States v. Barnes, 38 M.J. 72, 74-75 (C.M.A. 1993) (omission in original)
(citations omitted).

       We address these factors seriatim: (1) It goes without saying that appellant
admitted the occurrence of an unlawful confinement and holding for a period in this
case. Otherwise, the conversation would stop as the minimum prerequisites for
kidnapping under Article 134, UCMJ, would be absent. (2) Appellant detained
SPC BG for an appreciable amount of time. He locked her in his closet for “not
more than 10 minutes” and refused to release her though she screamed and begged to
be released. (3) We assume for the purpose of this discussion that these actions
occurred during appellant’s purported attempt to rob SPC BG. (4) Appellant’s
detention of SPC BG, in his locked closet, is not the sort of detention inherent in an
attempted robbery. If appellant had grab bed SPC BG and threatened to harm her
unless she turned over some money, one would have the sort of detention
“incidental” to robbery contemplated. Here, he threw her in a closet, locked the
door, and confined her for an appreciable amount of time. (5) The first part of this
factor is necessarily addressed by factor (4), above. As to the second part,



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appellant’s admissions cut both ways. On the one hand, in appell ant’s favor, he did
release SPC BG from detention once she agreed to give him her card. On the other
hand, it was in the midst of an argument, including a demand for SPC BG’s debit
card, that he threw her in the closet, after which he committed a separate assault
upon her and renounced any purported interest in the card. (6) Here appellant quite
readily admitted that his detention of SPC BG exposed her to additional risks,
related to her pregnancy, beyond that inherent in any attempt to take her debit card.

       Considering the totality of relevant circumstances admitted by appellant in the
course of his plea, we hold that his detention of SPC BG was not merely incidental
to attempted robbery or any other offense arguably associated with the detention. Of
particular note, he confined her in a locked, dark closet for an appreciable amount of
time, that confinement is not an inherently necessary aspect of robbery in any event,
and, the detention exposed SPC BG to additional significant risks to her health and
the health of her unborn child. Thus this act of confinement falls well within the
scope of kidnapping as defined under Article 134 , UCMJ.

                      Appellant’s Understanding of the Offense

       Finally we must address whether, despite the satisfactory factual predicate
established by the record, appellant properly understood that he was guilty of
kidnapping. See generally United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008);
United States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003). The judge here failed
to properly explain the elements of kidnapping to appellant . The judge did not fully
and properly define “hold” as requiring that the holding “be more than a momentary
or incidental detention.” MCM, pt. IV, ¶ 92.c.(2); see also Jeffress, 28 M.J. at 414.
This definition is an essential limit to the scope of the crime of kidnapping under
Article 134, UCMJ. Therefore, we must reverse unless “it is clear from the entire
record that [appellant] knew the elements, admitted them freely, and pleaded guilty
because he was guilty.” Redlinski, 58 M.J. at 119 (quoting United States v. Jones,
34 M.J. 270, 272 (C.M.A. 1992)) (internal quotation marks omitted); see also United
States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (“If an accused’s admissions in the
plea inquiry do not establish each of the elements of the charged offense, the guilty
plea must be set aside.”).

       Our review of the record establishes no substantial basis in law and fact to
reject appellant’s plea. To the contrary, the record clearly reveals that appell ant
well understood the nature of the kidnapping offense under Article 134, UCMJ,
freely admitted the elements of that offense and pled guilty to kidnapping because he
was guilty of kidnapping.

       Appellant never expressed or suggested any pre tense that his detention of
SPC BG was merely incidental to another offense and admitted additional facts that
reflect his understanding that the “holding” element requires more than a momentary



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or incidental detention. Nowhere did he suggest that confining SPC BG in a locked
closet against her will was necessary to obtain her debit card; in both the stipulation
of fact and the plea inquiry, he admitted facts sufficient to establish his
understanding that the detention must be for an appreciable time; and, he also
volunteered facts relevant to both the “holding” and terminal element of the of fense
when discussing the significant risk of harm he imposed upon SPC BG by locking
her in that closet.

      Appellant quite intelligently articulated his understanding that wrongful
confinement is sufficient to constitute kidnapping. This despite the rath er
misleading description of “confined” provided by the judge from the Benchbook
suggesting that there must be some asportation before one might be guilty of
kidnapping under Article 134, UCMJ. This is not true and appellant expressed his
understanding that confinement is indeed enough. See, e.g., United States v.
Newbold, 45 M.J. 109, 112 (C.A.A.F. 1996) (“[A]sportation or detention . . . .”)
(emphasis added); see also United States v. Corralez, 61 M.J. 737, 748 (A.F. Ct.
Crim. App. 2005). 4

       In light of the entire record, therefore, we conclude that appellant knowingly,
intelligently, and voluntarily entered a plea of guilty to kidnapping and that the
judge did not abuse his discretion in accepting that plea. See Weeks, 71 M.J. at 46;
Medina, 66 M.J. at 26; Redlinski, 58 M.J. at 119.

      The findings of guilty and the sentence as approved by the convening
authority are AFFIRMED.

      Senior Judge LIND and Judge PENLAND concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk
                                        Clerk of
                                              of Court
                                                 Court



4
  Under Article 134, UCMJ, one can be convicted of kidnapping by either detaining
or carrying someone away. See MCM, pt. IV, ¶ 92.b(1)-(2). To the extent that
paragraph 3-92-1.d of the Benchbook suggests that a carrying away is always
required for conviction of kidnapping, it is incorrect. See, e.g., Corralez, 61 M.J.
at 748 (“A person who seizes and confines another against their will for an
appreciable period of time can be convicted of kidnapping even if there is no
movement of the victim.”).


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