UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                             YOB, KRAUSS, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Inmate CHARLES M. SAVAGE
                          United States Army, Appellant

                                  ARMY 20110495

       Headquarters, US Army Combined Arms Center and Fort Leavenworth
                        Susan K. Arnold, Military Judge
                  Colonel Fred P. Taylor, Staff Judge Advocate


For Appellant: Major Richard E. Gorini, JA (argued); Major Richard E. Gorini, JA;
Captain Richard M. Gallagher, JA (on brief); Major Richard E. Gorini, JA (on reply
brief); Captain Aaron R. Inkenbrandt, JA.

For Appellee: Captain Steve T. Nam, JA (argued); Major Robert A. Rodrigues, JA;
Captain Steve T. Nam, JA (on brief).


                                     11 April 2013

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

KRAUSS, Judge:

       Contrary to his pleas, a military judge, sitting as a general court-martial,
convicted appellant of willful disobedience of a lawful order, mutiny, damaging
military property, three specifications of assault consummated by a battery, and
kidnapping in violation of Articles 90, 94, 108, 128, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 890, 894, 908, 928, 934 (2006) [hereinafter UCMJ].
The military judge sentenced appellant to confinement for five years. The
convening authority disapproved the finding of guilty as to kidnapping, approved the
remaining findings of guilty, and approved only so much of the sentence as extends
to confinement for two years.

       Appellant’s case is now before this court for review under Article 66, UCMJ.
Appellant assigns as error that the evidence is legally and factually insufficient to
support his convictions and personally raises a number of issues pursuant to United
SAVAGE—ARMY 20110495

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). After examining the record of trial,
considering the parties’ briefs, and enjoying the benefit of oral argument, we agree
with appellant in part and find the evidence insufficient to support appellant’s
conviction for willful disobedience, aspects of the mutiny alleged, aspects of the
damaging military property charge, and two of the assaults, but otherwise find the
evidence sufficient to establish guilt for what remains.

       Despite the government’s reliance, at least in large part, on an erroneous
theory of liability and the fact that the military judge found appellant guilty of
certain offenses for which the evidence is insufficient, close review of the video
evidence admitted establishes beyond any reasonable doubt that appellant
participated in a mutiny and damaged military property. We shall address the relief
to be granted in our discussion below and in our decretal paragraph.

                                  BACKGROUND

        The charges in this case stem from a disturbance at the United States
Disciplinary Barracks (USDB) in August of 2010. The evidence consists almost
entirely of video of the disturbance recorded from different angles, most of which
offers no audio of the inmates’ statements. None of appellant’s fellow inmates
testified against him, appellant made no admission, and the other evidence admitted
does little or nothing to signify appellant’s intent throughout.

       Careful review of all of the video evidence, in conjunction with the other
evidence admitted at trial, leads us to the following findings of fact. The
disturbance was touched off by an unprovoked assault upon one of the prison guards,
Private First Class (PFC) AA, in one of the USDB’s Special Housing Units (SHU).
First one, then a second inmate, who were outside their cells at the time, assaulted
and subdued PFC AA. One of those inmates then wrested the keys to the cells of the
SHU from PFC AA, and after moving the guard to one of the shower rooms in the
SHU, proceeded to open the doors of some of the two dozen cells in the SHU. A
more general disturbance immediately ensued. Prisoners barricaded themselves
inside the SHU, blocking the front door with furniture and various items, and
barricading the back door by securing it shut with a sheet tied to a pole. At least one
of the prisoners freed from his cell threw a tray at the video camera dome located on
the ceiling of the SHU and two of the inmates freed from their cells committed a
second assault upon the guard held in the shower room. Other inmates
simultaneously continued to throw furniture, books, and other items about the SHU
and spray water on the floor. Much, if not all, of this occurred while appellant
apparently remained locked in his cell.

       Appellant did subsequently exit his cell and mill about the SHU as others
continued to actively engage in the disturbance. As the disturbance progressed, the
instigators of the scene made plain their demand to see the commandant of the
USDB. They wanted to air certain grievances about their treatment at the hands of


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SAVAGE—ARMY 20110495

certain guards (other than PFC AA). Throughout the disturbance, despite repeated
attempts by USDB authorities to engage the inmates in negotiation, and put an end
to the disturbance peacefully, those inmates who responded refused negotiation or
discussion with anyone other than the commandant or made other unreasonable
demands for the surrender of a particular guard to their control.

        In the midst of this ongoing disturbance, appellant did little other than
continue to mill about exchanging brief unknown remarks with his fellow inmates.
He checked on the well-being of the guard being held and apparently checked on the
well-being of an inmate who had been out of his cell at the time the disturbance
erupted but immediately retreated to another shower room in the SHU. Appellant’s
actions captured on video offer little, if anything, to suggest the mind of a mutineer;
that is until he approached a group of the inmates actively engaged in the
disturbance and suggested they wad some sort of material and throw it at the
overhead camera. Though he cannot be heard, appellant speaks with this group of
prisoners, points to the overhead camera, points to the inmates’ barricades at the
front and back of the SHU, uses his hands to mimic the wadding of something up
and then makes a throwing motion toward the camera. Appellant then repeated the
suggestion to one of the prisoners and yet again repeated the same suggestion to a
second set of prisoners.

       Immediately after appellant made this suggestion to the first set of prisoners,
they moved out smartly and at least two began to either wad damp toilet paper
and/or throw it at the overhead video equipment repeatedly. It also appears that one
inmate threw a can of shaving cream at the video equipment. Some moments later
other inmates joined in the effort by soaking and covering a towel in what appears to
be shaving cream and throwing it up to the video equipment. As a result of these
efforts, the video camera was rendered ineffective.

       The commandant ultimately arrived at the SHU directing the prisoners to
lockdown (return to their cells) and stating that he would speak to them individually.
In the meantime a force of USDB personnel had formed outside the SHU prepared to
forcefully retake the same. Rather than engage the commandant in negotiation or
take the opportunity to address the commandant, those in the SHU, close enough to
the commandant to hear him through the glass wall otherwise separating them,
instead backed off and readied themselves for the coming onslaught.

       A leader of the disturbance called for mattresses to reinforce the barricade at
the front. In response, appellant grabbed a mattress. Though he never added to the
barricade at the front, he held on to the mattress in defense, abandoning it once the
melee of the breach was well underway. Specialist (SPC) AK was one of the USDB
soldiers at the fore of the breaching party. During the breach, his helmet was torn
from his head and he suffered minor injuries.




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SAVAGE—ARMY 20110495

      At trial, the government proceeded on the dominant theory that once appellant
stepped out of his cell he was guilty of mutiny and all associated offenses.

       It is unnecessary for the purposes of this decision to reiterate the disobedience
and assault specifications at hand. The mutiny and damage to military property
specifications were essentially as follows:

       The Specification of Charge I, Article 94, UCMJ, alleged that appellant, “with
intent to usurp and override lawful military authority, did, . . . create a disturbance
by attacking Private First Class [AA], barricading himself in Special Housing Unit
West of the United States Disciplinary Barracks, and exhorting others to join him in
defiance of lawful military authority.”

       The Specification of Charge IV, Article 108, UCMJ, alleged that appellant,
“did, . . . willfully damage by breaking apart furniture and recreation equipment, by
flooding the Special Housing Unit floor with water, by defacing the windows of the
Special Housing Unit, and by throwing objects at the video monitoring equipment,
military property of the United States, the amount of said damage being in excess of
$500.00.”

      Any additional facts necessary to the disposition of this matter are housed in
our analysis below.

                              LAW AND DISCUSSION

       Article 66, UCMJ, provides that a Court of Criminal Appeals “may affirm
only such findings of guilty . . . as it finds correct in law and fact.” In performing
our duty, we must conduct a de novo review of both the legal and factual sufficiency
of appellant’s convictions. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency 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.” Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F.
2011). The test for factual sufficiency, on the other hand, “involves a fresh,
impartial look at the evidence, giving no deference to the decision of the trial court
on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to take into
account the fact that the trial court saw and heard the witnesses.” Washington, 57
M.J. at 399.

      Mutiny has been long recognized as the most serious of military crimes. See
United States v. Woolbright, 12 U.S.C.M.A. 450, 453, 31 C.M.R. 36, 39 (1961);
United States v. Sood, 42 C.M.R. 635, 639 (A.C.M.R. 1970). It requires
considerably more than a mere commotion no matter how disruptive or violent.
Mutiny of the sort here alleged required the government to prove: (1) that appellant



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created a disturbance; and (2) that appellant created this disturbance with intent to
usurp or override lawful military authority. UCMJ art. 94; United States v.
Duggan, 4 U.S.C.M.A. 396, 398, 15 C.M.R. 396, 398 (1954); Manual for Courts-
Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 18.b.(1). 1

    Mutiny is defined as much by what it is not as what it is. For example, “a
collective intent to defy authority falls far short of a collective intent to usurp or
override military authority.” Sood, 42 C.M.R. at 640 (A.C.M.R. 1970). Also,
“[w]hen the persons involved merely demonstrate ‘an intention to implore and
invoke the very military authority which they are charged with seeking to override’
there is no intent to override or usurp military authority.” United States v. Sanchez,
40 M.J. 508, 511 (A.C.M.R. 1994) (quoting Sood, 42 C.M.R. at 640); see also
United States v. Brown, 19 U.S.C.M.A. 591, 42 C.M.R. 193 (1970). However,
those who “implore and invoke the very military authority they are charged with
seeking to override” but fail to avail themselves of the opportunity when that
opportunity presents cannot escape liability under Article 94, UCMJ, by relying on
a previous invocation. Sanchez, 40 M.J. at 511. 2 For instance, those who create a
disturbance demanding the commander listen to their grievances but then refuse the
commander’s attention in favor of overriding his authority are guilty of mutiny.
Id. 3

   It is also important to recognize that an accused’s mere presence in a group
creating a disturbance is insufficient to establish that the accused entertained the
requisite intent to mutiny. See, e.g., United States v. Anderson, 4 C.M.R. 178
(A.B.R. 1952) (relative to failure to do one’s utmost to prevent and suppress a
mutiny and failure to report a mutiny under Article 94, UCMJ); Sood, 42 C.M.R. at
640. This comports with the law of principal liability. “Any person punishable

1
  Mutiny by disobedience or refusal to perform duty, rather than mutiny by violence
or disturbance, requires the government to prove “concerted action with at least one
other person who also shares the accused’s intent to usurp or override lawful
military authority.” Woolbright, 31 C.M.R. at 39 (1961). “To hold otherwise would
mean that mere joint disobedience of orders constitutes this gravest of military
crimes.” Id. (citation omitted).
2
  Of course, by no means does imploring authority to redress grievances immunize
recalcitrant soldiers or inmates from criminal liability for offenses otherwise
committed such as, for example, riot, breach of peace, assault, damaging property,
etc.
3
 Neither does one escape liability under Article 94, UCMJ, through unreasonable
demands for an audience with lawful authority. Such appeals must refer to “an
immediately available lawful authority to redress grievances” for such invocation to
be seriously considered on the question of intent in a mutiny case. Id.


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SAVAGE—ARMY 20110495

under this chapter who: (1) commits an offense punishable by this chapter, or aids,
abets, counsels, commands, or procures its commission; or (2) causes an act to be
done which if directly performed by him would be punishable by this chapter; is a
principal.” UCMJ art. 77. Generally, criminal liability under Article 77, UCMJ,
requires an affirmative step on the part of the accused. United States v. Thompson,
50 M.J. 257, 259 (C.A.A.F. 1999). The accused must “in some sort associate
himself with the venture, in that he participate in it as in something that he wishes
to bring about, [and] that he seek by his action to make it succeed.” United States
v. Mitchell, 66 M.J. 176, 178 (C.A.A.F. 2008) (quoting United States v. Pritchett,
31 M.J. 213, 217 (C.M.A. 1990)). “Mere presence at the scene of a crime is not
enough to impose liability.” United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F.
2006).

       Relative to the question of damage to military property, under Article 108,
UCMJ, damage to military property includes “any change in the condition of the
property which impairs its operational readiness.” United States v. Daniels, 56 M.J.
365, 369 (C.A.A.F. 2002) (quoting United States v. Peacock, 24 M.J. 410, 411
(CMA 1987), citing United States v. Ortiz, 24 M.J. 164, 171 (C.M.A. 1987) (holding
that damage “includes rendering military property useless for its intended purpose,
even temporarily by means of disassembly, reprogramming, or removal of a
component.)).

       Turning now our attention to the instant case, the government properly
concedes that the evidence is insufficient to sustain appellant’s convictions for the
assaults upon PFC AA. Concomitantly, we find the evidence insufficient to support
appellant’s conviction to that part of the mutiny based on those assaults.

       We also find the evidence factually insufficient to support appellant’s
conviction for willful disobedience. Indeed, the evidence demonstrates reasonable
doubt about whether appellant was in any position to hear or understand the
commandant’s order to lockdown. The video of this incident is misleading. The
commandant’s order is audible to the viewer only because the equipment recording
the event was on the same side of the glass wall next to the officer issuing the order.
Prosecution Exhibits (Pros. Ex) 1 and 2 (videos) otherwise establish that those in
close proximity to appellant’s location at the time of the order cannot be heard
through the glass wall despite the fact they are speaking to one another in animated
fashion. Doubts about whether appellant could hear this order were reinforced at
trial by testimony from PFC AA, who never heard the order, and from a member of
the USDB staff whose estimation of earshot favors appellant. We, therefore,
disapprove the finding of guilty as to disobedience. See, e.g., United States v.
Pettigrew, 19 U.S.C.M.A. 191, 195, 41 C.M.R. 191, 195 (1970); Washington, 57
M.J. at 399; MCM, pt. IV, ¶. 14.c.(2)(c) and (e).




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SAVAGE—ARMY 20110495

       The fact that appellant is not liable for disobedience does not, however,
relieve him of liability for mutiny. That liability was perfected by appellant’s
instigation of damage to the overhead video equipment, the only purpose for which,
we find, was to strengthen the inmates’ barricade and defense of the SHU against
lawful military authority, by impairing the authorities’ ability to observe and impede
their efforts to retake control of the inmates and the SHU. Such is enough to prove
beyond any reasonable doubt that appellant shared the intent to usurp or override
lawful military authority and joined in the creation of a disturbance, as far as the
barricade, to accomplish that objective.

       Participating in a barricade of the SHU against USDB authority constitutes a
disturbance as contemplated by Article 94, UCMJ. See, e.g., Duggan, 15 C.M.R. at
398; MCM, pt. IV, ¶. 41.c.(2) (disturbance includes acts that “impinge upon the
peace and good order to which the community is entitled.”). Community includes
the USDB and SHU in these circumstances. See Id. at ¶41.c.(3). As such, prisoners
barricading themselves in the SHU against the lawful authority of those responsible
to maintain good order in the prison constitutes a disturbance.

       Similarly, appellant’s actions in blinding the overhead video camera to
strengthen the inmates’ defense against lawful military authority and his
participation in that defense and barricade establish his intent to override military
authority. Appellant individually formed and shared in the group’s purpose to “‘set
aside, supersede, annul, disregard the wishes of, or . . . domineer over’” those
military authorities attempting to reestablish the good order of the SHU and USDB.
Sanchez, 40 M.J. at 511 (quoting Woolbright, 30 C.M.R. at 493). Any inference that
appellant merely joined the group to implore lawful authority to address their
grievances is excluded by the fact that appellant’s intent to blind the overhead
camera negates any such benign purpose. 4 See Sanchez, 40 M.J. at 511.

      Similarly, we find the evidence lacking in sufficiency to prove beyond a
reasonable doubt that appellant damaged anything other than the video equipment
alleged; but, that his advice to others to effectively impair the operation of the
overhead camera constitutes wrongful damage of military property. See Daniels, 56

4
   We do not find the evidence factually sufficient to preserve his conviction for that
aspect of the mutiny alleging his exhortation of others to join in defiance of
authority. While we have no reasonable doubt that he participated in the creation of
a disturbance with the requisite intent by advising others to blind the overhead
camera and by taking up a mattress in defense against lawful authority, the evidence
is insufficient to establish that he separately exhorted anybody to do anything and
scant as to the extent there was any exhortation by anyone save, perhaps, an initial
burst of enthusiasm by some that can’t be tied to appellant. See Duggan, 15 C.M.R.
at 398.



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M.J. at 369. Any reasonable doubt about that is removed by the fact that his fellow
inmates immediately respond and follow appellant’s direction to throw things at the
camera, and, by doing what appellant encouraged, succeeded in effectively impairing
the operation of that video equipment. What we cannot say with similar certainty is
whether the damage that appellant caused amounts to a value over $500.00. 5 We
will address this in our conclusion below.

       Finally, we find the evidence sufficient to approve appellant’s conviction for
the assault upon SPC AK. That assault was the natural and probable consequence of
appellant’s direct participation in the barricade and defense of the SHU in violation
of Article 94, UCMJ, and therefore subjects appellant to conviction for the act under
Articles 77 and 128, UCMJ. United States v. Wooten, 1 U.S.C.M.A. 358, 3 C.M.R
92 (1952); MCM, pt. IV, ¶. 1.b.(5).

       The government did rely on an erroneous presumption and advanced an
erroneous theory of liability for mutiny at trial. Its presentation seems largely based
on the notion that creation of a disturbance in and of itself constitutes mutiny and its
theory of liability was explicitly based on the notion that the second appellant
stepped out of his cell he was guilty of any and all offenses perpetrated by those
responsible for the disturbance. This is not correct. See UCMJ arts. 77, 94;
Duggan, 15 C.M.R. at 398. Appellant, however, does not benefit from the
government’s advance of an erroneous presumption and theory of liability at trial in
this case. The charges and specifications properly alleged the essential elements of
the offenses. He was ably defended at the court-martial by counsel who understood
what the government must prove and raised this to the attention of the military judge
on more than one occasion. Though the judge overruled an objection from the
defense essentially complaining of the government’s misstatement of the law, she
did so characterizing the government’s position as argument only. Neither this nor
anything else in the record constitutes the sort of clear evidence necessary to
overcome the presumption that the judge correctly applied the law and the elements
of the offense alleged in making her independent judgement in the case. United
States v. Raya, 45 M.J. 251, 253 (C.A.A.F. 1996); United States v. Littlewood, 53
M.J. 349, 354 (C.A.A.F. 2000). 6

5
  It is equally plausible that this equipment was also damaged to some extent before
any involvement of appellant at all and there is no evidence sufficient to parse the
value of damage attributable only to appellant and the actions he encouraged.
6
  Somewhat troubling is the judge’s apparent reluctance to view all of the video
evidence admitted into evidence. She stated that she did not want to watch the video
“aimlessly” and asked the parties to focus her on the parts they considered
important. Compounding this trouble is the fact that neither of the parties focused
the judge on the most relevant portions of the case contained in Pros. Ex. 2. In
addition, the amount of time the judge spent in deliberation is significantly less than


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SAVAGE—ARMY 20110495


       Considering appellant’s punishment in light of our decision here, we find the
sentence as approved by the convening authority appropriate. Appellant’s ultimate
participation and role in the mutiny constitutes the gravamen of his misconduct.
Mutiny is a capital offense. Here, it was referred to a court-martial that was not
empowered to adjudge death, permitting a maximum sentence to life without
eligibility for parole. As we previously recognized, mutiny constitutes the “gravest
and most criminal” of military crimes. Sood, 42 C.M.R. at 639 (internal quotation
omitted). In light of the entire case, any sentence relief is unwarranted. See United
States v. Sales, 22 M.J. 305 (C.M.A. 1986).

                                   CONCLUSION

       On consideration of the entire record, the parties’ briefs, oral argument, and
those matters personally raised by appellant pursuant to Grostefon, the findings of
guilty of Specifications 1 and 2 of Charge V, and Charge III and its Specification,
are set aside and dismissed. In addition, the court finds, in relation to the
Specification of Charge I, only so much of the finding of guilty that provides
appellant “a person in the custody of the armed forces serving a sentence imposed by
a court-martial, with intent to usurp and override lawful military authority, did, at
Fort Leavenworth, Kansas, on or about 12 August 2010, create a disturbance by
barricading himself in Special Housing Unit West of the United States Disciplinary
Barracks” is affirmed; and in relation to the Specification of Charge IV, we amend
and affirm only so much of the finding of guilty that provides appellant “a person in
the custody of the armed forces serving a sentence imposed by a court-martial, did,
at Fort Leavenworth, Kansas, on or about 12 August 2010, without proper authority,
willfully damage by throwing objects at the video monitoring equipment, military
property of the United States, the amount of said damage being less than $500.00.”
The remaining findings of guilty are affirmed.

      Reassessing the sentence on the basis of the modified findings, the entire
record, and in accordance with the principles of Sales, 22 M.J. 305 and United States
v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge


(. . . continued)
the amount of time all of the video evidence contains if viewed at normal speed.
However, the defense counsel did request the judge view all of the material and
suggested the judge fast forward through the parts less relevant. Therefore, we
again apply the presumption that the judge did her duty and find nothing in the
record sufficient to conclude the judge based her judgement on anything other than
the relevant evidence admitted, including those portions of Pros. Ex. 2, especially
depicted on the first of the 5 discs included in Pros. Ex. 2, in clip M2U00083_WMV
V9.wmv from minute 21:30-29:30, and similar footage in the second clip included in
the fourth disc (labled Disk 3), described in our discussion above.


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SAVAGE—ARMY 20110495

Baker in his concurring opinion, the sentence as approved by the convening
authority is AFFIRMED. All rights, privileges, and property, of which appellant
was deprived by virtue of the findings of guilty being set aside by this decision, are
hereby ordered restored. See UCMJ arts. 58(b) and 75(a).

Senior Judge YOB and Judge BURTON concur.


                                        FOR THE
                                            THECOURT:
                                                COURT:




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




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