UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Private El CALEB J. HOLMES
United States Army, Appellant

ARMY 20180572

Headquarters, 1st Cavalry Division
Douglas K. Watkins and Jacob D. Bashore, Military Judges
Colonel Emily C. Schiffer, Staff Judge Advocate

For Appellant: Captain Benjamin A. Accinelli, JA (argued); Colonel Elizabeth G.
Marotta, JA; Lieutenant Colonel Tiffany D. Pond, JA; Major Jack D. Einhorn, JA;
Captain Benjamin A. Accinelli, JA (on brief); Colonel Elizabeth G. Marotta, JA;
Lieutenant Colonel Tiffany D. Pond, JA; Captain Jason X. Hamilton, JA; Captain
Benjamin A. Accinelli, JA (on reply brief).

For Appellee: Captain Christopher K. Wills, JA (argued); Colonel Steven P. Haight,
JA; Major Craig J. Schapira, JA; Lieutenant Colonel Wayne H. Williams, JA;
Captain Christopher K. Wills, JA (on brief).

13 February 2020

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BURTON, Senior Judge:

On appeal, appellant argues his conviction for maiming is legally and
factually insufficient because appellant acted in self-defense when he bit off a piece
of Private First Class (PFC) AG’s ear.! While we agree with appellant that the

 

' A military judge sitting as a general court-martial convicted appellant, contrary to
his pleas, of one specification of failing to obey a lawful general regulation and one
specification of maiming, in violation of Articles 92 and 124, Uniform Code of

(continued .. .)
HOLMES—ARMY 20180572

evidence raised the possibility of self-defense, we find appellant’s bite of PFC AG’s
ear was reasonably likely to cause grievous bodily harm, and appellant cannot avail
himself of self-defense. Accordingly, we find appellant’s maiming conviction
legally and factually sufficient, and we affirm appellant’s findings of guilty and
sentence in our decretal paragraph.”

BACKGROUND?

In early 2018, PFC AG and appellant were stationed at Camp Hovey, South
Korea. The two knew each other from hanging out around a smoke pit outside of
their barracks, and occasionally getting food together. On the evening of 3 February
2018, appellant and PFC AG left Camp Hovey and took a train to Uijeongbu, South
Korea, where they went to the mall and eventually a bar to consume alcohol.
Appellant was under the age of twenty-one at the time.

Although appellant and PFC AG were authorized to leave Camp Hovey that
night, they were required to return and sign-in together no later than 0100 hours as
part of a battle-buddy system policy. To ensure they returned in time to make
curfew, they left the bar around 2315 hours and rode the train together back to Camp
Hovey. On several occasions on the trip back to Camp Hovey, appellant attempted
to exit the train. Though the parties dispute the reasons why appellant attempted to
get off the train, they agree that PFC AG physically prevented appellant from
disembarking the train on each of his attempts.

On appellant’s last attempt to leave, PFC AG pulled appellant backward, via
his hooded sweatshirt, onto a seat on the train. She then prevented appellant from
leaving the seat by placing her arm over appellant, like a seatbelt, and holding onto a
vertical metal pole on the other side of appellant’s seat. Appellant attempted to
physically move PFC AG’s arm so he could get out of his seat, and when that was
unsuccessful, he began to punch PFC AG’s arm that was restraining him six or seven
times. The punches were also unsuccessful, so appellant bit PFC AG’s wrist.

 

(. . . continued)

Military Justice, 10 U.S.C. §§ 892 and 924 [UCMJ]. The convening authority
approved the adjudged sentence of a bad-conduct discharge and confinement for
eighteen months.

2 We have given full and fair consideration to appellant’s argument, raised pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), that PFC AG’s injury is
insufficient to satisfy the elements of maiming, and find it is without merit.

3 We heard oral argument on appellant’s sole assignment of error on 23 January
2020, at the Widener University Commonwealth Law School.
HOLMES—ARMY 20180572

Private First Class AG responded by punching appellant in the face, causing
appellant to again bite PFC AG’s wrist. Private First Class AG then grabbed
appellant’s hand and dug her fingernails into his palm. She also drove her elbow
into appellant’s sternum with the weight of her body.

As PFC AG leaned over appellant with her elbow in his sternum, appellant bit
PFC AG’s ear. The pain from the bite caused PFC AG to pull her ear away from
appellant’s mouth. As PFC AG pulled her ear away from appellant’s bite, a
substantial piece of her ear tore off. Private First Class AG then punched appellant
in the groin, and the two separated for the remainder of the train ride back to Camp
Hovey. At the time of the altercation, PFC AG weighed approximately 200 pounds,
while appellant weighed approximately 150 pounds.

Before trial, appellant was interviewed as part of the Criminal Investigation
Command (CID) investigation into the altercation on the train. Appellant stated that
he did not fear death or grievous bodily harm as a result of PFC AG restraining him,
but he did not want PFC AG to continue touching or restraining him. Appellant also
stated that he never intended to bite off a piece of PFC AG’s ear. Instead, his intent
in biting PFC AG’s ear was to prevent further unwanted touching and restraint.

At trial, the government admitted photographs of PFC AG’s mangled ear with
the piece missing. The photographs depict a piece of her ear, approximately two
inches long and one-quarter-inch wide, starting from the bottom of the ear lobe and
going up the back side of her ear, was missing. The missing piece of PFC AG’s ear
was never recovered. Medical providers were able to partially reconstruct the
missing piece of PFC AG’s ear only after two surgeries.

LAW AND DISCUSSION

This court holds findings of guilt legally sufficient when any rational fact
finder “could have found all essential elements of the offense beyond a reasonable
doubt.” United States v. Nicola, 78 M.J. 223, 226 (C.A.A.F. 2019) (citations
omitted). In conducting our legal sufficiency review, we are obligated to draw
“every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Robinson, 77 M.J. 294, 298 (C.A.A.F. 2018)
(citations omitted). “As such, the standard for legal sufficiency involves a very low
threshold to sustain a conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (citation and internal marks omitted).

With regard to factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). We may not
affirm a conviction unless, “after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses,” we are
HOLMES—ARMY 20180572

personally convinced beyond a reasonable doubt of appellant’s guilt. United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).

In order to sustain a conviction for maiming, the government must prove
beyond a reasonable doubt: “(1) That the accused inflicted a certain injury upon a
certain person; (2) That this injury seriously disfigured the person’s body, destroyed
or disabled an organ or member, or seriously diminished the person’s physical vigor
by the injury to an organ or member; and (3) That the accused inflicted this injury
with an intent to cause some injury to a person.” Manual for Courts-Martial, United
States (2016 ed.) [MCM], pt. IV, | 50.b. “The essence of the offense of maiming is
the permanency of the injury inflicted.” United States v. Goins, 18 U.S.C.M.A. 395,
398, 40 C.M.R. 107 (1969). “The disfigurement, diminishment of vigor, or
destruction or disablement of any member or organ must be a serious injury of a
substantially permanent nature,” regardless of whether “the victim may eventually
recover the use of the member or organ, or that the disfigurement may be cured by
surgery.” MCM, pt. IV, 7 50.c.(1).

Beyond considering the prima facie elements of the charged offense, a
military judge, when sitting as the finder-of-fact, is also required to consider an
affirmative defense when raised by “some evidence in the record.” United States v.
Behenna, 71 M.J. 228, 234 (C.A.A.F. 2012) (citations omitted). “In other words, a
military judge must [consider] a defense when, viewing the evidence in the light
most favorable to the defense, [he or she could find] in the favor of the accused in
regard to that defense.” United States v. Feliciano, 76 M.J. 237, 240 (C.A.A.F.
2017) (citation omitted). Once the evidence raises an affirmative defense, the
government has “the burden of proving beyond a reasonable doubt that the defense
did not exist.” Rule for Courts-Martial [R.C.M.] 916(b)(1). Here, the evidence
raised the issue of whether appellant’s actions were justified through the exercise of
self-defense.

On appeal, both parties agree that self-defense applies to appellant’s case,
though they differ on the appropriate standard of self-defense. Rule for Courts-
Martial 916(e) provides three standards for self-defense to be used in various types
of cases: (1) “homicide, assault involving deadly force, or battery involving deadly
force;” (2) “assault with a dangerous weapon or means likely to produce death or
grievous bodily harm;” and (3) “any assault punishable under Article 90, 91, or 128
and not listed” in one of the first two sections. The government argues that the
R.C.M. 916(e)(1) standard should apply, while appellant argues that the R.C.M.
916(e)(3) standard should apply. We need not decide what standard of self-defense
applies in this case because under either standard, appellant’s conduct was not
legally justifiable as self-defense.
HOLMES—ARMY 20180572

Applying the R.C.M. 916(e)(1)* standard, appellant must have: “(A)
Apprehended, on reasonable grounds, that death or grievous bodily harm was about
to be inflicted wrongfully on [appellant]; and (B) Believed that the force [appellant]
used was necessary for protection against death or grievous bodily harm.” Here,
appellant admitted in his pretrial CID interview that he did not subjectively
apprehend death or grievous bodily harm during his altercation with PFC AG. Nor
do we believe such a belief would have been objectively reasonable under the
circumstances. Accordingly, if we apply the R.C.M. 916(e)(1) standard of self-
defense, appellant’s conduct is not legally justifiable.

Under the R.C.M. 916(e)(3) standard, appellant must have: “(A) Apprehended,
upon reasonable grounds, that bodily harm was about to be inflicted wrongfully on
[appellant]; and (B) Believed that the force that [appellant] used was necessary for
protection against bodily harm, provided that the force used by [appellant] was less
than force reasonably likely to produce death or grievous bodily harm.”° (emphasis
added). If death or grievous bodily injury results from an accused’s lawful use of
force, the “death or serious injury must have been an unintended and unexpected
result.” R.C.M. 916(e)(3) Discussion; see also R.C.M. 916(f) (injury must be an
“unintentional and unexpected result”); United States v. Jones, 3 M.J. 279, 280
(C.M.A. 1977) (injury must be “unintended and not a reasonably foreseeable
consequence”); United States v. Perry, 16 U.S.C.M.A. 221, 36 C.M.R. 377 (1966)
(injury must result “unexpectedly and unintentionally”).

Applying the R.C.M. 916(e)(3) standard of self-defense to this case, we find
that appellant’s use of force, that is biting PFC AG’s ear, was reasonably likely to
cause the resultant grievous bodily harm—PFC AG’s torn ear. In his pretrial CID
interview, appellant specifically noted he did not intend to bite off a piece of PFC
AG’s ear. Even accepting that as true, it was reasonably likely and not an
unexpected consequence that a piece of PFC AG’s ear would tear because of
appellant’s bite. Accordingly, appellant’s conduct is not legally justifiable under the
R.C.M. 916(e)(3) standard of self-defense.

After considering the evidence in the record, the elements of maiming, and the
applicability of self-defense, we find appellant’s conviction for maiming legally and

 

4 We note that the “Explanation” section of the MCM accompanying Article 124,
Maiming,. provides that if “the injury is done under circumstances which would
justify or excuse homicide, the offense of maiming is not committed.” MCM, pt. IV,
q 50.c.(4).

5 “Grievous bodily harm’ means serious bodily injury,” including “torn members of
the body, serious damage to internal organs, and other serious bodily injuries.”
MCM, pt. IV, § 54.¢.(4)(a) (iit).
HOLMES—ARMY 20180572

factually sufficient. There is sufficient evidence for a reasonable finder-of-fact to
find all the elements of maiming, and that self-defense did not apply to appellant’s
conduct. We are likewise convinced beyond a reasonable doubt that appellant’s
conduct satisfies the elements of maiming, and his conduct was not legally
justifiable as self-defense.

CONCLUSION

Upon consideration of the entire record, the findings of guilty and sentence
are AFFIRMED.

Judge RODRIGUEZ and Judge FLEMING concur.

FOR THE COURT:

Abhi.

MALCOLM H. SQUIRES, JR.
Clerk of Court
