              -UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                   Be fore
              K.J. BRUBAKER, M .C. HOLIFIELD, A.C. RUGH
                        Appe llate M ilitary Judge s

                      UNITED STATES OF AM ERICA

                                     v.

                        JOSEPH R. FRANKLIN
                  SERGEANT (E-5), U.S. M ARINE CORPS

                           NM CCA 201500130
                       GENERAL COURT-M ARTIAL

Sentence Adjudged: 4 December 2014.
Military Judge: Col D.J. Daughtery, USMC.
Convening Authority: Commanding General, 3D Marine
Division, Okinawa, Japan.
Staff Judge Advocate's Recommendation: LtCol K.T. Carlisle,
USMC.
For Appellant: CDR Ricardo Berry, JAGC, USN.
For Appellee: LCDR Justin Henderson, JAGC, USN; LT James
Belforti, JAGC, USN.

                            6 October 2015

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

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial, found
the appellant guilty, pursuant to his pleas, of one
specification of assault with a weapon likely to produce
grievous bodily harm, in violation of Articles 128, Uniform Code
of Military Justice, 10 U.S.C. §§ 928, and adjudged a sentence
of 60 days’ confinement, reduction to pay grade E-3, and a bad-
conduct discharge. The convening authority approved the
sentence as adjudged.1

     On appeal, the appellant alleges his guilty plea was not
provident. The appellant argues the military judge failed to
elicit facts to establish the appellant used a weapon, a camp
chair, in a manner likely to produce death or grievous bodily
harm. We disagree.

                                 Background

     On 16 May 2014 in celebration of the 12th Marines
Regimental Highlands Games on Camp Hansen, Okinawa, Japan, the
appellant and Corporal (Cpl) JB engaged in a long day of
friendly drinking. Shortly after midnight, Cpl JB drunkenly
spilled his beer on the appellant. In response the appellant
picked up a camp chair and threw it at Cpl JB.

        [T]here was a cooler and some chairs set up, sir.    I
        walked over there and I grabbed the chair and I turned
        and I threw it at him, sir. 2

After the appellant hit him with the chair, Cpl JB covered his
face with his hands, stumbled several steps and first sat and
then lay on the ground.

     As a result of the strike, Cpl JB’s left eye was severely
damaged. His sclera, the white part of the eye, ruptured from
the nine o’clock to the twelve o’clock position and all the way
back to the muscle joining the eye to the socket. One-third of
his iris and lens were destroyed. The retina detached and part
of the retina came out of the eye through the opening wound.
Cpl JB was taken by ambulance to U.S. Naval Hospital Okinawa by
which time his eye had completely filled with blood.

     As described by an Army Medical Corps ophthalmologist and
an expert in retinal ophthalmology, this was a blunt trauma
injury, “like a water balloon is being squished to the point
that it ruptures.” 3


1
  Pursuant to a pretrial agreement, automatic forfeitures were deferred and
waived for the benefit of the appellant’s family.
2
    Record at 30.
3
    Id. at 81.


                                      2
     Cpl JB was medically evacuated to Tripler Army Medical
Center, Honolulu, Hawaii, where he underwent a series of
delicate surgeries in an attempt to save his eye. One such
surgery, a seven-hour ordeal, was one of the longest procedures
the surgeon had ever performed. At the time of surgery, there
was a 72% chance of blindness in that eye. 4

     For a year after the assault, there remained the
possibility of blindness in both eyes, the result of a condition
called sympathetic ophthalmia in which the body’s immune system
attacks the retinas of both eyes after surgery. Regardless, Cpl
JB’s left eye will never be correctable to better than 20/80
vision. The fat around the injured eye atrophied and will never
regenerate. As a result, his left eye will always have a sunken
appearance.

                          Standard of Review

     We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2008). A military judge abuses this
discretion when accepting a plea if he does not ensure the
accused provides an adequate factual basis to support the plea
during the providence inquiry. See United States v. Care, 40
C.M.R. 247 (C.M.A. 1969).

     In establishing a factual basis, the military judge must
explain each element of the offense charged and question “the
accused about what he did or did not do, and what he intended .
. . .” United States v. Davenport, 9 M.J. 364, 366 (C.M.A.
1980). We will not reject the plea unless there is a substantial
basis in law or fact for questioning the guilty plea. United
States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United
States v. Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)).

                        The Providence Inquiry

     At the beginning of the providence inquiry, the military
judge explained to the appellant the elements of the offense:

        [First,] [t]hat on or about 17 May 2014, while on
        active duty at Camp Hansen, Okinawa, Japan, you did
        bodily harm to [Cpl JB];




4
    Id. at 82.

                                  3
           Second, that you did so with a certain weapon to wit:
           a chair and by striking him in the face with a chair;

           Third, that the bodily harm was done with unlawful
           force or violence;

           And, fourth, that the weapon was used in a manner
           likely to produce death or grievous bodily harm. 5

     The military judge further explained, “[a] weapon is
dangerous when used in such a manner that it is likely to
produce death or grievous bodily harm. . . . A weapon or means
or force is likely to produce death or grievous bodily harm when
the natural and probable results of its particular use would be
death or grievous bodily harm, although this may not be the use
to which the object is ordinarily put.” 6

     Additionally, the military judge defined grievous bodily
harm as, “serious bodily injury. Grievous bodily harm does not
mean minor injuries such as a black eye or a bloody nose, but it
does mean f[r]acture or dislocated bones, deep cuts, torn
members of the body, serious damaged internal organs, or other
serious bodily injuries.”7

     During the Care inquiry the appellant admitted to picking
up the chair and throwing it at Cpl JB, “I did grab the chair
and I did throw it at [Cpl JB], sir.” 8 He reiterated, “... I
grabbed the chair and I turned and I threw it at him, sir.” 9
These admissions were reinforced by statements he made to
Sergeant FG in which he acknowledged that he knocked Cpl JB
over; 10 the stipulation of fact in which he agreed, “I believe I
threw the chair in a manner likely to cause grievous bodily
harm;” 11 and his statement made to a Naval Criminal Investigative
Service agent. 12
5
     Id. at 27-28.

6
     Id. at 28.
7
     Id.
8
     Id. at 29.
9
     Id. at 30.
10
     Id. at 64.

11
     Prosecution Exhibit 1 at 2.
12
     Prosecution Exhibit 2 at 2.

                                      4
     Subsequently, the military judge asked the appellant on two
separate occasions whether throwing the chair at Cpl JB amounted
to using a weapon “in a manner likely to produce death or
grievous bodily harm?” The appellant responded, “yes, sir,”
both times. 13

     When ask about the nature of the grievous bodily harm Cpl
JB suffered, the appellant offered, “[t]he damage that he
suffered on his eye, sir, cost him to have multiple
surger[ies].” 14 Shortly thereafter, the following colloquy
ensued:

        MJ:   And have you seen all of the medical reports or
        have you discussed the medical reports and the
        injuries with your counsel?

        ACC:      I review them with my counsel and expert, sir.

        MJ:   Okay.   And that was the expert ophthalmologist
        that the Court appointed to the defense team. Is that
        correct?

        ACC:      Yes, sir.

        . . . .

        MJ:   Thank you.   And, sergeant, based on everything
        that you have reviewed with your counsel, the medical
        records, and reviewing with the ophthalmologist, do
        you believe that the injuries suffered constitute
        grievous bodily harm as I’ve defined them for you?

        ACC:      Yes, sir, I do.

        MJ:    Did you intentionally do this; that is, you
        intentionally picked up the chair and threw it at him?

        ACC:      Yes, sir. 15




13
     Record at 31-33.

14
     Id. at 31.
15
     Id. at 31, 32.


                                      5
     Finally, the military judge asked the appellant if he
understood the elements of the offense and if, taken together
with the stipulation of fact, they correctly described what he
did. The appellant answered both questions in the affirmative.16

                              Analysis

      The appellant asserts that the military judge failed to
elicit facts sufficient to establish that grievous bodily harm
was likely to result from the appellant’s act. In determining
whether grievous bodily harm is likely, “the ultimate standard
. . . remains whether-in plain English-the charged conduct was
‘likely’ to bring about grievous bodily harm. . . . [T]he
question is: was grievous bodily harm the likely consequence of
[a]ppellant’s . . . activity?” United States v. Gutierrez, 74
M.J. 61, 66 (C.A.A.F. 2015). Put in other words, “one
conception is whether grievous bodily harm is the ‘natural and
probable consequence’ of an act.” Id. (citing United States v.
Weatherspoon, 49 M.J. 209, 211 (C.A.A.F. 1998) (quoting MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 54c(4)(a)(ii) ).

     Factors helpful in determining whether grievous bodily harm
was the likely consequence of an act include the circumstances
surrounding the act and resulting harm, the degree of force
used, the foreseeability of the harm, whether grievous bodily
harm actually occurred, and the nature of the weapon. However,
the nature of the weapon is not conclusive. “The crucial
question is whether [the weapon’s] use, under the circumstances
of the case, is likely to result in. . . grievous bodily harm.”
United States v. Vigil, 13 C.M.R. 30, 32-33 (C.M.A. 1953).
After evaluating the evidence adduced during the Care inquiry in
this case, we answer that question in the affirmative.

     After correctly defining “likely,”17 the military judge
elicited from the appellant that he intentionally threw the
chair at Cpl JB; that Cpl JB was then facing the appellant when
he threw the chair; that Cpl JB was extremely intoxicated at the
time; that the chair did, in fact, hit Cpl JB in the face; and
that grievous bodily harm resulted from Cpl JB being struck in
the face with the chair. The appellant’s statements were
corroborated by his pretrial admissions and the stipulation of
fact.


16
     Id. at 35.
17
     Id. at 28.


                                  6
      The military judge sufficiently established that serious
harm to Cpl JB’s eye was a natural and probable consequence of
throwing the chair at Cpl JB. 18 As a result, we find no
substantial basis in law or fact for questioning the appellant’s
plea.

                                 Conclusion

      The findings and the sentence are affirmed.


                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




18
   As the appellant points out, the eye is an extremely delicate organ, easily
damaged. Appellant’s Brief of 16 Jul 2015 at 11. This makes serious injury
to the eye even more likely and a natural and probable consequence of an act
like throwing a chair at someone who is facing you. As the old saw goes, “be
careful or you’ll put your eye out.”


                                      7
