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

                                                  UNITED STATES, Appellee
                                                               v.
                                          Private E2 DANEWOOD L. KIRKPATRICK
                                                 United States Army, Appellant

                                                                    ARMY 20100716

                            Headquarters, 10th Support Group and U.S. Army, Okinawa
                                          T. Mark Kulish, Military Judge
                            Lieutenant Colonel Barry J. Stephens, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Jessica J. Morales, JA (on brief).


                                                                     31 January 2013
                                                               -----------------------------------
                                                                MEMORANDUM OPINION
                                                               -----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of one specification of willfully
disobeying a superior commissioned officer, four specifications of violating a lawful
order, one specification of stalking, and one specification of housebreaking, in
violation of Articles 90, 92, 120a, and 130, Uniform Code of Military Justice, 10
U.S.C. §§ 890, 892, 920a, 930 (2006) [hereinafter UCMJ]. * The panel sentenced

                                                            
*
   The panel acquitted appellant of one specification of rape and one specification of
aggravated sexual contact in violation of Article 120, UCMJ. The military judge
acquitted appellant of one specification of obstructing justice in violation of Article
134, UCMJ. In addition, a separate specification of obstructing justice was
dismissed.  
KIRKPATRICK—ARMY 20100716

appellant to a bad-conduct discharge, confinement for 180 days, and reduction to the
grade of E-1. The convening authority approved the sentence as adjudged and
credited appellant with 179 days of pretrial confinement credit against the sentence
to confinement.

       The case is before the court for review under Article 66, UCMJ. Appellant
asserts that the evidence is factually and legally insufficient to find him guilty of
Charge III and its Specification (stalking) and Specification 2 of Charge I (violating
a lawful order). We agree with appellant and will order relief in our decretal
paragraph. Appellant’s remaining assignments of error, along with the matters he
personally raises pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),
are without merit.

                                     STALKING

      From April 2009 through March 2010, Private First Class (PFC) FC and
appellant had an off-and-on sexual and romantic relationship. On 23 February 2010,
appellant visited PFC FC. After an argument between the two, PFC FC alleged that
appellant brutally raped her. However, the panel acquitted appellant of the rape and
aggravated sexual contact that allegedly occurred on this date.

       On 7 March 2010, appellant entered PFC FC’s home without her consent.
Private First Class FC initially “froze” when she saw appellant enter her kitchen, but
she ultimately continued cleaning her house and packing for a trip to the field.
While PFC FC testified that she was scared of appellant at certain points that night,
she ultimately insisted that he spend the night in her bed because she became afraid
that he would harm himself. Private First Class FC then got up early the next
morning and left appellant alone with her children while she went to the field.

       We find the evidence of stalking as alleged in Charge III and its Specification
to be factually insufficient. UCMJ art. 66(c); United States v. Washington, 57 M.J.
394, 399 (C.A.A.F. 2002). First, the evidence fails to establish that appellant
“wrongfully engaged in a course of conduct directed at a specific person that would
cause a reasonable person to fear death or bodily harm to himself or herself or a
member of his or her immediate family.” See Manual for Courts-Martial, United
States (2008 ed.) [hereinafter MCM], pt. IV, ¶45a.b.(1). “Course of conduct” means
“a repeated maintenance of visual or physical proximity to a specific person; or a
repeated conveyance of verbal threat, written threats, or threats implied by conduct,
or a combination of such threats, directed at or towards a specific person.” MCM,
pt. IV, ¶45a.a.(b)(1). In this context, “repeated” means “two or more occasions of
such conduct.” MCM, pt. IV, ¶45a.a.(b)(2).

       Here, appellant visited PFC FC in her home on 23 February 2010. PFC FC
also invited appellant to spend the night with her on 7 March 2010, and she left him


                                          2
KIRKPATRICK—ARMY 20100716

the next morning with her children. The only other contact appellant had with PFC
FC during the charged time period was a series of text messages that he sent her on
24 February 2010. Private First Class FC did not respond to any of appellant’s text
messages and none of the text messages constitute threats under Article 120a,
UCMJ.

       Second, the evidence fails to establish that appellant “had knowledge, or
should have had knowledge, that the specific person would be placed in reasonable
fear of death or bodily harm to himself or herself or a member of his or her
immediate family.” See MCM, pt. IV, ¶45a.b.(2).

       The tumultuous nature of the off-and-on relationship between appellant and
PFC FC casts doubt on the notion that appellant knew, or should have known, that
his presence would place PFC FC in fear of death or bodily harm. Moreover, PFC
FC invited appellant to spend the night on 7 March 2010, and further allowed
appellant to care for her children by himself afterwards. In light of the above, we
maintain reasonable doubt that appellant possessed the requisite actual or imputed
knowledge that his actions would put PFC FC in fear of death or bodily harm.

       Third, the evidence fails to establish that appellant’s “acts induced reasonable
fear in the specific person of death or bodily harm to himself or herself or to a
member of his or her immediate family.” See MCM, pt. IV, ¶45a.b.(3).

       In this case, PFC FC adamantly insisted on appellant spending the night with
her in her bed on 7 March 2010. Further, she left appellant to care for her children
the next morning when she left for the field. Private First Class FC also did not feel
the need to alert police authorities or her chain of command upon appellant’s initial
entrance into her residence on 7 March 2010. In light of the above, we maintain
reasonable doubt that appellant’s actions during the charged time period induced
reasonable fear in PFC FC.

                         VIOLATING A LAWFUL ORDER

       In Specification 2 of Charge I, the government charged appellant with
violating a Military Protective Order (MPO) issued by his commander, Captain
(CPT) BA. Specifically, Specification 2 of Charge I alleged that appellant
wrongfully contacted PFC FC through the use of a playstation game-system. The
MPO, in pertinent part, prohibited the following:

             [Appellant] is restrained from initiating any contact or
             communication with [PFC FC] either directly or through a
             third party. For purposes of this order, the term
             ‘communication’ includes, but is not limited to,
             communication in person, or through a third party, via


                                           3
KIRKPATRICK—ARMY 20100716

             face-to-face contact, telephone, or in writing by letter,
             data fax, or electronic mail. . . . ‘Communication’ also
             includes, instant messenger (IM), texting with cell
             phone[.]

       At trial, PFC FC testified that appellant contacted her children through the use
of a playstation game-system. Appellant apparently asked PFC FC’s children
whether a fellow soldier was present in their house and asked them how PFC FC was
doing. However, at no time did appellant request to speak with PFC FC nor did
appellant ask the children to communicate to PFC FC on his behalf. In fact, PFC
FC’s children never told her that they had been communicating with appellant.
Instead, PFC FC saw the messages on the playstation “a few days later.”

       The MPO at issue did not prohibit appellant from communicating with PFC
FC’s children, and appellant did not attempt to communicate with PFC FC through
her children. Since appellant did not communicate either directly or indirectly with
PFC FC through the use of a playstation game-system, appellant did not fail to obey
the order given by CPT BA. Consequently, we find the evidence as to Specification
2 of Charge I to be legally and factually insufficient. UCMJ art. 66(c); Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Washington, 57 M.J. at 399; United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987).

                             EFFECT ON SENTENCE

       In light of the above, we also reverse the sentence in this case. A panel of
officer and enlisted members sentenced appellant to a bad-conduct discharge,
confinement for 180 days, and reduction to the grade of E-1when he faced a
maximum punishment of a dishonorable discharge, fifteen years’ confinement,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The stalking
offense was the most significant aggravating offense remaining in appellant’s case.
Such a significant change now in the aggravating circumstances of a case adjudged
by a panel, where the trial counsel emphasized the stalking offense now reversed as
one of the bases for imposition of a severe punishment of ten years’ confinement,
precludes a confident reassessment of the sentence. Therefore, we will direct a
rehearing on sentence for the offenses remaining.

                                   CONCLUSION

      On consideration of the entire record, the parties’ pleadings, and the matters
appellant personally raised pursuant United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), the findings of guilty of Charge III and its Specification and
Specification 2 of Charge I are set aside and those specifications are dismissed with
prejudice. The remaining findings of guilty are affirmed. The sentence is set aside.



                                           4
KIRKPATRICK—ARMY 20100716

A rehearing on the sentence may be ordered by the same or a different convening
authority.

      Senior Judge YOB and Judge KRAUSS concur.


                                    FOR THE COURT: 
                                      FOR THE COURT:




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




                                          5
