This opinion is subject to administrative correction before final disposition.




                                Before
                    KING, GASTON, and STEPHENS
                       Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                        Jason S. DOYLE
               Lieutenant Commander (O-4), U.S. Navy
                             Appellant

                             No. 201900190

                         Decided: 31 August 2020

 Appeal from the United States Navy-Marine Corps Trial Judiciary

                             Military Judges:
                       Ann K. Minami (arraignment)
                        Colleen Glaser-Allen (trial)

 Sentence adjudged 2 April 2019 by a general court-martial convened
 at Naval Base Kitsap, Bremerton, Washington, consisting of military
 judge alone. Sentence approved by the convening authority: a repri-
 mand, confinement for nine months, and a dismissal.

                          For Appellant:
         Lieutenant Commander Christopher Riedel, JAGC, USN

                              For Appellee:
                        Major Kyle Meeder, USMC
                  Lieutenant Kimberly Rios, JAGC, USN

 Senior Judge KING delivered the opinion of the Court, in which Sen-
 ior Judge GASTON and Senior Judge STEPHENS joined.
                    United States v. Doyle, No. 201900190
                            Opinion of the Court

                         _________________________

        This opinion does not serve as binding precedent, but
             may be cited as persuasive authority under
              NMCCA Rule of Appellate Procedure 30.2.

                         _________________________

KING, Senior Judge:
   Appellant was convicted, pursuant to his plea, of one specification of ag-
gravated assault with means likely to produce death or grievous bodily injury
in violation of Article 128, Uniform Code of Military Justice [UCMJ], 10
U.S.C. § 928 (2012 & Supp. IV 2017) for “strangling” his girlfriend, D.G.
   Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant asserts both that the sentence to be dismissed from the Naval Service
was inappropriately severe and that the trial counsel “enflamed the military
judge with improper sentencing argument” by referring to dismissed charges
and by referring to Appellant as a “monster.” Having carefully considered
these assignments of error, we find them to be without merit. See United
States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968
(1988).
   During the course of our review, we specified the following issue:
       whether there is an adequate factual basis in the record of trial
       to support Appellant’s guilty plea to aggravated assault when
       Appellant admits to “strangling” D.G. but that term is neither
       defined by the military judge nor used in a context to indicate
       grievous bodily harm was the “natural and probable conse-
       quence” of that action? Record at 174, 177; United States v.
       Gutierrez, 74 M.J. 61, 66 (C.A.A.F. 2015); Manual for Courts-
       Martial, United States (2016 ed.), Part IV ¶ 54.c(4)(a)(ii). See
       United States v. Care, 40 C.M.R. 247 (C.M.A. 1969). See gener-
       ally United States v. Herrmann, 76 M.J. 304 (C.A.A.F. 2017).
After considering the parties’ briefs, we set aside Appellant’s conviction and
sentence, return the case to the convening authority, and authorize a rehear-
ing.

                                I. BACKGROUND

    Appellant met D.G. in Jacksonville, Florida in April 2016 through an
online dating site and they were engaged approximately seven months later.


                                      2
                   United States v. Doyle, No. 201900190
                           Opinion of the Court

D.G. had two minor sons from a previous relationship. Appellant received
permanent change of station orders and, in March 2017, he moved to Whid-
bey Island, Washington. Despite this fact, in June 2017, he and D.G. pur-
chased a house together in Jacksonville, into which D.G. and her sons moved.
Appellant planned to visit D.G. regularly.
    In December 2017, Appellant returned to Jacksonville for his Christmas
leave period and stayed in their home, although, by then, the relationship
had turned “difficult” and D.G. had stopped wearing her engagement ring.
While at the home, Appellant realized that the couple were “not on the same
terms” regarding the relationship and he slept on the couch. While the rela-
tionship was troubled, Appellant was hoping to work to improve it. But the
week before Appellant assaulted D.G., Appellant found an overnight bag from
an unknown male in their bathroom.
    On the night he assaulted D.G., Appellant went alone to play trivia with
her parents while D.G. stayed home to watch her two children. When Appel-
lant returned, D.G. told Appellant he would need to make plans for himself
on 22 and 23 December because she would not be home. These were the two
days that D.G.’s children would be with their father and D.G. told Appellant
that she would be going out with a man whom she had been seeing since
October, the man whose bag Appellant had found in their bathroom. Alt-
hough D.G. was seeing another man, she assured Appellant that “they could
still do Christmas together.” Appellant was devastated and a confrontation
ensued.
   During the providence inquiry, the military judge asked Appellant how
the confrontation turned physical. Appellant explained:
        ACC: She was—saying certain things to me and she was
             calling, and excuse my language, but calling me a
             “passive pussy” and “not an aggressive man,” and I
             wasn’t an asshole and this had been a recurring theme
             in our relationship. That I was too nice. That I wasn’t
             aggressive enough, that, you know, she was attracted
             to assholes and I was not that. And I was, you know,
             too passive and always too nice, you know, and she
             needed a bad boy and I—I’m not. I wasn’t that. So in
             that moment, you know, this is all coming back. She’s
             saying these things and I, you know, I wanted the re-
             lationship to work. I would, like I said, I love this
             woman. I would do anything for her and so I reacted
             and—and did what—I thought, you know, she wanted
             to see. Now, obviously I’m not saying that she asked
             for it, or that—that she told me to do this. I’m—I’m


                                     3
                    United States v. Doyle, No. 201900190
                            Opinion of the Court

                 wrong what I did. But, you know, I thought okay, well,
                 she wants me to be aggressive so maybe—maybe this
                 will work or maybe I can show her that I can be ag-
                 gressive. So we were sitting on the back patio couches,
                 you know, in our backyard. And I put my hands
                 around her neck and—and, asking her if that’s what
                 she wanted and it clearly wasn’t and—[emotional] you
                 know, and then just more pain and—and sadness fear
                 [emotional] and just utter—I mean, devastation. 1
The military judge explained to Appellant the following:
          MJ: You have pled guilty to the charge of aggravated as-
              sault with means or force likely. That’s under Article
              128 of the Uniform Code of Military Justice. The ele-
              ments of that offense are as follows:
                 One, that, on or about 19 December 2017 . . . you did
                 bodily harm to Ms. [D.G.];
                 Two, that you did so with a certain force by strangling
                 her, by placing your hands around her neck and
                 squeezing;
                 Three, that the bodily harm was done with unlawful
                 force or violence; and
                 Four, that the force was used in a manner likely to
                 produce death or grievous bodily harm.
                      ....
          MJ: An act of force or violence is unlawful if done without
              legal justification or excuse and without the lawful
              consent of the victim.
                 “Grievous bodily harm” means serious bodily injury.
                 Grievous bodily harm does not mean injuries such as a
                 black eye or bloody nose, but does mean fractured, dis-
                 located bones, deep cuts, torn members of the body,
                 serious damage to internal organs or other serious
                 bodily injuries.




1   R. at 172.




                                       4
                       United States v. Doyle, No. 201900190
                               Opinion of the Court

                   “Force” may mean—may be any means or object not
                   normally considered a weapon, a force is used in a
                   manner likely to produce death or grievous harm
                   where—when the natural and probable consequences
                   of its particular use would be death or grievous bodily
                   harm. It is not necessary that death or grievous bodily
                   harm actually was the result.
                   An “assault” is an attempt to offer with unlawful force
                   or violence to do bodily harm to another. An assault in
                   which bodily harm is inflicted is called a battery.
                   A “battery” is unlawful and an intentional application
                   of force or violence to another.
                   The term “bodily harm” means any physical injury to
                   or offensive touching of another person, however
                   slight. 2
    Appellant informed the military judge that he understood the information
and that he had no questions about that information. The following clarifying
colloquy ensued:
             MJ:    So you said you put your hands around her neck, and
                   I understand that there was this ongoing discussion
                   about you being more aggressive or whatever the
                   things that were being said. But did you put your
                   hands around her neck?
           ACC: Yes, I did, Your Honor.
             MJ: And did you squeeze her neck?
           ACC: I did, Your Honor.
             MJ: I have to ask you this again. So you said you strangled
                 her, that’s what you’re describing, correct?
           ACC: Yes.
             MJ: And why did you do that? Did you do that because you
                 were angry? Did you that because you were frustrat-
                 ed? Why?




   2   R. at 157-58.




                                         5
             United States v. Doyle, No. 201900190
                     Opinion of the Court

  ACC: No, I was not angry, Your Honor. I—I was, you know,
       it—it was reacting to what I’d been told for the last 20
       months about how I needed to act a certain way.
       And—and it was maybe a—it was a— trying to show
       her that that I—maybe I could be an asshole or I could
       be this bad boy. You know, it was purely reactionary
       to try to [scoffs] trying to show someone that maybe
       you could be this kind of person that, that they want-
       ed. I mean, clearly not the right way to do it, obviously
       wrong.
   MJ: Did you intend to do bodily harm to her?
  ACC: I did not in—[conferring with counsel.]
   MJ: And just to take a minute here. So “bodily harm” is an
       offensive touching, right?
  ACC: Yes, I—
   MJ: However slight.
  ACC: I did, Your Honor. I—yes.
   MJ: So you intended to strangle her. You intended to do
       bodily harm to her, correct?
  ACC: Yes.
   MJ: Did you strangle her with a certain force?
CIVDC: Your Honor, Lieutenant Commander Doyle is pleading
       guilty to bodily harm with a means likely to cause
       grievous bodily harm.
   MJ: Right.
CIVDC: And so this would loop in the standard definition of
       “unlawful force,” which is without legal justification or
       excuse, not any elevated degree of force beyond that.
   MJ: Okay.
CIVDC: Although he—[clearing throat], he has already testi-
       fied that he did squeeze.
   MJ: Right. I’m not disagreeing with you here, but also, I
       define “force” as a manner likely to produce death or
       grievous bodily when the natural and probable conse-
       quence of its particular use would be the grievous bod-




                               6
                       United States v. Doyle, No. 201900190
                               Opinion of the Court

                   ily harm. It’s not necessary that that harm actually
                   result.
        CIVDC: Yes, Your Honor.
             MJ: I think we’re saying the same thing.
        CIVDC: Yes, we are. It’s a little murky between force and
               means, Your Honor.
             MJ: I understand. So I just want to make sure that we’re
                 clear and that [Lieutenant] Commander Doyle under-
                 stands what I’m asking him.
        CIVDC: Yes, Your Honor.
             MJ: [Lieutenant] Commander Doyle, when I ask about
                 “certain force”, it means what I just said, that basical-
                 ly it’s something that, in that context of what you did,
                 that it could have potentially resulted in—
           ACC: Yes, Your Honor.
             MJ: —harm.
           ACC: Yes.
             MJ: Do you agree with that?
           ACC: I do, Your Honor.
             MJ: All right. Do you believe that you had any legal excuse
                 or legal justification for your conduct?
           ACC: No, Your Honor.
             MJ: Now, based on what you’ve told me, I understand
                 there was this conversation back and forth about this
                 behavior that you said that maybe she wanted you to
                 be more aggressive, but did she consent to you stran-
                 gling her on this occasion?
           ACC: No, Your Honor.
             MJ: Okay. 3
   After Appellant told the military judge that he believed that neither con-
sent nor defense of another applied to his case, the military judge continued:



   3   R. at 172-75.




                                         7
                       United States v. Doyle, No. 201900190
                               Opinion of the Court

             MJ: And when you strangled her, was that in a way that
                 could have or was likely to produce grievous bodily
                 harm as I’ve defined that term for you?
           ACC: Yes, Your Honor.
             MJ: And why do you think that?
           ACC: I think that because I put my hands around her neck
                against her will and I was squeezing and it, you know,
                means likely to produce grievous bodily harm, wheth-
                er or not it occurred is—is irrelevant, I mean, it could
                happen.
             MJ: And so when you think, say things that it could have
                 done, do you mean, like it could have cut off her blood
                 flow, potentially?
           ACC: Sure.
             MJ: Or it could have cutoff her oxygen flow?
           ACC: Yes, Your Honor.
             MJ: Those kinds of things?
           ACC: Yep.
             MJ: Then do you believe and admit that you used unlawful
                 force against Ms. [D.G.] by strangling her, in a man-
                 ner likely to produce grievous bodily harm?
           ACC: Yes, I do, Your Honor. 4
   After discussing the maximum punishment based on Appellant’s guilty
plea and taking a short recess, the military judge returned to the providence
inquiry:
             MJ: I want to clarify one thing from the providence in-
                 quiry. Commander Doyle, you talked about this con-
                 frontation that you were having with Ms. [D.G.] and I
                 understand it was very emotional for you and there
                 was a lot of things that were being said back and
                 forth. I explained the assault consummated by a bat-
                 tery and means likely, this whole idea of offensive
                 touching, right?


   4   R. at 177-78.




                                          8
             United States v. Doyle, No. 201900190
                     Opinion of the Court

  ACC: Yes, Your Honor.
    MJ: I just have one more question to make sure that the
        record is absolutely clear on this. How did you know it
        was offensive to her?
  ACC: [Pause.]
MILDC: [Softly.] Reaction.
    MJ: Exactly, what was her reaction?
  ACC: I mean, her reaction, fear. You could see it in her eyes,
       I mean, it was almost an immediate like, obviously
       you’re—you’re crossing a boundary here. And so just
       that look on her face and you know, and just kind of
       that realization of—how are you here—you know, how
       are you doing—I mean, speaking to yourself, how are
       you doing this, why are you—how are you here? And
       so, I guess just kind of that—that that realization that
       what you were doing was so egregiously wrong and
       seeing her face and her look. This was not okay, nor,
       you know, acceptable. [Sniffs.]
    MJ: And so having built that relationship with her over
        the 20 months you described, you knew instantly that
        after you put your hands around her neck, that this
        was not something she was consenting to?
  ACC: Yes, Your Honor.
    MJ: And was there any physical reaction? I mean, was
        there gasping or choking or any of those kinds of
        things that you might remember?
  ACC: You know, after it, Your Honor, I mean, she went
       inside the house and so I, I mean, I was crying on the
       back patio. So I—nothing I observed in that moment.
       I, you know what—but—
MILDC: Just a moment, Your Honor.
    MJ: Of course.
CIVDC: [Conferring with Appellant.]




                               9
                           United States v. Doyle, No. 201900190
                                   Opinion of the Court

           ACC: So in that moment, Your Honor, I’m not too sure but
                I’ve read the report. I’ve seen the photos. You know, I
                know that there was harm done, physical harm done
                to her that I committed. [Pause.] Yeah. 5
The stipulation of fact stated, in relevant part:
             I agree and admit that, in the course of our argument, I did
         bodily harm to Ms. [D.G.] I did this by means of strangulation
         with my hands. I agree and admit that I used my hands in a
         way that was . . . likely to produce grievous bodily harm, as it is
         the natural and probable result of strangulation. Strangulation
         can cause serious bodily injury by closing the airway and/or the
         blood flow to and from the brain. 6
    During the sentencing hearing, the Government offered evidence in ag-
gravation that Appellant’s actions caused Ms. D.G. to “lose the ability to
breathe freely.” 7 Additionally, over Defense objection, the Prosecution called
J.M., a forensic nurse, who described strangulation as the “external force to
the neck with sufficient enough pressure to be able to block either the blood
flow to and from the brain, or the airway, or a combination of both of those
things.” 8 J.M. also testified that, depending upon “the amount of force ap-
plied, the location of the force, the duration of that force, and then the surface
area of that applied force,” other “serious” injuries could occur, including,
“tear into the walls of the arteries where blood leaks through and that blood
can clot, that clot can release and go to the brain . . . or some of the underly-
ing fractures to the structures in the neck and whatnot.” 9

                                     II. DISCUSSION

   Before accepting a guilty plea, a military judge must ensure the plea is
supported by a factual basis. UCMJ art. 45(a). See also United States v. Care,
40 C.M.R. 247 (C.M.A. 1969); Rule for Courts-Martial [R.C.M.] 910(e) (“The
military judge shall not accept a plea of guilty without making such inquiry




   5   R. at 180-82.
   6   Pros. Ex. 1.
   7   Pros. Ex. 2 at 3.
   8   R. at 253.
   9   R. at 257, 259-60.




                                            10
                    United States v. Doyle, No. 201900190
                            Opinion of the Court

of the accused as shall satisfy the military judge that there is a factual basis
for the plea.”).
       Article 45(a), UCMJ, requires military judges to reject a plea of
       guilty “if it appears that [an accused] has entered the plea of
       guilty improvidently.” To prevent the acceptance of improvi-
       dent pleas, [the Court of Appeals for the Armed Forces] has
       long placed a duty on the military judge to establish, on the
       record, the factual bases that establish that “the acts or omis-
       sions of the accused constitute the offense or offenses to which
       he is pleading guilty.” If the military judge fails to establish
       that there is an adequate basis in law and fact to support the
       accused’s plea during the Care inquiry, the plea will be improv-
       ident.”
United States v. Nance, 67 M.J. 362, 365 (C.A.A.F. 2009), (quoting Care, 40
C.M.R. at 253) (citing United States v. Inabinette, 66 M.J. 320, 321-22
(C.A.A.F. 2008).
    We review a military judge’s decision to accept a guilty plea for an abuse
of discretion. United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996) (citing
United States v. Gallegos, 41 M.J. 446 (C.M.A. 1987). Military judges abuse
their discretion when they accept a guilty plea without first obtaining from
the accused “an adequate factual basis to support the plea.” United States v.
Inabinette, 66 M.J. 320, 322. Military judges are afforded “significant defer-
ence” in this area. Id. “A plea is provident so long as Appellant was ‘convinced
of, and [was] able to describe, all of the facts necessary to establish [his]
guilt.’ ” United States v. Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (altera-
tions in original) (quoting United States v. O’Connor, 58 M.J. 450, 453
(C.A.A.F. 2003)).
    Here, the military judge failed to elicit an adequate factual basis during
the Care inquiry to support Appellant’s guilty plea to aggravated assault. The
specification alleged that Appellant did bodily harm to D.G. and that he did
so “by strangling her with his hands with a means likely to produce death or
grievous bodily harm, to wit: strangulation.” The military judge, therefore,
was required to elicit a factual basis that “strangling” or “squeezing” was a
means or force “likely” to produce death or grievous bodily harm. Here, the
military judge articulated that harm as cutting off D.G.’s air or blood supply,
the “natural and probable consequence” of which would be to deprive the
brain of oxygen, likely resulting in death or grievous bodily harm.
    But while the military judge recited the correct standards and law, she
failed to elicit from Appellant that the force he applied when he “squeezed”
D.G.’s throat was sufficient to make death or grievous bodily harm the “like-


                                      11
                        United States v. Doyle, No. 201900190
                                Opinion of the Court

ly” result of the use of such force. Instead, when she asked Appellant “did you
strangle her with a certain force,” Appellant’s civilian defense counsel
[CIVDC] responded, “Your Honor, [Appellant] is pleading guilty to bodily
harm with a means likely to cause grievous bodily harm. . . . And so this
would loop in the standard definition of ‘unlawful force,’ which is without
legal justification or excuse, not any elevated degree of force beyond that.”
The military judge replied,
             Right. I’m not disagreeing with you here, but also, I define
         “force” as a manner likely to produce death or grievous bodily
         [harm] when the natural and probable consequence of its par-
         ticular use would be the grievous bodily harm. It’s not neces-
         sary that that harm actually result. . . . I think we’re saying the
         same thing. 10
    We think they were not. Instead, when the CIVDC answered the military
judge’s question to Appellant about the amount of force used by essentially
reducing that force to an offensive touching, the Defense injected an incon-
sistency into Appellant’s plea to aggravated assault. When such inconsisten-
cies arise, “the military judge must either resolve the apparent inconsistency
or reject the plea.” United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014)
(quoting United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)). That
was not done, leaving unanswered on this record whether Appellant agreed
that he used a “certain force” likely to produce serious bodily harm.
    Nor will we accept the Government’s invitation to rely upon the “everyday
commonsense understanding” of strangulation. 11 Military judges have a duty
“to accurately inform [an a]ppellant of the nature of his offense,” and “[a]n
essential aspect of informing . . . is a correct definition of legal concepts.”
United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004); see also Care, 40
C.M.R. at 541. Here, the military judge failed to define this term beyond an
implication that it entailed “placing your hands around her neck and squeez-
ing.” When she asked Appellant why he believed “strangling” was likely to
produce grievous bodily harm, Appellant replied only: “I think that because I
put my hands around her neck against her will and I was squeezing and it,
you know, means likely to produce grievous bodily harm, whether or not it
occurred is—is irrelevant, I mean, it could happen.” 12 When the military


   10   R. at 174.
   11   Gov’t Supp. Br. at 14.
   12  The Government’s claim that “Appellant stated that he squeezed hard enough
to cut off her blood and oxygen flow” is not supported by the record.



                                         12
                     United States v. Doyle, No. 201900190
                             Opinion of the Court

judge asked, “like it could have cut off her blood flow, potentially” and “it
could have cut off her oxygen flow,” Appellant agreed that his force could
have been likely to produce grievous bodily harm, not that the force he used
was sufficient to render that harm likely. It is applying force sufficient to cut
off blood or air flow that renders strangulation “a means likely to produce
death or serious bodily harm.” Simply squeezing a neck—without evidence of
the amount of force used—does not ipso facto establish an aggravated as-
sault. See United States v. Knowles, 2016 CCA LEXIS 236, at *4-5 (N-M Ct.
Crim. App. Apr. 19, 2016) (unpub. op.) (“We find ample evidence in the record
that death or grievous bodily harm was a likely consequence of the appel-
lant's battery of his wife. The appellant did not merely place a hand on her
throat: he pinned her down, used both hands and thumbs to cut off all oxy-
gen, and choked her long enough for her to fade in and out of conscious-
ness.”). 13
    Because the military judge failed to resolve the inconsistency injected by
the CIVDC’s response to a question directed to Appellant during the Care
inquiry, and thereafter failed to establish a factual basis that Appellant used
force sufficient to make death or grievous bodily harm likely, acceptance of
Appellant’s guilty plea was an abuse of discretion. See United States v. Jor-
dan, 57 M.J. 236, 238 (C.A.A.F. 2002) (“In order to establish an adequate
factual predicate for a guilty plea, the military judge must elicit ‘factual
circumstances as revealed by the accused himself [that] objectively support
that plea[.]’ ”) (quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A.
1980)).

                                III. CONCLUSION

   The Appellant’s guilty plea was improvident. As a result, the finding and
sentence are SET ASIDE. A rehearing is authorized.




   13   The stipulation of fact does little to clarify this point, simply reiterat-
ing,“[s]trangulation can cause serious bodily injury by closing the airway and/or the
blood flow to and from the brain.” Pros. Ex. 1. Italics added.




                                         13
             United States v. Doyle, No. 201900190
                     Opinion of the Court

Senior Judge GASTON and Senior Judge STEPHENS concur.


                        FOR THE COURT:




                        RODGER A. DREW, JR.
                        Clerk of Court




                              14
