UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            MULLIGAN, FEBBO, and WOLFE
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Sergeant JASON A. SCHNELLE
                           United States Army, Appellant

                                    ARMY 20160405

               Headquarters, 1st Cavalry Division (Rear)(Provisional)
                           Lanny Acosta, Military Judge
             Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial)
        Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial)


For Appellant: Colonel Mary J. Bradley, JA; Major Brendan Cronin, JA; Major
Payum Doroodian, JA (on brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Captain Austin L. Fenwick, JA; Captain Sandra L. Ahinga, JA (on brief).


                                      27 April 2018

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                                SUMMARY DISPOSITION
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FEBBO, Judge:

       In this case, we discuss whether the testimony presented at trial supports the
military judge’s finding of guilty for communicating a threat, as well as the trial
procedures used by the military judge upon rejecting appellant’s modified plea of
guilty to this offense. Finding no error, we affirm the findings of guilty and
sentence.

      This case is before us for review pursuant to Article 66, UCMJ. On appeal
appellant’s sole assignment of error is that the evidence presented at trial for the
communicating a threat offense was legally and factually insufficient. Appellant
SCHNELLE—ARMY 20160405

does not challenge the other charges and specifications of his guilty plea. 1 We have
also considered the matters personally asserted by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they lack merit.

                                   BACKGROUND

       Appellant had prior service in the Marines prior to entering the Army.
Between these service branches, he served four combat tours in Iraq and
Afghanistan. According to his former Marine commander, appellant and his unit
experienced almost daily contact with the enemy while deployed to Iraq. During one
attack, appellant risked his life under enemy fire to pull a wounded Marine to safety;
another time, appellant led his team to recover a seriously wounded Iraqi soldier.

        Life away from the deployments painted a different picture of appellant.

       From the very beginning of their marriage, appellant and his spouse, JS,
engaged in domestic disputes and violence. Their arguments were fueled by alcohol,
allegations of infidelity, and ultimately, appellant’s intentional violation of no
contact orders. On several occasions, appellant physically assaulted JS in front of
her children. On one occasion, JS was hospitalized with a nasal fracture and other
injuries. This conduct led to a variety of charges to include aggravated assaults on
JS.

       Pursuant to his pretrial agreement, the military judge conducted a Care 2
inquiry with the appellant on all the charges, to include the communicating a threat
charge. The appellant was charged with threatening JS when he told her “[y]ou have
30 days to move out [of the house] or I’ll kill you.” During appellant’s providence
inquiry, appellant attempted to plead guilty to communicating a threat through
exceptions and substitutions, in that he threatened her with the language “[y]ou have
30 days to move out [of the house] and I’ll pay your way back to Wisconsin.”

1
  A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of willfully disobeying a superior commissioned officer, failure to obey a
lawful general regulation, two specifications of assault consummated by battery,
three specifications of aggravated assault, and two specifications of child
endangerment in violation of Articles 90, 92, 128, and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 890, 892, 928, 934 (2012)[UCMJ]. Contrary to his
plea, the military judge convicted appellant of communicating a threat in violation
of Article 134, UCMJ. The military judge sentenced appellant to a bad-conduct
discharge, confinement for 52 months, and reduction to the grade of E-1. In
accordance with a pretrial agreement, the convening authority approved 45 months
confinement, credited appellant with 149 days against the sentence to confinement,
and approved the rest of the adjudged sentence.
2
    United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).


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Appellant explained this was threatening to his spouse since she wanted to avoid
family and legal issues in Wisconsin and would not be able to financially support
herself and her two children. The military judge ultimately rejected appellant’s
modified plea to this charge and entered a plea of not guilty, reasoning the
substituted language did not legally state an offense since appellant’s admission did
not amount to a true threat.

       Afterward, the government and defense counsel stated on the record that the
parties still wanted to be bound by the pretrial agreement notwithstanding
appellant’s failure to comply with a material term. After the government stated their
intention to proceed with the threat charge, the military judge allowed the
government to immediately call JS to the stand to prove the offense. That is, the
military judge provided for a contested hearing in the middle of the Care inquiry,
prior to the acceptance of the guilty plea on the other offenses. The defense did not
object to the timing and proposed trial procedure for the contested hearing.

       JS testified that, during an argument, appellant sat on top of her and told her,
“she had 30 days to move out, otherwise he was going to kill me, take me to the
Everglades, dump me off so the alligators could eat me, and then raise my children
off the grid as his own.” She interpreted those words as a threat to hurt her. The
government asked a total of nine questions, the defense counsel did not cross-
examine the spouse, and both parties rested their case on the merits. After JS’s
testimony, the military judge continued with the Care inquiry by discussing the
terms of the pretrial agreement with appellant. Prior to taking a recess to deliberate
and announce findings, defense counsel again declined the military judge’s
invitation to make an opening and closing statement or present any additional
evidence on the contested charge.

       After a short recess, the military judge found appellant guilty of the charges
and specifications to which he pleaded guilty and guilty of communicating a threat
to his spouse.

                              LAW AND DISCUSSION

                            Legal and Factual Sufficiency

       Appellant asserts on appeal that the evidence presented at trial was both
legally and factually insufficient to establish all the essential elements of the
communicating a threat offense beyond a reasonable doubt. Appellant points to the
“dearth of evidence” presented during the spouse’s roughly one page of testimony.
In particular, appellant contends that no evidence was presented to satisfy the
terminal elements of the Article 134 offense. We disagree.

      Under Article 66(c), UCMJ, we may affirm only those findings of guilty that
we find correct in law and fact and determine, based on the entire record, should be


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SCHNELLE—ARMY 20160405

affirmed. United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003). The test for
legal sufficiency of the evidence is whether, viewing the evidence in a light most
favorable to the government, a fact-finder could rationally have found all of the
essential elements of an offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Blocker, 32 M.J. 281, 284-85 (C.M.A.
1991). In resolving questions of legal sufficiency, this court is “bound to draw
every reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Craion, 64 M.J. 531, 534 (citations omitted).

       In weighing 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). “[A]fter
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we must be] convinced of the [appellant's] guilt
beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987).
       We find the charged offense was legally and factually sufficient. JS’s
testimony clearly established the first three elements of communicating a threat. As
for the terminal element, we are satisfied that a fact-finder could rationally find
appellant’s conduct was service discrediting. As our superior court has held, “proof
of the conduct itself may be sufficient for a rational trier of fact to conclude beyond
a reasonable doubt that, under all of the circumstances, it was of a nature to bring
discredit upon the armed forces.” United States v. Norman, 74 M.J. 144, 150
(C.A.A.F. 2015) (quoting United States v. Phillips, 70 M.J. 161, 163 (C.A.A.F.
2011)). Appellant uttered what was a credible threat to kill JS. Under the
circumstances of this case, the evidence appellant threatened the mother of two
children was of a nature to bring discredit upon the armed forces. We find JS’s
testimony, even in its brevity, credible. We too are satisfied beyond a reasonable
doubt that, under the circumstances of this case, appellant’s conduct was of a nature
to bring discredit on the armed forces.

    Taking Testimony of a Government Witnesses on the Merits During the Care
                                   Inquiry

      We note that the challenge to legal and factual sufficiency to the
communicating a threat offense was partially caused by the trial court’s unusual
procedure of injecting a contested trial on one offense in the midst of appellant’s
Care inquiry. 3

3
 The Manual for Courts-Martial gives the military judge the responsibility and
deference to ensure that the court-martial procedures are conducted in a fair and

                                                                        (continued . . .)



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SCHNELLE—ARMY 20160405

      Although appellant raises no due process concerns regarding the manner in
which the contested portion of the trial was conducted, we believe it warrants a brief
discussion.

       For the contested portion of the trial: (1) neither side gave an opening
statement; (2) although the appellant was allowed to present evidence, the procedure
was unorthodox; (3) neither side gave a closing statement; (4) the military judge did
not explicitly ask appellant if he wanted to testify regarding the contested
specification.

      In hindsight, more could have been done on the record to explain the
procedures to appellant. For example, the military judge could have clarified on the
record that appellant had chosen not to testify on the merits. However, the defense
counsel did not object to the manner in which the military judge conducted the
proceeding, and specifically waived cross-examining the victim, presenting
evidence, or giving argument. The military judge provided the defense an
opportunity to cross-examine appellant’s spouse and properly present defense
evidence to challenge the specification.

      In considering the entire record, the procedure did not materially prejudice a
substantial right of the appellant.

                                   CONCLUSION

      The findings of guilty and sentence are AFFIRMED.

      Senior Judge MULLIGAN and Judge WOLFE concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:



                                       JOHN P. TAITT
                                       Chief
                                        JOHNDeputy Clerk of Court
                                             P. TAITT



(continued . . .)
orderly manner. See Rule for Court-Martial [R.C.M. 102]; R.C.M. 801(a)(3)
discussion (the military judge is empowered to set the time for each session of a
court-martial and “prescribe the manner and the order in which proceedings may
take place”). The military judge decides the order in which witnesses may testify.
Id. The military judges also controls the mode and order of examining witnesses and
presenting evidence. Id. In short, the rules allow the military judge to keep order in
the courtroom.


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