                       UNITED STATES, Appellant

                                    v.

        Julian R. YANGER, Electrician’s Mate Third Class
                   U.S. Coast Guard, Appellee

                              No. 08-5006
                          Crim. App. No. 1271

       United States Court of Appeals for the Armed Forces

                       Argued October 28, 2008

                      Decided November 12, 2008

                               PER CURIAM


                                 Counsel


For Appellant: Lieutenant Commander Brian K. Koshulsky
(argued); Commander Stephen P. McCleary.

For Appellee: Lieutenant Commander Necia L. Chambliss (argued);
Lieutenant Robert M. Pirone (on brief); Lieutenant Jeffery S.
Howard.


Military Judge:   Brian Judge




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Yanger, No. 08-5006/CG


     PER CURIAM:

     This is a certified case arising from Electrician’s Mate

Third Class Julian R. Yanger’s conviction, consistent with his

pleas, of wrongfully using cocaine and involuntary manslaughter.

Upon its review of the case, the United States Coast Guard Court

of Criminal Appeals concluded that the military judge erred in

failing to explain the elements of self-defense to Yanger during

the providence inquiry.   That court set aside the plea to

involuntary manslaughter as improvident and remanded the case

for further action.   United States v. Yanger, 66 M.J. 534, 538,

539 (C.G. Ct. Crim. App. 2008).   The Judge Advocate General of

the Coast Guard certified the following issue:

     WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS
     ERRED BY FINDING THAT THE ACCUSED RAISED SUFFICIENT
     FACTS DURING THE PLEA INQUIRY REQUIRING THE MILITARY
     JUDGE TO EXPLAIN SELF-DEFENSE.

66 M.J. 377 (C.A.A.F. 2008).

     Yanger, a cocaine user, was confronted by his wife upon

returning from a drug-buying trip.    His wife was holding the

broken stem from a stemware glass in her hand.   As Yanger and

his wife argued, he grabbed for the mobile phone in her hand and

accidently cut his hand on the broken glass stem.   The two

continued to argue and when his wife approached him angrily with

her shoulders hunched, Yanger grabbed her wrists and shoved her

away from him.   She stumbled, fell and stabbed herself in the



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neck with the glass stem, which resulted in her death within

minutes.

     During the providence inquiry, Yanger described his wife’s

approach and his reaction by pushing her as follows, “[i]n —- in

the situation I was in, sir, I just wanted -- I just wanted her

out of my face with the glass.”   Focusing on these words, a

majority of the Court of Criminal Appeals concluded that

Yanger’s colloquy raised the defense of self-defense and that

the military judge failed to conduct an appropriate inquiry.

Yanger, 66 M.J. at 537.   The court set aside the involuntary

manslaughter conviction because of this “unresolved self-defense

issue.”    Id. at 538.

     The elements of self-defense in this situation require that

the accused:

     (A) Apprehended, upon reasonable grounds, that bodily
         harm was about to be inflicted wrongfully on the
         accused; and
     (B) Believed that the force that accused used was
         necessary for protection against bodily harm,
         provided that the force used by the accused was
         less than force reasonably likely to produce death
         or grievous bodily harm.

Rule for Courts-Martial (R.C.M.) 916(e)(3).   In United States v.

Prater, we set forth the standard for reviewing guilty pleas in

the context of potential defenses:

     Where the possibility of a defense exists, this Court
     has indeed suggested that a military judge secure
     satisfactory disclaimers by the accused of his
     defense. The bottom line, however, is that rejection


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     of the plea requires that the record of trial show a
     “substantial basis” in law and fact for questioning
     the guilty plea.

32 M.J. 433, 436 (C.M.A. 1991) (citations omitted).

     In Prater, this court rejected “‘the mere possibility of

conflict’ standard for the more realistic ‘substantial basis’

test.”   Id. (citation omitted).    “The bottom line . . . is that

rejection of the plea requires that the record of trial show a

‘substantial basis’ in law [or] fact for questioning the guilty

plea.”   Id.; see also United States v. Inabinette, 66 M.J. 320,

322 (C.A.A.F. 2008).

     The inquiries made by the military judge clearly establish

a basis in law and fact for accepting Yanger’s plea.    After

reviewing the elements of the offenses with Yanger, the military

judge questioned him about his exchange with his wife, asking

how hard he shoved his wife and whether he had any justification

or excuse for shoving her.   Yanger told the military judge that

he shoved her “pretty hard” and stated that he did not have any

justification or excuse for shoving her.    The military judge

went on to question Yanger about his motives and state of mind:

     MJ:   Why did you shove her?

     [The Accused confers with Defense Counsel.]

     ACC: In —- in the situation I was in, sir, I just wanted -
     - I just wanted her out of my face with the glass.

           . . . .



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     MJ: Did you think at that point that -- that she was
     threatening you in any way?

     ACC:   No, sir.

     MJ:    Were you scared?

     ACC:   No, sir.

     MJ: Did you think that she might use the stemware against
     [others]?

     ACC:   No, sir.

The military judge then explicitly asked Yanger whether he was

acting in self-defense.

     MJ:   So, in no way did you think that you were acting in
     self-defense when you pushed her away from you?

     ACC:   No, sir.

     MJ: Did anything or anyone force you to do bodily harm to
     your wife?

     ACC:   No, sir.

     MJ:   Could you have avoided doing bodily harm to her, if
     you’d wanted to?

     ACC:   Yes, sir.

     MJ:    Could you have just walked away?

     ACC:   Yes, sir.

     MJ: Do you believe you had any legal justification or
     excuse for what you did?

     ACC:   No, sir.

     The military judge recognized the “possibility” of the

defense of self-defense in this situation and properly asked a

number of questions to determine whether the defense was raised.


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In the end there was no substantial conflict with the plea and

there were no unresolved questions that would require the

military judge to explain the elements of the defense to Yanger.

Yanger’s responses to the military judge are unambiguous -- he

did not feel threatened by his wife; he did not apprehend,

reasonably or otherwise, imminent bodily harm; and he harbored

no belief that shoving his wife was necessary for his own

protection.      The record reflects that the possibility of self-

defense was resolved by this inquiry.              See also United States v.

Smith, 44 M.J. 387, 392-93 (C.A.A.F. 1996).

        We conclude that there is no substantial basis in law or

fact for rejecting the plea.           We therefore answer the certified

question in the affirmative.          The decision of the United States

Coast    Guard    Court   of   Criminal       Appeals    is   set   aside   and   the

record is returned to the Judge Advocate General of the Coast

Guard for remand to the Court of Criminal Appeals for further

review    under    Article     66,   Uniform      Code    of    Military    Justice

(UCMJ), 10 U.S.C. § 866 (2000).




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