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

                           UNITED STATES, Appellee
                                        v.
                          Private E1 OSHEA D. MILLER
                          United States Army, Appellant

                                   ARMY 20160422

         Headquarters, United States Army Training Center & Fort Jackson
              Christopher Fredrikson, Military Judge (arraignment)
                      Jeffery R. Nance, Military Judge (trial)
            Lieutenant Colonel Robert L. Shuck, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Patrick J. Scudieri (on brief); Major Julie L. Borchers, JA; Captain Cody
Cheek, JA; Captain Benjamin J. Wetherell, JA (on reply brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).

                                      31 May 2018

                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

MULLIGAN, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of leaving his appointed place of duty, one
specification of assault on a superior noncommissioned officer, and five
specifications of assault consummated by a battery, in violation of Articles 86, 91,
and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 928 (2012)
[UCMJ]. The court sentenced appellant to a bad-conduct discharge and confinement
for thirteen months. The convening authority approved the sentence as adjudged and
credited appellant with 233 days for pretrial confinement.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises three allegations of error, one of which merits discussion, but no relief.
Appellant alleges that the charges and specifications are factually insufficient
MILLER—ARMY 20160422

because appellant could not appreciate the wrongfulness of his actions due to a
severe mental disease or defect. We disagree. 1

                                  BACKGROUND

      Prior to enlisting in the Army, appellant was being treated for paranoid
schizophrenia. During the enlistment process, appellant stopped taking his
medications and was “off his medication” at the time of his accession into the active
Army.

        Appellant’s military career was brief. Before dinner on the first day of basic
training, while standing at the rear of the formation at the company training area, a
drill sergeant directed appellant to stand still and keep his eyes front. Rather than
comply, appellant responded “I can move wherever the f*** I want” and then struck
the drill sergeant in the face. Appellant ran from the formation pursued by two
noncommissioned officers. Throughout the chase, appellant yelled back at the
pursuing noncommissioned officers that they were trying to kill him. After
approximately a mile-long pursuit he was stopped, held and turned over to the
military police.

      Appellant’s bizarre behavior and outbursts while at the Military Police Station
caused the military police to transport him to the emergency room at a civilian
hospital for evaluation. After conducting an examination of appellant, the
emergency room doctor contacted the Moncrief Army Community Hospital and
requested appellant be admitted to their inpatient psychiatric ward.

       The following morning after breakfast, appellant was in the day room of the
psychiatric ward with two other patients. Without warning or provocation, appellant
stabbed a female patient in the head with a pen. A male civilian nurse then
attempted to subdue and restrain appellant. In the course of the intervention, the
civilian nurse and appellant fell; the civilian nurse suffered a broken leg. Appellant
then asked a male patient in the day room, in effect, if he wanted to die, and then
attempted to hold the patient’s head back while stabbing him with a pen.

      After his assault on the female patient, altercation with the civilian nurse, and
stabbing the male patient, appellant made unsuccessful attempts to escape the day


1
  In his second assignment of error, appellant asserts the government elicited “human
lie detector” evidence from a government witness. We find no merit in this
argument. Appellant concedes the third assignment of error, that the absence of the
Report of Result of Trial renders the record incomplete, was mooted by the
government’s inclusion of that document by motion to this court. After due
consideration, we find the matter personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), lacks merit.


                                           2
MILLER—ARMY 20160422

room by jumping from a window. The window was designed to prevent such
escapes. The day room is located on the seventh floor of the Moncrief Army
Community Hospital.

      Prior to trial, appellant underwent a sanity board in accordance with Rule for
Courts-Martial [R.C.M.] 706. 2 The sanity board concluded that appellant did have a
severe mental disease, schizophrenia, but, at the time of the misconduct, was able to
appreciate the wrongfulness of his conduct.

                              LAW AND DISCUSSION

       Appellant asserts the findings of guilty are factually insufficient because
appellant could not appreciate the wrongfulness of his actions due to a severe mental
disease or defect. Essentially, appellant asserts the findings of guilty are factually
insufficient because trial defense counsel presented clear and convincing evidence of
appellant’s lack of mental responsibility. We disagree.

       We review questions of factual sufficiency of the charges de novo. United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). We must be convinced that
“after weighting the evidence of record and making allowances for not having
personally observed the witnesses, [the court is] convinced of accused’s guilt
beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987). The determination of mental responsibility is a factual issue that must be
resolved by the factfinder. United States v. Martin, 53 M.J. 745, 747 (Army Ct.
Crim. App. 2000).

       “It is an affirmative defense to any offense that, at the time of the
commission of the acts constituting the offense, the accused, as a result of a severe
mental disease or defect, was unable to appreciate the nature and quality or the
wrongfulness of his or her acts.” R.C.M. 916(k)(1). An accused is presumed to
have been mentally responsible for his acts until the accused establishes, by clear
and convincing evidence, that he was not mentally responsible at the time of the
offense. R.C.M. 916(k)(3)9A); United States v. Hargrove, 25 M.J. 68, 71 (C.M.A.
1987). “Clear and convincing evidence is that weight of proof which produces in the
mind of the factfinder a firm belief or conviction that the allegations in question are
true.” United States v. Martin, 56 M.J. 97, 103 (C.A.A.F. 2001) (internal quotations
omitted) (citations omitted).

       For the defense of lack of mental responsibility, it is not enough to prove that
an appellant suffered from a severe mental condition or defect. It is also not enough
to prove that appellant engaged in some delusional thinking. What the defense must


2
 R.C.M. 706. Inquiry into the mental capacity or mental responsibility of the
accused.


                                           3
MILLER—ARMY 20160422

prove, is, that at the time of the assaults appellant was unable to appreciate the
nature and quality or wrongfulness of his acts. United States v. Mott, 72 M.J. 319,
323 (C.A.A.F. 2013); UCMJ art. 50a.

       There is no dispute between the parties as to appellant’s actions. There is
also no dispute that appellant was suffering from a severe mental disease at the time
of his misconduct. The only dispute is whether appellant had the mental capacity to
appreciate or understand his actions were wrongful.

      In this case, although appellant did exhibit some symptoms of psychotic
delusions, he was still able to appreciate the wrongfulness of his actions. His flight
from the company training area indicates he knew his actions were wrongful and by
running away he would avoid being apprehended. His eventual surrender to
authorities, being the noncommissioned officers and military police, evidence his
knowledge of the surrounding circumstances.

       Especially detrimental to appellant’s defense of lack of mental responsibility
were statements he made to MAJ JA, a clinical and forensic psychologist, who
interviewed appellant during the R.CM. 706 assessment. During this interview,
appellant acknowledged that when he was being corrected for not standing still in
line, he heard a voice say “F*** the Army. Punch him and run away.” Appellant
acted on the impulse to the voice, not because he was under an illusion that he was
in imminent danger, perceived a threat, or felt justified in his actions.

       Appellant also acknowledged during the sanity board that the assaults in the
day room of the inpatient psychiatric ward were preceded by a voice giving him
instructions. Prior to attacking the other two patients he heard the voice say: “Get
revenge for what happened. . . . Your family is dead. Make us proud.” While
revenge is a motive, it is not a legal justification or excuse. Appellant admitted that
he chose to arm himself with a pen prior to his assaultive behavior in the psychiatric
ward because, “Well, I want to hurt people.” And, to the crucial determination of
knowledge of wrongfulness of his actions, appellant admitted that he knew it was
wrong to hurt people but he still chose to do it.

       Our review of the totality of the circumstances, to include appellant’s
statements during his R.C.M. 706 board and actions during and after the assaults,
lead to our conclusion that appellant was mentally responsible for his misconduct
and that he failed to prove the defense of lack of mental responsibility by clear and
convincing evidence.

                                   CONCLUSION

     Upon consideration of the entire record, the findings of guilty are
AFFIRMED.



                                           4
MILLER—ARMY 20160422

    Judge FEBBO and Judge WOLFE concur.


                               FOR THE
                               FOR THE COURT:
                                       COURT:



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




                                  5
