              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                 Before
               F.D. MITCHELL, J.A. FISCHER, B.T. PALMER
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                    SABRIE C. ASHBURN
    AVIATION BOATSWAIN'S MATE HANDLING THIRD CLASS (E-4),
                         U.S. NAVY

                            NMCCA 201500038
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 18 November 2014.
Military Judge: CAPT Andrew H. Henderson, JAGC, USN.
Convening Authority: Commanding Officer, Naval Base Kitsap,
Bremerton, WA.
Staff Judge Advocate's Recommendation: LTJG Lauren E.
Brinker, JAGC, USN.
For Appellant: LT Jacqueline Leonard, JAGC, USN; LT
Jennifer M. Pike, JAGC, USN.
For Appellee: LT James M. Belforti, JAGC, USN; CDR Eric
Roper, JAGC, USN.

                          24 September 2015

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                     OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge sitting as a special court-martial
convicted the appellant, contrary to her pleas, of one
specification of making a false official statement, three
specifications of writing fraudulent checks, and four
specifications of dishonorably failing to pay debts in violation
of Articles 107, 123a, and 134 Uniform Code of Military Justice,
10 U.S.C. §§ 907, 923a, and 934. Following announcement of
findings, the military judge, sua sponte, merged Specifications
2, 3, and 4 of Charge II (Art. 123a, UCMJ) with Specifications
2, 3, and 4 of Charge III (Art. 134, UCMJ) for sentencing
purposes. The military judge sentenced the appellant to 280
days’ confinement, reduction to pay grade E-2, and a bad-conduct
discharge. The convening authority (CA) approved the sentence
as adjudged and, except for the bad-conduct discharge, ordered
the sentence executed.

     The appellant raises three assignments of error: (1) that
the appellant’s convictions for check fraud were factually
insufficient, (2) that the appellant’s convictions for failing
to pay a debt were factually insufficient, and (3) that the
military judge abused his discretion when he failed to find the
specifications under Charges II and III were an unreasonable
multiplication of charges for findings. 1

     After careful consideration of the record of trial, the
appellant’s assignments of error, and the pleadings of the
parties, we find that the trial court erred by failing to
dismiss Specifications 2, 3, and 4 under Charge III and we take
corrective action in our decretal paragraph. Following our
corrective action we find that no error materially prejudicial
to the substantial rights of the appellant remains. Arts. 59(a)
and 66(c), UCMJ.

                                 Background

     During 25-28 May 2014, the appellant wrote 13 personal
checks totaling over $27,000.00, to the Army and Air Force
Exchange (AAFES) at Joint Base Lewis-McCord (JBLM). Items
purchased included televisions, computers, electronic gaming
devices, furniture, appliances, and jewelry. Similarly, from on
25-26 May 2014, the appellant wrote four checks, totaling
$286.25 and a $47.40 check to FM and PJ respectively. 2
Additionally, from 23-27 October 2013, the appellant wrote six
checks totaling $3,104.04 to the Navy Exchange (NEX) at Naval


1
  The appellant asserts no assignments of error in relation to Charge I and
the specification thereunder.
2
  These checks comprise the offenses listed in Specifications 2, 3, and 4 of
Charge II and Specifications 2, 3, and 4 of Charge III.


                                      2
Base Kitsap. 3 Each check was written against insufficient funds
in a Navy Federal Credit Union (NFCU) account, for which she was
the only account holder.

     A forensic document examiner expert concluded the maker’s
signatures on the checks bore a “strong probable,” or “probable”
match to the appellant’s signature. The appellant admitted
writing all of the May 2014 checks when interviewed by law
enforcement.

     Additional facts necessary for the resolution of particular
assignments of error are included below.

                             Factual Sufficiency
     The appellant’s first and second assignments of error claim
the findings of guilt to both Charge II and Charge III are
factually insufficient. Under Article 66(c), UCMJ, we conduct a
de novo review of factual sufficiency of each case before us.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The test for factual sufficiency is “whether, after weighing the
evidence in the record of trial and making allowances for not
having personally observed the witnesses,” we are ourselves
convinced of the accused’s guilt beyond a reasonable doubt.
United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987); United
States v. Reed, 54 M.J. 37, 41, (C.A.A.F. 2000). “Such a review
involves a fresh, impartial look at the evidence, giving no
deference to the decision of the trial court on factual
sufficiency beyond the admonition in Article 66(c), UCMJ, to
take into account the fact that the trial court saw and heard
the witnesses.” Washington, 57 M.J. at 399. Proof beyond a
reasonable doubt does not mean, however, that the evidence must
be free from conflict. United States v. Goode, 54 M.J. 836, 841
(N.M.Ct.Crim.App. 2001).

                          Charge II – Article 123a, UCMJ

     The appellant argues the Government failed to prove she
knew she had insufficient funds in her account and that she
possessed the intent to defraud with each of the specifications
under Charge II. 4 The appellant claims a mistake of fact defense

3
    These checks comprise the offenses listed in Specification 1 of Charge III.
4
  The elements to make, draw, or utter a check without sufficient funds are:
1) the accused made, drew, uttered, or delivered a check for the payment of
money payable to a named person or organization; 2) that the accused did so
for the purpose of procuring an article or thing of value; 3) that the act
                                        3
based on her honestly held belief that her account had or would
have sufficient funds in her bank account to cover her checks.
As support, she offered the following at trial: (1) she had poor
math skills; (2) her mother was previously a joint account
holder who made occasional deposits to prevent the appellant
from overdrawing her account; and (3) her husband 5 was a “con
artist” who falsely told her that he had a million-dollar trust
fund, that his adoptive mother periodically gave him money, and
that he received $32,000.00 from his mother before the appellant
wrote the May 2014 checks. A defense forensic psychology expert
testified the appellant had difficulty with abstraction and that
numbers, math, and banking would be challenging for her; that
she had a low IQ; that she was gullible, easily manipulated,
immature, insecure, and a follower; and that she had a strong
desire to please those whom she loves. 6

     Beyond the largely unchallenged evidence that between 25-28
May 2014 the appellant wrote more than $27,000.00 in unfunded
checks, the Government presented evidence that the appellant’s
base pay was $2,328.00; that her husband was unemployed and she
had no other income sources; that on 25 May 2014, (before she
wrote the bad checks to AAFES, FM, and PJ’s) she attempted to
write two checks totaling $3,779.00 at the NEX, but both were
immediately declined due to her NEX checking history; that in
2013, the appellant and her husband used various installment
contracts to purchase four cars worth $95,000.00 before each was
subsequently repossessed; that she previously wrote checks on
insufficient funds resulting in over $3,800.00 in NFCU returned
check fees; that before writing the May 2014 checks, she had
received financial and budget counseling; that she earned a “B”
grade in a 2010 college algebra class; that in November/December
2013 her father-in-law told her that her husband did not have a
trust fund or an adoptive mother, and that there was no
inheritance or money from his family; that when first

was committed with the intent to defraud; and 4) that at the time of the
making, drawing, uttering, or delivering the instrument the accused...knew
that the accused had not or would not have sufficient funds in or credit with
the bank...upon presentment. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.),
Part IV, ¶ 49(b)(1).
5
  The appellant’s marriage was later annulled after it was discovered that her
husband was still married to another woman.
6
  On cross-examination the defense expert also acknowledged the appellant has
feelings of inadequacy, overcompensates by denying problems, that she sees
herself as being unjustly blamed for others problems, and that she is
impulsive. Record at 388. He also determined the appellant was competent to
stand trial. Id. at 374.
                                        4
interviewed by law enforcement she variously explained she wrote
the May 2014 checks because she expected money from her
husband’s adoptive mother, a trust fund, and a tax refund, none
of which was true; that she admitted she did not verify whether
sufficient funds were in the account before she began writing
checks; and that she had check writing problems in the past
because her husband had falsely told her money was in the
account.

      Following our review of the above evidence, and applying
the standards in Turner and Reed, we conclude the first two
elements of the charged offense are met; the appellant uttered
all the checks for which she was found guilty and did so for the
purpose of procuring articles or things of value. Art. 123a,
UCMJ. As to the remaining elements, the Government bears the
burden of disproving the appellant’s asserted mistake of fact
beyond a reasonable doubt. RULE FOR COURTS-MARTIAL 916(b), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.). After carefully reviewing
the record, and being especially mindful of the evidence as
highlighted above, we find the Government has met its burden. 7
The appellant wrote the checks; she did so knowing she had
insufficient funds in the account; and did so with the intent to
defraud. Her assertion that she wrote the checks trusting that
her unemployed husband had or would put funds in her account is,
under the circumstances, neither reasonable nor believable.

     Additionally, the appellant claims the military judge erred
by applying the Article 123a, UCMJ “statutory rule of evidence,” 8

7
  Prior to the court-martial closing for deliberations, the trial defense
counsel asked the military judge to issue “special findings . . . rather than
just a simple . . . guilty or not guilty plea (sic).” Record at 429. The
military judge issued his special findings on 6 January 2015, and noted that
findings on special matters were not included because they were not requested
by the defense. He further states he “considered all legal and competent
evidence, the applicable presumptions, [and] the reasonable inferences to be
drawn therefrom . . . .” Appellate Exhibit XXII at 1 n.1. The special
findings do not mention the appellant’s mistake of fact affirmative defense,
so the appellant argues this court should accord his findings minimal
deference. This issue, however, is mooted by our de novo review. As noted
above, and in our decretal paragraph, we find the Government’s evidence
disproves the appellant’s mistake of fact defense beyond a reasonable doubt.
8
  In pertinent part, the MCM defines the statutory rule of evidence as “The
failure of an accused who is a maker . . . to pay the holder the amount due
within 5 days after receiving either oral or written notice from the holder
of the check . . . or from any other person having knowledge that such check
. . . was returned unpaid because of insufficient funds, is prima facie
evidence (a) that the accused had the intent to defraud . . . as alleged; and
(b) that the accused knew at the time the accused made . . . the check . . .
                                      5
which permits the court to infer the appellant’s intent to
defraud and her knowledge of insufficient funds due to her
failure to pay the check holder within 5 days of receiving
notice the checks were not paid on presentment. Specifically,
the appellant asserts she was not provided required notice. We
disagree. The evidence shows that the appellant received notice
on 29 May 2014, when she was interviewed by law enforcement
personnel. 9 Record at 216-18. We find no authority that renders
law enforcement personnel ineligible as “any other person having
knowledge” to notify an accused that their checks were “returned
unpaid” for insufficient funds. 10 Thus, we find no error in the
trial court’s reliance on the inference. 11

                          Charge III – Article 134, UCMJ

     The appellant argues the Government did not to prove beyond
a reasonable doubt that her failure to maintain sufficient funds
was dishonorable in the specifications under Charge III. 12 As
discussed in our decretal paragraph, we dismiss Specifications
2, 3, and 4 of Charge III. But as the appellant’s second
assignment of error covers all the specifications under Charge
III, we still address her claims regarding Specification 1.

that the accused did not have or would not have sufficient funds in, or
credit with the bank . . . for the payment of such check . . . upon its
presentment for payment.” MCM, Part IV, ¶ 49c(17).

9
  During her 29 May 2014 interview by an Army criminal investigator, after
being advised of her Article 31, UCMJ rights, the appellant acknowledged she
did not verify her account balance status for all the checks she wrote on
“Sunday, Monday, Tuesday, and Wednesday” [25-28 May 2014]. Prosecution
Exhibit 30.
10
     MCM, Part IV, ¶ 49c(17).
11
  Although we found the inference unnecessary (due to the strength of the
Government’s case), the inference is nonetheless still available for our use
in our factual sufficiency assessment. See United States v. Smith, 49 M.J.
279, 281-82 (C.A.A.F. 1998).
12
  The elements of dishonorably failing to maintain funds are: (1) That the
accused made and uttered a certain check; (2) That the check was made and
uttered for the purchase of a certain thing, in payment of a debt, or for a
certain purpose; (3) That the accused subsequently failed to place or
maintain sufficient funds in or credit with the drawee bank for payment of
the check in full upon its presentment for payment; (4) That this failure was
dishonorable; and (5) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline in the armed forces
or was of a nature to bring discredit upon the armed forces. MCM, Part IV,
¶ 68(b).


                                      6
     The appellant points to a variety of cases where military
appellate courts held a failure to maintain sufficient funds was
dishonorable when characterized by false representations,
deceitful promises, absence of partial payments, ignoring past-
due notices, and making payment with “bad” checks. Although the
appellant acknowledges the dishonor element also can be proven
by a gross indifference toward one’s financial obligations, she
argues that, here too, the Government failed to meet its burden.
In particular, she cites United States v. Hurko, 36 M.J. 1176,
1178 (N.M.C.M.R. 1993), in which convictions for failure to
maintain sufficient funds under Article 134, UCMJ, were, in
part, set aside because, when this court found his reliance on
his spouse to deposit funds into his account was “certainly
careless and irresponsible,” it was not dishonorable. The
appellant argues her reliance on her husband’s claim that he
placed sufficient funds in her account was reasonable and
therefore not dishonorable.

     Beyond arguing her lack of knowledge of the insufficient
funds and any fraudulent intent at the time she signed the
checks, the appellant also argues that $200.00 was transferred
into her checking account in May 2014; that several thousand
dollars of debt, including all the checks written in October
2013, were ultimately paid via wage garnishment; and that she
had no other means to pay the earlier debt. 13

     The Government, in addition to relying on evidence the
appellant wrote the checks knowing the account had no funds and
did so with the intent to defraud (see Charge II discussion
above), also provided evidence that 89 deposited and re-
deposited checks were returned for insufficient funds between 28
August 2013 and 10 July 2014; that in November 2013, the
appellant stopped direct deposit of her pay and allowances into
her NFCU account; and that other means existed to return items
to AAFES notwithstanding her debarred status.

     We believe the appellant’s reliance on Hurko is misplaced.
In Hurko, the court found the accused and his spouse had an
agreement in which she would regularly place funds in his
account during his 1989 deployment; that during the deployment
their communication was limited to brief phone calls; that he
did not receive any mail so was unaware of the contents of his
bank statements; and that the total amount of checks written

13
  Although the appellant provided other evidence (e.g., her JBLM debarment,
which hampered her ability to personally return some items), that evidence
pertained only to the now-dismissed specifications under Charge III.
                                      7
would have been covered had his spouse made deposits per their
agreement. Id. at 1177. Thus, the court found Hurko’s “honest
reliance” on the anticipated deposits was not dishonorable. Id.
at 1178. We distinguish the appellant’s case from Hurko with
little difficulty. The appellant and her spouse lived together
during the period when all the checks were written; NFCU issued
her regular written statements containing the bounced check
fees; she terminated her direct deposit to NFCU; she admitted to
investigators that her husband had made a prior false claim
about placing funds in the account; she did not check the status
of the account before writing the 2014 checks (which further
degraded her means to pay the 2013 checks); and other than
transferring $200.00 into the account in May 2014, all other
funds remitted to NFCU occurred via involuntary garnishments.
In order for the appellant to benefit from her claim of honest
reliance, “the expectation of anticipated deposits must be
believable [and] [w]hether the expectation is believable rests
largely on how reasonable it is.” Id.

     We find the appellant’s stated expectations, under the
facts of her case, to be unreasonable. Accordingly, after
weighing the evidence and making allowances for not having
observed the witnesses, we are convinced of the appellant's
guilt to Specification 1 of Charge III beyond a reasonable
doubt. Reed, 54 M.J. at 41.

             Unreasonable Multiplication of Charges

     Although the appellant argues, primarily relying on United
States v Quiroz, 55 M.J. 334 (C.A.A.F. 2001), that Charge II and
Charge III constitute an unreasonable multiplication of charges,
we moot the issue with our holding below.

     Specifically, though only raised as a postscript to the
appellant’s third assignment of error, we address her argument
that Charge II and Charge III were charged in the alternative
for contingencies of proof and therefore required the trial
judge to either consolidate or dismiss the alternative
specifications. United States v. Elespuru, 73 M.J. 326, 329
(C.A.A.F. 2014). Although not addressed in the Government’s
brief, the record is clear that the prosecution intentionally
pled the offenses under Charge II and Charge III for
contingencies of proof. Even though the Government’s response
to the trial motion for unreasonable multiplication discusses
how the actus reas of the two charged offenses could occur over
a protracted time period (implying two distinctly separate
criminal acts), the trial counsel, nevertheless concludes if the
                                8
defense motion were granted, “it would take away from the
[G]overnment’s right to charge under alternate theories of
criminality.” Appellate Exhibit VII at 4. During oral argument
on the motion, trial counsel repeatedly states the offenses were
charged in the alternative, and went so far as to tell the
judge, “[t]hey are two alternate theories of liability, and we’d
agree with the court [on] . . . instructing [the members] . . .
that they couldn’t find guilt on -- of (sic) both 134 and 123a
in both scenarios . . . .” Record at 42-43. The trial judge
apparently agreed, deciding, due to the difficulty in
determining whether the Article 134, UCMJ, offense was a lesser
included offense of Article 123a, UCMJ, that “they may be
charged in anticipation of varying contingencies of proof . . .
because the finder of fact will be charge with an either/or
decision on each specification.” AE X at 5 (emphasis added).

     In Elespuru, the court held even when the appellant waived
his right to assert multiplicity on appeal, and even if the
charges were merged for sentencing, that where it is clear the
Government charged offenses in the alternative for exigencies of
proof, the remaining offense should be dismissed. Elespuru, 73
M.J. at 329. Significantly, for our purposes here, the Court of
Appeals for the Armed Forces dismissed the lesser offenses
charged in the alternative after concluding the appellant was
not prejudiced with regard to his sentence. Id. at 330. We are
similarly bound. Accordingly, the findings of guilty to
Specifications 2, 3, and 4 of Charge III are set aside and those
specifications are dismissed.

     Applying the analysis set forth in United States v. Sales,
22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J.
40 (C.A.A.F. 2006), and after carefully considering the entire
record and specifically noting the trial judge merged the
relevant specifications of Charge II and Charge III for
sentencing, we conclude that there has not been a dramatic
change in the penalty landscape and are confident that the trial
judge would have adjudged, and the CA would have approved, a
sentence at least as severe as was awarded even absent the three
specifications under Charge III.   Art. 66(c), UCMJ; United
States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); Sales, 22
M.J. at 308.

                           Conclusion

     The findings of guilty to Specifications 2, 3, and 4, of
Charge III are set aside and those specifications are dismissed

                                9
with prejudice. The remaining findings are affirmed.   The
sentence as reassessed is affirmed.

                               For the Court



                               R.H. TROIDL
                               Clerk of Court




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