

   
   
   
   U.S. v. Grimm



IN THE CASE OF
UNITED STATES, Appellee
v.
Wesley S. GRIMM, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 98-0975
Crim. App. No. 97-1691
 
United States Court of Appeals for the Armed
Forces
Argued April 8, 1999
Decided August 12, 1999
SULLIVAN, J., delivered the opinion of
the Court, in which COX, C.J., and CRAWFORD, GIERKE, and EFFRON, JJ., joined.

Counsel
For Appellant: Lieutenant Michael A.
Castelli, JAGC, USNR (argued); Lieutenant Commander R.C. Klant,
JAGC, USN (on brief).
For Appellee: Lieutenant Timothy E. Curley,
JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Lieutenant
Russell J.E. Verby, JAGC, USNR.
Military Judge: R. K. Fricke
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge SULLIVAN delivered the opinion of the
Court.
On January 30, 1997, appellant was tried by
a special court-martial composed of a military judge sitting alone at Marine
Corps Air Station El Toro, Santa Ana, California. Consistent with his pleas,
he was found guilty of numerous offenses, including carrying a concealed
weapon in violation of Article 134, Uniform Code of Military Justice, 10
USC § 934. He was sentenced to a bad-conduct discharge, confinement
for 150 days, forfeiture of $600 pay per month for 5 months, and reduction
to E-1. On July 15, 1997, the convening authority disapproved the finding
as to part of one specification but approved the sentence as adjudged.
The Court of Criminal Appeals affirmed in a memorandum opinion dated June
9, 1998.
This Court, on December 17, 1998, granted review
on the following question of law:



WHETHER THE MILITARY JUDGE ERRED BY FINDING
APPELLANT GUILTY OF SPECIFICATION 3 OF CHARGE IV (UNLAWFUL CARRYING OF
CONCEALED WEAPON) BECAUSE APPELLANTS ANSWERS IN THE PROVIDENCE INQUIRY
ESTABLISH THAT THE WEAPON, A 9MM BARETTA PISTOL, WAS DISASSEMBLED AND ITS
VARIOUS COMPONENTS WERE CARRIED IN DIFFERENT POCKETS OF APPELLANTS PANTS.



We hold that appellants pleas of guilty to this
offense were in accord with our understanding of this military crime (see
United States v. Bluel, 10 USCMA 67, 68, 27 CMR 141, 142 (1958)) and
the Presidents explanation of this offense in paragraph 112, Part IV,
Manual for Courts-Martial, United States (1995 edition). *
Accordingly, we conclude that the military judge did not err in finding
appellant guilty of this offense. See generally United
States v. Booker, 42 MJ 267, 268 (1995); United States v. Ballesteros,
29 MJ 14 (CMA 1989).
Appellant was charged with "unlawfully carry[ing]
on or about his person a concealed weapon, to wit: a pistol" "at Marine
Corps Air Station El Toro, Santa Ana, California." The military judge explained
to appellant that to be found guilty of this offense the pistol he concealed
must have been "a dangerous weapon." He also said to him:



Now an object is a "dangerous weapon,"
if it was specifically designed for the purpose o[f] doing grievous bodily
harm or it was used or intended to be used by you to do grievous bodily
harm.
Now "grievous bodily harm" means fractured
or dislocated bones, deep cuts, torn members of the body, serious damage
to internal organs and other serious bodily injury.
Now, a weapon is "carried on or about your
person," when it is either on your person or when it is within your immediate
reach. Now a weapon is concealed when it is intentionally covered or kept
from sight.
Now, do you understand those elements and those
definitions?
ACC: Yes, sir, I do.
MJ: And taken together, do they correctly describe
what you did during this time period?
ACC: Yes, sir.



(Emphasis added.)
The military judge later questioned appellant
as to why he was guilty of this offense, as follows:



MJ: Okay, if you would, consult with your
counsel and tell me why you believe youre guilty of this offense.
[Accused does as directed.]
ACC: Sir, to get the weapon from building 6,
PMO armory up to my room, so I wouldnt cause a big scare in the barracks
or alarm anyone, I purposely hid the weapon to deceive them to get it into
my room, sir.
MJ: Okay, so as I understand it, this specification
relates to that orders violation that we previously talked about, correct?
ACC: Yes, sir.
MJ: Is this the same 9mm Beretta pistol that
you personally owned at the time?
ACC: Yes, sir, it was.
MJ: Now, when this specification alleges that
this took place between about June of 1996 and October of 1996, this is
on various occasions between that time frame in which you checked the weapon
out of the armory, carried it to your room, and either dry fired it, disassembled
it, or stored it in your person [sic] wall locker there in the room, correct?
ACC: Yes, sir.
MJ: Now, again, this specification also alleges
this took place aboard Marine Corps Air Station El Toro; is that accurate?
ACC: Yes, sir, it is.
MJ: And as I understand it, the areas in which
you carried it concealed was pretty much from the armory aboard the base
to your BEQ room. And at different times, from your BEQ room back to the
armory aboard base; is that correct?
ACC: Yes, sir.
MJ: Now, this weapon, it was the 9mm Beretta
that we previously talked about?
ACC: Yes, sir, it is.
MJ: Do you believe that that particular
pistol is specifically designed for the purpose of doing grievous bodily
harm?
ACC: Yes, sir.
MJ: In other words, certainly, you shoot
somebody with that pistol, youre going to cause some damage, correct?
ACC: Yes, sir.
MJ: Now, when you indicated that you carried
it on your person, where exactly did you carry it each and every time that
you made that trip from the armory to your room and back to the armory?
ACC: I was just wearing jeans and a shirt,
sir. I would break it down and put the slide, the main slide assembly in
one pocket, the barrel, retaining spring and return spring in the right
pocket and tuck the main frame of the pistol in the small of my back, sir.
MJ: Okay, so you basically, at the armory at
some point, disassembled the weapon on a bench and then take [sic] the
various pieces, pistol grip, barrel, slide and stick them in different
pockets of your pants?
ACC: Yes, sir.



(Emphasis added.)
___ ___ ___
Appellant challenges his pleas of guilty to
the offense of carrying a concealed weapon in violation of Article 134.
He asserts that "the fact that a weapon is disassembled has an impact on
virtually every essential element of the Article 134 offense of carrying
a concealed weapon." Final Brief at 9. He argues that the admitted fact
that his weapon was disassembled raised substantial questions as to whether:
it was a "weapon"; it was "dangerous"; "it was being unlawfully carried
and concealed as a weapon; and, finally, whether his concealing it was
"prejudicial to good order and discipline." Final Brief at 7. We disagree.
Long ago this Court recognized that carrying
a concealed weapon was an offense under Article 134 and delineated the
elements of this offense. See United States v. Thompson,
3 USCMA 620, 14 CMR 38 (1954); United States v. Bentley, 3 USCMA
625, 14 CMR 43 (1954); see generally Parker v. Levy,
417 U.S. 733 (1974). In Thompson, we said:



The vice of carrying the weapon is that the
intent to use it unlawfully may be formed at any time. When the urge to
kill, rob, or steal is formed, the weapon is handy. Making the concealed
possession a crime is for preventative purposes. For that reason, all that
is needed to establish the offense is to prove that the accused concealed
a weapon on or about his person; that the weapon was in fact dangerous;
and that the conduct would bring discredit on the military service.
Here the prosecution established concealment and the weapon was shown to
have been a loaded revolver. This left only the proof of discredit on the
military service and we have already concluded that was established.



3 USCMA at 624, 14 CMR at 42 (emphasis added).
The Manual provision in effect at the time
of appellants alleged offense similarly defined this offense. See
para. 112b, Part IV.
Somewhat later, this Court more particularly
defined what a dangerous weapon was for purposes of this offense under
Article 134. We said:



A straight razor is, of course, not designed
for use as a weapon. However, it is "naturally considered a dangerous instrument."
See 19 Encyclopedia Britannica, page 3. And it is readily capable of use
as a weapon. Its character as a dangerous but innocent instrument, or
as a weapon, depends upon the surrounding circumstances. In other words,
whether a particular object is a weapon is often a question of fact.
American Jurisprudence points out, in commenting on cases construing particular
State statutes, that sometimes the matter is considered from the standpoint
of whether the concealed instrument is one "of a class not ordinarily carried
about the person for personal convenience."



Bluel, 10 USCMA at 68, 27 CMR at 142 (emphasis
added).
Again, the Manual explanation of this offense
generally tracks our case law in this regard. Paragraph 112c states:



(2) Dangerous weapon. For purposes
of this paragraph, a weapon is dangerous if it was specifically designed
for the purpose of doing grievous bodily harm, or it was used or intended
to be used by the accused to do grievous bodily harm.



The Drafters of the Manual commented on this explanation,
as follows:



112. Article 134 (Weapon: concealed, carrying)
c. Explanation. This paragraph is new
and is based on United States v. Tobin, 17 USCMA 625, 38 CMR 423
(1968); United States v. Bluel, 10 USCMA 67, 27 CMR 141 (1958);
United
States v. Thompson, 3 USCMA 620, 14 CMR 38 (1954).



See Manual, supra at A23-22.
The lynchpin of appellants argument in this
case is his assertion "that the carrying of a concealed firearm that is
disassembled, or otherwise inoperable, does not violate Article 134." Final
Brief at 6. He urges a per se rule and, as authority, he
cites a service appellate court decision (United States v. McCoy,
18 CMR 923, 933 (ABR 1955)), although he recognizes that there is contrary
military precedent (United States v. Smith, 36 MJ 838, 839 (ACMR
1993)). Final Brief at 6-7. He also cites an article in a case reporter
but admits it notes that contrary civilian authority exists. See
Jeffrey F. Ghent, Annotation, Fact that Gun was Broken, Dismantled,
or Inoperable as Affecting Criminal Responsibility Under Weapons Statute,
81 ALR 4th 745, 754 (1990). Final Brief at 6 n.2.
We hold that "a 9mm Beretta pistol" is a weapon
specifically designed for purposes of doing grievous bodily harm. Cf.
United
States v. Davis, 47 MJ 484 (1998) (unloaded pistol not a dangerous
weapon within meaning of paragraph 54c(4)(a)(ii), Part IV, Manual,
supra,
and Article 128, UCMJ, 10 USC § 928). Moreover, its disassembled status
does not necessarily preclude conviction for carrying a concealed weapon
under Article 134. See, e.g., Smith,
supra
at 839 (firearm is designed for "purpose of grievous bodily harm"). In
our view, it is one circumstance, among many, which can be considered by
the factfinder in determining whether this particular military offense
has been committed. See United States v. Booker, 42 MJ 267,
269 n.4 (1995) (only held that the weapon was not shown to be "so inaccessible"
as a matter of fact as to not be within "immediate reach as a matter of
law" (emphasis omitted)); Bluel, 10 USCMA at 68, 27 CMR at 142 (characterization
of object as dangerous weapon depends upon surrounding circumstances).
In this light, appellants legal argument must
fail. Quite simply, he has not shown a "substantial basis" in law for reversal
of his conviction. See generally United States v. Prater,
32 MJ 433, 436 (CMA 1991). Instead, he has merely shown one fact from which
he might logically argue that his particular gun was not a weapon; not
dangerous; not being carried as a weapon; and whose concealed conveyance
was not a service disorder. However, appellant conceded these factual issues
at his trial when he pleaded guilty and relieved the Government of its
burden to introduce all its available proof on these questions. See
Booker, supra at 269; Bluel, 10 USCMA at 68 n.1, 27 CMR
at 142 n.1. In these circumstances, "post-trial speculation" as to these
factual issues will not now be countenanced by this Court. See Ballesteros,
supra at 16; United States v. Harrison, 26 MJ 474, 476 (CMA
1988).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* The 1998 version of
all cited Manual provisions has not been changed.

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