

   
   
   
   U.S. v. Najera



IN THE CASE OF
UNITED STATES, Appellee
v.
Gehiser A. NAJERA, Private
U.S. Marine Corps, Appellant
 
No. 99-0300
Crim. App. No. 98-0155
 
United States Court of Appeals for the Armed
Forces
Argued October 28, 1999
Decided February 18, 2000
SULLIVAN, J., delivered the opinion of
the Court, in which CRAWFORD, C.J., GIERKE and EFFRON, JJ., and COX, S.J.,
joined.

Counsel
For Appellant: Lieutenant Frank M. Doherty,
JAGC, USNR (argued).
For Appellee: Captain Danny R. Fields,
USMC (argued); Colonel Kevin M. Sandkuhler, USMC, Commander E.
E. Irvin, JAGC, USN, and Lieutenant Janice K. O'Grady, JAGC,
USNR (on brief).
Military Judge: J. F. Havranek
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge SULLIVAN delivered the opinion of the Court.
On October 16, 1997, appellant was tried by
a special court-martial composed of a military judge sitting alone at Camp
Pendleton, California. Pursuant to mixed pleas, he was found guilty of
absence without leave, disrespect to a superior commissioned officer, and
willful disobedience of that same superior commissioned officer, in violation
of Articles 86, 89, and 90, Uniform Code of Military Justice, 10 USC §§
886, 889, and 890, respectively. Appellant was sentenced to a bad-conduct
discharge, 100 days of confinement, and forfeiture of $200 pay per month
for 3 months. On December 11, 1997, pursuant to a pretrial agreement, the
convening authority approved the sentence but suspended confinement in
excess of 60 days. The Court of Criminal Appeals affirmed on November 19,
1998, in an unpublished opinion.
On May 5, 1999, this Court granted review on
the following issue:



WHETHER THE LOWER COURT ERRED WHEN IT CONCLUDED
THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE CHARGE OF DISRESPECT
TO A COMMISSIONED OFFICER.



We hold that the Court of Criminal Appeals did
not err in holding the evidence of record was legally sufficient to support
appellants conviction for the offense of disrespect to a superior officer.
See generally United States v. Ferenczi, 10 USCMA
3, 6, 27 CMR 77, 80 (1958); United States v. Noriega, 7 USCMA 196,
198, 21 CMR 322, 324 (1956).
Appellant was charged, inter alia,
with the following disrespect offense in violation of Article 89:



In that [appellant] did, on or about 23 September
1997, behave himself with disrespect towards Captain D.R. Kazmier, U.S.
Marine Corps, his superior commissioned officer, then known by [appellant]
to be his superior commissioned officer, by saying to him, "You
cant make me, you can give me any type of discharge you want, you can
give me a DD, I would rather have a dishonorable discharge than return
to training, I refuse" or words to that effect.



(Emphasis added.)
Evidence was admitted showing that appellant
was then serving a sentence in the brig from another court-martial. He
requested early release so that he could return to training. Captain Kazmier,
his company commander, also requested the convening authority to release
appellant early so that he could return to training. After his release,
appellant told his first sergeant that he was not willing to participate
in that days Marine training with the rest of his company. When the first
sergeant could not persuade appellant to train, he ordered him to tell
Captain Kazmier that he would not participate in the scheduled training.
Captain Kazmier ordered appellant to return to training and explained to
him that he could get a bad-conduct discharge at a special court-martial
if he continued. Appellant said that he wanted a dishonorable discharge
and out of the Marine Corps. He further said he refused to train and "you
cant make me go." Captain Kazmier finally testified that appellant made
these statements while smirking and suggested "that he seemed to feel that
there was nothing that I could do to him for what he was doing."
The Court of Criminal Appeals concluded that



[i]n this case, the words spoken by appellant
to Captain Kazmier, in the presence of two senior staff non-commissioned
officer subordinates, is [sic] disrespectful and conveyed more than
a simple refusal to follow a direct order from a superior commissioned
officer. They reflect appellant's total disdain for that officer's ability
to compel him to comply with the order and to hold appellant accountable
for his misconduct. Following our careful review of the evidence of record,
and considering what appellant said and the context in which he said
it, we are, ourselves, convinced beyond a reasonable doubt of appellant's
guilt on the disrespect offense.



Unpub. op. at 3 (emphasis added).

___ ___ ___
The granted issue questions the decision of
the appellate court below that the evidence was legally sufficient to support
the finding of guilty to disrespect to a superior commissioned officer.
Appellant asserts that he was charged with a "language only" specification
of disrespect, rather than a "deportment" specification, and that the prosecution
was required to show his language was disrespectful on its face. See
United States v. Wasson, 26 MJ 894 (AFCMR 1988). He further asserts
that, since his language was not "inherently disrespectful," the appellate
court below could not affirm his conviction for disrespect based on evidence
of "the context or the manner in which the words were spoken." Final Brief
at 4-5. He concludes, therefore, that the Court of Criminal Appeals erred
in finding his conviction for disrespect was legally supported by "context"
evidence, [1] and that his
conviction should be reversed.
We generally note that, in reviewing for legal
sufficiency, this Court and the service appellate courts below must decide
"whether after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt."
United States v. Hart, 25 MJ 143, 146 (CMA 1987), quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979). We review legal sufficiency
questions de novo, using the above standard, as do the service
appellate courts below. See United States v. Turner, 25 MJ
324 (CMA 1987). Nevertheless, appellant argues that an appellate court
is not authorized to consider all the evidence presented at trial to determine
the legal sufficiency of a "disrespectful language" conviction. But
cf. United States v. Cottrill, 45 MJ 485, 488 (1997).
Appellant initially argues that the above-noted
limitation on appellate review in disrespect cases is found in the Manual
for Courts-Martial, United States (1995 ed.). [2]
He notes that paragraph 13c(3), Part IV, of the Manual limits the offense
of "disrespect by language" to situations where "abusive epithets, or contemptuous
or denunciatory language" is used. Final Brief at 4. Accordingly, he suggests
such evidence was inadmissible because a servicemember's language, not
containing such words, is not criminally disrespectful.
We note, however, that Article 89 punishes
a servicemember "who behaves with disrespect towards his superior commissioned
officer." It makes no distinction between "disrespect in language or deportment"
(but cf. Art. 91(3), UCMJ, 10 USC
§ 891 (3)), and this Court has generally
held that all the circumstances of a case can be considered in determining
whether disrespectful behavior in violation of Article 89 has occurred.
See United States v. Goins, 15 USCMA 175, 177, 35 CMR 147,
149 (1964) (holding no infirmity in instructing members that they must
be convinced beyond a reasonable doubt that "the accused did use language
under certain circumstances, or in a manner" which was disrespectful);
Noriega, 7 USCMA at 198, 21 CMR at 324 (considering all circumstances
to determine whether alleged statement not disrespectful as matter of law).
We also note that the entire Manual provision
cited by appellant does not limit this offense as asserted by appellant.
Paragraph 13(c)(3) further provides that "[d]isrespectful behavior . .
. may consist of acts or language, however expressed . . . . Disrespect
by words may be conveyed by abusive epithets or other contemptuous
or denunciatory language." (Emphasis added.) Moreover, paragraph 13(b)(1)
generally recognizes that Article 89 punishes a servicemember who "did
or omitted certain acts or used certain language" when, "under the circumstances,
the behavior or language was disrespectful to that commissioned officer."
(Emphasis added.) Accordingly, we must reject appellant's argument that
the prosecution was barred by the Manual from showing the language, which
he allegedly used, was disrespectful under all the circumstances of his
case (demeanor and context). See United States v. French,
31 MJ 57, 61 (CMA 1990) (indecent language under circumstances of that
case where father asked daughter if he could climb into bed with her).
We also must reject appellant's limited-appellate-review
argument as based on the Air Force Court of Military Review's decision
in Wasson, 26 MJ 894. Appellant contends Wasson holds
that evidence of "the context or the manner in which the words were
spoken" cannot be considered by a reviewing court unless he was charged
with being disrespectful in language and deportment. Final Brief
at 5; see Schlueter, Military Criminal Justice § 2-3(B)
at 68 (5th ed. 1999) (evidence rule); Snedeker, Military
Justice Under the Uniform Code § 3103c at 746 (1953) (pleading
rule). This Court, however, has never held that Wasson is good law,
nor are we disposed to ensure this intermediate appellate court decision
is followed by other service appellate courts. See United States
v. Townsend, 49 MJ 175, 177 (1998) (Court of Appeals for the Armed
Forces does not ensure panel decision of a service court is followed by
another panel of that same court). Accordingly, in light of our decisions
noted above, we overrule it.
Finally, we note that there was no objection
at this Marine Corps court-martial to the admission of "context evidence,"
or a motion for a finding of not guilty based on the Air Force Court of
Military Review's decision in Wasson. See Mil. R. Evid. 103(a)(1),
Manual, supra. Moreover, there clearly was no plain error by the
trial judge in admitting such evidence in this case in violation of Wasson.
See Mil. R. Evid. 103(d). The challenged specification alleges far
more than a simple "no," and its quoted language clearly demeans the authority
of Captain Kazmier to effectively order appellant back to training.
Thus, Wasson, even if good law, would not control the disposition
of appellant's case.
In any event, returning to the question of
legal sufficiency, we note that appellant makes no argument that review
of the entire record shows the evidence was insufficient to support his
guilt. Ample testimony was admitted from his first sergeant and company
commander as to appellant's manner in saying these words, i.e.,
smirking, contemptuous, cocky, and sarcastic. Appellant testified that
he did not say the alleged words while laughing, grinning, or smirking,
nor was he trying to make fun of his commander or belittle him. In sum,
conflicting evidence, not a dearth of evidence, existed as to the disrespectful
character of appellant's language.
In Ferenczi, a factually similar case,
there was conflicting testimony whether that accused "abruptly and discourteously
left the presence of his superior officer out of fear" or in anger. 10
USCMA at 6-7, 27 CMR at 80-81. This Court stated, "The court-martial chose
to believe the other witnesses rather than the accused and if there is
any substantial evidence in the record to support a conviction[,] an appellate
court, in the absence of other error, will not set aside the verdict."
Id. at 6, 27 CMR at 80. As in Ferenczi, there was ample evidence
adduced at appellant's trial to support the findings of guilty to disrespect,
particularly when it is considered in the light most favorable to the Government.
See generally United States v. Blocker, 32 MJ 281,
284 (CMA 1991).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 The appellate court
below did not consider evidence of the manner in which the words were spoken.
It considered context evidence, other than appellant's deportment, in affirming
this conviction. It said in footnote 2 to its opinion: "Since such was
not the case [the Government did not allege deportment], we rely only upon
that evidence of the words and their context which appears of record."
Wasson, itself, is limited to evidence of the manner in which the
words were spoken. See United States v. Wasson, 26 MJ 894,
897 (AFCMR 1988).
2 All
Manual provisions are cited to the version in effect at the time of trial.
The 1998 version is unchanged, unless otherwise indicated.

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