UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                                KERN, BERG, and YOB
                                Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Sergeant JUSTIN A. BOYLE
                          United States Army, Appellant

                                   ARMY 20090893

                       Headquarters, 82nd Airborne Division
                         Gary Brockington, Military Judge
              Lieutenant Colonel Jeffrey Hagler, Staff Judge Advocate


For Appellant: Mr. Daniel S. Conway, Esquire (argued); Major Richard E. Gorini,
JA; Captain Matthew T. Grady, JA; Mr. Daniel S. Conway, Esquire (on brief).

For Appellee: Captain Stephen E. Latino, JA (argued); Major Amber J. Williams,
JA; Major Ellen S. Jennings, JA; Captain Stephen E. Latino, JA (on brief).


                                  14 December 2011
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                               SUMMARY DISPOSITION
                               ---------------------------------
YOB, Judge:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of conspiracy to commit assault
consummated by a battery and involuntary manslaughter in violation of Articles 81
and 119, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 919 (2008)
[hereinafter UCMJ], respectively. Appellant was sentenced to be reduced to the
grade of E1, total forfeiture of all pay and allowances, to be discharged with a bad-
conduct discharge, and to be confined for twenty-four months. The convening
authority approved the findings and the adjudged sentence.

      We review this case pursuant to Article 66, UCMJ. Appellant raised five
assignments of error, only one of which merits discussion, but no relief. This
assignment of error alleges the evidence is factually and legally insufficient to
support the findings of guilty to both charges. Regarding the conspiracy charge,
appellant contends there was no evidence of an agreement to commit an assault
consummated by a battery. As to the involuntary manslaughter charge, appellant
BOYLE—ARMY 20090893

contends the evidence was insufficient to demonstrate that appellant caused or was
the proximate cause of the death of the victim in this case.

                                   BACKGROUND

       The evidence shows that on the evening of 20 July 2008, a number of Soldiers
from the 82nd Airborne Division, including appellant and the victim, were drinking
at an off-post bar in Fayetteville, North Carolina. The victim was six-feet three
inches tall and weighed 250 pounds. At about 0200 in the morning, the victim
started sulking and provoked a confrontation when he drank another patron’s beer
without permission. Appellant and other Soldiers defused the situation and took the
victim from the bar as they left. Once outside, the victim, who appeared intoxicated,
wanted to go back and fight the bar security staff. After his fellow Soldiers
discouraged him from doing this, the victim ran away from the group down a road.
While running, the victim stopped long enough to pick up a Soldier, who was merely
a bystander, and the victim threw him into a parked truck. The victim then ran into
nearby woods and was pursued by several other Soldiers.

       At first the victim hid under a trailer in a fenced area. After he was discovered
by the pursuing Soldiers, the victim began to run around inside of the enclosure.
The Soldiers decided to wait until the victim got tired, but the victim escaped under
the fence and ran into the woods. The Soldiers pursued and caught the victim
several times, only to have him break free. The victim acted violently during these
struggles, choking one of the other Soldiers before he resumed his flight, and
throwing punches and kicking when he was restrained. At one point, at least four
Soldiers held the victim as appellant wrapped his legs around the victim and
executed a “rear naked” choke hold while telling the victim to “go to sleep.” Once
the victim passed out, they carried him back toward a vehicle. He began to regain
consciousness so the Soldiers resumed their positions holding him down while
appellant applied the choke hold a second time, again rendering the victim
unconscious.

       The Soldiers acquired zip-tie restraints from the bar security staff and bound
the victim’s hands and feet before putting him in the back seat of a car. When the
victim was in the car he made gurgling and snoring sounds and muttered. When they
arrived at Fort Bragg, the victim was unresponsive and had no pulse. The Soldiers
removed the zip-ties and performed CPR on the victim until paramedics arrived.
Emergency responders transported the victim to a hospital where he was pronounced
dead a short time later.

                              LAW AND DISCUSSION

      The standard of review for factual and legal sufficiency by this Court is de
novo. United States v. Beatty, 64 M.J. 456, 459 (C.A.A.F. 2007); United States v.



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Craion, 64 M.J. 531, 534 (Army Ct. Crim. App. 2006). In resolving questions of
legal sufficiency, this court “is bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” Craion, 64 M.J. at 534. In
weighing factual sufficiency, we apply “neither a presumption of innocence nor a
presumption of guilt,” and we make an “independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable doubt.”
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

       Applying these standards, we find the evidence factually and legally sufficient
to sustain a finding of guilt as to conspiracy to commit an assault consummated by a
battery. It is well settled that the agreement in a conspiracy need not be in any
“particular form or be manifested in any formal words,” and that “a conspiracy may
be contemporaneous with the substantive offense.” United States v. Matias, 25 M.J.
356, 362 (C.M.A. 1987) (quoting United States v. Jackson, 20 M.J. 68, 69 (C.M.A.
1985)). Evidence clearly showed that the victim was intentionally strangled to
unconsciousness by appellant while other Soldiers held the victim down. Shortly
after the first strangulation, as the victim began to regain consciousness, the Soldiers
“resumed the positions” they had taken before and again strangled him to
unconsciousness. Restraining a person while strangling him is a harmful and
offensive touching of another sufficient to find there was an assault consummated by
a battery, regardless of the intent to harm. While some amount of restraint of the
victim would have been lawful under these circumstances to provide for the safety of
the victim or others, restraint and strangulation constituted an excessive amount of
force for the Soldiers to use in this circumstance. While leaving their fellow Soldier
in an impaired state in a wooded area in the middle of the night would not have been
an appropriate action, these Soldiers had other options short of strangulation,
including enlisting the aid of others, to include local civil authorities or members of
their chain of command. We find sufficient evidence that there was an implicit
understanding among the participants to resume their restraining positions to carry
out the second strangulation, which constituted a conspiracy to commit the unlawful
act, and there is proof of each element of the offense of conspiracy to commit an
assault consummated by a battery.

       We also hold that the evidence finding appellant’s actions to be the proximate
cause in the involuntary manslaughter is factually and legally sufficient. The
medical examiner who performed the autopsy provided her expert opinion that
appellant’s choke hold strangled the victim and led to death by asphyxiation. The
examiner based this opinion on several factors, to include her post-mortem
examination of the injuries to the victim’s neck as well as in-court and out-of-court
descriptions from eye-witnesses of the events leading to the victim’s death. A
defense expert testified that the victim may have had an enlarged heart and opined
that this was the likely cause of death. This testimony was contradicted by a
government rebuttal expert in forensic pathology who detailed reasons to support his
conclusion that the victim died proximately from asphyxiation caused by



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BOYLE—ARMY 20090893

strangulation, and who noted that under these circumstances, an enlarged heart
would not have contributed significantly to death. The evidence was clearly
sufficient to support proximate cause, and the totality of evidence was sufficient to
prove each element of the offense of involuntary manslaughter.

                                   CONCLUSION

       We have considered the record of trial, the assigned errors, the briefs
submitted by the parties, and oral arguments by both parties on the assignments of
errors raised. On consideration of the entire record, we hold the findings of guilty
and sentence adjudged and approved by the convening authority to be correct in law
and fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge KERN and Judge BERG concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                       MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                       Clerk of Court
                                        Clerk of Court




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