UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Specialist TYRELL L. LANGSTON
                          United States Army, Appellant

                                   ARMY 20120265

                               Headquarters, I Corps
                    David L. Conn, Military Judge (arraignment)
                        Kwasi Hawks, Military Judge (trial)
              Colonel Kurt A. Didier, Staff Judge Advocate (pretrial)
         Lieutenant Colonel John T. Rothwell, Acting Staff Judge Advocate
                                (recommendation)
           Colonel William R. Martin, Staff Judge Advocate (addendum)


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Captain Brian J. Sullivan, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varle y, JA; Major Katherine S. Gowel,
JA; Captain Sean P. Fitzgibbon, JA (on brief).

                                   28 February 2014

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                               SUMMARY DISPOSITION
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HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of six specifications of failure to go to his appointed place of
duty, two specifications of going from his appointed place of duty, two
specifications of assaulting a superior noncommissioned offic er, one specification of
disrespect toward a noncommissioned officer, one specification of failure to obey a
lawful general order, two specifications of resisting apprehension, one specification
of making a false official statement, one specification of wr ongful use of marijuana,
one specification of assault consummated by a battery, and one specification of
drunk and disorderly conduct, in violation of Articles 86, 91, 92, 95, 107, 112a, 128,
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 891, 892, 895, 907,
912a, 928, 934 [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge and confinement for six months. The convening authority
LANGSTON — ARMY 20120265

approved the adjudged sentence and credited appellant with seventy-seven days
against the sentence to confinement.

       This case is before us for review pursuant to Article 66, U CMJ. Appellant
raises three assignments of error, all of which merit discussion and relief, albeit not
for the precise reasons appellant claims.

                                    DISCUSSION

                    Going from Appointed Place of Duty Offenses

       In Specifications 6 and 7 of Additional Charge I, appellant was charged with,
pleaded guilty to, and convicted of two counts of going without authority, on two
consecutive days during the 2011 Thanksgiving weekend, “from his appointed place
of duty, to wit: Joint Base Lewis-McChord, Washington.” In his first assignment of
error, appellant now claims the military judge abused his discretion in accepting
appellant’s guilty pleas to those offenses, because al though the admitted facts may
have satisfied the elements of the crimes of failure to go to an appointed place of
duty or breaking restriction, they were insufficient for the charged offense of going
without authority from an appointed place of duty. For purposes of these
specifications, the government agrees “that appellant was actually guilty of breaking
restriction” and that these two convictions should not be affirmed.

       In the alternative, in his second assignment of error, appellant claims these
same two specifications fail to state an offense, because they lack the required
specificity with respect to the alleged place of duty. We first note that appellant’s
absence from an entire installation was not charged as absence without leave under
Article 86(3), UCMJ. Instead, the government pursued conviction under Article
86(2), UCMJ. We find the appointed place of duty involved in Article 86(1) or (2),
UCMJ, “refers to a specifically appointed place of duty such as kitchen police,
reveille formation, or first floor of a barracks rather than a broader general place of
duty such as a command, a post or a unit.” United States v. Sturkey, 50 C.M.R. 110
(A.C.M.R. 1975).

       The providence inquiry in this case reveals that appellant’s “duty” and its
corresponding “place of duty” during th e vacation weekend in question was simply
to stay on-post. In fact, the trial counsel highlighted, “Although [appellant] didn’t
have a specific duty to accomplish on that weekend, his place of duty, our
understanding, was Joint Base Lewis-McChord, it was not that he actually had some
specific duty to accomplish.” In light of the above, we will disapprove the findings
of guilty to Specifications 6 and 7 of Additional Charge I, rendering moot any
discussion of appellant’s first assignment of error.




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LANGSTON — ARMY 20120265

                              Resisting Apprehension Offenses

       In Specifications 1 and 2 of Charge III, appellant was charged with, pleaded
guilty to, and convicted of resisting apprehension by two different military
policemen (MP), MP JL and MP NW. Appellant now complains those specifications
are factually the same and multiplicious.

       When framed as a multiplicity issue and in light of appellant’s admission
during the providence inquiry that two MPs “tried to apprehend me and I resisted
their authority,” one is left with an initial impression that this was a case of two law
enforcement officers simultaneously and jointly attempting to apprehend the
appellant. This was not the case.

       In the very early hours of 20 August 2011, appellant was confro nted by the
Assistant Staff Duty Noncommissioned Officer and Charge of Quarters
Noncommissioned Officer for having a female guest in his room whom had not been
signed in and was present well past visiting hours. Appellant became increasingly
confrontational and combative, ultimately assaulting multiple noncommissioned
officers and soldiers. Law enforcement responded.

        First on the scene were MP NW and MP RL. While MP RL stood back with
her military working dog, MP NW attempted to apprehend appellant. After a
struggle, MP NW was able to restrain appellant on the ground and place him in
handcuffs. Appellant stated he would calm down and MP NW brought appellant to
his feet. Then, appellant once again became aggressive, so MP NW forcibly too k
appellant to the ground and there restrained him. The stipulation of fact provided
that although “he was restrained on the ground,” appellant continued to struggle. It
is at this point in time when MP JL and MP MT arrive d on the scene. MP JL
assisted MP NW in calming the appellant, who was thrashing about, and the two
were eventually able to once again bring the appellant to his feet and start escorting
him out of the building. Appellant struggled yet again and eventually had to be
tasered.

       During appellant’s outburst, MP NW successfully placed appellant in
handcuffs, restrained him on the ground, and appellant became sufficiently
compliant to allow himself to be helped up to a standing position. Appellant,
therefore, had been apprehended and taken into custody at that point. See United
States v. Stone, 13 C.M.R. 906, 909 (A.F.B.R. 1953) (concluding that “prior to the
time [accused] was held to the ground and placed in handcuf fs, his free locomotion
had not been effectively restrained” and, therefore, he had not yet been
apprehended). Here, appellant’s “free locomotion” had been restrained by lawful
apprehension. See Manual for Courts-Martial, United States, (2012 ed.) [hereinafter
MCM], pt. IV, ¶¶ 19.c(1)(a), (4)(a). The fact that appellant continued to fight and
that this post-apprehension resistant behavior could possibly have been charged as
other crimes such as assault or attempted escape from custody do not alter the reality


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LANGSTON — ARMY 20120265

that appellant was already apprehended before MP JL even arrived on scene. See
MCM, pt. IV, ¶ 19.c(1)(C); United States v. Watkins, 14 M.J. 803 (A.C.M.R. 1982);
see also United States v. Ridgeway, 13 M.J. 742 (A.C.M.R. 1982). Therefore,
appellant, at that time, could not, as a matter of law, resist any apprehension by MP
JL. Accordingly, we will set aside and dismiss Specification 1 of Charge III.

                                       CONCLUSION

       On consideration of the entire record and the assigned error s, the finding of
guilty of Specification 1 of Charge III, and the findings of guilty of Specifications 6
and 7 of Additional Charge I are set aside and those specifications are dismissed.
We AFFIRM the remaining findings of guilty.

       We are able to reassess the sentence on the basis of the error s noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

      In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. The two dismissed Article 86(2), UCMJ, offenses only carried a maximum
sentence of one month confinement each, and appellant remains convicted of six
such offenses. Also, although one resisting apprehension conviction is set aside, one
such conviction remains. Second, appellant pleaded guilt y before and was sentenced
by a military judge alone, and also benefitted from a pretrial agreement and its
corresponding sentence limitation. Third, we find the nature of the remaining
offenses captures the gravamen of the original specifications, at least with respect to
the now dismissed resisting apprehension specification. Finally, based on our
experience, we are familiar with the remaining offense s so that we may reliably
determine what sentence would have been imposed at trial.

       Reassessing the sentence based on the noted error and the entire record, we
AFFIRM the approved sentence. We find this reassessed sentence is not only purged
of any error but is also appropriate. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).

      Senior Judge COOK and Judge CAMPANELLA concur.




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LANGSTON — ARMY 20120265

                           FOR THE COURT:




                           ANTHONY
                            ANTHONY O. O.      POTTINGER
                                          POTTINGER
                           Acting   Clerk
                            Chief Deputy    of ofCourt
                                         Clerk    Court




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