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

                                Before
            J.R. MCFARLANE, M.C. HOLIFIELD, D.A. NORKIN
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         STEPHEN M. BOX
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                           NMCCA 201400147
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 11 December 2013.
Military Judge: LtCol E.A. Harvey, USMC.
Convening Authority: Commanding General, Training Command,
Quantico, VA.
Staff Judge Advocate's Recommendation: LtCol M.E. Sayegh,
USMC.
For Appellant: CAPT Bree A. Ermentrout, JAGC, USN.
For Appellee: LT Ann E. Dingle, JAGC, USN; LT Leila A.M.
Mullican, JAGC, USN.

                           23 December 2014

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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 general court-martial
convicted the appellant, pursuant to his pleas, of two
specifications of conspiracy, one specification of sale of
military property, and one specification of larceny of military
property, in violation of Articles 81, 108, and 121, Uniform
Code of Military Justice, 10 U.S.C. § 881, 908, and 921. The
appellant was sentenced to confinement for 18 months, reduction
to pay grade E-1, and a dishonorable discharge. The convening
authority approved the adjudged sentence.

     The appellant raises one assignment of error: that the
military judge failed to conduct an additional inquiry into the
possibility of an affirmative defense where the appellant
acknowledged treatment for post-traumatic stress disorder (PTSD)
and further acknowledged gambling and drinking issues. After
carefully considering the record of trial and the submissions of
the parties, we conclude that the findings and sentence are
correct in law and fact and that no error materially prejudicial
to the substantial rights of the appellant was committed. Arts.
59(a) and 66(c), UCMJ.

                                 Background

     The appellant was an instructor at the School of Infantry
(SOI) at Marine Corps Base, Camp Pendleton, California. While
serving in this capacity, he conspired with Lance Corporal
(LCpl) John Danley, a supply representative at SOI, to steal and
sell military property. In furtherance of this conspiracy, LCpl
Danley provided the appellant with military-owned property,
which the appellant sold to various individuals. Between May
2012 and December 2012, the appellant and LCpl Danley stole and
sold approximately $500,000.00 of military property.
Prosecution Exhibit 1 at 3-4.

     During his providence inquiry, the appellant stated that he
had a gambling addiction, which influenced his decision to steal
and sell military property. Id. at 25. The military judge
responded by immediately questioning the appellant about his
mental responsibility. In the subsequent colloquy, the
appellant clarified that he did not believe this addiction
constituted a legal justification for his behavior, that he
understood the nature of his conduct, and was aware it was
wrongful. Id. at 25-26. The appellant also entered into a
stipulation of fact in which he affirmed that, “[n]o physical or
mental infirmity contributed to my active participation in
conspiracy, theft, and sale of military property.” Prosecution
Exhibit 1 at 4. While neither the appellant nor his two
civilian defense counsel referenced PTSD in the providence
inquiry, two character witnesses opined that the appellant might
have PTSD during his case in extenuation and mitigation.1 Record

1
  The appellant also introduced a letter from his brother, a medical student,
suggesting that the appellant suffered from PTSD. Defense Exhibit C at 3.
                                      2
at 90, 134. Additionally, the appellant stated during his sworn
testimony that he had sought counseling for PTSD. Id. at 121.
This testimony prompted the military judge to conduct the
following inquiry:

    Q. You said – there’s been some mention of PTSD?
    Have you ever been evaluated for PTSD?
    A. Not until recently Ma’am. I went to my counselor
    six, seven months ago ma’am, and she told me that I
    might have a form of PTSD because I guess there’s
    different stages, ma’am, and she told me that I was –
    she suggested to me to go and speak with somebody
    else, which I did as well. I went to go speak to
    somebody else on base and took a MMPI.

    Q. Okay. What was the result of that?
    A. I do not have the results at this time. Dr.
    McAllister is the doctor that was the one who gave me
    the results and I’ve been trying to get the results
    for two months now, ma’am, but he did screen me prior,
    ma’am.

    Q. Okay. So, at this point the counselor said that
    it’s possible that you have PTSD, but there’s been no
    diagnosis that you’re aware?
    A. Correct. . . .

Id. at 127.

              Mental Responsibility and Provident Plea

     We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Eberle, 44
M.J. 374, 375 (C.A.A.F. 1996). A decision to accept a guilty
plea will be set aside if there is a substantial basis in law or
there fact for questioning the plea. United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). We will not
reverse a military judge’s decision to accept a guilty plea
unless we find “a substantial conflict between the plea and the
accused's statements or other evidence of record.” United
States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007) (internal
quotation marks and citations omitted). “A ‘mere possibility’
of such a conflict is not a sufficient basis to overturn the
trial results.” United States v. Shaw, 64 M.J. 460, 462
(C.A.A.F. 2007).

    When an appellant establishes facts which raise a possible

                                 3
defense, the military judge has a duty to inquire further and
resolve matters inconsistent with the plea, or reject the plea.
United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006).
Should the appellant’s statement or material in the record
indicate a history of mental disease or defect, the military
judge must determine whether the information raises a
substantial conflict with the plea and thus a possibility of a
defense or only the “mere possibility” of conflict. See United
States v. Riddle, 67 M.J. 335, 338 (C.A.A.F. 2009) (citing Shaw,
64 M.J. at 462). If there is only a “mere possibility” of a
conflict, the military judge is not required to reopen the plea.
Shaw, 64 M.J. at 464.

     In the absence of contrary circumstances, a military judge
can presume that the accused is sane and that counsel has
conducted a reasonable investigation into the existence of this
defense. Id. at 463. The question before us is whether the
appellant's reference to seeking counseling for PTSD raises a
possible defense or the “mere possibility” of a defense.

     The facts in the present case differ only slightly from
those in Shaw, where our superior court concluded that an
appellant’s reference to a mental disorder, without more, at
most raised only the “mere possibility” of a conflict with the
plea. Id at 464. In Shaw, the appellant suggested in his
unsworn statement that he suffered from bipolar disorder, but
provided no corroboration concerning his alleged condition.
Here, the appellant augmented his sworn testimony with testimony
and documentary evidence from character witnesses suggesting
that he might have PTSD. However, as was the case in Shaw, the
appellant did not provide any evidence from a medical
professional corroborating his assertion. Additionally, the
military judge in this case took the added step of specifically
confirming that the appellant had not been diagnosed with a
mental disorder.

     Assuming arguendo that the appellant actually suffered from
PTSD, his explanation of the relationship between the disorder
and his conduct does not create a substantial conflict with his
pleas. Neither the appellant nor his counsel ever suggested
that the appellant was unable to appreciate the nature and
quality or wrongfulness of his acts. Instead, they raised the
issue in sentencing as a clear matter in extenuation and
mitigation. Each explained that when the appellant returned
from deployments, he began to consume alcohol in excess and felt
a desire for adrenaline, which he satisfied by gambling. Record
at 108-110, 144.

                                4
     While the record contains no evidence suggesting that the
appellant was intoxicated during any criminal misconduct, it
provides ample detail concerning his alleged gambling addiction.
When the appellant first referenced this addiction in the
providence inquiry, the military judge responded by immediately
inquiring into his mental responsibility. In response, the
appellant affirmed that he did not believe this addiction
constituted a legal justification for his behavior, that he
understood the nature of his conduct, and was aware it was
wrongful. Id. at 25-26. These responses are consistent with
the stipulation of fact, in which the appellant specifically
denied that any “physical or mental infirmity” contributed to
his participation in the offenses to which he pled guilty. PE 1
at 4. They are also further supported by the appellant’s
sentencing testimony in which he acknowledged that he was “100
percent” responsible for his acts. Record at 112.

     Given the facts of this case, we conclude that any
references to PTSD raised, at most, only the “mere possibility”
of a conflict with the plea. Shaw, 64 M.J. at 464. The
military judge properly addressed the lack of mental
responsibility defense during the providence inquiry in response
to the appellant’s statements about a gambling addiction and was
not required to do so again when the appellant raised that same
addiction in sentencing within the context of a possible PTSD
diagnosis. Accordingly, we find this assignment of error to be
without merit.

                           Conclusion

     We affirm the findings and the sentence as approved by the
convening authority.

                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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