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

                           UNITED STATES, Appellee
                                        v.
                          Specialist JERROD D. GADDIS
                          United States Army, Appellant

                                   ARMY 20120157

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
      Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate (pretrial)
       Lieutenant Colonel John A. Hamner, Staff Judge Advocate (post-trial)


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jaired D. Stallard, JA; Captain Matthew R. Laird, JA (on brief).


For Appellee: Lieutenant Colonel James L. Varley, JA; Major Katherine S. Gowel,
JA; Major Alison L. Gregoire, JA (on brief).


                                    31 January 2014

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                                SUMMARY DISPOSITION
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HAIGHT, Judge:

       A military judge sitting as a special court-martial convicted appellant, in
accordance with his plea, of failure to obey a lawful general regulation and, contrary
to his plea, of an aggravated assault b y offer with a loaded firearm, in violation of
Articles 92 and 128 of the Uniform Code of Military Justice, 10 U.S.C. §§ 892 and
928 (2006) [hereinafter UCMJ]. 1 The military judge sentenced appellant to a bad-
conduct discharge, confinement for 80 days, and reduction to the grade of E-1. The
convening authority approved the sentence as adjudged.


1
 The military judge dismissed a willful disobedience charge under Article 90,
UCMJ, and found appellant not guilty of a failure to obey charge under Article 92,
UCMJ.
GADDIS – ARMY 20120157

       This case is before us for review pursuant to Article 66, UCMJ. Before this
court, appellant alleges a single assignment of error meriting discussion but no
relief. We have also considered those matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find that
they lack merit.

                                      FACTS

        On the evening of 8 May 2011, appellant and Corporal (CPL) KE visited the
on-post residence of appellant’s good friend, Specialist (SPC) LH. They played
video games and drank alcohol. It was decided the two guests would stay the night
at SPC LH’s house. However, appellant needed to go to his barracks room in order
to retrieve appropriate clothes for work the next day. Because SPC LH considered
appellant too intoxicated to drive, he told appellant he would have his girlfriend
drive appellant to the barracks. Appellant and C PL KE waited outside while SPC
LH went inside his house to ask this favor from his girlfriend. Apparently, appellant
grew impatient and drove to his barracks with C PL KE, retrieved some clothing, and
returned to SPC LH’s house.

       Upon return, the concerned and protective S PC LH was angry with appellant
for driving and confronted appellant in the front yard. This argument escalated into
a physical scuffle with appellant falling to the ground. Ultimately, appellant walked
to the passenger side of his car, got in, locked it, and retrieved a loaded weapon.
Appellant then exited his vehicle, chambered a round as he approached S PC LH, and
pointed the pistol at SPC LH’s face. This volatile situation between friends was
defused fairly quickly, but by that time the neighbor who witnessed the incident had
already called the police. Based upon the above events and the ensuing
investigation, appellant was charged with and convicted of aggravated assault with a
dangerous weapon and failure to obey a general regulation by not registering his
privately-owned weapon.

        At trial, on direct examination, SPC LH, when asked how he felt when he
saw the weapon pointed at his face, responded:

      Awkward at first, because I wasn’t expecting it. I wasn’t
      expecting it because, you know, as close as me and him is, I
      wasn’t expecting that to happen. But I mean at the time, I don’t
      know, I couldn’t really tell you how it felt because a million
      things went through my head.

Although he did not believe it was an appropriate response to their argument for
appellant to point a weapon at him, he further testified:




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GADDIS – ARMY 20120157

      …I felt it was just a night gone bad. That’s all it was, because I
      know him and he’s not that type of person and that’s not the
      description I have of him. He’s like my brother to me; I’d do
      anything for him. And I wouldn’t do anything to try to get him
      in trouble. I obviously tried to keep him from getting in trouble,
      but I mean, it was just a night gone bad.

On cross-examination, when asked by defense counsel if he thought appellant
assaulted him, SPC LH responded, “No sir…. I didn’t think he was assaulting me,
sir. I didn’t think he assaulted me at all, sir .”

      Then, after the presentation of evidence and both closing arguments but
before government rebuttal argument, the military judge stated:

      Okay. Before you argue, I’m going to recall [SPC LH]. I’ve got
      a question I want to ask him. You guys can ask him questions
      based on mine, if you want to. And then I’ll give you both an
      opportunity to re-argue again based on what he testifies to,
      briefly re-argue again.

      Now, I’m going to ask him a question, he’s going to answer my
      question, and you can re-ask him questions, but there won’t be
      any parsing of words based upon his answer to my question.

Without objection, the military judge recalled S PC LH and the following exchange
occurred:

      Q. I want to ask you a question. When SPC Gaddis was
      pointing this weapon at you, at any time during the time he was
      pointing this weapon at you, did you have any concern that you
      could be shot and hurt in any way?

      A. I mean, yes, sir, because that’s just a natural reaction at first,
      but then the thing about it is, I know him and I don’t think he
      would do that.

      Q. Well, if I understand what you are telling me, as you thought
      about it after initially thinking – having some fear, as you
      thought about, you said, “Hey, this is my friend, he’s not going
      to hurt me.”

      A. Yes, sir.

      Q. And that took away your fear?



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GADDIS – ARMY 20120157

      A. Yes, sir.

       Neither side had any follow-on questions. Both parties presented further
closing arguments. Appellant now assert s a reasonable person would question the
military judge’s impartiality when he recalled the government’s key witness after the
close of evidence and presentation of arguments. In the alternative, appellant claims
the military judge abused his discretion b y recalling the witness when he did.

                             LAW AND DISCUSSION

       “The court-martial may act to obtain evidence in addition to that presented by
the parties.” Rule for Courts-Martial (R.C.M.) 801(c). This rule’s discussion points
out that although a witness may be recalled, a new witness summoned, or other
evidence produced, the court-martial, in taking such action, must not depart from an
impartial role. R.C.M. 801(c) discussion. This equal access and opportunity to
obtain evidence is a hallmark of military j ustice and persists throughout the trial,
even to late stages such as after the close of evidence, presentation of closing
arguments, or the commencement of deliberations. See UCMJ, art. 46; Military Rule
of Evidence 614; R.C.M. 921(b). See also United States v. Lampani, 14 M.J. 22, 25
(C.M.A. 1982).

       Accordingly, the military judge clearly had the authority to act as he did. The
question remains whether he abandoned, or appeared to abandon, his impartial role
or otherwise abused his discretion in doing so. We find he did not.

      Appellant was charged with committing an assault upon SPC LH by pointing
at him with a dangerous weapon, a loaded firearm. The government pursued
conviction under the theory that this was an offer type assault and consequently ha d
to show appellant’s unlawful demonstration of violen ce created in the mind of SPC
LH a reasonable apprehension of receiving immediate bodily harm . Manual for
Courts-Martial, 2008, pt. IV, ¶ 54.c.(1)(b)(ii).

       SPC LH’s responses to the government were am biguous at best and extremely
broad. While never explicitly mentioning fear or apprehension, it could have been
inferred that fear was one of the “million things” he experienced on that “night gone
bad.” See United States v. Marbury, 56 M.J. 12, 17 (C.A.A.F. 2001) (although
victim of assault by offer denied seeing any knife being wielded, the appellate court
was not bound to accept this testimony as determinative of the reasonable
apprehension question). Ironically and on the other hand, SPC LH’s responses to
defense counsel were very specific and offered without further elaboration. His
claim that he did not feel “assaulted”, without an expressed definition or
understanding of that term of art, was nothing more than a legal label, and an
imprecise one at that, as assaults can be by offer, attempt, or battery. Whatever




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GADDIS – ARMY 20120157

utility that disavowal may have been, it certainly was not an express denial of fear
or apprehension.

       Faced with this ambiguity, the military judge recalled the witness to obtain
additional evidence which would hopefully foreclose the need to infer whether or not
the victim was afraid. We highlight the fact that the military judge had no way of
knowing what the answer would be. Specialist LH could just as easily have said that
he felt no fear than that he did initially apprehend bodily harm. “Given the
prospectivity of the analysis and the leeway for the conduct of trial and pursuit of
truth necessarily afforded a trial judge, we find no reversible error in the Court’s
conduct of questioning in the present case.” United States v. Dock, 40 M.J. 112, 128
(C.M.A. 1994). Therefore, we conclude the military judge neither appeared to
abandon his impartial role nor abused his discretion by recalling SPC LH.

                                   CONCLUSION

       On consideration of the entire record, the assigned error, the allegations
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), and the briefs submitted by the parties, we conclude the findings of guilty
and the sentence as approved by the convening authority are correct in law and fact.
Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge COOK and Judge CAMPANELLA concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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