                       UNITED STATES, Appellee

                                    v.

                   Kevin D. BROWN, Senior Airman
                     U.S. Air Force, Appellant

                              No. 06-0857

                         Crim. App. No. 36195

       United States Court of Appeals for the Armed Forces

                        Argued April 25, 2007

                        Decided June 22, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.



                                 Counsel


For Appellant: Captain Christopher L. Ferretti (argued);
Lieutenant Colonel Mark R. Strickland and Major Christopher S.
Morgan (on brief).

For Appellee: Captain Nicole P. Wishart (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).

Military Judge:   Print R. Maggard.


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Brown, No. 06-0857/AF


    Judge BAKER delivered the opinion of the Court.

    Appellant was a Senior Airman assigned to the 58th

Maintenance Operations Squadron at Kirtland Air Force Base, New

Mexico.   Before a general court-martial composed of officer and

enlisted members, Appellant was tried for ten specifications

arising from three charges:   willful damage to others’ property

(three specifications), assault (five specifications),

wrongfully communicating a threat and kidnapping in violation of

Articles 109, 128, and 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 909, 928, 934 (2000).   Appellant pled guilty

to one of the three specifications under Article 109, UCMJ, and

was convicted contrary to his pleas regarding one other.

Appellant pled not guilty to the five assault specifications but

was convicted of one of these offenses.   He pled not guilty to

both specifications under Article 134, UCMJ, and was found

guilty of wrongfully communicating a threat.    Appellant was

sentenced to a bad-conduct discharge and confinement for twelve

months.   The convening authority approved the sentence and the

United States Air Force Court of Criminal Appeals affirmed.

United States v. Brown, No. ACM 36195, 2006 CCA LEXIS 157, 2006

WL 1976241 (A.F. Ct Crim. App. Jun. 20, 2006).

    We granted review of the following issue:

    WHETHER APPELLANT’S CONTINGENT DECLARATION CONSTITUTES
    COMMUNICATING A THREAT.



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United States v. Brown, No. 06-0857/AF


        We conclude that the United States Air Force Court of

Criminal Appeals did not err in finding Appellant’s declaration

a threat under Article 134, UCMJ.      As a result, we affirm.

                              BACKGROUND

        Appellant and Staff Sergeant (SSgt) S were involved in an

intermittent, intimate, and often combustible relationship

during the two-and-a-half years before Appellant communicated

the contested threat.    In July 2003, SSgt S gave birth to a son,

the paternity of, and child support for, was often at the heart

of the friction between Appellant and SSgt S.

        Appellant deployed to Iraq from November 2003 until January

2004.    SSgt S testified that Appellant threatened to kill her

during an April 2004 argument in which Appellant expressed

indignation over SSgt S’s admitted lack of faithfulness to him

during his deployment.

        Assistant trial counsel asked SSgt S about threats made in

the course of the argument:

        Q. What did [Appellant] say?

        A. He was just going on and on about how he
        couldn’t believe that I did that to him and he
        said that if he ever saw the guy again that he
        would kill him and he said that if I wasn’t his
        baby’s mother that he would kill me too and a few
        minutes later he changed it and said that if my
        son wasn’t there then I would be dead

        . . . .




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United States v. Brown, No. 06-0857/AF


     Q. Now you mentioned [Appellant’s] comment . . .
     that if you weren’t my baby’s mom, you would be
     dead and he changed it later to if the baby
     wasn’t here, you would be dead. How did that
     comment make you feel?

     A. I was scared to death. He had already [been
     violent] that night and he’d never threaten[ed]
     to kill me before.


On cross-examination, defense counsel continued to flesh out the

context in which Appellant’s statements were made:

     Q. Now, you mentioned in your testimony that [Appellant]
     stated to you that, “If I wasn’t the baby’s mother he would
     kill you”, right?

     A. He said, “If I wasn’t his baby’s mother then I would be
     dead”.

     Q. But you are his baby’s mother, correct?

     A. Yes, I am.

     Q. And then he changed his statement to say, “If the baby
     wasn’t here, you’d be dead”, correct?

     A. Yes, sir.

     Q. But the baby was there, is that correct?

     A. Yes, sir.

     Appellant testified at trial and denied making any threats

against SSgt S.   On appeal, he challenges the legal sufficiency

of the members’ guilty finding, contending the statements, even

if made, did not constitute a threat under Article 134, UCMJ.




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United States v. Brown, No. 06-0857/AF


                             DISCUSSION

     We review the legal sufficiency of findings of guilt using

the standard developed in Jackson v. Virginia, 443 U.S. 307

(1979); see also United States v. Turner, 25 M.J. 324 (C.M.A.

1987).    In Jackson, the Court held that:

     The critical inquiry on review of the sufficiency of
     the evidence to support a criminal conviction must be
     not simply to determine whether the jury was properly
     instructed, but to determine whether the record
     evidence could reasonably support a finding of guilt
     beyond a reasonable doubt. But this inquiry does not
     require a court to ask itself whether it believes that
     the evidence at the trial established guilt beyond a
     reasonable doubt. Instead, the relevant question is
     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.

443 U.S. at 318-319 (1979)(citations omitted and emphasis

added).

     The specification did not delineate the words of the

purported threat(s).   At trial and again on appeal the

Government pointed to two separate alleged threats based upon

SSgt S’s testimony.    First, the Government asserted that

Appellant’s statement to SSgt S that he would kill her if she

was not his baby’s mother, was a threat.     Second, the Government

contended that Appellant’s statement that if his son (the baby)

was not present then he would kill SSgt S, was a threat.     The

Court of Criminal Appeals held that the first statement did not

“amount to a present determination or intent to wrongfully


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United States v. Brown, No. 06-0857/AF


injure SSgt S.”    2006 CCA LEXIS 157, at *7, 2006 WL 1976241, at

4.    The Government did not certify an issue regarding this

conclusion.    As a result, we address only the second statement

made by Appellant.    See United States v. Adcock, 65 M.J. 18, 21

n.3 (C.A.A.F. 2007); United States v. Lewis, 63 M.J. 405, 412

(C.A.A.F. 2006) (citing United States v. Parker, 62 M.J. 459,

464 (C.A.A.F. 2006)).

       The offense of communicating a threat requires the

Government to demonstrate beyond a reasonable doubt:

     (1) that the accused communicated certain language
         expressing a present determination or intent to
         wrongfully injure the person, property, or
         reputation of another person, presently or in
         the future;

     (2) that the communication was made known to that
         person or to a third person;

     (3) that the communication was wrongful; and

     (4) that, under the circumstances, the conduct of
         the accused was to the prejudice of good order
         and discipline in the armed forces or was of a
         nature to bring discredit upon the armed forces.

Manual for Courts-Martial, United States pt. IV, para. 110.b.

(2005 ed.) (MCM).

       Appellant argues that the second threat does not evince a

“present determination” to harm SSgt S.    Rather, the threat was

explicitly contingent on the absence of Appellant’s son, which

legally negated its threatening content.




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United States v. Brown, No. 06-0857/AF


     In support of this argument Appellant cites United States

v. Shropshire, 20 C.M.A. 374, 43 C.M.R. 214 (1971).       A confined

inmate, Shropshire was restrained when he rattled his handcuffs

as a guard came near.   The guard said, “Go ahead, Shropshire,

reach out and grab me and I’ll put you in the hospital.”       20

C.M.A. at 375, 43 C.M.R. at 215.       Shropshire responded:   “I have

more muscle in my little finger than you have in your whole body

and if you take this restraining gear off, I’ll show you what I

will do to you.”   20 C.M.A. at 374, 43 C.M.R. at 214.     The

Shropshire Court held that the contingency (“if” the guard

removed the prisoner’s restraints) indicated a limitation on the

detainee’s action, a limitation that was solely in the hands of

the allegedly threatened guard.    Specifically, the Court held,

“The words uttered expressed a contingency that neutralized the

declaration, since there was not a reasonable possibility the

uncertain event would happen . . . [No] reasonable guard would

have removed the restraining gear in order to permit an attack

on himself.”   20 C.M.A. at 375-76, 43 C.M.R. at 215-16.

     Appellant claims that these facts parallel his case.        In

Appellant’s view, the threat to kill SSgt S was conditioned on

the absence of a 10-month-old infant, and given that the child

was being held by SSgt S, in theory that absence could only have

come about if SSgt S chose to physically remove her child.

Accordingly, the statement was not a threat at all.      Much as no


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United States v. Brown, No. 06-0857/AF


reasonable guard would have acted to remove a threatening

prisoner’s restraints, no reasonable person would have removed

her baby so that she could return to test the veracity of the

threatened violence.   According to Appellant, the “contingency .

. . neutralized the declaration, since there was not a

reasonable possibility the uncertain event would happen.”

Stropshire, 20 C.M.A.at 376, 43 C.M.R. at 216.

     The Government disagrees with Appellant’s focus on the

presence or absence of a stated contingency in a communication,

a proposition for which the Government also relies on

Shropshire.   The Shropshire Court cited a concurring opinion in

United States v. Humphrys, 7 C.M.A. 306, 22 C.M.R. 96 (1956), in

which Judge Latimer placed less emphasis on the grammatical and

linguistic structure of threats and contingencies and more on

the perceptions of a reasonable person.1   Thus, the Shropshire

Court noted that a threat exists “so long as the words uttered

could cause a reasonable person to believe that he was

wrongfully threatened.”   Stropshire, 20 C.M.A. at 375, 43 C.M.A.

at 215.   The Government also cites United States v. Phillips, in

which the Court put the matter more starkly, stating, “Our only

1
  We recognize that Humphrys examined the issue of the
threatening purpose behind a contested statement rather than the
threatening nature of contested language itself. However, as
the Shropshire Court implies and both sides impliedly concede,
we find that analyzing whether the purpose behind a statement is
threatening requires a similar examination as to assessing
whether a statement itself is threatening.

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United States v. Brown, No. 06-0857/AF


concern is whether a reasonable fact finder could conclude

beyond a reasonable doubt that a reasonable person in the

recipient’s place would perceive the contested statement by

appellant to be a threat.”    42 M.J. 127, 130 (C.A.A.F. 1995);

see also United States v. Cotton, 40 M.J. 93, 95 (C.M.A. 1994).

        In this light, the Government argues that Appellant

misreads Shropshire, and in particular, misunderstands the role

of the guard in that case.    For Appellant, the guard in

Shropshire was not legally threatened due to the near

impossibility of the stated threat from happening.    However, for

the Government, the impossibility was not conditioned on the

words themselves, but rather the circumstances surrounding the

use of the words.    The prison guard would have had to remove

Shropshire’s restraints before he could be harmed.    Moreover,

the guard’s initial statement to the inmate indicated that he

did not feel physically threatened, at least not as long as

Shropshire was restrained.    In other words, it was not the

literal words spoken that caused it not to be a threat, but

rather the surrounding circumstances in which the threat was

made.

        Thus, in this case, the Government focuses on the fact that

unlike the guard in Shropshire, SSgt S was not solely in control

of the factors that may have rendered the statement truly

threatening.    The Government contends that Appellant had the


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United States v. Brown, No. 06-0857/AF

power to remove the infant from SSgt S’s arms and take him out

of the room so that Appellant could return and consummate his

threat.   Or, given the infant’s age, the child himself could

potentially have crawled or walked to another room of his own

volition.   The Government points to SSgt S’s testimony that she

became scared to put down her baby and that the only way she

felt safe was with her son on her lap.   Moreover, the

“contingent fact” itself may have been threatening in tone.

     Both parties rely on Shropshire, but with too close a focus

on certain sentences in the opinion and not enough focus on the

overall rationale.   Shropshire itself recognizes the very middle

ground between text and context that both sides appear to have

overlooked.   Indeed, even apart from Shropshire, this Court has

consistently ruled that examination of threats under Article

134, UCMJ, must pay due regard to any concretely expressed

contingency associated with a threat, while remaining aware that

all communication takes place within a context that can be

determinative of meaning.   See, e.g., Cotton, 40 M.J. at 95

(“[b]oth the circumstances of the utterance and the literal

language must be considered”); United States v. Gilluly, 13

C.M.A. 458, 461, 32 C.M.R. 458, 461 (1963) (“the surrounding

circumstances may so belie or contradict the language of [a

seemingly threatening] declaration as to reveal it to be a mere




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United States v. Brown, No. 06-0857/AF

jest or idle banter”).   We reaffirm this long-standing principle

today.   Context gives meaning to literal statements.

     With respect to the specific threat uttered by Shropshire,

the Court concluded, “the words uttered expressed a contingency

that neutralized the declaration.”    Shropshire, 20 C.M.A. at

376, 43 C.M.R. at 216.   At the same time, the Court concluded

that “so long as the words uttered could cause a reasonable

person to believe that he was wrongfully threatened” contingent

words could communicate a threat under Article 134, UCMJ.    20

C.M.A. at 375, 43 C.M.R. at 215.     Thus, the Court indicated “the

understanding of the person to whom the statement is

communicated and the circumstances of the communication may be

significant in contradicting or belying the language of the

declaration.”   Id.   We hasten to add that this latter statement

cuts both ways.

     Consider the following examples.     If a drunken, forty-year-

old bar patron wields an axe while running around menacingly

shouting that if he were twenty years old he would kill a

proximate individual, a legalistic analysis of the words of the

threat would result in a conclusion that no threat existed.      A

forty-year old can never be a twenty-year-old and thus the

impossible contingency would presumably negate the threat.

This, however, is somewhat nonsensical.    It belies the fact that

the individual is nonetheless behaving and speaking in a


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United States v. Brown, No. 06-0857/AF

threatening manner despite the stated explicit contingency that

seemingly limits the forty-year-old’s ability to consummate the

threat.2

     That the opposite is true, in which clearly non-contingent

threats are not legally threatening, is also plain.   If someone

were to approach a putative victim and coldly stare her down

while solemnly stating that he was going to kill her within the

next five minutes, it would seem that the elements of the

offense of communication of a threat would be met in spades.

However, if we learn that the “threatening” individual is a

small child with no clear ability to consummate his threat, or

if the threatening individual has a history of tantrum threats

but has never acted on them, the calculus of the alleged threat

changes.   To not engage in such a recalibration in light of

present circumstances and past behavior would fail the

“straight-face” test.   Francisco v. Comm’r, 370 F.3d 1228, 1231

(D.C. Cir. 2004); see also Humphrys, 7 C.M.A. at 311, 22 C.M.R.

at 101 (Latimer, J., concurring) (allegedly threatening language

was deemed nonthreatening because, inter alia, witnesses agreed

that when the statements were made, the accused was in a highly

emotional, almost irrational state); United States v. Davis, 6

C.M.A. 34, 37, 19 C.M.R. 160, 163 (1955)(suggesting the defense


2
  We leave aside whether the individual in such a circumstance
could also be charged with assault under Article 128, UCMJ.

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United States v. Brown, No. 06-0857/AF

of “jest” can be available to the charge of making a threatening

statement regardless of the explicitly threatening language used

in the contested communication); see also United States v.

Rutherford, 4 C.M.A. 461, 463, 16 C.M.R. 35, 37 (1954).

     The words communicated certainly matter because they are

the starting point in analyzing a possible threat.   But words

are used in context.   Divorcing them from their surroundings and

their impact on the intended subject is illogical and unnatural.

Legal analysis of a threat must take into account both the words

used and the surrounding circumstances.   Without such a subtle

examination absurd results might arise, defeating both the text

and purpose of paragraph 110.b. of the Manual for Courts-

Martial.

The Nature of the Threat in This Case

     In the present context the literal words of the threat

consist of Appellant’s statement that he would kill SSgt S if

his son were not present.   As discussed, the impossibility or

unlikelihood of this eventuality occurring is uncertain.    It is

equally unclear exactly who in the exchange had the power to

make the contingency occur or prevent it from occurring.    Even

if one concludes the words themselves are not sufficient to

constitute an unlawful threat, the combination of words and

circumstances are sufficient.




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United States v. Brown, No. 06-0857/AF

     For example, SSgt S testified that Appellant’s statement

that he would kill her was new in their exchanges.   He “had

never said anything like that [before] and the way that he said

it . . . made [SSgt S] think that he would kill [her].”

Moreover, the statement was made within minutes of a violent

outburst by Appellant.   The backdrop of significant violent

exchanges between Appellant and SSgt S provided further basis

for a reasonable person, including SSgt S in particular, to

consider the statement threatening.

     The record indicates that the history of violence and

heated exchanges between the two was substantial:3

     In October 2003 SSgt S and Appellant were involved in
     such a raucous argument at SSgt’s apartment that the
     police were called and SSgt S received a citation from
     her landlord threatening eviction.

     During the October 2003 exchange, Appellant threw his
     cell phone against the wall, punched a hole in a door,
     and grabbed SSgt S’s shirt . . . .

     One month prior to the incident in question SSgt S and
     Appellant had had another exchange which became
     violent. Appellant punched a hole in SSgt S’s door

3
  We recognize that Appellant was acquitted of some of the
violent acts most proximate to the contested statement (notably
the two specifications that alleged he had strangled SSgt S
twice immediately prior to making the threatening statement to
her), but we note without deciding that the fact that the
Government was unable to show Appellant committed these acts
beyond a reasonable doubt may not necessarily mean that the acts
could not meet a lower standard of proof allowing their use in
analyzing their impact on making the surrounding context of a
statement threatening. However, even apart from the acts of
which he was acquitted, there was enough uncontested history and
context to render the threat legally threatening.

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United States v. Brown, No. 06-0857/AF

     and another airman was forced to physically intervene
     in order to halt further escalation of violence
     between the two.

     Moreover, at the time of the incident Appellant was
     drinking (and had imbibed an unknown amount) and was
     convicted of both unlawfully grabbing SSgt S’s
     shoulder, pushing her up against the closet door and
     refusing to unhand her, ripping SSgt S’s shirt, and
     shattering SSgt S’s cell phone by smashing it against
     the wall. Appellant had also hit the wall of SSgt S’s
     bedroom with such force that a framed picture was
     dislodged. Appellant seemed unconcerned that shards
     of glass from the picture landed on his infant son and
     Appellant subsequently further damaged the fallen
     picture by picking it up and hitting it against a
     chair.

     Viewing these facts -- the words communicated and the

context within which the statement was made -- in the light most

favorable to the prosecution, it is clear that a rational trier

of fact could have found each element of the offense beyond a

reasonable doubt.   Appellant expressed an intent to wrongfully

injure SSgt S, the statement was made known to SSgt S, the

statement was wrongful, and the statement was manifestly

prejudicial to the good order and discipline of the armed forces

or was of the nature to bring discredit upon the armed forces.

                             DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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