United States v. Salazar ( 2021 )

This opinion is subject to administrative correction before final disposition.
Before
MONAHAN, STEPHENS, and DEERWESTER
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Roger J. SALAZAR
Private (E-1), U.S. Marine Corps
Appellant
No. 202000134
Decided: 27 September 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Andrea C. Goode (arraignment)
John P. Norman (trial)
Sentence adjudged 25 February 2020 by a general court-martial con-
vened at Marine Corps Base Camp Pendleton, California, consisting of
a military judge sitting alone. Sentence in the Entry of Judgment: con-
finement for 30 months and a dishonorable discharge.
For Appellant:
Commander C. Eric Roper, JAGC, USN
For Appellee:
Lieutenant Jennifer M. Joseph, JAGC, USN
Lieutenant Gregory A. Rustico, JAGC, USN
Adminstrative correction to appellate counsel.
United States v. Salazar, NMCCA No. 202000134
Opinion of the Court
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of one specification of ag-
gravated assault by strangulation of an intimate partner, one specification of
aggravated assault with a dangerous weapon upon an intimate partner, and
one specification of assault consummated by a battery, in violation of Article
128, Uniform Code of Military Justice [UCMJ]. 1
Appellant did not initially assert a specific assignment of error. Following
our preliminary review, however, this Court specified the following issue:
whether the knife which Appellant used to assault the victim constituted a
dangerous weapon. After considering the record and the briefs of the parties
we find no prejudicial error and affirm.
I. BACKGROUND
Appellant and Private First Class (E-2) [PFC] Jones 2 began a romantic
relationship in May 2019. Throughout their approximately two-month-long
relationship, Appellant would become physically violent towards PFC Jones
when angry or frustrated with her. These acts of violence included grabbing
her by the neck and strangling her, striking her with his hand on her legs,
arms, and torso, and pushing her on her torso.
On 23 June 2019, during a fight about their relationship, Appellant with-
drew a Leatherman brand knife from his pocket, opened it, and poked
PFC Jones’s leg with its blade. He then took the knife and carved her name
into his own ankle. Although he did not cut her, during his subsequent guilty
plea providence inquiry, Appellant admitted that he poked PFC Jones to
frighten and intimidate her. Appellant knew that PFC Jones was frightened
1 10 U.S.C. § 928.
2 All names in this opinion, other than those of Appellant, the judges, and counsel
are pseudonyms.
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United States v. Salazar, NMCCA No. 202000134
Opinion of the Court
and intimidated by his actions because of “the way she reacted,” and she said,
“stop.” 3
In his brief on the specified issue, Appellant contended that he did not use
his Leatherman knife in a manner that should cause it to be considered a
dangerous weapon. Appellant therefore now asks us, regarding Specification
2 of Additional Charge II, to affirm only a conviction for the lesser included
offense of simple assault and reassess his sentence accordingly.
II. DISCUSSION
A. Standard of Review
We review the military judge’s decision to accept a guilty plea for an
abuse of discretion. 4 “An appellant who challenges the providency of a guilty
plea must demonstrate a substantial basis in law and fact for questioning the
guilty plea.” 5 “A mere possibility of such a conflict is not a sufficient basis to
overturn the trial results.” 6
B. Law and Analysis
There are three requisite elements to the charge of assault with a danger-
ous weapon:
(1) That the accused offered to do bodily harm to a certain
person;
(2) The offer was made with the intent to do bodily harm;
and
(3) That the accused did so with a dangerous weapon. 7
The definition for what qualifies as a “dangerous weapon” is dependent on
the circumstances of each particular case. “What constitutes a dangerous
3 R. at 177.
4 United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
5 United States v. Pena, 64 M.J. 259, 267 (C.A.A.F. 2006) (quoting United States
v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).
6 United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996) (citing Prater, 32 M.J.
at 436) (internal quotation marks omitted).
7 Manual for Courts-Martial, United States (2019 ed.) [MCM], pt. IV, para.
77.b.(4)(a). In this case, the offense of which Appellant was convicted also included
the aggravator that the victim was his intimate partner.
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Opinion of the Court
weapon depends not on the nature of the object itself but on its capacity,
given the manner of its use, to kill or inflict grievous bodily harm.” 8 Appellant
argues he “did not use the knife in a manner likely to produce death or
grievous bodily harm.” 9 Indeed, he poked PFC Jones with the blade of his
knife, causing it to make contact with her leg; however, it did not actually
injure her.
Although we agree with Appellant that he did not use his knife in a way
so as to cause grievous bodily harm to PFC Jones, our analysis does not stop
there. The first element of aggravated assault with a dangerous weapon is
that the accused offered to do bodily harm to a certain person. An “offer-type
assault is an unlawful demonstration of violence, either by an intentional or
by a culpably negligent act or omission, which creates in the mind of another
a reasonable apprehension of receiving immediate bodily harm.” 10 Therefore,
when we assess the sufficiency of the guilty plea to this offense, we do not ask
if the weapon’s use actually caused grievous bodily harm. Rather, we ask if
the weapon’s use would cause the victim to reasonably fear receiving imme-
diate bodily harm. This leads us to consider what constitutes “reasonable
apprehension” and what constitutes “bodily harm.”
While brazen acts, like holding a knife to another’s throat or a gun to an-
other’s head, are clear ways of creating reasonable apprehension of immedi-
ate bodily harm, they are not the only ways to elicit that fear. Courts have
found such reasonable apprehension even when the weapon used did not
touch the victim. In United States v. Smith, the United States Court of
Military Appeals affirmed a conviction for assault with a dangerous weapon
when the appellant brandished a knife at the victim from several yards
away. 11 The Smith Court reasoned, “We must register dissent from the
position that an open long-bladed knife in the hand of an oncharging attacker
may not constitute a ‘dangerous weapon’ solely and only because the assail-
ant has not yet reached his target.” 12 Moreover, as our sister court articulated
8 Id., para. 77.c.(5)(a)(iii).
9 Appellant’s Br. at 4.
10 MCM, pt. IV, para. 77.c.(2)(b)(ii).
11 United States v. Smith, 4 C.M.A. 41, 15 C.M.R. 41 (1954).
12 Id. 4 C.M.A. at 46, 15 C.M.R. at 46. See also United States v. Norton, 1 C.M.A.
411, 420–22, 4 C.M.R. 3, 12–14 (C.M.A. 1952) (affirming the appellant’s conviction for
assault with a dangerous weapon, namely by poising a knife close to the victim
“indicating an intent to strike”).
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Opinion of the Court
in United States v. Rendon, there is no requirement to show that an accused
used the knife “in a manner likely to produce death or grievous bodily harm”
because “to hold otherwise would mean that aggravated assault could never
be committed through an ‘offer’ type assault—a result clearly not intended by
Article 128, UCMJ.” 13
Here the victim’s apprehension of immediate bodily harm was reasonable,
as was each victim’s apprehension in Smith and Rendon.
We must now address whether Appellant’s use of the knife constituted an
offer to do bodily harm. The military judge correctly defined assault for
Appellant:
an unlawful offer made with force or violence to do bodily harm
to another, whether or not the offer is consummated. An offer
to do bodily harm is an unlawful demonstration of violence by
an intentional act or omission which creates in the mind of an-
other a reasonable apprehension of receiving immediate bodily
harm. 14
During the providence inquiry, Appellant told the military judge that he
“poked” the victim’s body with his knife. 15 At first blush, the word ‘poke’ may
conjure an image of an inoffensive touching. However, the providence inquiry
elicited sufficient facts to establish that Appellant’s use of the knife created a
reasonable fear in PFC Jones of immediate bodily harm. Furthermore, when
the military judge asked Appellant why he poked her with the knife, Appel-
lant replied, “to scare and intimidate her, Your Honor.” 16 Appellant also
acknowledged that he could see PFC Jones looked scared by the way she
reacted and because she said “stop” when he brandished the knife. 17
The record demonstrates PFC Jones was reasonably scared Appellant was
about to harm her, and Appellant’s knife, despite not being used to cause
grievous bodily harm, was indeed a dangerous weapon. Appellant’s actions
constituted an offer-type assault with a dangerous weapon. Thus, we find no
13 United States v. Rendon, No. ACM 34306, 2001 CCA Lexis 355 at *6 (A.F. Ct.
Crim. App., Dec. 14, 2001) (unpublished).
14 R. at 172.
15 R. at 174.
16 R. at 176.
17 R. at 177.
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Opinion of the Court
substantial basis in law and fact to question Appellant’s guilty plea to Speci-
fication 2 of Additional Charge II.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. 18
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
18 Articles 59 & 66, UCMJ.
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