United States v. Baird

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39739
________________________
UNITED STATES
Appellee
v.
Alexander R. BAIRD
Captain (O-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 28 December 2020
________________________
Military Judge: Thomas J. Alford.
Sentence: Sentence adjudged 1 May 2019 by GCM convened at Tinker
Air Force Base, Oklahoma. Sentence entered by military judge on 25
June 2019: Dismissal, confinement for 136 days, and a reprimand.
For Appellant: Captain Amanda E. Dermady, USAF.
For Appellee: Captain Kelsey B. Shust, USAF; Mary Ellen Payne, Es-
quire.
Before POSCH, KEY, and MEGINLEY, Appellate Military Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge POSCH and Judge KEY joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MEGINLEY, Judge:
A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with his pleas and a pretrial agreement (PTA),
of one specification of failure to go to his assigned place of duty on divers occa-
sions, in violation of Article 86, Uniform Code of Military Justice (UCMJ), 10
United States v. Baird, No. ACM 39739
U.S.C. § 886; one specification of wrongful drug use, in violation of Article
112a, UCMJ, 10 U.S.C. § 912a; one specification of conduct unbecoming an of-
ficer and a gentleman, in violation of Article 133, UCMJ, 10 U.S.C. § 933; and
one specification of breaking restriction to base on divers occasions, in violation
of Article 134, UCMJ, 10 U.S.C. § 934. 1 The military judge sentenced Appellant
to a dismissal, confinement for 136 days, and a reprimand. The military judge
credited Appellant with 136 days against his sentence for time Appellant spent
in pretrial confinement and restriction to base. The convening authority ap-
proved the sentence as adjudged. 2
Appellant raises five assignments of error on appeal: (1) that his plea is
improvident because there was a mutual misunderstanding regarding a mate-
rial term of the PTA that resulted in Appellant not receiving the benefit of his
bargain and that his plea was not knowing and voluntary; (2) that trial defense
counsel were ineffective because they did not properly advise him about sex
offender registration and failed to request confinement credit under Article 13,
UCMJ, 10 U.S.C. § 813; (3) that Appellant’s plea to conduct unbecoming an
officer and a gentleman is improvident; (4) that testimony of Appellant’s com-
mander was improper aggravation evidence under Rule for Courts-Martial
(R.C.M.) 1001; and (5) Appellant’s counsel were ineffective because they failed
to argue against a dismissal. 3
Because we resolve issue (3) in Appellant’s favor, we do not reach the re-
maining assignments of error and the issues personally raised by Appellant.
Finding Appellant’s plea to be improvident, we set aside the finding of guilty
of Specification 2 of Charge IV and the sentence, and return the case to The
Judge Advocate General for remand to the convening authority for further pro-
cessing consistent with this opinion.
1 References to the punitive articles of the Uniform Code of Military Justice (UCMJ)
are to the Manual for Courts-Martial, United States (2016 ed.) (2016 MCM). Unless
otherwise noted, all other references to the UCMJ, the Rules for Courts-Martial
(R.C.M.), and the Military Rules of Evidence are to the Manual for Courts-Martial,
United States (2019 ed.) (2019 MCM).
2Consistent with the terms of the 1 May 2019 PTA, the convening authority withdrew
and dismissed without prejudice, upon the acceptance of Appellant’s guilty plea, one
charge with one specification of indecent exposure, in violation of Article 120c, UCMJ,
10 U.S.C. 920c; one specification of a violation of conduct unbecoming an officer; and
an additional charge with one specification of conducting unbecoming an officer, in
violation of Article 133, UCMJ, 10 U.S.C. § 933.
3Appellant personally asserts issues (4) and (5) pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
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United States v. Baird, No. ACM 39739
I. BACKGROUND
Appellant argues his plea to Specification 2 of Charge IV, conduct unbe-
coming, is improvident because his conduct did not amount to conduct unbe-
coming an officer and a gentleman. This specification charged Appellant with
wrongfully touching AD:
In that [Appellant], did, at or near Oklahoma City, Oklahoma,
on or about 21 August 2018, wrongfully touch [AD’s] buttocks
and thighs and that under the circumstances, this behavior con-
stituted conduct unbecoming an officer and gentleman.
On 21 August 2018, Appellant was at the apartment of his girlfriend, KH.
KH and her best friend, AD, were going out together that evening. After AD
arrived and met Appellant for the first time, according to Appellant, the three
engaged in flirting. Appellant’s perception was that the “atmosphere was sex-
ually tense.” After their discussion, KH and AD departed, while Appellant re-
mained at the apartment and played video games. When KH and AD returned
back to the apartment close to midnight, KH went to her bedroom and fell
asleep.
However, Appellant and AD stayed awake, and for the next five hours or
so, talked throughout the night. The conversation was, in part, of a sexual na-
ture and both were drinking alcohol. 4 According to Appellant, he and AD dis-
cussed “things that [they had] done with other people,” and their “sexual his-
tories, and potential desires,” but he denied any discussion of having sex with
AD or having a threesome with AD and KH, nor was there any indication from
AD that she wanted to engage in sex with Appellant or between Appellant and
4 Appellant was charged with another specification of conduct unbecoming an officer
and gentleman (Additional Charge and its Specification). In conducting the providence
inquiry on this specification, which occurred before the specification at issue (Specifi-
cation 2 of Charge IV), the military judge discussed the sexual nature of Appellant’s
conversation with AD. However, after conducting the providence inquiry on the Spec-
ification of the Additional Charge, but before the military judge accepted Appellant’s
plea to the charge, pursuant to new PTA discussions, Appellant withdrew his plea of
guilty to the Additional Charge and its Specification and pleaded not guilty. This
charge was withdrawn by the convening authority pursuant to the PTA. Nonetheless,
the military judge advised trial defense counsel that he would not consider Appellant’s
responses to his questioning of the Additional Charge and its Specification, unless Ap-
pellant waived and allowed him to consider those responses related to Specification 2
of Charge IV (which offenses occurred during the same time period). Trial defense
counsel waived any concerns to the military judge considering portions of the provi-
dence inquiry related to the conduct or interactions Appellant had with AD charged in
the Additional Charge and its Specification, except for facts directly related to the ac-
tual specification.
3
United States v. Baird, No. ACM 39739
KH. Other than having this sexual discussion, Appellant did not engage in any
kind of romantic activity with AD.
During the providence inquiry, Appellant told the military judge that in
the early morning hours of 22 August 2018, at around 0500, Appellant and AD
discussed where they were going to sleep. AD suggested that Appellant sleep
in the bedroom with KH and she would sleep on the couch. Appellant told AD
that she should
sleep in the bed because [KH] would be upset with [Appellant] if
[Appellant let] her best friend sleep on the couch. [AD] agreed
and went into [KH]’s bedroom. After approximately 5 minutes,
[Appellant] got in the bed with [KH] and [AD], with [KH] lying
in the middle. At this point, all three . . . were under the covers.
[Appellant] reached over [KH]’s body, to try to wake up [AD].
Appellant then told the military judge,
. . . I do not have a strong recollection of exactly where I touched
[AD], but I reviewed the government’s evidence including [AD’s]
statement to [Air Force Office of Special Investigations] and I
have no reason to doubt that I touched her buttocks in addition
to her thigh while trying to wake her up. While I was only trying
to wake her up and I was not trying to touch her buttocks, the
room was dark and I could not see exactly where my hand went
or what I touched underneath the covers. [AD] did not respond
so, I left the bed and slept on the couch. As an Air Force officer,
I realized that my actions were reckless and uncalled for and
that I should not have tried to wake her up in this manner. Tak-
ing all the circumstances into account, I believe that my behav-
ior in this private capacity dishonored me personally and seri-
ously compromised my standing as an officer. I had no legal jus-
tification or excuse for touching [AD] in this manner and I
could’ve avoided doing so if I had wanted to. I apologize for my
actions.
When asked if AD was awake when Appellant entered the bedroom, Appel-
lant responded he did not know if she was awake or not. Moments later, the
military judge asked Appellant about his touching of AD, stating, “And then
you, I think you said you reached over your girlfriend. You didn’t like graze her
or anything, you purposely kind of [reached over] to get [AD’s] attention?” Ap-
pellant responded, “Yes, sir.” Appellant then admitted he touched AD’s thigh
and buttocks. Although Appellant acknowledged he intended to touch AD, and
that he did not have consent to touch her, Appellant’s intent “was to attempt
to [ ] wake her up when I entered the bed, but [I] was reckless in reaching
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United States v. Baird, No. ACM 39739
underneath the covers without knowing where my hand was going.” Appellant
then told the military judge that he was confident he touched AD’s thigh and
buttocks.
The military judge further asked Appellant, “Is that why you believe your
conduct was essentially conduct unbecoming?” Appellant responded, “Yes, sir.
That is the case.” The military judge then stopped and read Appellant the def-
inition of mistake of fact as to consent, and then asked Appellant, whether he
mistakenly believed AD was consenting to any of this conduct. Appellant re-
sponded, “[A]t the time I had no reason to believe that she wanted me to touch
her.” Appellant again reiterated that AD had no reaction to his touching of her,
and once Appellant saw no reaction, he left the bed. The military judge asked
Appellant if he would agree and admit that his actions with respect to AD were
wrongful. Appellant said, “Yes sir. I would.” Appellant then agreed, again, that
his behavior constituted conduct unbecoming an officer and gentleman. The
military judge asked Appellant, “Why is it again [conduct unbecoming]?” Ap-
pellant responded, “I never received any indication that she wanted me to
touch her.” The military judge concluded by asking Appellant if he believed
and admitted that he wrongfully touched AD’s buttocks and thighs, and that
under the circumstances, his behavior constituted conduct unbecoming an of-
ficer and gentleman. Appellant stated, “Yes sir. I do.”
While conducting Appellant’s providence inquiry, the military judge read
Appellant the definitions of assault consummated by a battery, and remarked
that Appellant’s touching of AD “sound[ed] like [he] may have committed an
assault consummated by battery [offense]?” 5 Appellant responded, “Yes, sir.”
Nonetheless, the military judge raised three concerns, namely, that “without
her consent language” was not included in the specification, whether the spec-
ification stated an offense, and whether trial defense counsel had an issue with
notice or vagueness concerns with the specification. Trial defense counsel ad-
dressed these concerns, responding that “the defense believes it was under no-
tice as [the specification] was charged under an Article 128 [UCMJ, 10 U.S.C.
§ 928,] theory as opposed to an Article 120[, UCMJ,] theory. Consent would be
an affirmative defense and it would not be a requirement under the way it was
drafted.” The Government’s position was that the charge was analogous to an
Article 128, UCMJ, offense, and the military judge agreed, concluding that the
maximum punishment included a dismissal and six months’ confinement,
which were the limits for the offense of assault consummated by a battery in
5The military judge also read the definition of bodily harm (stating, “Bodily harm
means any physical injury or offensive touching of another person, however slight”).
5
United States v. Baird, No. ACM 39739
violation of Article 128, UCMJ.
Additionally, Appellant and the Government stipulated to the following
facts:
[Appellant] eventually entered the bedroom and laid down on
the other side of [KH]. Soon after getting in the bed, the [Appel-
lant] reached over [KH’s] body and touched [AD’s] buttocks and
thigh while whispering [AD’s] name to get her attention. [AD]
did not respond to [Appellant], and he eventually stopped touch-
ing her, after which [AD] fell asleep. [AD] did not consent to this
act, and she did not want [Appellant] to touch her buttocks and
thighs, but did not express her feelings in any way during the
encounter in the bed. [Appellant’s] morally unfitting and unwor-
thy actions dishonored or disgraced him personally and seriously
detracted from his standing as a commissioned officer.
II. DISCUSSION
A. Law
1. Providence of a Guilty Plea
“A military judge’s decision to accept a guilty plea is reviewed for an abuse
of discretion.” United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996).
[T]he record . . . must reflect not only that the elements of each
offense charged have been explained to the accused but also that
the military trial judge . . . has questioned the accused about
what he did or did not do, and what he intended (where this is
pertinent), to make clear the basis for a determination by the
military trial judge . . . whether the acts or the omissions of the
accused constitute the offense or offenses to which he is pleading
guilty.
United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969) (citations omitted).
A military judge abuses this discretion when accepting a plea if he does not
ensure the accused provides an adequate factual basis to support the plea dur-
ing the providence inquiry. Id. This is an area for which the military judge is
entitled to much deference. United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008).
At trial, the military judge must ensure the accused understands the facts
that support his guilty plea, and the judge must be satisfied that the accused
understands the law applicable to his acts and that he is actually guilty. See
United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing
6
United States v. Baird, No. ACM 39739
at 250–51); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002). “If the
factual circumstances as revealed by the accused himself objectively support
that plea,” the factual predicate is sufficiently established. United States v.
Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (quoting United States v. Daven-
port, 9 M.J. 364, 367 (C.M.A. 1980)). “In reviewing the providence of [the
a]ppellant’s guilty pleas, we consider his colloquy with the military judge, as
well any inferences that may reasonably be drawn from it.” United States v.
Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) (citing United States v. Hardeman, 59 M.J.
389, 391 (C.A.A.F. 2004)).
In determining the accuracy of a plea, the military judge shall not accept a
plea of guilty without making such inquiry of the accused as shall satisfy the
military judge that there is a factual basis for the plea. Rule for Courts-Martial
910(e). Further, a military judge is required to explain the elements of the of-
fense. Then, “the accused must be convinced of, and able to describe all the
facts necessary to establish guilt.” R.C.M. 910(e), Discussion.
Article 45(a), UCMJ, 10 U.S.C. § 845(a), requires that a military judge set
aside a guilty plea if an accused “sets up matter inconsistent with the plea, or
if it appears that he has entered the plea of guilty improvidently or through
lack of understanding of its meaning and effect . . . .” See also United States v.
Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (stating that if an accused sets up mat-
ter inconsistent with the plea at any time during the proceeding, the military
judge must either resolve the apparent inconsistency or reject the plea) (inter-
nal quotation marks and citation omitted).
When a defense is raised by the appellant’s statements during a providence
inquiry, the military judge should explain the elements of the defense to the
appellant and resolve the issue, before accepting the guilty plea. R.C.M. 910(e),
Discussion; see also United States v. Lee, 16 M.J. 278, 281 (C.M.A. 1983). If the
accused subsequently does not negate the possible defense, or other evidence
belies the negation of the defense, the military judge must withdraw the guilty
plea, enter a plea of not guilty, and proceed to trial on the merits. United States
v. Jemmings, 1 M.J. 414, 417–18 (C.M.A. 1976). The military justice system
imposes even stricter standards on military judges with regards to guilty pleas
than those imposed on federal civilian judges. United States v. Perron, 58 M.J.
78, 82 (C.A.A.F. 2003) (citing United States v. Outhier, 45 M.J. 326, 331
(C.A.A.F. 1996)). “Article 45(a)[, UCMJ,] requires that, in a guilty-plea case,
inconsistencies and apparent defenses must be resolved by the military judge
or the guilty pleas must be rejected.” Outhier, 45 M.J. at 331.
An appellate court “will not overturn a military judge’s acceptance of a
guilty plea based on a mere possibility of a defense. The record must show a
substantial basis in law and fact for rejecting the plea of guilty.” United States
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v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (quoting United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)) (internal quotation marks omitted); see also
Hayes, 70 M.J. at 458 (distinguishing a “possible defense” from the “mere pos-
sibility of a defense”). On appeal, a guilty plea should be overturned only if the
record fails to objectively support the plea or there is “evidence in ‘substantial
conflict’ with the pleas of guilty.” United States v. Higgins, 40 M.J. 67, 68
(C.M.A. 1994) (citations omitted). In deciding whether a plea is rendered im-
provident by statements inconsistent with the plea, the sole question is
whether the statement was inconsistent, not whether it was credible or plau-
sible. Lee, 16 M.J. at 281.
2. Conduct Unbecoming an Officer
The offense of conduct unbecoming an officer includes actions which are
“indicated by acts of dishonesty, unfair dealings, indecency, indecorum, law-
lessness, injustice, or cruelty.” Manual for Courts-Martial, United States (2016
ed.) (MCM), pt. IV, ¶ 59.c.(2). The conduct
must offend so seriously against law, justice, morality or deco-
rum as to expose to disgrace, socially or as a man, the offender,
and at the same time must be of such a nature or committed
under such circumstances as to bring dishonor or disrepute upon
the military profession which he represents.
. . . If the act, though ungentlemanlike, be of a trifling character,
involving no material prejudice to individual rights, or offence
against public morals or decorum, it will not in general properly
be viewed as so affecting the reputation of the officer or the
credit of the service as to be made the occasion of a prosecution
under the Article.
United States v. Brown, 55 M.J. 375, 382 (C.A.A.F. 2001) (omission in original)
(citing William Winthrop, Military Law and Precedents 711–12 (2d ed. 1920
reprint)). “The conduct must impugn the honor or integrity of the officer or
subject him to social disgrace. Article 133[, UCMJ,] is reserved for serious de-
licts of officers and should not be demeaned by using it to charge minor dere-
lictions.” United States v. Murchison, No. ACM 32412, 1997 CCA LEXIS 442,
at *5 (A.F. Ct. Crim. App. 20 Aug. 1997) (unpub op.) (citations omitted). ““Un-
becoming’ . . . is understood to mean not merely inappropriate or unsuita-
ble, . . . but morally unbefitting and unworthy.” Id at *5–6 (citations omitted);
see also United States v. Rogers, 54 M.J. 244, 255–56 (C.A.A.F. 2000).
Conduct unbecoming an officer and gentleman under Article 133, UCMJ,
is a general intent crime. “[G]eneral intent merely requires [t]he intent to per-
form [the actus reus] even though the actor does not desire the consequences
that result. . . . [A] general intent mens rea would require only that Appellant
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United States v. Baird, No. ACM 39739
intended to commit the conduct alleged in each specification.” United States v.
Voorhees, 79 M.J. 5, 16 (C.A.A.F. 2019).
In order for the military judge to find Appellant guilty of conduct unbecom-
ing an officer and gentleman under Article 133, UCMJ, the military judge must
have found that (1) Appellant did a certain act and (2) under the circumstances,
the act constituted conduct unbecoming an officer and gentleman. See MCM,
pt. IV, ¶ 59.b. Conduct in violation of Article 133, UCMJ, is
action or behavior in an official capacity which, in dishonoring
or disgracing the person as an officer, seriously compromises the
officer’s character as a gentleman, or action or behavior in an
unofficial or private capacity which, in dishonoring or disgracing
the officer personally, seriously compromises the person’s stand-
ing as an officer.
MCM, pt. IV ¶ 59.c.(2).
An officer’s conduct need not violate other provisions of the
UCMJ or even be otherwise criminal to violate Article 133,
UCMJ. The gravamen of the offense is that the officer’s conduct
disgraces him personally . . . . Clearly, then, the appropriate
standard for assessing criminality under Article 133 is whether
the conduct or act charged is dishonorable and compromising as
hereinbefore spelled out—this notwithstanding whether or not
the act otherwise amounts to a crime.
United States v. Lofton, 69 M.J. 386, 388–89 (C.A.A.F. 2011) (quoting United
States v. Schweitzer, 68 M.J. 133, 137 (C.A.A.F. 2009)).
“The test for a violation of Article 133, UCMJ, is ‘whether the conduct has
fallen below the standards established for officers.’” United States v. Diaz, 69
M.J. 127, 136 (C.A.A.F. 2010) (quoting United States v. Taylor, 23 M.J. 314,
318 (C.M.A. 1987)). A determination if the conduct charged is unbecoming of
an officer includes “taking all the circumstances into consideration.” MCM, pt.
IV, ¶ 59.c.(2). “Such circumstances incorporate the concept of honor.” Diaz, 69
M.J. at 136. “[E]vidence of honorable motive may inform a factfinder’s judg-
ment as to whether conduct is unbecoming an officer.” Id. The subjective moti-
vation of an accused is relevant to a charge under Article 133, UCMJ. Id.
Before an officer can be convicted of an offense under Article 133, UCMJ,
due process requires “‘fair notice’ that an act is forbidden and subject to crimi-
nal sanction.” United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citing
United States v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)); see United States v.
Anderson, 60 M.J. 548, 554 (A.F. Ct. Crim. App. 2004). The question is whether
a “reasonable military officer would have no doubt that the activities charged
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United States v. Baird, No. ACM 39739
constituted conduct unbecoming an officer.” United States v. Frazier, 34 M.J.
194, 198 (C.M.A. 1994) (footnote omitted) (citing Parker v. Levy, 417 U.S. 733,
757 (1974)). “Whenever the offense charged [under Article 133, UCMJ,] is the
same as a specific offense set forth in this Manual, the elements of proof are
the same as those set forth in the paragraph which treats the specific offense,
with the additional requirement that the act or omission constitutes conduct
unbecoming an officer and gentleman.” MCM, pt. IV, ¶ 59.c.(2).
B. Analysis
Recognizing that a military judge is entitled to much deference when it
comes to accepting guilty pleas, we find that the military judge abused his dis-
cretion in accepting Appellant’s plea to Specification 2 of Charge IV, conduct
unbecoming an officer and a gentleman, as there is not an adequate factual
basis to support the plea.
As a threshold matter, we agree with the military judge’s determination
that Appellant’s touching of AD “sounded” like an assault consummated by
battery. With this in mind, “[w]henever the offense charged [under Article 133,
UCMJ,] is the same as a specific offense set forth in this Manual, the elements
of proof are the same as those set forth in the paragraph which treats the spe-
cific offense, with the additional requirement that the act or omission consti-
tutes conduct unbecoming an officer and gentleman.” MCM, pt. IV, ¶ 59.c.(2).
In determining how to resolve this issue, we look at the reasoning of United
States v. Arthen, 32 M.J. 541 (A.F.C.M.R. 1990). In Arthen, our court analyzed
a conduct unbecoming allegation that appeared to be a fraternization charge.
Id. at 544. We stated, “Our test will be: If it looks like fraternization and the
parties treated it like fraternization, it is fraternization. What does the offense
look like?” Id. at 545. In Arthen, the court opined that when the Government
elects to charge what traditionally has constituted fraternization under Article
134 rather than under Article 133, they have gained an element rather than
eliminating any. Id. at 544; see also United States v. Parrillo, 31 M.J. 886(C.M.A. 1990); United States v. Court, 24 M.J. 11 (C.M.A. 1987). Therefore, in
Arthen, the court concluded that the specification in question looked like frat-
ernization. Id. at 545. Finding the reasoning of Arthen instructive, we conclude
that the elements of proof are the same as those for the offense of assault con-
summated by a battery with the additional element that Appellant’s behavior
constitute conduct unbecoming an officer and gentleman under the circum-
stances.
The two elements of assault consummated by a battery are that (1) an ac-
cused did bodily harm to a certain person; and (2) that the bodily harm was
10
United States v. Baird, No. ACM 39739
done with unlawful force or violence. See MCM, pt. IV, ¶ 54.b.(2). 6 According
to the description of this offense in the Manual, “[i]f bodily harm is inflicted
unintentionally and without culpable negligence, there is no battery. It is also
not a battery to touch another to attract the other’s attention or to prevent
injury.” MCM, pt. IV, ¶ 54.c.(2)(d) (emphasis added).
Even though this de facto defense is not among the defenses listed in
R.C.M. 916, the military judge was required to inquire further why Appellant
believed he was guilty under the circumstances. While Appellant stated AD
did not consent to his touching, the questioning in the providence inquiry did
not adequately address Appellant’s contradictory statements that he was try-
ing to wake AD up, or, that he wanted to get AD’s attention, and the Govern-
ment’s own stipulation of fact agreeing with Appellant that he touched AD’s
buttocks and thigh to “get her attention.” These statements set up a matter
inconsistent with the plea.
More to the point, the military judge did not resolve legal justifications Ap-
pellant gave for the touching and why Appellant believed his conduct was reck-
less as opposed to simply negligent. Appellant stated his manner in waking up
AD was “reckless . . . without knowing where [his] hand was going.” Although
the military judge discussed with Appellant the defense of mistake of fact as
to consent, at no point was Appellant asked whether his specific touching of
AD’s buttocks and thigh was an accident, which was raised by Appellant’s
sworn statements. 7 However, the military judge did not squarely address the
issue by advising the Appellant of the elements of the defense and then engag-
ing in an appropriate colloquy with Appellant to resolve the issue. See Jem-
mings, 1 M.J. at 417–18.
Even if Appellant’s plea had been provident with respect to the elements of
the underlying assault consummated by a battery offense, we find the military
judge abused his discretion in finding Appellant’s plea satisfied the element
that his conduct was unbecoming an officer and a gentleman under the circum-
stances. Although Appellant acknowledged that he met this element, stating
6 “An ‘assault’ is an attempt or offer with unlawful force or violence to do bodily harm
to another, whether or not the attempt or offer is consummated. It must be done with-
out legal justification or excuse and without the lawful consent of the person affected.
‘Bodily harm’ means any offensive touching of another, however slight.” MCM, pt. IV,
¶ 54.c.(1)(a). A “battery” is an assault in which in which the attempt or offer to do
bodily harm is consummated by the infliction of that harm. MCM, pt. IV, ¶ 54.c.(2)(a).
7 See R.C.M. 916(f), “Accident. A death, injury, or other event which occurs as the un-
intentional and unexpected result of doing a lawful act in a lawful manner is an acci-
dent and excusable.” Appellant’s statement that his conduct was “reckless” falls short
of an intentional and expected result in that he repeatedly stated that he was only
trying to wake up AD.
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United States v. Baird, No. ACM 39739
that he had dishonored himself and compromised his standing as an officer,
other remarks were inconsistent with Appellant’s legal conclusions. Taking
Appellant’s sworn statements at face value, this court is left with a record in
which Appellant’s purpose in touching AD was simply because he “was only
trying to wake her up” and “was not trying to touch her buttocks.” Without
further explanation, an act done to get someone’s attention is not obviously
“wrongful,” as discussed, much less so seriously offensive to law, justice, mo-
rality, or decorum, so as to disgrace an officer personally. In this instance, Ap-
pellant’s plea fails to demonstrate why his behavior was “morally unfitting and
unworthy.” Appellant’s stated intent in touching AD fails to amount to an un-
lawful touching under Article 128, UCMJ, and the plea fails to account for why
Appellant’s conduct violated Article 133, UCMJ, other than the fact that he
was an officer.
A military judge must elicit facts from which the military judge can deter-
mine the factual basis for the plea and “mere conclusions of law recited by an
accused are insufficient to provide a factual basis for a guilty plea.” Outhier,
45 M.J. at 331. Because Appellant did not explain why he believed touching
AD was offensive or wrongful under the circumstances we cannot simply accept
Appellant’s legal conclusions that his behavior was morally unfitting or com-
promised his standing as an officer so that he would get the benefit of his PTA
with the convening authority. By Appellant essentially claiming that he was
only seeking to get AD’s attention to wake her up, although doing it “reck-
lessly,” and then simply agreeing to legal conclusions as to his guilt with a
series of “Yes Sir’s” in answering the military judge’s questions, we are left
with the inconsistencies of his plea, which the military judge was required to
reconcile, and failed to do so.
III. CONCLUSION
The finding of guilty of Specification 2 of Charge IV and the sentence are
SET ASIDE. The case is returned to The Judge Advocate General for remand
to the convening authority for further processing consistent with this opinion.
A rehearing on the findings and sentence is authorized. Article 66(f), UCMJ,
10 U.S.C. § 866(f).
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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