Background - On Nov. 7, 2014, appellant (underage and heavily intoxicated) drove on Camp Pendleton, was observed speeding and later pulled briefly to a stop; when a MP (Officer JB) activated marked police lights and took an offensive position, appellant accelerated and fled, leaving long tire marks. A high-speed pursuit ensued and appellant’s truck crashed into a duty van, killing the van’s driver (1stLt MD). Appellant’s BAC at impact was between .295 and .34. - Appellant was tried at a general court-martial and convicted by members of: violating a general order (Art. 92), fleeing apprehension (Art. 95), operating a vehicle while drunk (Art. 111), and involuntary manslaughter (Art. 119); sentence included 14 years confinement and a dishonorable discharge (approved and executed except discharge). - Major disputed factual/legal issues at appeal: legal and factual sufficiency of fleeing apprehension; whether Article 95 requires specific intent (and related voluntary-intoxication instruction); denial of continuance for a defense expert; exclusion of a defense character witness; alleged unlawful command influence (UCI) from public comments by senior leaders; challenge for cause to a member (LtCol D); and alleged unreasonable multiplication of charges. - The military judge instructed members that Article 95 requires (1) an attempt to apprehend, (2) authorization to apprehend, and (3) that the accused fled; “apprehension” could be by force or by clearly informing the person, and intoxication/ignorance could negate knowledge of the attempted apprehension. - The court of appeals reviewed sufficiency de novo and found the combination of Officer JB’s offensive positioning, activation of lights, the appellant’s look toward the officer, his immediate rapid departure, visible tire marks, witnesses’ observations, and dashcam video sufficient to prove probable cause to apprehend and that appellant actively fled; the convictions and sentence were affirmed. ### Issues | Issue | Appellant’s Argument | Government’s Argument | Held | |---|---:|---|---:| | Legal & factual sufficiency of fleeing apprehension (Art. 95) | Govt failed to prove Officer JB attempted to apprehend or that appellant knew and fled; no probable cause or clear notice | Officer JB’s offensive positioning, lights, pursuit, witness testimony, and dashcam established an attempted apprehension, probable cause, and active flight | Conviction affirmed; evidence legally and factually sufficient | | Mens rea for Art. 95 / voluntary-intoxication instruction | Art. 95 is a specific-intent crime; judge should have instructed that voluntary intoxication could negate specific intent to flee | Art. 95 requires knowledge of an attempted apprehension (general intent/knowledge); judge gave ignorance and intoxication instructions tied to knowledge element, which protected appellant’s rights | No abuse of discretion; instruction adequate; any error harmless beyond reasonable doubt | | Denial of continuance for defense expert | Late-unavailable expert was critical on intoxication/memory; continuance needed | Request was untimely and surprised the court and government; substitute testimony available; prejudice to govt and victim; judge considered Miller factors | Denial not an abuse of discretion; continuance would have been prejudicial and unnecessary | | Claim of unlawful command influence from public comments | Incoming Commandant’s media comments by name created an appearance of UCI requiring remedy/dismissal | Issue was more properly handled as pretrial publicity; voir dire adequately addressed potential bias; no evidence UCI affected proceedings | No UCI found; remedies used (voir dire) sufficient | | Challenge for cause to LtCol D (panel member) | LtCol D’s relationships with TC and CA and role in military justice created implied bias | Member’s limited interactions and experience did not create actual or implied bias; judge applied liberal grant mandate and questioned member | Denial affirmed; no actual or implied bias that would undermine fairness | | Denial of SSgt N as defense witness (character) | Appellant entitled to produce multiple SNCO character witnesses | Testimony was cumulative of another SNCO (GySgt K); defence could not articulate material difference | Denial proper; exclusion for cumulativeness was not an abuse of discretion | | Unreasonable multiplication of charges (merge Charges II–IV) | Charging fleeing, drunk driving, and involuntary manslaughter amounted to unreasonable multiplication; should merge | Each charge addressed distinct conduct/societal interests; charging separate acts was permissible and not overreaching | Denial of merger affirmed; factors did not show unreasonable multiplication | ### Key Cases Cited United States v. Washington, 57 M.J. 394 (C.A.A.F.) (standard for appellate sufficiency review) United States v. Rankin, 63 M.J. 552 (C.A.A.F.) (factual sufficiency framework) United States v. Day, 66 M.J. 172 (C.A.A.F.) (legal sufficiency test) United States v. Harris, 29 M.J. 169 (C.M.A.) (hot pursuit can signal attempted apprehension) United States v. McGuire, 71 M.J. 357 (C.A.A.F.) (mens rea and intoxication discussion) Neder v. United States, 527 U.S. 1 (U.S.) (harmlessness analysis for omitted jury element) United States v. Quiroz, 55 M.J. 334 (C.A.A.F.) (factors for unreasonable multiplication of charges) United States v. Bailey, 444 U.S. 394 (U.S.) (knowledge vs. intent discussion)