*1 STATES, Appellee, UNITED SIMMONS, Corporal, U.S. C.
Jessie Corps, Appellant.
Marine
No. 05-0263.
Crim.App. No. 200300528. Appeals
U.S. Court
the Armed Forces.
Argued Dec. 2005. April
Decided
BAKER, J., opinion of the delivered C.J., GIERKE, separate con- filed Court. EFFRON, J., sepa- filed curring opinion. concurring in the result. opinion rate J., CRAWFORD, ERDMANN, J., each dissenting opinion. separate filed a Yim, Anthony Appellant: For Lieutenant JAGC, (argued). USNR R. Appellee: TyQuili For Lieutenant JAGC, Booker, (argued); USNR Command- (on Purnell, JAGC, N. er Charles USN Lietzau, USMC, brief); K. Colonel William II, Beal Major Raymond E. USMC. opinion of the Judge BAKER delivered the Court. by special tried court-mar- Pursuant
tial alone. before of two pleas, Appellant was convicted obey a lawful order specifications of failure to Code of in violation of Article Uniform (UCMJ), § Military Justice U.S.C. (2000), specification one of Article 10 U.S.C. violation (2000). was sentenced discharge, confinement for 100 bad-conduct forfeitures, to E- days, partial and reduction convening authority approved the 1. The and, exception adjudged sentence as discharge, it exe- ordered bad-conduct Navy-Marine Corps cuted. and af- Appeals found no error Criminal *2 90 Simmons, yelled him;
firmed. United v. against States No. rack and outside, (N.M.Ct.Crim.App. NMCCA 200300528 Nov. and went sir. 2004) (unpublished). granted We review Appellant pled to and following issue: CPL Schuknecht’s assault of PFC Whetstone WHETHER A DUTY TO by battery. INTERVENE consummated ARISES FOR PURPOSES OF AIDER explaining While the elements of the of- AND LIABILITY A ABETTOR WHEN military Appellant,1 judge fense to noted SUPERIOR THE WITNESSES COM- following: AN MISSION OF BY OFFENSE OR MJ: An aider or knowingly abettor must AGAINST A SERVICE MEMBER IN willfully and participate in com- HIS CHAIN OF COMMAND. something mission the crime as arise, We hold that such a about, how- that he or bring she wishes to ever, must accompanied by it be aid, shared crim- must encourage, and or incite the inal intent for aider abettor and to person to commit act____ attach.
Background Now, normally, at the scene Appellant’s grew conviction out an inci- enough, a crime is nor is fail- dent in barracks room between prevent ure to commission (CPL) platoon, two Corporal members of his offense. It must be an intent to aid (PFC) Schuknecht and Private First Class encourage persons who com- During Whetstone. providence inquiry, mit the crime. military judge Appellant asked about the hand, On the other if the accused leading up facts Appellant to the assault. witnessed the commission of the responded: and crime but interfere It birthday ACC: was one of our friend’s did not protect because he wanted to sir; night, [sic] that and we were encourage, Corporal this case out; getting ready go Corpo- and Schuknecht, David E. then he or she Schuknecht—well, ral me and principal. is considered be a got argument Whetstone had elements, explaining After these I because told him to leave the Appellant asked whether “these ele- sir, leave, room and he wouldn’t just you ments that I described ... cor- he drunk I because was told rectly happened describe what [sic] leave; him to and when he walked Appellant responded, ‘Yes, occasion?” sir.”2 me, he, away like, from mumbled something; I response didn’t hear him military judge’s specific just anything. question mumble That’s what thought as to how he “crimi- was told, Corporal assault, nally responsible” Schuk- got grabbed necht face following: my offered the “Because it, sir, the neck and encouraged threw him I’m an [non- because NCO 1. The accept sheet states: “CHARGE III: 2. responding VIO Even if we were to LATION OF THE ARTICLE 128 .... "yes,” Appellant admitting to each of the Corporal SPECIFICATION 2: In that Jessie C. actually revealing elements without the factual SIMMONS, JR., Corps, U.S. Marine 3d Battal response, thereby satisfying basis for his the re- ion, Division, Regiment, 8th Marine 2d Marine 910(e), quirements still of R.C.M. there would Carolina, did, Lejeune, Camp North on board provi- a substantial basis in fact Carolina, Lejeune, Camp North between about later, dency plea based on January April standby 2002 9 and do inconsistent intent. statements nothing to prevent the unlawfully] grabbing of McCrimmon, WHETSTONE, Private First Class Robert L. U.S. (C.A.A.F.2004) (quoting Corps, Marine throat[.] around his the hand of Outhier, (2000); U.S.C. 845 SCHUKNECHT, Corporal David E. tbS. Marine (C.A.A.F.1996)). Corps." The additions and deletions were noted pursuant on the record after conference (R.C.M.) Rule for Courts-Martial stop victim, intervene to had a platoon in Whetstone’s officer] commissioned junior it, grabbing a stopped corporal from stepped another I should throat, and that his inaction sir; indicat- further Marine didn’t.” but miscon- lasted “for about ten his friend’s operated the assault ed that step in” “had time to could Although and that he seconds” duct. *3 military- when the not. thorough but did a more have conducted you know that Appellant, “[d]id judge asked facts the charge, we find the regarding this grab going Corporal Schuknecht fairly re- appellant admitted to met throat?,” Appellant re- about the Whetstone for Courts-Mar- quirements of the Manual tial____ sponded, “[n]o sir.” issue judge revisited the 200300528, op. Simmons, slip NMCCA No. the two had the follow- intent and at 2. ing exchange: on Appellant challenges conviction interval, during the And ten-second MJ: not share CPL that did basis trying stepping in and rather than lat- intent when the Schuknecht’s Marine, your junior prevent harm Appel- ter assaulted PFC Whetstone just you there and sat watched? According Appel- lant’s barracks room. Yes, sir. ACC: conviction, lant, by affirming the lower Arti- the mandate of Corporal court failed to follow you actively encourage Did MJ: (2000), 10 877 assault— cle U.S.C. Schuknecht to ig- liability that created new standard of a sir, By doing I think anything, ACC: necessary to concept of rea nores the mens that— liability. establish aider abettor you yell say, him and But didn’t at MJ: brief, that he Appellant, in his concedes more,” “Get or do it some [sic] fight in the between had to intervene you? did and PFC Whetstone. CPL Schuknecht No, sir. ACC: However, according Appellant, law federal just nothing? there did MJ: You sat knowledge part on the requires Yes, sir. ACC: sharing he is the criminal accused that an ele- venture and its as essential intervene, With aiding abetting. crime of ment the follow- Jackson, v. 6 cites United States ing exchange: (1955), 193, 201, 19 327 C.M.A. C.M.R. you And do believe that and admit MJ: pres- mere inactive proposition that though you may that even of a crime does not estab- ence the scene anticipated Corporal that guilt. lish did, going to do what he that that, you had when he did do that an response, argues In the Government obligation legal duty to stop and a as en Appellant’s failure intervene served happening? that from couragement, in and of suffi which is itself on for assault Yes, cient sustain conviction sir. ACC: aiding sup theory abetting. why? you obligation And had the MJ: port of cites two position, its the Government I was the NCO PFC Whetstone’s ACC: Void, cases, 17 States v. lower court United sir; and platoon, I should have (A.C.M.R.1983), M.J. 743 and United stepped in. (N.B.R. Toland, 19 570 States v. C.M.R. review, the lower court concluded that 1955). Government, On According both provi- plea to assault was proposition that inaction cases stand for dent: encourage can an inference of aid lead to that, as ment and therefore the noncom-
[A]ppellant admitted as directly supervising the under Article missioned officer
92
Discussion interfere the commission of an offense, interfere, but does not “Pleas should not be set party is a to the crime if such noninter- appeal on aside unless there is ‘a substantial ference and does basis law and fact questioning for aid to the actual Eberle, guilty plea.’” 44 States v. United perpetrator. (C.A.A.F.1996) (quoting M.J. United (C.M.A. Prater, v. States Courts-Martial, Manual United States 1991) omitted)). (quotation marks “A mili (2005 (ii) ed.) l(b)(i), (MCM)', tary judge’s accept guilty plea decision to Crouch, (C.M.A. States v. reviewed for an abuse of discretion.” Id. 1981) (upholding con (citing United Gallegos, M.J. 446 appellant viction where had a to act (C.A.A.F.1995)). *4 because, performing guard duty, while he military judge may accept A guilty a stop failed to two servicemembers from plea unless makes “such of the breaking military into pool). a motor How accused” that satisfies of a “factual basis ever, presence at the scene of “[m]ere a 910(e). plea.” R.C.M. See United crime one principal.” does make a MCM Care, 535, 541, States v. C.M.A. 18 40 C.M.R. l.b.(3)(b), cited in United States (1969) (“[T]he 247, 253 record of trial ... Pritchett, (C.M.A.1990). 213, v. 31 M.J. 217 reflect must ... that the trial In Thompson, this Court questioned ... has accused what appellant’s inferred criminal intent from the do, he did or did not and what he intend acts, including contributing affirmative to the ed____”). every accused admit “[T]he must rape providing victim’s intoxication and offense(s) element of the to which the ac responsible condom friend for the actu- 910(e) pleads guilty.” cused R.C.M. Discus 257, (C.A.A.F.1999). al assault. 50 258 Barton, sion. See United States v. 60 M.J. Furthermore, Thomp- this Court found that 62, (C.A.A.F.2004) (“[The] predi 64 factual [Sergeant] son go- “knew SGT Timmons was sufficiently cate is if established ‘the factual ing to have intercourse with K” and he by circumstances as revealed accused encouraged failing by SGT Timmons to dis- ”) objectively support plea.’ himself added). him. Id. (emphasis suade (quoting Davenport, United v. States 9 M.J. 364, (C.M.A.1980)); 367 also United Jackson, Similarly, in United States v. this Jordan, (C.A.A.F. 236, v. States 57 239 upheld by Court Jackson’s conviction infer- “ 2002) (finding that ‘mere conclusions of law ring purpose shared criminal the cir- from recited an accused ... are insufficient to surrounding cumstances the murder of a ”) provide a plea’ factual basis for a companion. German national Jackson’s Outhier, (quoting United States v. 45 M.J. Bums, 203, 319, C.M.A. 19 C.M.R. (C.A.A.F.1996)). 326, 331 (1955). “Both accused were armed with knives; aggressive; both were and Jackson According explanation accom predisposition knew that Burns a ‘fool’ panying a Article resulting knife. A from homicide under an theo assault under such circumstances is sufficient ry, person a must: a support conviction for Id. In murder.” (i) Assist, advise, encourage, instigate, law, principle of this same counsel, command, or procure another to Government also cites Void and Toland. commit, assist, advise, encourage, coun-
sel, or another in command the commission contrast, By Lyons, offense; this Court found insufficient evidence from (ii) Share the criminal of de- which to infer criminal intent steal a sign. 68, 71, truckload coffee. C.M.A. (1959). only circumstances, circum- “[T]he C.M.R. some tending participation party, make stance to show one liable as a where acceptance there is a act. If a ... has accused is his offer of a [the] purpose under Article ment of a shared es- That connection insufficient bribe. alleged sharing which this parties tablish conscious cite cases UCMJ. Both Id. intent of co-actors.” liability prem- found aider abettor Failure to act in accor- on inaction. ised
Analysis legal duty can reflect criminal dance with Article element first fact-specific inqui- this intent. plea inquiry fail ry and the facts this Court, Appellant adopts Before such, As we that he had shared intent. establish such concession fight stop to intervene be- in fact to is a substantial basis find there CPL Schuknecht PFC Whetstone tween Appellant’s guilty sufficiency of question the basis that “was the NCO on the platoon” and he “should PFC Whetstone’s Here, do facts on the record not estab- stepped to have in.” As admis- Sehuknecht’s lish that shared CPL duty, is no substan- sion of we conclude there might in- Although he criminal intent. fact tial basis law and Whetstone, sufficiency plea under the first element tended to haze PFC to, necessarily pled guilty this does not mean that he intended for CPL Indeed, applicable Navy Corps and Marine *5 By contrast to assault PFC Whetstone. years regulations the evidence of custom Thompson, Appellant not know of did CPL creating type tradition the service the of espoused by Appellant duty before this of plan to PFC Whetstone Schuknecht’s assault colloquy in the Court with (in fact, Schuknecht not even CPL Leading judge. Corps, See Marine Ma- U.S. until the known of his intent do so moment 1100.2.d.(l), rines, 6-11, (3), paras. MCWP assault), pro- in nor engaged the did he (Nov. 27, 1100.4.b., 2002); Dep’t 1100.5. of any assistance to CPL vide affirmative 1023, 1034.1., Navy, paras. Begs. it in the ten seconds took CPL 1990); 1034.2., (Sept. The Schuknecht to PFC Whetstone. Manual, Dep’t Navy, Corps of the Marine argues Appellant, by his Government 0002.1., 0003.2., lOOO.l.b., 1002.3.a., paras. inaction, encouraged CPL Schuknecht. 8.a.l., (Mar 21, 1980) (making Navy 1301.1. However, in- mistaking is the Government Corps per- regulations applicable to Marine con- tent and result. Article is sonnel). junctive; requires finding encourage- of it a Article element second ment, example, plus a intent. for result Appellant argument on the focuses sec- Here, might the record while facts on Specifi- ond element of result, finding of support a a do cally, Appellant points to of his lack knowl- Here, finding of intent. edge with to CPL Schuknecht’s intent any knowledge specifically denied of CPL quick- prior to the assault and the relative intent to assault PFC Whet- Sehukneeht’s noted, during ness entire incident.' As Although Appellant may stone. have shared providence inquiry, Appellant specifically intent, further factual Schuknecht’s without any prior knowledge the assault disavowed of record, development CPL on Sehuk- entire took and testified that the event spontaneous and too necht’s actions too ten seconds. fur- quick to an inference without draw such The Government asserted in its brief that result, into facts. As a inquiry ther duty of action where there is clear “absence Appellant’s distinguishable is from the case ability to act is akin an affirmative act Thompson present in circumstances requisite equally indicative mens longer, lasted If the assault had Jackson. However, argument goes too far. rea.” this affirmative ac- if the reflected some record intervene, duty to without Establishment of a then, more, part, perhaps this satisfy require- Appellant’s tion on per does not se fully Court could shared aid concur perpetrator. infer intent. intent to I facts in those are of this that conclusion. case.3 opinion concurring Judge The Effron result, As because did not providence concludes that the fails to on admit the record all the elements of the actually establish that inaction offense, rea, requisite this case the mens perpetrator. sepa- did write we hold there is a substantial basis only rately agree indicate that guilty plea. law and fact Effron, Judge provided has who additional why Appellant’s plea improvident. reason is parties raised the issue whether performance duty dereliction
lesser included offense that can be affirmed EFFRON, Judge (concurring in the in this case. need not We reach this issue result): because, assuming even it is a lesser included abetting through The crime of case, affirming offense this it would have nonperformance compo- four has no effect on sentence.4 There- (1) (the nents: accused has “a fore, parties’ we do argu- not address the (2) (the act”); “has a accused point. on ments offense, interfere the commission of an but (3) (the interfere”); does not intent “nonin- DECISION operate terference is to ... as an stated, For reasons decision encouragement perpetra- aid or to the actual Navy-Marine Corps United States (4) crime); underlying tor” of the effect Appeals specifica- Criminal reversed as (the perpetrator on the ... “noninterference Charge specification tion 2 of III and that does aid or as an and the are dismissed. The decision perpetrator”). actual Manual remaining findings as to the and the sentence Courts-Martial, *6 pt. para. is affirmed. l.b.(2)(b) (2005 ed.). compo- Each of these Regardless nents is essential. of whether GIERKE, Judge (concurring): Chief inaction, prosecution duty, the demonstrates opinion merely I concur with the lead that intent, and that is insufficient if the inaction failing may to intervene when one actually encourage perpe- does not aid or the culpable to do so does make one as example, trator. For it is not offense and aider abettor. provision if perpetrator under this the has no of with awareness the agree I further with the conclusion of the perpetrator the or if that the testifies opinion lead that Article 77 at- any perceiving acted without aid or she if the tach failure to is intervene intended encouragement from the inaction. actually and aid or perpe- does the trator. In plea, the context of a each of the opinion provi- components
The lead four concludes that the must be addressed the First, inquiry military judge dence fails establish the the and accused. noted, argument, participation subsequent 3. As of its the active in the Gov- absent as- Toland, Likewise, ernment cites two other lower court although the ac- saults. cases, Void and Toland. the Govern- ultimately participate in cused did not the theft argument misplaced ment’s store, ship's knew of items from the of his Void, both cases. In the facts similar in who, plan; the it was accused with his cohorts' engage actively that the accused did in the store, keys open carry it for them to left multiple which he found assaults for Furthermore, plan. original- out the accused abetting. at of and 17 M.J. 741-42. although ly participate, he later Void, bystander in a accused was series of changed his mind. C.M.R. at 571. assaults, occurring period all within a short assault, noted, As the first time. court after the punishments 4. The for dereliction of maximum "appellant had doubts no intentions through neglect simple and assault are the and others.” at 743. activities of the Id. From 16(e)(3)(A), facts, Compare pt. para. IV same. MCM properly could infer those court en- intent, 54(e)(1)(A). couragement IV and shared criminal even with MCM go them to find more new explain compo- then we sent military judge must the four and put the ele- in the and it on explaining course of to come sit chair nents Marines Second, en- military judge also, must ments. face sir.” their and dialogue in a with the accused gage oc choking incident before Moments is a for the that there factual basis ensure Whetstone, victim, curred, Appellant and the 910(e) plea. Rule for Courts-Martial got argument. Appellant told PFC in an accompanying Discussion. he was to leave the room because Whetstone improvident plea was because Here the away walked drunk. Then PFC Whetstone Appellant military judge explain did not something. Ap Appellant mumbling from necessary perpetrator that it was “Corporal pellant that Sehuk [CPL] testified Appellant’s nonperformance be aware face and got Whetstone’s] in [PFC necht context, duty. In that the statements him grabbed threw the neck and during plea colloquy did not Appellant him; yelled against the rack fact, was, perpetrator address whether outside____” military judge asked went Appellant’s inaction. aware of “willing if ... he was to admit [that violated 128 of the Uniform he] CRAWFORD, Judge (dissenting): Military Justice U.S.C. [10 Code (2000)] by allowing preventing and not Cor testimony oath before under poral committing from that established battery Appel upon PFC Whetstone?” in a con- was involved continuous course of “Yes, replied sir.” lant He testified abusing in misusing duct as a no doubt mind that he there was including choking the unit Pri- members of set (PFC) violated Article After the Appel- vate First Class Whetstone. by military judge responses forth and the January lant 2002 and admitted between mentioned, just both the trial counsel and April general he violated a order agreed inqui hazing by having him drink counsel that no further Whetstone defense beverages, amount of ry an excessive alcoholic providency needed to establish the using an attaching Id; electronic muscle con- Stumpf, Bradshaw cf. tracting device attached to PFC Whetstone’s 125 S.Ct. 162 L.Ed.2d U.S. face, referring being to PFC Whetstone (2005) (“Where represent defendant “boot,” “weak,” terms, imped- and other counsel, usually by competent the court ed *7 ing investigation by into his misconduct may rely on that counsel’s that the assurance threatening injure PFC Whetstone properly of the defendant has been informed others. of the described one of to which nature and elements drinking younger “[W]e events: had Marines pleading guilty.”). he is [including sit come Whetstone] enough is not to constitute Mere chair and would hold their heads Courts-Martial, a principal. Manual for poured and we their back alcohol down l.b.(3) (2005 ed.). IV, para. pt. United States couple get mouth for seconds and then ” principal criminally But a is for crimes hable bring Ap- up them and another one in.... by another “if crimes are committed such 2, 2002, pellant also admitted that on March likely probable result as a conse natural following place: sitting took “We were quence design.” of the criminal or venture beers; again, drinking we the barracks l.b.(5).* para. Id. at conduct guys of those half and one stimulators____muscle stimulators____and a one
this case established he associated un participated engaging with those in the up hooked it to Palencia’s face and told we hurt; face; charged and an innocent him it wouldn’t did Whetstone’s lawful acts was not * perpetrator, in the of- If one is not a of an command another commission of the by perpetrator, fense; (ii) offense committed purpose share the criminal Assist, advise, (i) instigate, encourage, must: design. command, counsel, procure or to com- another .b.(2)(b). para. Id. at assist, counsel, mit, advise, encourage, or or
bystander. taking place These acts over a liability order to establish under an sixty-day period of time establish common 77, abetting theory under Article understanding junior for misuse of the mem UCMJ, two elements must be established: unit, bers the assault CPL Schuk (1) assisted, that the defendant encouraged, being necht one of these instances. This is advised, instigated, counseled or commanded single, spontaneous, not a and isolated inci (2) offense; the commission of an place seconds, dent that took within ten but a the defendant shared purpose the criminal result, continual course of conduct. As a design perpetrator. para. Id. would hold there is not a substantial basis in l.b.(2)(b); Gosselin, 62 M.J. plea. law or fact to set aside this See United 349, (C.A.A.F.2006). 351-52 Generally, mere Prater, 433, (C.M.A. States v. 32 M.J. presence at the scene of a crime or the 1991). Thus, I respectfully dissent from set prevent failure to the commission of a crime ting aside the enough is not make one a 77, offense para. under Article UCMJ. Id. ERDMANN, Judge (dissenting): 1.b.(3)(b). However, where there is a clear majority The finds no substantial basis in act, duty to inaction that is “intended to and law or fact to sufficiency does as an aid or (CPL) Corporal plea Simmons’ under the perpetrator” may actual make one liable 77, first element of Article Uniform Code under principal. aas Id. Military (UCMJ), Justice 10 U.S.C. l.b.(2)(b); para. see also United States v. (2000), dealing with criminal as a Shearer, (C.A.A.F.1996). 44 M.J. principal for an offense committed anoth- providence inquiry At the Courts-Martial, Simmons er. See admit- Manual l.b.(2)(b)(i) (2005 ed.) para. qualification ted without duty that he had a (MCM). majority ultimately and knew finds that he had to intervene. As plea improvident plea inquiry as the this court said in Shearer: requisite failed to establish the shared intent Appellant himself admitted that he had a under the second element of Article and knew report he had a l.b.(2)(b)(ii). UCMJ. See id. Under identity Fireman Atwood’s as the driver of case, circumstances of plea the vehicle involved the accident to the agree that the record establishes Simmons’ Japanese. speculation” “Post-trial as to duty to act and providence inquiry that the precise source of this need not be adequate as to the first element of Article stage “countenanced” at this late I further conclude that the record is proceedings. See United States Harri adequate plea Simmons’ with re- son, (C.M.A.1988). 26 M.J. More spect to the second element of Article over, prosecution may in have been requires which a shared criminal duced plea forgo defense to design. presenting concerning ap its entire ease *8 specification This arose from an assault pellant’s duty report to in accidents this by committed CPL Schuknecht on Private foreign country. See United States v. (PFC) First Class Whetstone in Simmons’ Burnette, (C.M.A.1992[ ]); M.J. presence. aAs result of that incident Sim- generally Dupree, charged mons was with assault consummated (C.M.A.1987). by battery under an and I 335. have reservations about theory. theory This relied on the legal duty the existence of a Simmons, clear to inter- corporal, that legal duty as a had a vene under such I stop to intervene and circumstances and do not the assault because he conclusively establishing was a in view this as noncommissioned officer ease Whet- platoon. However, stone’s duty.1 such a as this is a may subject There well be a custom in the Marine ordinate enlisted member is to an assault. Corps legal every that a noncommissioned officer has a that custom not exist in duly every question capable to intervene in situation where a sub- situation I whether it is “just duty, sat there Simmons upon which to suant legal basis plea there is no re- recitation with no basis in this record question Simmons’ factual I find and watched.” in the assault. duty to intervene spect to second-guess own words. to Simmons’ majority’s conclu- agree I do not military agreed judge when the Simmons by as set forth Simmons that the facts sion military judge had if the elements asked element of Article fail to establish second described, bring to including that he wanted that the ele- admitted Simmons assault, correct- the commission military judge as ments described Later, in re- ly happened. described what correctly happened with re- described what sponse question from to a military spect to this offense. The actively encouraged how CPL as to he in order to be Simmons explained that Whetstone, to assault PFC Sim- in “participate to the commission had “[b]y doing anything, responded mons something that he or she wishes crime Taken in context with sir.” aid, about, encourage, or bring and must offense, explanation of the Simmons’ judge’s act.” person to commit the criminal incite clearly support infer- statements of fact told that his would Simmons design or him a the offense if he that he shared make ence “an intent to aid in this instance. if he the crime” or failed commit[s]
who providence inquiry that: reflects Simmons’ duty “pro- perform a to interfere order to (2) (1) act; he he had a saw the encourage” tect or CPL Schuknecht. seconds; (3) that about ten he lasted Article can satisfied inac- opportunity to but did not had the intervene is a to act and the tion where there (4) so; merely sat do and watched “is as an inaction or does (5) assault; he admitted perpetra- aid or the actual view, encouraged my the assault. l.b.(2)(b)(ii). tor.” MCM IV providence inquiry adequately establishes majority “CPL ac- finds that Schuknecht’s both elements of spontaneous quick” and too tions too no in law or fact to there is substantial basis that intent this case. infer Simmons shared providence plea. this While is at with Simmons’ That conclusion odds may not find a shared intervene providence own words. The reflects circumstances, I find criminal intent in other that the assault lasted “about ten seconds.” dispute no basis to or contest Simmons’ di- appear might on this to be While review of this rect factual statements period, extensive Simmons there in, of Criminal sir; would affirm step that “had time but I said taking any pur- respectfully than steps Appeals did not.” Rather therefore dissent. ready twenty- scope legal this so accurate and one-year-old corporal determination nature Corps with- the Marine by accused can make an informed decision as to military judge. out further instruction Military judges duty applied given to him whether identify would be advised well situation. legal duty an accused as to the inform