Filed: Feb. 15, 2017
Latest Update: Mar. 03, 2020
Summary: frightening the residents and neighbors who called security forces. United States v. Buber, 62 M.J. We are confident that even in the absence, of the provoking speech charge, the court-martial would not have sentenced, Appellant to any less than the sentence originally adjudged.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32193 (rem)
________________________
UNITED STATES
Appellee
v.
Alan J. KILLION, Jr.
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the Air Force Trial Judiciary
On Remand from
the United States Court of Appeals for the Armed Forces
Decided 15 February 2017
________________________
Military Judge: Matthew P. Stoffel.
Approved sentence: Bad-conduct discharge, confinement for 14 days, re-
duction to E-1, and a reprimand. Sentence adjudged 10 October 2013 by
SpCM convened at Osan Air Base, Republic of Korea.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Major Meredith L. Steer, USAF; Gerald R. Bruce, Esquire.
Before DUBRISKE, SANTORO, and C. BROWN, Appellate Military
Judges
Judge SANTORO delivered the opinion of the Court, in which Senior
Judge DUBRISKE and Judge C. BROWN joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
SANTORO, Judge:
Appellant pleaded guilty to being drunk and disorderly and unlawfully en-
tering the on-base residence of another Airman in violation of Article 134,
United States v. Killion, No. ACM S32193 (rem)
UCMJ, 10 U.S.C. § 934. Appellant pleaded not guilty to using provoking speech
in violation of Article 117, UCMJ, 10 U.S.C. § 917, but was convicted of that
offense by officer and enlisted members sitting as special court-martial. The
court-martial sentenced him to a bad-conduct discharge, confinement for 14
days, reduction to E-1, and a reprimand. The convening authority approved
the sentence as adjudged.
We affirmed the findings and sentence on 28 January 2015. United States
v. Killion, No. ACM S32193, 2015 CCA LEXIS 28 (A.F. Ct. Crim. App. 28 Jan
2015) (unpub. op.). Our superior court then set aside and dismissed the pro-
voking speech charge and specification. United States v. Killion, 75 M.J. 209
(C.A.A.F 2016). This case is now back before us to determine whether we can
reassess Appellant’s sentence or must remand the case for a rehearing on sen-
tence.
I. BACKGROUND
After a night of excessive drinking, Appellant became belligerent and dis-
orderly, accosted strangers with profane outbursts, and resisted his friend’s
efforts to convince him to return home. Instead, Appellant jumped a fence and
entered the apartment of a senior noncommissioned officer he did not know,
frightening the residents and neighbors who called security forces. Appellant
was apprehended by police and evaluated by emergency medical technicians
who decided to transport him to the base emergency room.
Once there, while undergoing treatment for his altered mental state and
injuries to his wrist and knee, Appellant physically and verbally lashed out at
medical providers. Struggling against restraint by two security forces members
and the medical staff, he verbally accosted several medical providers, calling
one female nurse a “c[**]t” and medical technicians “Asian douchebags” and
“ch[*]nk.” This continued intermittently for over an hour, ending only after the
medical staff determined it was necessary to sedate him.
II. DISCUSSION – SENTENCE REASSESSMENT
The provoking speech charge having been set aside and dismissed, we must
either reassess Appellant’s sentence or remand for a rehearing on sentence.
Applying the analysis set forth in United States v. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013); United States v. Buber,
62 M.J. 476 (C.A.A.F. 2006); United
States v. Moffeit,
63 M.J. 40 (C.A.A.F. 2006); and United States v. Sales,
22
M.J. 305 (C.M.A. 1986), and carefully considering the entire record and the
totality of the circumstances, we are confident that we can reassess the sen-
tence. There has not been a change in the penalty landscape as the maximum
punishment authorized remains the jurisdictional limit of this special court-
2
United States v. Killion, No. ACM S32193 (rem)
martial. All the evidence initially admitted in sentencing remained relevant
and admissible as res gestae of the affirmed charge and specifications.
When this case was initially before us, we summarized the evidence:
The prosecution admitted substantial evidence of the disruption
the appellant caused at the home of an innocent NCO and his
family. He entered onto their patio while the NCO’s wife was in
the shower. Frightened by his banging and yelling, the wife
grabbed her daughter and escaped to a neighbor’s apartment.
After gaining entry, the appellant overturned furniture and re-
fused to leave. After receiving a panicked, incoherent call from
his wife, the NCO had to rush home from a unit event, terrified
that something awful had happened to his family. The occu-
pant’s 8-year-old daughter could not sleep alone for several
nights because of the fear and insecurity his misconduct caused.
Even after apprehension by security forces, the appellant was
uncooperative and tried to kick a military working dog. He im-
peded the paramedics’ efforts to administer treatment, swatting
at their hands and removing their equipment.
The appellant’s disruptive conduct continued at the emer-
gency room where it took six people approximately 40 minutes
just to get the appellant into the bed. For approximately three
hours, until the sedation set in, he continued to use foul and ag-
gressive language towards the staff. His behavior was com-
pletely inconsistent with the good order and discipline that
forms the foundation of military service.
Killion, 2015 CCA LEXIS 28, at *9–10.
Although the medical providers who were the targets of the speech that
gave rise to the now-dismissed charge testified, the weight of their testimony
in aggravation paled in comparison to the testimony of the victims from the
unlawful entry incident. None of the providers was actually provoked by Ap-
pellant’s actions and all had received training on how to handle aggressive pa-
tients as part of their medical duties. We are confident that even in the absence
of the provoking speech charge, the court-martial would not have sentenced
Appellant to any less than the sentence originally adjudged. We therefore re-
assess Appellant’s sentence to that which was adjudged and approved: a bad-
conduct discharge, confinement for 14 days, reduction to E-1, and a reprimand.
In reassessing Appellant’s sentence, we necessarily have also concluded
that the reassessed sentence is appropriate. We assess sentence appropriate-
ness by considering Appellant, the nature and seriousness of the offense, Ap-
pellant’s record of service, and all matters contained in the record of trial.
3
United States v. Killion, No. ACM S32193 (rem)
United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982); United States v.
Bare,
63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006), aff’d,
65 M.J. 35 (C.A.A.F.
2007). The sentence as reassessed is appropriate for this Airman who volun-
tarily became intoxicated, caused a disturbance in two different locations, and
broke into the on-base residence of a fellow Airman and his family.
III. CONCLUSION
The sentence, as reassessed, is correct in law and fact, and no error mate-
rially prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, as the findings for
Charge I and its two specifications have previously been affirmed, the sen-
tence, as reassessed, is now AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
4
