SULLIVAN, J., delivered the opinion of the Court, in which CRAWFORD, C.J., and COX, S.J., joined. GIERKE, J., filed an opinion concurring in part and dissenting in part, in which EFFRON, J., joined.

For Appellant: Major Jonathan F. Potter (argued); Lieutenant Colonel Adele H. Odegard and Major Leslie A. Nepper (on brief); Colonel John T. Phelps, II, and Major Scott R. Morris.

For Appellee: Captain Joseph A. Pixley (argued); Lieutenant Colonel Eugene R. Milhizer and Captain Mary E. Braisted (on brief); Colonel Russell S. Estey.

Military Judge: Frederick Kennedy
 
 

Appellant, a staff sergeant (E-6), was tried by a special court-martial composed of officer and enlisted members at Rose Barracks, Vilseck, Germany. Contrary to his pleas, he was found guilty of assault on a fellow noncommissioned officer (an E-5), resisting apprehension by that soldier, and a service disorder by being naked in that same soldier’s bedroom with that soldier’s wife. Arts. 91, 95, and 134, Uniform Code of Military Justice, 10 USC §§ 891, 895, and 934, respectively. On January 24, 1997, he was sentenced to a bad-conduct discharge, confinement for 3 months, forfeiture of $600 pay per month for 3 months, and reduction to E-1. On April 13, 1997, the convening authority approved this sentence, and the Court of Criminal Appeals affirmed without opinion on July 14, 1998.

On March 1, 1999, this Court granted review on the following two issues of law:

Sergeant Patrick Vaden testified that he deployed to Bosnia sometime in 1995 with Bravo Company, 2d Battalion, 2d Infantry Regiment. He had been in the Army 8 years and married to Chung Sun Vaden for 6 years. His company returned unexpectedly to his unit stationed at Rose Barracks, Vilseck, Germany, on September 16, 1996, and he asked his executive officer, Lieutenant Able, to give him a ride to his home in the housing area.

Sergeant Vaden then gave the only testimony on the charged offenses as follows:

The first granted issue challenges the sufficiency of the evidence in this case to support appellant's conviction for resisting apprehension in violation of Article 95. He contends, as he did at trial, 1 that the prosecution did not introduce sufficient evidence to prove all the elements of this offense. See generally para. 19b, Part IV, Manual for Courts-Martial, United States (1995 ed.). In particular, he asserts that there was no evidence presented that he was "clearly notified that he [was] in custody" before he allegedly pushed Sergeant Vaden and ran away. Final Brief at 12. We disagree.

There is no dispute that the prosecution was required to prove that appellant had clear notice of the apprehension which he was charged with resisting. See para. 19c(1)(a), Part IV, Manual, supra; United States v. Garcia-Lopez, 16 MJ 229, 231 (CMA 1983) (holding that an apprehension is "effected by clearly notifying the person to be apprehended that he is thereby taken into custody."). Moreover, there is no real dispute that such notification need not be oral or written but "may be implied by the circumstances" in a particular case. See RCM 302(d)(1), Manual, supra; see also United States v. Kinane, 1 MJ 309, 313-14 (CMA 1976). The critical question before us is whether the evidenced circumstances of this case were such that a rational person could find beyond a reasonable doubt that appellant knew he was being apprehended. See generally Jackson, 443 U.S. at 314.

The circumstances that constitute clear notice of apprehension have been determined on a case by case basis. In United States v. Garcia-Lopez, supra, this Court held that the entrance of military authorities into a servicemember's barracks room announcing their intention to search his room and directing him to stay in that room was not clear notice of an apprehension. In United States v. Sanford, 12 MJ 170, 173-74 (CMA 1981), this Court held that words from a sergeant to another enlisted man that "Lieutenant Young wants to see you," and following that servicemember to the battery commander's office did not constitute clear notice of apprehension. Finally, in Kinane, supra at 311, 313-14, this Court deferred to a lower court's finding that bringing a servicemember to the site of an alleged crime, reading him his rights, and subsequently questioning him did not constitute a custodial arrest.

The circumstances of appellant's case are quite different from those noted in the above cases. Here, there was evidence that he was discovered naked in a fellow sergeant's room closet, late at night, just after that servicemember's wife emerged partially clad from that room. This evidence suggested that appellant, at the very least, was engaging in an ongoing service disorder or discredit in violation of Article 134. See United States v. Frazier, 34 MJ 194 (CMA 1992) (holding that romantic behavior not amounting to sexual intercourse between officer and enlisted man's wife was conduct unbecoming an officer). Moreover, evidence was introduced that appellant admitted his wrongdoing and that he should be placed in the custody of military police. This was not a situation where a servicemember was simply being questioned or investigated for a prior offense. Cf. Kinane and Garcia-Lopez, both supra. Finally, there was evidence that Sergeant Vaden rejected appellant's offer to turn himself in and insisted that this senior noncommissioned officer subject himself to a junior noncommissioned officer's control. This was not a routine military practice or operation in any way. Cf. United States v. Sanford, supra.

In our view, these circumstances could lead a rational factfinder to find beyond a reasonable doubt that appellant had clear notice of his apprehension by Sergeant Vaden. An extraordinary situation was evidenced, in which criminal liability was expressly admitted by a senior noncommissioned officer and personal control or custody exercised by a subordinate noncommissioned officer. Of course, the factfinders were free to decide that notice of apprehension was not clear, but such a possibility did not undermine the legal sufficiency of the evidence in this case. See United States v. Harper, 22 MJ 157, 163 (CMA 1986); United States v. Ford, 23 MJ 331, 337 (CMA 1987). The members in this case, under proper instructions, decided otherwise, and we perceive no legal basis to overturn their decision. See Jackson v. Virginia, supra. 2

The second granted issue is again phrased in terms of legal sufficiency, but it concerns appellant's conviction for assault on a noncommissioned officer in the execution of his duties, in violation of Article 91. That codal provision provides special protection to a noncommissioned officer from assaults while "that officer is in the execution of his office." Appellant argues that, based on the evidence in this case, no reasonable person could find that Sergeant Vaden was acting consistent with his status and office as a noncommissioned officer when he was pushed by appellant. See generally United States v. Lewis, 7 MJ 348, 350 (CMA 1979).

Appellant initially argues that the evidence shows Sergeant Vaden was on a personal "frolic" of revenge when he attempted to apprehend appellant. See id. at 351-52; para. 14c(1)(b), Part IV, Manual, supra. This was a question of fact for the members. See also United States v. Hoffer, 869 F.2d 123, 125 (2^nd Cir. 1989) (holding no bright-line test in determining whether federal officer acting in execution of office or on personal frolic). There was evidence here of a soldier caught in the act of committing a crime (a service discredit or disorder) in military housing and his restraint by a noncommissioned officer. See Art. 7(b), UCMJ, 10 USC § 807(b); see also United States v. Hoy, 137 F.3d 726 (2^nd 1998); United States v. Reid, 517 F.2d 953, 964 (2^nd Cir. 1975) (arrest made by officer although not specifically mandated by Congress). Moreover, there was evidence that the arresting officer employed normal apprehension procedures to terminate this potentially explosive situation. See Lewis, supra at 352 (manner of arrest may give rise to departure-from-office claim). Accordingly, the members had an evidentiary basis to decide that Sergeant Vaden was acting as a noncommissioned officer, not an avenging cuckold, when he attempted to escort appellant to the military police station. See United States v. Clemons, 32 F.3d 1504, 1507 (11^th Cir. 1994) (recognizing "purely personal frolic" standard).

Appellant also argues that Sergeant Vaden divested himself of the protections of his office by his earlier conduct in repeatedly striking appellant while he cowered naked in Sergeant Vaden’s closet. See para. 14c(1)(d), Part IV, Manual, supra. He cites numerous cases from our Court for the proposition that the defense of divestiture exists when an officer engages in misconduct antithetical to his status as an officer. See United States v. Richardson, 7 MJ 320 (CMA 1979); United States v. Hendrix, 21 USCMA 412, 45 CMR 186 (1972); United States v. Struckman, 20 USCMA 493, 43 CMR 331 (1971); United States v. Noriega, 7 USCMA 196, 21 CMR 322 (1956); cf. Lewis, supra at 350. We disagree with his argument in this case.

We initially note that Sergeant Vaden’s conduct in physically striking appellant while naked in Sergeant Vaden’s closet was a criminal assault for which he could have been prosecuted under Article 128, UCMJ, 10 USC § 928. Cf. 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.10 at 259 (1986) (noting unanimity of modern authorities rejecting unwritten law that no crime at all for enraged husband to kill wife's paramour). Moreover, such misconduct on his part divested him of his authority as a noncommissioned officer for purposes of immediate physical responses by appellant. See para. 14c(1)(d), supra; United States v. Struckman and United States v. Lewis, both supra. Nonetheless, other evidence was admitted in this case that Sergeant Vaden desisted in his illegal conduct and, thereafter, attempted to resolve this matter within appropriate military channels.

We do not view our divestiture case law as establishing a per se rule that once an officer engages in misconduct, he can never assert or regain his status or office. See United States v. Lewis, supra (rejecting per se rule that propriety of conduct is totally dependent on finding of probable cause). Such a rule would implicitly discourage officers from stopping their misconduct and impermissibly narrow the broad protection afforded public officers in the performance of their legitimate duties. See generally United States v. Hoy, supra. Instead, whether Sergeant Vaden was divested of his office as a noncommissioned officer making an apprehension was a question for the members to decide on the basis of all the circumstances of this case under appropriate instructions provided by the military judge. 3 Accordingly, we find no legal insufficiency on this basis. See also United States v. Frizzi, 491 F.2d 1231, 1232 (1^st Cir. 1974) (conviction for assaulting federal officer approved where postal worker left his car and sought apology from traffic-enraged citizen who later spit on him).

The decision of the United States Army Court of Criminal Appeals is affirmed.

FOOTNOTES:

1 See United States v. Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992); seegenerally 2 Wright, Federal Practice and Procedure § 469 at 670-75 (2^nd ed. 1982) (discussing federal rule that sufficiency of evidence will not be reviewed by appellate courts absent objection at trial unless plain error).

2 On a personal note, I find facially appealing merit in the factual-based arguments of my esteemed brother in dissent. I would listen more attentively to him if he and I were sitting side-by-side in a jury box, rather than on an appellate bench. However, the binding precedent and operating limitations of Jackson v. Virginia, supra, leave me little choice in affirming the convictions of appellant which were properly determined by the jury in this case.

The jury in the United States military justice system is one of the best in the world. Almost all officer members have at least one university degree, and most enlisted personnel have some university education. More importantly, the jury in the military is expert at sorting out military issues such as the functioning between the rank structure (sergeant E-5 and staff sergeant E-6) and the responsibilities of noncommissioned officers, even in the extraordinary circumstances of the present case—-a soldier unexpectedly returns home from a deployment to Bosnia and finds his wife with a naked man in his own bedroom. I trust the jury’s verdict here. The jury is an amazing institution.

Almost 80 years ago, G. K. Chesterton, the English essayist, observed the following about a jury:

3 The question of divestiture was presented by the military judge to the members by means of instructions unobjected to by the defense. He said:

GIERKE, Judge, with whom EFFRON, Judge, joins (concurring in part and dissenting in part):

I agree with only so much of the majority opinion as affirms appellant’s conviction of conduct prejudicial to good order and discipline, in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. I disagree with the majority’s conclusion that the evidence is legally sufficient to support appellant’s conviction of resisting apprehension and assaulting a noncommissioned officer (NCO) in the execution of his office, in violation of Articles 95 and 91, UCMJ, 10 USC §§ 895 and 891, respectively.

In my view, the evidence of resisting apprehension is legally insufficient on two grounds. First, no rational person could conclude beyond a reasonable doubt that appellant knew that Sergeant (SGT) Vaden was attempting to exercise his authority as an NCO to apprehend him. What appellant saw was an enraged husband who had just attacked him. SGT Vaden’s attack on appellant stopped only because Mrs. Vaden intervened. SGT Vaden was junior to appellant and not engaged in law enforcement duties. At no time did he say or do anything indicating that he was invoking his status as an NCO.

Appellant’s response to SGT Vaden’s attack was to assure SGT Vaden that he would turn himself in. SGT Vaden agreed with appellant’s offer to turn himself in, and he told appellant that he would go with him to the military police station, obviously to ensure that appellant did in fact turn himself in. Appellant’s offer to turn himself in, and SGT Vaden’s agreement with that offer, are inconsistent with any notion that SGT Vaden was trying to apprehend him.

Second, even if a rational factfinder could conclude beyond a reasonable doubt that appellant knew SGT Vaden was attempting to apprehend him, the evidence does not support a charge of resisting apprehension. Apprehension is complete when the person being apprehended submits to authority or is physically subdued. See para. 19c(3)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.).[1] Assuming arguendo that there was an apprehension, it occurred when appellant allegedly submitted to SGT Vaden’s control in the bedroom. From that point on, appellant was in custody. Paragraph 19c(1)(c), supra, provides that "attempts to escape from custody after the apprehension is complete do not constitute the offense of resisting apprehension." See also United States v. Glaze, 11 MJ 176, 177 n. 1 (CMA 1981); United States v. Ridgeway, 13 MJ 742, 748 (ACMR 1982).

I also disagree with the majority’s conclusion that the evidence is legally sufficient to support appellant’s conviction of assaulting a noncommissioned officer "in the execution of his office." SGT Vaden’s actions throughout the altercation were personal, not official. SGT Vaden’s actions were those of an avenging victim, not a sergeant in the execution of his office. His first action, physically attacking appellant, was clearly personal and inconsistent with any officiality. SGT Vaden did nothing after that attack to invoke his status as a noncommissioned officer.

Finally, in my view, there is no issue of divestiture. Divestiture occurs only when the actor holds authority by virtue of rank or position and divests himself or herself of that authority by improper conduct. See paras. 14c(1)(b) and 15c(3), Part IV, Manual, supra;[2] United States v. Lewis, 7 MJ 348, 352 (CMA 1979). SGT Vaden neither held nor invoked any authority. He was junior to appellant, not engaged in law enforcement or occupying any position of authority over appellant, and never invoked or relied on his status as an NCO to apprehend or detain appellant, or to hold him in custody.

In my view, the majority’s decision is contrary to the law and the facts. Accordingly, I dissent.

FOOTNOTES:

1 Although paragraph 19 was substantially revised in the 1998 Manual, this provision was unchanged except for being renumbered as paragraph 19c(4)(a).

2 These paragraphs are unchanged in the 1998 edition.