A recent ruling by the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) has partially upheld the conviction of Staff Sergeant Abraham L. Porath, a U.S. Marine Corps member, on charges of domestic violence and other offenses. The court found merit in one of Porath’s arguments and ordered a consolidation of charges related to the domestic violence incident.
The case stemmed from an altercation between Porath and his wife, A.R.E., at their home on Marine Corps Base Quantico, Virginia, on or about May 1, 2023. The couple had been experiencing marital issues. The argument, initially over text, escalated into a physical confrontation. Security camera footage recorded Porath pushing his wife and grabbing her by the throat. Their five-year-old daughter was present during the incident.
The Charges and Initial Trial
Porath was initially charged with several offenses, including child endangerment (due to the presence of his daughter), two specifications of domestic violence, and obstructing justice. The domestic violence charges were based on the actions captured on the security footage: “unlawfully placing Ms. A.R.E. in a choke hold” and “unlawfully pushing Ms. A.R.E.” Additionally, he was charged with aggravated assault by strangulation.
Porath’s defense team moved to dismiss the charges, arguing that some of them were duplicative and represented an unreasonable multiplication of charges. The military judge initially deferred ruling on the motions but allowed the prosecution to proceed on all specifications. The judge later ruled that the facts underlying the domestic violence specifications were part of a continuing course of conduct, and therefore unreasonably multiplied for sentencing purposes. He merged the specifications for sentencing.
The members of the court-martial found Porath guilty on all charges. The sentence included reduction to pay grade E-1 and a bad-conduct discharge.
Appellate Arguments and Court’s Findings
Porath appealed his conviction, raising three main arguments, or Assignments of Error (AOEs):
* AOE I: Whether the military judge erred by not providing the members of the court-martial with a definition of “chokehold.”
* AOE II: Whether the acquittal of Porath on the strangulation charge, coupled with the lack of a “chokehold” definition, resulted in a factually insufficient conviction.
* AOE III: Whether charging two specifications of domestic violence for a continuous course of conduct constituted an unreasonable multiplication of charges.
The NMCCA addressed each of these arguments.
Regarding the “Chokehold” Definition (AOE I)
The court found that the military judge did not err by declining to define “chokehold.” The court cited the three-part test from *United States v. Carruthers*, which states that a military judge’s denial of a requested instruction constitutes an abuse of discretion if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation. The court found that Porath’s argument failed to satisfy the first prong of the *Carruthers* test, because he never requested a specific definition of “choke hold” from the military judge.
The court agreed with the military judge’s reasoning that “choke hold” is a term that does not need to be defined. The military judge’s subsequent instructions on “violent offense” and “offensive touching” were legally correct and provided the members with the requisite understanding to reach a verdict. Even if a definition had been offered, the court determined that it would not have provided Porath with a defense, aided in his ability to effectively present a defense case, or allowed him to more effectively attack the Government’s case.
Factually Insufficient Conviction (AOE II)
Porath argued that his conviction for domestic violence was factually insufficient because the court-martial acquitted him of strangulation, which involved the same conduct. The NMCCA rejected this argument, stating that Porath had not identified a deficiency in proof that would trigger a factual sufficiency review. The court found the wife’s testimony and the security video evidence to be compelling and largely unrebutted.
The court also dismissed Porath’s double jeopardy argument, as it determined the court-martial members found that the grabbing of the wife’s throat constituted a “choke hold” and therefore amounted to the offensive touching required under domestic violence.
Unreasonable Multiplication of Charges (AOE III)
The NMCCA found merit in Porath’s argument that charging two specifications of domestic violence was an unreasonable multiplication of charges. While the military judge had agreed with this point and merged the specifications for sentencing, the appellate court went further.
The court referenced *United States v. Rushing*, which states the unit of prosecution for ongoing assault should be based on the number of times the assailant attacked the victim, not the number of individual blows. The court determined that the military judge abused his discretion by merging the specifications at trial for sentencing purposes only, and consolidated the two domestic violence specifications into a single specification.
The court did not order further relief, as the sentencing phase was not prejudiced by the military judge’s decision.
Conclusion
The NMCCA affirmed the remaining findings and the sentence, with the exception of the consolidation of the two domestic violence specifications. The court’s decision clarifies the application of legal standards in cases involving domestic violence and the proper handling of multiple charges arising from a single incident.