United States v. Sasser

Opinion of the Court HomeR FERGUSON, Judge: Tried by special court-martial, the accused was found guilty of assault whereby grievous bodily harm was intentionally inflicted, in violation of Uniform Code of Military Justice, Article 128, 10 USC § 928. He was sentenced to bad-conduct discharge, forfeiture of $50.00 per month for six months, confinement at hard labor for six months, and reduction to Basic Airman. Intermediate appellate authorities affirmed, and we granted review on the issue whether the president erred prejudi-cially in failing to instruct, sua sponte, on the elements of the lesser included offense of assault with a dangerous weapon. The facts of this unfortunate case are not complicated. Accused and several other airmen embarked upon a tour of local bars near their station in North Africa. An altercation arose between accused and one Sullivan over whether the former should purchase a round of drinks. Sullivan struck the accused. Accused retaliated by severely and repeatedly stabbing Sullivan with a pocket knife. The evidence is in conflict concerning the extent of accused’s intoxication. Some witnesses testified only that he had been drinking. Accused declared that he had imbibed considerably and, in fact, was so intoxicated he could not recall stabbing Sullivan. A medical examination of the accused, conducted approximately two hours after the incident, indicated he was at that time, yet mildly to moderately intoxicated. Expert testimony also established that the degree of accused’s drunkenness would diminish during the period which elapsed between the incident and the examination and indicated the possibility. that the attack upon Sullivan would, in itself, have a sobering effect. The president properly instructed the court-martial on the elements of the offense charged, the lesser included offense of assault and battery, and the effect of intoxication upon accused’s capacity to entertain a specific intent. He omitted advising the members concerning the elements of the lesser included offense of assault with a dangerous weapon. Our initial inquiry must be whether the evidence in this record reasonably raises an issue concerning intoxication as a defense. The Government urges that it does not, whereas the accused is equally certain that it does. We are sure the defense position correctly reflects the state of this record, for accused’s testimony, coupled with the results of the later medical examination, is sufficient to cause reasonable men to be concerned with his ability to entertain the requisite specific intent. United States v Craig, 2 USCMA 650, 10 CMR 148. Counsel for the Government would have us weigh the evidence on either side and reject the accused’s judicial declarations. That we may not do. United States v Simmons, 1 USCMA 691, 5 CMR 119; United States v Apple, 2 USCMA 592, 10 CMR 90. As the Chief Judge pointed out in United States v [500] Farris, 9 USCMA 499, 26 CMR 279, at page 501: . . In considering that issue it should be emphasized that we are not concerned with whether the evidence is sufficient as a matter of law to sustain the court-martial’s findings. Neither are we concerned with the weight to be accorded the accused’s testimony. United States v Swain, 8 USCMA 387, 24 CMR 197. The question is merely whether the record of trial contains sufficient credible evidence raising an issue for the court-martial’s consideration.” Having concluded that the accused’s capacity to entertain the specific intent involved in the offense charged was placed in issue by the evidence relating to his drunkenness, it is clear that the president did not fulfill his duty by instructing on the affirmative defense of intoxication alone. He was also required to advise the members of the court-martial of those lesser included offenses which did not involve proof of a specific intent and which were thus placed in issue. As we pointed out in United States v Backley, 2 USCMA 496, 9 CMR 126, at page 499: “. . . [T]he two requirements march hand in hand. A bare instruction as to the legal effect of intoxication is meaningless without accompanying instructions on appropriate lesser included offenses.” We are constrained, therefore, to hold that the president of the special court-martial erred to accused’s prejudice when he failed to advise the court of the elements of assault with a dangerous weapon. The damaging effect of the omission may be cured only by ordering a rehearing or by affirmance of the least lesser offense reasonably raised by the evidence and reassessment of the sentence. United States v Clay, 9 USCMA 582, 26 CMR 362; United States v Baguex, 2 USCMA 306, 8 CMR 106; United States v Backley, supra. In this case, the least alternative reasonably placed in issue was undeniably assault with a dangerous weapon. Accordingly, that offense may, at its option, be approved by the board of review. The decision of the board of review is reversed and the record of trial is returned to The Judge Advocate General of the Air Force. The board may affirm so much of the findings of guilty as relate to assault with a dangerous weapon and reassess the sentence, or order a rehearing. Chief Judge Quinn concurs in the result.