United States v. McCown

Opinion of the Court Quinn, Chief Judge: Two assignments of error are presented by the accused. The first, which deals with the sufficiency of the inquiry into his request for trial by military judge alone, was decided adversely to his contention in United States v Jenkins, 20 USCMA 112, 42 CMR 304 (1970). The second charges misapplication by the United States Navy Court of Military Review of “the legal standard of reasonableness” in evaluation of the accused’s téstimony but, in substance, the question is whether, conceding the truthfulness of the accused’s testimony, the evidence is sufficient to support the findings of guilty of one of the offenses of which he was convicted. The specification in issue alleges that the accused failed to go to a physical training formation at the time prescribed therefor, in violation of Article 86, Uniform Code of Military [410] Justice, 10 USC § 886. Confirming evidence submitted by the Government, the accused admitted he did not attend the formation at the required time. He attributed his failure to the fact that his watch had stopped. The whole of his direct testimony on the point is as follows: “Q. . . . Directing your attention to the first specification of unauthorized absence, in that you were charged with failing to go to a P. T. formation. On the 27th of November 1969, did you attend the P. T. formation? “A. No, sir. “Q. Where did you go at that time? “A. I went to the PX at three thirty. “Q. At three thirty? “A. Yes, sir. “Q. Did you intend to make the formation ? “A. Yes, sir. “Q. Did you have a reason for not going? “A. Yes, sir. I looked at my watch and I didn’t know it had stopped. “Q. When did you look at your watch ? “A. It said fifteen minutes til. “Q. Fifteen minutes until when? “A. Til four, sir. “Q. You thought you had sufficient time? “A. Yes, sir. “Q. When did you . . . how far is the PX from the formation area? “A. It’s about six to seven minutes walk. “Q. So at 15 minutes to the hour, you had sufficient time to walk? “A. Yes, sir. “Q. And to make the formation? “A. Yes, sir. “Q. When did you notice that your watch had stopped? “A. I hadn’t noticed it until after I had gotten back and looked at it again, when I saw it running. “Q. And what was the time on the watch at that time? “A. It was 15 minutes to four.” Before the Court of Military Review, the accused contended that the Government had failed to prove the charge “beyond a reasonable doubt.” He maintained that his uncontradicted testimony demonstrated he had “checked” his watch, and it indicated he “had plenty of time to walk to the formation”; since the watch had stopped at 3:45 p.m., without his knowledge, his absence from the formation was the result of an “honest and reasonable mistake” of fact, which is a complete defense to a charge of misconduct in violation of Article 86. See United States v Holder, 7 USCMA 213, 22 CMR 3 (1956). “[Accepting . . . [his] testimony,” the Court of Military Review concluded that the “mistake” was not “reasonable under the circumstances” and, therefore, affirmed the findings of guilty.1 According to the accused, it took six to seven minutes to walk the distance between the place where the formation was to be held and the Post Exchange. Since he purportedly left the area of the formation for the PX at 3:30 p.m., he arrived at the PX about 3:36 or 3:37 p.m. When the accused next looked at his watch it registered 3:45 p.m. The accused did not describe his [411] activities thereafter, but it could fairly be inferred that he remained at the PX. We are not informed as to how long he remained, but it is manifest from his testimony that he did not again check his watch to determine the time until after he returned to the area of the formation. Consequently, the fact that he did not know his watch had stopped at 3:45 p.m., is wholly immaterial to the reasonableness of his conduct in remaining at the PX. Considering the distance involved and the known time required to return from the PX to the formation area, in the exercise of its fact-finding power, the Court of Military Review could fairly determine that the accused’s failure to make the formation did not result from a reasonable belief that he had “plenty of time” to make it. The decision of the Court of Military Review is affirmed. Judge Darden concurs. Footnotes [1] In mistake, the fact assumed to exist by the accused would demonstrate the legality of his conduct. Thus, in United States v Holder, 7 USCMA 213, 22 CMR 3 (1956), the accused believed that he had been properly discharged from the service; if he had actually been discharged, his absence from his unit was not unlawful. Here, the fact that the accused’s watch stopped at 3:45 p.m., without his knowledge, would not itself demonstrate that his absence from the formation was authorized. However, the view we take of the evidence makes it unnecessary to consider this aspect of the case.