                         UNITED STATES, Appellee

                                         v.

                 Thomas J. SCHUMACHER, Staff Sergeant
                     U.S. Marine Corps, Appellant

                                  No. 11-0257
                        Crim. App. No. 201000153

       United States Court of Appeals for the Armed Forces

                         Argued October 11, 2011

                        Decided December 7, 2011

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and RYAN, JJ., and EFFRON, S.J., joined.


                                     Counsel


For Appellant:    Major Kirk Sripinyo, USMC (argued).


For Appellee: Lieutenant Ritesh Srivastava, JAGC, USN (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on
brief); Colonel Kurt J. Brubaker, USMC.


Military Judge:    John R. Ewers


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schumacher, No. 11-0257/MC


     Judge STUCKY delivered the opinion of the Court.

     We granted review in this case to determine whether the

military judge erred by not giving a self-defense instruction in

regard to an assault charge for pointing a pistol at a member of

the military police (MP).   We also specified an additional

issue, without briefs:   Whether the specification alleging

communication of a threat under Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006), failed to state

an offense.   We hold that the military judge did not err in not

giving the self-defense instruction because the evidence did not

reasonably raise the defense.   However, we remand the case to

the United States Navy-Marine Corps Court of Criminal Appeals

(CCA) to determine whether, in light of United States v. Fosler,

70 M.J. 225 (C.A.A.F. 2011), the specification alleging a

communication of a threat states an offense.

                                I.

                                A.

     Contrary to Appellant’s pleas, a general court-martial with

members found Appellant guilty of failing to obey a

noncommissioned officer, two specifications of simple assault,

and communicating a threat in violation of Articles 92, 128,

134, UCMJ, 10 U.S.C. §§ 892, 928, 934 (2006).   Appellant was

sentenced to a bad-conduct discharge, confinement for one year,

partial forfeitures, and reduction to the grade of E-3.   The


                                 2
United States v. Schumacher, No. 11-0257/MC


convening authority approved the sentence, and the CCA affirmed

the findings of guilty and the sentence approved by the

convening authority.    United States v. Schumacher, No.

201000153, 2010 CCA LEXIS 389, at *20, 2010 WL 4840062, at *7

(N-M. Ct. Crim. App. Nov. 30, 2010) (unpublished).

                                 B.

     Appellant and his wife, Army Second Lieutenant KD, were

having a loud, prolonged confrontation in their on-base quarters

about KD’s deploying.   During the argument, Appellant took KD’s

cell phone and refused to return it.   In front of Appellant, KD

requested that her neighbor call the MPs.   She thought that the

MPs would force Appellant to return her phone.

     Upon hearing that the MPs were being called, Appellant went

to the garage to clean his guns, which was his hobby.      The

neighbor calling the MPs heard a reference to a gun and told the

operator that she thought Appellant was going to get a gun.

     KD followed Appellant into the garage, where he had a

pistol and a rifle out for cleaning.   KD testified that “I told

him that, you know, well, obviously we both know the MPs are

coming and, you know, I told him, let’s just go outside, talk to

the MPs.”   The MPs arrived approximately four minutes after KD’s

neighbor initiated the call.

     The MPs testified that after hearing screaming from inside

the house they knocked and announced their presence as they


                                  3
United States v. Schumacher, No. 11-0257/MC


entered, but KD testified she did not notice anyone enter the

house until the MPs were behind her with their guns drawn.         One

of the MPs testified that they arrived dressed in “camouflage

utilities, our MP badge, and our MP gear -- our black gear with

our pistol and our OC spray, handcuffs, baton.”      Both MPs

testified that when they were behind cover Appellant would point

both guns in KD’s general direction.      But when Lance Corporal F,

an MP and the victim of the assault charge at issue, left cover,

Appellant would point the pistol in his direction.      The MPs

testified that Appellant said “I’ve killed people before.       It’s

nothing for me to kill a few fucking MPs,” while he waved his

pistol.

                               C.

     When instructions to the members were being considered, the

military judge discussed with both parties whether a self-

defense instruction should be given in regard to the assault

charge against Lance Corporal F.       During the discussion, the

military judge stated, “I don’t think there’s any evidence at

all that by the time he brandished that weapon towards the MPs

he didn’t realize they were MPs.       Tell me if you disagree.”

Defense counsel responded, “I don’t disagree.”

     Defense counsel’s theory at trial was that Appellant

“believes that [the MPs] are going to kill him even though he

knows they are MPs, and killing him in his eyes is not lawful


                                   4
United States v. Schumacher, No. 11-0257/MC


because he hasn’t done anything yet.”    The military judge stated

that before one inquired into Appellant’s subjective belief that

there must be some objective showing of “whether or not

[Appellant] reasonably believed that an unlawful application of

force was going to be used against him.”    The military judge

ultimately concluded that “[t]here’s no evidence of facts and

circumstance at the time of the alleged assault [on the MP] from

which the trier of fact could reasonably conclude that the

accused reasonably apprehended the wrongful infliction of bodily

harm by [the MP].”1

                                  D.

     On appeal, Appellant argues that, because KD testified that

she did not believe the MPs would enter her house uninvited,

“[t]he couple had no idea who the MPs were, and saw them as

armed intruders.”     Appellant’s theory on appeal seems to be that

due to the confusing, fast-paced situation, Appellant initially

1
  Appellant does not rely on this theory of error on appeal. The
military judge was correct in not giving the requested
instruction based on this theory. Military officials are
allowed to use reasonable force in carrying out their official
duties. See United States v. Shepherd, 33 M.J. 66, 69-70
(C.M.A. 1991). To conclude that a military official’s use of
force is wrongful for an instruction on self-defense, the
evidence must show that the military official either used
unreasonable force or was acting in something other than an
official capacity. See United States v. Lewis, 7 M.J. 348, 352
(C.M.A. 1979). Nothing presented during trial would have
allowed reasonable court members to find that the MPs were
acting outside of their official capacity or using unreasonable



                                   5
United States v. Schumacher, No. 11-0257/MC


made a mistake of fact as to the identity of the armed men in

his house when the simple assault was first committed.

Appellant also contends that the military judge and the lower

court inappropriately passed judgment on the credibility of the

evidence when evaluating whether there was some evidence in the

record to support the self-defense instruction.2

                                II.

     To present a valid claim for self-defense, the evidence

must show that the accused:

          (A) Apprehended, on reasonable grounds, that
     bodily harm was about to be inflicted wrongfully on
     the accused; and

          (B) In order to deter the assailant, offered but
     did not actually apply or attempt to apply such means
     or force as would be likely to cause death or grievous
     bodily harm.

Rule for Courts-Martial (R.C.M.) 916(e)(2).

     An allegation of error in regard to a failure to give a

mandatory instruction is reviewed de novo.    United States v.

Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007).   A military judge must

instruct members on any affirmative defense that is “in issue.”

R.C.M. 920(e)(3).   “A matter is considered ‘in issue’ when ‘some

evidence, without regard to its source or credibility, has been


force in light of the dangerous and dynamic situation they were
entering.
2
  Appellant also contends that the military judge and the CCA
incorrectly stated the standard for determining whether an



                                 6
United States v. Schumacher, No. 11-0257/MC


admitted upon which members might rely if they choose.’”     Lewis,

65 M.J. at 87 (quoting R.C.M. 920(e) Discussion; United States

v. Gillenwater, 43 M.J. 10, 13 (C.A.A.F. 1995)).   In other

words, “some evidence,” entitling an accused to an instruction,

has not been presented until “there exists evidence sufficient

for a reasonable jury to find in [the accused’s] favor.”

Mathews v. United States, 485 U.S. 58, 63 (1988) (citing

Stevenson v. United States, 162 U.S. 313 (1896)); see also

United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000) (“When

evidence is adduced during the trial which ‘reasonably raises’

an affirmative defense . . . the judge must instruct the court

panel regarding that affirmative defense . . . .” (citing United

States v. Rodwell, 20 M.J. 264 (C.M.A. 1985))).

     Thus, the military judge must answer the legal question of

whether there is some evidence upon which members could

reasonably rely to find that each element of the defense has

been established.   This test is similar to that for legal

sufficiency.   Cf. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

see United States v. Black, 3 C.M.A. 57, 60, 11 C.M.R. 57, 60

(1953) (“Assuming the truth of each statement made by the

accused in explanation of his actions, we conclude that neither

of the distinguishing factors of voluntary manslaughter were



affirmative defense was raised. Even if true, this would not
affect our de novo review of the granted issue.

                                 7
United States v. Schumacher, No. 11-0257/MC


shown.”); see also United States v. Harris, 29 C.M.R. 810, 814

(A.F.B.R. 1960) (“Resolving all conflicts in the evidence in

favor of the accused, we find no basis for concluding that the

accused was using reasonable force which he reasonably believed

was necessary to eject his erstwhile guests, and no possibility

that the court members, however instructed, could have so

concluded.”).

                               III.

     Appellant’s assertion that a self-defense instruction was

necessary because he believed that the individuals in his home

were unknown intruders is untenable.   Appellant was present when

KD requested that her neighbor call the military police.    The

military police arrived four minutes later.   During the interim

period, KD was trying to persuade her husband to put away his

guns because “I told him that, you know, well, obviously we both

know the MPs are coming.”   When the MPs arrived, they were

dressed in full military police attire including badges.    While

in the process of waving the pistol around, Appellant stated

“I’ve killed people before.   It’s nothing for me to kill a few

fucking MPs.”3




3
  KD testified that she could not remember if Appellant did or
did not say this. As such, the MPs’ testimony on this point
remained uncontradicted.

                                 8
United States v. Schumacher, No. 11-0257/MC


     Although not dispositive, trial defense counsel did not

argue that a self-defense instruction should be given on an

intruder theory at trial.   See United States v. Hibbard, 58 M.J.

71, 76 (C.A.A.F. 2003) (“Although the defense presentation at

trial is not dispositive in determining what affirmative

defenses have been reasonably raised by the evidence, we may

take into account the absence of [such an] approach from the

defense case when considering [whether the evidence reasonably

raised an affirmative defense].”).    In fact, trial defense

counsel explicitly denied that the evidence could even make out

such a theory.   The military judge stated, “I don’t think

there’s any evidence at all that by the time he brandished that

weapon towards the MPs he didn’t realize they were MPs.    Tell me

if you disagree.”   The defense responded, “I don’t disagree.”

     Given the sequence of events, the physical appearance of

the MPs, Appellant’s statement indicating knowledge of who the

people were, and defense counsel’s concessions at trial, the

military judge determined there was no evidence that Appellant

reasonably perceived the infliction of wrongful bodily harm.     In

doing so, we hold that he did not err.

                                IV.

     We affirm the judgment of the United States Navy-Marine

Corps Court of Criminal Appeals as to Appellant’s convictions

for failing to obey a noncommissioned officer and the two


                                 9
United States v. Schumacher, No. 11-0257/MC

specifications of simple assault.   We set aside that part of the

judgment affirming Appellant’s conviction for communicating a

threat in violation of Article 134, UCMJ, and the sentence, and

remand for consideration in light of our decision in United

States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).




                               10
