                       UNITED STATES, Appellee

                                    v.

                      Ronald J. DAVIS, Sergeant
                         U.S. Army, Appellant

                              No. 14-0029

                       Crim. App. No. 20100815

       United States Court of Appeals for the Armed Forces

                         Argued March 4, 2014

                         Decided May 23, 2014

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


                                 Counsel


For Appellant: Captain Brian D. Andes (argued); Colonel Kevin
Boyle and Major Vincent T. Shuler (on brief); Lieutenant Colonel
Peter Kageleiry Jr.

For Appellee: Captain Daniel H. Karna (argued); Colonel John P.
Carrell and Major Robert A. Rodrigues (on brief).

Military Judge:   Jacqueline L. Emanuel



       This opinion is subject to revision before final publication.
United States v. Davis, No. 14-0029/AR

     Judge OHLSON delivered the opinion of the Court.

     We granted review in this case to determine whether the

United States Army Court of Criminal Appeals (CCA) erred in

finding that the military judge’s failure to instruct on the

special defense of defense of property was harmless beyond a

reasonable doubt.     We hold that the military judge’s error was

harmless beyond a reasonable doubt, and thus affirm the CCA.

                                 FACTS

     In February 2010, Specialist (SPC) S.S., his girlfriend

(A.R.), Appellant, and Appellant’s wife (Mrs. Davis) went to a

sports bar together.     SPC S.S. and A.R. had arranged with Mrs.

Davis to stay at the Davis’s home after their night of drinking

because it was close to the bar.       Therefore, at the end of the

evening, Mrs. Davis, A.R., and SPC S.S. returned to the Davis’s

home.     However, Appellant stayed out with other friends.

     At the Davis’s, SPC S.S. and A.R. engaged in a verbal

altercation both inside and in front of the house.       At this

point the stories diverge.

     A.    SPC S.S.’s Version of Events

     SPC S.S. stated that after his argument with A.R.

concluded, he began walking down the street away from A.R.         SPC

S.S. then saw Appellant speeding down the road toward the Davis

residence, heard a crash or a bang, and started walking back




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United States v. Davis, No. 14-0029/AR

toward the Davis residence in an effort to find out what had

happened and to calm down the situation. 1

     SPC S.S. testified that as he approached the Davis

residence Appellant walked into the house and quickly reemerged.

At this point, he and Appellant exchanged words and SPC S.S.

tried to get an agitated Appellant to relax.   Following this

verbal exchange, Appellant approached SPC S.S. and attempted to

punch him but missed.   Appellant next pulled a handgun out of

his back pocket, cocked it, leveled it at SPC S.S.’s face, and

shouted, “I’ll shoot you, I’ll shoot her, I’ll shoot everyone.”

A.R. then pulled SPC S.S. away from Appellant and they left the

Davis property shortly thereafter.   On the drive home, SPC S.S.

called his squad leader to report what had happened.   A.R.’s

testimony largely corroborated SPC S.S.’s.

     B.   Appellant’s Version of Events

     Appellant stated that he returned to his home after

receiving a text message from Mrs. Davis stating that SPC S.S.

and A.R. were arguing and it was getting out of control.   En

route to his home, Appellant passed SPC S.S. walking down the

street a couple of doors down from his home.   After he pulled

into his driveway, Appellant testified that he told his wife “to

1
 It is unclear what made the noise SPC S.S. heard. Appellant
denied hitting anything, but A.R. testified that Appellant
kicked Mrs. Davis’s car after he pulled into the driveway. Mrs.
Davis later discovered that her taillight was damaged, but was
unsure what had happened to it.


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United States v. Davis, No. 14-0029/AR

get the hell in the house,” told A.R. to get off his property,

and yelled down the street at SPC S.S. “to get the hell out of

here.”

     Appellant stated that he then went straight into his house,

but the door did not shut all the way behind him.    On the way to

his bedroom, Appellant noticed his pistol was still on the

kitchen table from when he had cleaned it earlier in the day.

Appellant picked up the handgun and put it in his back pocket

with the intention of putting it in the safe and then going to

sleep.    Before he placed the pistol in the safe, however,

Appellant noticed that Mrs. Davis was not in the house and the

front door was slightly ajar.    Appellant decided to go to the

door and tell Mrs. Davis to come inside.    As he approached the

door, Appellant stated that he saw SPC S.S. “coming in to the

door,” told him to leave, and pushed him out of the doorway.

Upon being pushed out, SPC S.S. approached the doorway again,

asking “what the fuck [Appellant’s] problem was.”    Appellant

then pushed SPC S.S. again, and told him “to get the hell out of

here.”    Appellant testified that SPC S.S. then lunged and swung

at him.    In response, Appellant pushed SPC S.S. again, pulled

his weapon from his back pocket, pointed it at SPC S.S. for

twenty to thirty seconds, and repeated that SPC S.S. needed to

leave.    Appellant stated that SPC S.S. started to cry and shake




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United States v. Davis, No. 14-0029/AR

and Appellant “could tell the threat was over.”   Mrs. Davis’s

testimony largely corroborated Appellant’s testimony.

     Regarding his state of mind, Appellant testified that he

knew SPC S.S. suffered from post-traumatic stress disorder

(PTSD), and was aware that SPC S.S. was bigger than he was.    He

claimed that after he pushed SPC S.S. the first time, SPC S.S.

looked more aggressive, which caused Appellant to worry about

what would happen to his family and property if he was knocked

out in a fist fight with SPC S.S.

     In addition to the testimony of Appellant and his wife,

trial defense counsel introduced witnesses at the court-martial

to testify to SPC S.S.’s reputation for untruthfulness.   Trial

defense counsel also elicited testimony from SPC S.S. that he

had anger issues and PTSD, but was on medication to treat both.

     During closing arguments, trial defense counsel noted that,

on the night in question, Appellant was simply exercising his

right to defend his home and suggested that his actions were

reasonable under the circumstances.   Trial defense counsel

specifically noted that SPC S.S. refused to leave Appellant’s

property after Appellant repeatedly told him to go.

     The military judge provided a self-defense instruction that

addressed the possibility that Appellant intentionally provoked

the incident, as well as an instruction for simple assault with

an unloaded firearm as a lesser included offense of assault with



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United States v. Davis, No. 14-0029/AR

a dangerous weapon.   Trial defense counsel did not request a

defense of property instruction and the military judge did not

sua sponte issue such an instruction.

                       PROCEDURAL BACKGROUND

     Contrary to his plea, a general court-martial composed of

officer members convicted Appellant of one specification of

simple assault with an unloaded firearm as a lesser included

offense to assault with a dangerous weapon likely to produce

death or grievous bodily harm in violation of Article 128,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928 (2012). 2

The panel sentenced Appellant to a bad-conduct discharge,

confinement for ninety days, and reduction to the grade of E-4.

The convening authority credited Appellant with thirty-four days

of confinement and approved the remainder of the adjudged

sentence.

     On appeal, the CCA held that the military judge’s failure

to instruct the panel sua sponte on defense of property was

error because Appellant’s testimony put defense of property “at

issue.”   United States v. Davis, No. ARMY 20100815, 2013 CCA

LEXIS 562, at *6–*7, 2013 WL 3857408, at *2, (A. Ct. Crim. App.

July 15, 2013) (memorandum opinion).    However, the CCA held that

2
  The military judge, sitting as a general court-martial, also
convicted Appellant, pursuant to his pleas, of two
specifications of failure to go to his appointed place of duty
in violation of Article 86, UCMJ, 10 U.S.C. § 886 (2012).



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United States v. Davis, No. 14-0029/AR

the error was harmless beyond a reasonable doubt because:   (1)

there was “overwhelming evidence in the record as a whole” that

Appellant did not give SPC S.S. a reasonable amount of time to

comply with his demands to leave; (2) even if SPC S.S. heard

Appellant’s direction to leave his property, Appellant was the

initial aggressor in the physical confrontation and his

“initiation of a physical confrontation with SPC SS was not a

reasonable, necessary, or justifiable use of force under the

circumstances”; and (3) it was not plausible that Appellant

believed his brandishing of a firearm was a necessary or

reasonable response to any trespass that occurred under the

circumstances.   Id. at *8–*9, 2013 WL 3857408, at *3.

     On Appellant’s petition we granted review of the following

issue:   “Whether the Army Court of Criminal Appeals erred in

finding that the military judge’s failure to instruct on the

affirmative defense of defense of property was harmless beyond a

reasonable doubt.” 3

3
  The Rules for Courts-Martial (R.C.M.) suggest that the terms
“special defense” and “affirmative defense” are interchangeable.
R.C.M. 916(a) Discussion. We conclude that it is more accurate
to refer to defense of property as a “special defense,” and that
the prosecution continuously bears “the burden of proving beyond
a reasonable doubt that the defense did not exist.” R.C.M.
916(b)(1).




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United States v. Davis, No. 14-0029/AR

                               DISCUSSION

     A.   Standard of Review

     This Court reviews the adequacy of a military judge’s

instruction de novo.      United States v. Dearing, 63 M.J. 478, 482

(C.A.A.F. 2006).      Where an instructional error raises

constitutional implications, this Court has traditionally tested

the error for prejudice using a “‘harmless beyond a reasonable

doubt’” standard. 4    Id. (quoting United States v. Wolford, 62

M.J. 418, 420 (C.A.A.F. 2006)).      In assessing prejudice under

this standard, the Government must prove beyond a reasonable

doubt that the error did not contribute to the accused’s

conviction or sentence.      Id. at 484.

     B.   Defense of Property

     As a threshold matter, regardless of which of the two

competing narratives one believes is closer to the truth, we

note that there are two distinct theories of defense of property

implicated in this case -- defense of property in the context of

an imminent threat to the property, and defense of property in

the context of preventing a trespass or ejecting a trespasser

4
  The granted issue discussed the military judge’s error in terms
of harmlessness beyond a reasonable doubt, and the Government
did not contest the application of this standard or argue that
plain error review should apply. Therefore, as neither party
raised the issue, and the outcome in this case would be the same
under either standard of review, we will not address whether
harmlessness beyond a reasonable doubt or plain error is the
appropriate standard to apply.



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United States v. Davis, No. 14-0029/AR

from the property.   See United States v. Lee, 3 C.M.A. 501, 507,

13 C.M.R. 57, 63 (1953); United States v. Regalado, 13 C.M.A.

480, 482–84, 33 C.M.R. 12, 14–16 (1963); see also Joshua

Dressler, Understanding Criminal Law § 20 (5th ed. 2009)

(discussing the various theories and rationales for defense of

property and defense of habitation).

     Under the former theory, the accused must have had a

reasonable belief that his real or personal property was in

immediate danger of trespass or theft; and the accused must have

actually believed that the force used was necessary to prevent a

trespass or theft of his real or personal property.   2 Wayne R.

LaFave, Substantive Criminal Law § 10.6 (2d ed. 2003); Dep’t of

the Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook,

ch. 5, para. 5-7, NOTE 1 (2010) [hereinafter Benchbook]; see

also Lee, 3 C.M.A. at 507, 13 C.M.R. at 63 (stating that defense

of property must be carried out with “an honest belief that [the

force used] is necessary to prevent the loss of the property”).

The accused’s subjective belief that the force was necessary

must also be reasonable.   In determining the reasonableness of

the accused’s subjective belief as to the amount of force

necessary, a panel must look at the situation through the eyes

of the accused and consider the circumstances known to the

accused at the time.   Benchbook, ch. 5, para. 5-7, NOTE 1; see

also R.C.M. 916(e) Discussion (discussing the related subjective



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United States v. Davis, No. 14-0029/AR

elements of self-defense); United States v. Dobson, 63 M.J. 1,

11 (C.A.A.F. 2006) (noting, in the context of self-defense, that

the accused must have had an objectively reasonable ground to

fear harm, and a subjectively reasonable belief that the amount

of force used was necessary).

       Under the latter theory, the accused may only use as much

force as is reasonably necessary to remove an individual from

his property after requesting that the individual leave and then

allowing a reasonable amount of time for the individual to

leave.    Regalado, 13 C.M.A. at 482, 33 C.M.R. at 14 (“one who is

lawfully in charge of premises, and has requested another to

leave whom he had a right so to request, may lawfully use as

much force as is necessary to remove such other, after allowing

him a reasonable time to depart”) (citations omitted); United

States v. Richey, 20 M.J. 251, 252 (C.M.A. 1985); United States

v. Marbury, 56 M.J. 12, 15–16 (C.A.A.F. 2001); Benchbook, ch. 5,

para. 5-7, NOTE 3.    A person or invitee who refuses to leave

after being rightfully asked to do so becomes a trespasser and

may not resist if only reasonable force is employed in ejecting

him.    Regalado, 13 C.M.A. at 482, 33 C.M.R. at 14; Marbury, 56

M.J. at 15 n.4; Benchbook, ch. 5, para. 5-7, NOTE 3.    However, a

property owner may not “purposely provoke a disturbance” on his

property and then use his ownership of the property as an excuse

for an unnecessary assault in ejecting another person.



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United States v. Davis, No. 14-0029/AR

Regalado, 13 C.M.A. at 482, 33 C.M.R. at 14.   If more force is

used than is reasonably necessary to remove a trespasser, this

force constitutes assault and battery.   Id., 33 C.M.R. at 14.

     C.   Instructional Error

Military judges are required to instruct members on the elements

of each offense and explain available defenses.   Article 51(c),

UCMJ, 10 U.S.C. § 851(c) (2012); R.C.M. 920(e)(3) (requiring

military judges to instruct on “any special defense under R.C.M.

916 in issue”); 5 United States v. Schumacher, 70 M.J. 387, 389

(C.A.A.F. 2011); Wolford, 62 M.J. at 422 (“If there is ‘some

evidence’ of a possible defense . . . the military judge is duty

bound to give an instruction even if the instruction was not

requested by the parties.” (citation omitted)).   However,

military judges also have broad discretion in how to craft such

instructions.   United States v. Smith, 50 M.J. 451, 455

5
  Although, R.C.M. 916 does not expressly list defense of
property as a special defense, this Court and its predecessor
have long recognized defense of property as an available defense
in the military justice system. See, e.g., Regalado, 13 C.M.A.
at 482, 33 C.M.R. at 14; Marbury, 56 M.J. at 15; Lee, 3 C.M.A.
at 507, 13 C.M.R. at 63. Furthermore, R.C.M. 916(a) states that
“defenses” as used in the rule include “any special defense
which, although not denying that the accused committed the
objective acts constituting the offense charged, denies, wholly
or partially, criminal responsibility for those acts.” Defense
of property is such a defense. See 2 LaFave, supra § 10.6
(characterizing defense of property as a justification-type
defense). Additionally, the Benchbook provides that a “military
judge must instruct, sua sponte, on defense of property when it
has been raised by some evidence.” Benchbook, ch. 5, para. 5-7,
NOTE 1.



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United States v. Davis, No. 14-0029/AR

(C.A.A.F. 1999).      A matter is “in issue” when “some evidence,

without regard to its source or credibility, has been admitted

upon which members might rely if they choose.”      R.C.M. 920(e)

Discussion.

     Appellant’s testimony about the underlying events in this

case sufficiently put both theories of defense of property “at

issue.”   Appellant’s testimony that he was worried about what

would happen to his property if he got knocked out was “some

evidence” that members could have relied upon to find that

Appellant believed his property was in immediate danger.

Similarly, his testimony that he wanted SPC S.S. to leave his

property was “some evidence” that the members could have relied

upon to find that Appellant sought to use force to remove a

trespasser from his property.

     Therefore, we agree with the CCA that the military judge

erred and should have sua sponte provided instructions for both

theories of defense of property.

     D.   Prejudice

     Turning to prejudice, we will consider the military judge’s

error by applying the harmless beyond a reasonable doubt

standard -- i.e., could a rational panel have found Appellant

not guilty if they had been instructed properly?      Dearing, 63

M.J. at 482 (“‘The inquiry for determining whether

constitutional error is harmless beyond a reasonable doubt is



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United States v. Davis, No. 14-0029/AR

whether, beyond a reasonable doubt, the error did not contribute

to the defendant’s conviction or sentence.’” (quoting Wolford,

62 M.J. at 420)).   We find that a rational panel could not have

found Appellant’s actions reasonable under either theory of

defense of property.

     First, even if a rational panel believed Appellant’s

version of events, there is no basis to conclude that a rational

panel could have found Appellant’s belief that his property was

in immediate danger to be reasonable.    There was no evidence

that SPC S.S. damaged the property, threatened the property, or

intended to damage the property.     Furthermore, there is no basis

to conclude that a rational panel could have found that the

threat of force employed by Appellant was reasonable.    Even if

the panel fully believed Appellant’s version of events, at most,

SPC S.S. walked briskly toward the front door and took an

ineffectual swing at Appellant after Appellant had pushed him

twice.   Therefore, Appellant’s brandishing of a firearm was a

disproportionate and unreasonable response under the

circumstances.

     Second, while a rational panel could have found that

Appellant rightfully asked SPC S.S. to leave, there is no basis

to conclude that a rational panel could have found Appellant

gave the victim a reasonable amount of time to leave before he

brandished the firearm.   According to Appellant’s own version of



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United States v. Davis, No. 14-0029/AR

events, Appellant marched straight into his house without

confirming that SPC S.S. had heard his command to leave,

confronted SPC S.S. as soon as he emerged from the house, and

pointed the gun at SPC S.S. contemporaneously with his renewed

demand that SPC S.S. leave.   Nor could a rational panel have

concluded that Appellant threatened an amount of force

reasonably necessary under the circumstances to remove SPC S.S.

from his property.   As stated above, even under Appellant’s

version of events, Appellant was the initial aggressor in the

confrontation with SPC S.S. and pointing a firearm at SPC S.S.

was an unreasonable response under the circumstances.

     Finally, we note that the members apparently rejected

Appellant’s self-defense argument even though the military judge

appropriately instructed the members on Appellant’s right to

self-defense based on the same circumstances Appellant asserts

warrant a defense of property instruction.

     In sum, a rational panel could not have found Appellant’s

actions reasonable in the context of responding to an immediate

danger to his property, or in the context of removing a

trespasser from his property.   Therefore, the military judge’s

error did not contribute to Appellant’s conviction or sentence.




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United States v. Davis, No. 14-0029/AR

                           CONCLUSION

     We hold that the military judge’s error was harmless beyond

a reasonable doubt and affirm the judgment of the United States

Army Court of Criminal Appeals.




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