                       UNITED STATES, Appellee

                                    v.

                   Michael R. BEAN, Senior Airman
                      U.S. Air Force, Appellant


                              No. 05-0101

                         Crim. App. No. 35422


       United States Court of Appeals for the Armed Forces

                       Argued October 12, 2005

                      Decided December 22, 2005


BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, EFFRON, and ERDMANN, JJ., joined.


                                 Counsel


For Appellant: Captain John N. Page III (argued); Colonel
Carlos L. McDade, Major Terry L. McElyea, Major Sandra J.
Whittington, and Captain Jennifer K. Martwick (on brief).

For Appellee: Major Carrie E. Wolf (argued); Lieutenant Colonel
Robert V. Combs and Lieutenant Colonel Gary F. Spencer (on
brief).

Military Judge:   Harvey A. Kornstein


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bean, No. 05-0101/AF


        Judge BAKER delivered the opinion of the Court.

        After a contested general court-martial before members,

Appellant was convicted of three specifications of aggravated

assault with a loaded firearm,1 aggravated assault by brandishing

a knife, simple assault, and carrying a knife under a Florida

statute,2 in violation of Articles 128 and 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 928, 934 (2000).                The

adjudged and approved sentence included a bad-conduct discharge,

confinement for one year, forfeiture of all pay and allowances,

and reduction to the lowest enlisted grade.             The United States

Air Force Court of Criminal Appeals affirmed the findings and

sentence in an unpublished opinion.            United States v. Bean, No.

ACM 35422, 2004 CCA LEXIS 223, 2004 WL 2191259 (A.F. Ct. Crim.

App. Sept. 15, 2004).         We granted review of the following issue:

          WHETHER THE MILITARY JUDGE ERRED IN REFUSING TO
          INSTRUCT THE MEMBERS THAT SIMPLE ASSAULT WAS A
1
    In relevant part, these specifications read as follows:

        In that SENIOR AIRMAN MICHAEL R. BEAN, United States Air Force, .
        . . did, at or near Tampa, Florida, on or about 24 April 2002,
        commit an assault upon [each victim] by pointing at him, a
        dangerous weapon likely to produce death or grievous harm, to
        wit: a loaded firearm.
2
  At the time of trial, Fla. Stat. § 790.10, assimilated into federal law by
18 U.S.C. § 13 (2000), read in relevant part as follows:

        790.10.   Improper exhibition of dangerous weapons or firearms.

        If any person having or carrying any dirk, sword, sword cane,
        firearm, electric weapon or device, or other weapon shall, in the
        presence of one or more persons, exhibit the same in a rude,
        careless, angry, or threatening manner, not in necessary self-
        defense, the person so offending shall be guilty of a misdemeanor
        of the first degree . . . .



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United States v. Bean, No. 05-0101/AF


        LESSER-INCLUDED OFFENSE OF AGGRAVATED ASSAULT WITH
        A DANGEROUS WEAPON.

                                 BACKGROUND

      On April 23, 2002, Appellant went to a local bar with a

group of friends that included Staff Sergeant (SSgt) Warner,

SSgt Archer and Senior Airman Hovancik.          Witnesses testified

that Appellant had a number of drinks and, at some point, his

speech became incoherent and he began stumbling and running into

people on the dance floor.       After several hours, the group left

the bar around 2:00 a.m.       In the parking lot, Appellant’s

friends became concerned that he was drunk and offered to drive

him home.    As the attempt to persuade Appellant not to drive

continued, Appellant and Warner exchanged angry words.

Appellant then produced a knife, opened the blade and held it

down along his side.      At that point, Archer and Hovancik

intervened, and the three wrestled Appellant to the ground and

took control of the knife and Appellant’s keys.            When it

appeared that Appellant had calmed down, the three released him

and allowed him to stand.       Appellant immediately opened his car

door, retrieved a .45 caliber handgun and assumed the “Weaver

Stance.”3   He first pointed the weapon at Hovancik, then Warner,

and then at Archer.      Hovancik testified that Appellant said,

3
  In the 1950s a Los Angeles County deputy sheriff named Jack Weaver developed
this two-handed shooting stance that bears his name. The Weaver Stance,
http://www.weaverstance.com (last visited Dec. 22, 2005). SSgt Warner
testified that as a member of a Security Forces unit he had been trained to
assume this stance when firing a handgun.


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United States v. Bean, No. 05-0101/AF


“[g]et out of my face or I’ll kill you.”   While the weapon was

pointed at Archer, Archer grabbed it with his left hand and

struck Appellant in the face with his right hand.    As the two

fell to the ground, Archer wrested the weapon from Appellant.

Archer later testified that at the time he took the weapon, the

hammer was “all the way back” and the safety was off.   He

further testified that when he placed the weapon in Warner’s

trunk, he pulled the weapon’s slide to the rear to clear it and

noticed there was one round in the chamber and several in the

magazine.

     At trial, Appellant admitted that the weapon was loaded but

insisted that the safety was engaged.   He also stated he did not

remember some of the events because “[he] was more intoxicated

that night than [he had] ever been in [his] life.”

     Based upon Appellant’s testimony regarding the safety,

defense counsel requested an instruction on the lesser included

offense of simple assault.   Counsel argued that if the members

found that the safety was engaged, they might also find that the

weapon could not fire.   The military judge denied the request as

follows:

     MJ: It being an offer, I don’t think it matters.
     It’s an offer, not an attempt. The firearm could have
     been totally nonfunctional, in fact. With an offer,
     it doesn’t matter. I’m not sure that there’s a
     scintilla of evidence for a simple -– if there was any
     evidence whatsoever I’d give an instruction. But, I



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United States v. Bean, No. 05-0101/AF


        don’t see any evidence whatsoever in Specs 1 through 3
        concerning a simple assault.

                                    DISCUSSION

        Appellant renews his argument before this Court that the

evidence reasonably raised a question as to whether or not the

safety was engaged when he pointed his firearm.              As a result,

Appellant argues, he was entitled to an instruction on the

lesser included offense of simple assault, because a reasonable

panel could have found, as a matter of law, that pointing a

loaded, operable firearm at another with the safety engaged is

not using the firearm “in a manner likely to produce death or

grievous bodily harm.”4         Appellant seeks support from this

Court’s decision in United States v. Davis, 47 M.J. 484

(C.A.A.F. 1998).        In that case, we held that “an unloaded pistol


4
    The elements for aggravated assault with a loaded firearm are:

        (i)   That the accused attempted to do, offered to do, or did
              bodily harm to a certain person;
        (ii) That the accused did so with a certain weapon, means, or
              force;
        (iii) That the attempt, offer, or bodily harm was done with
              unlawful force or violence;
        (iv) That the weapon, means, or force was used in a manner
              likely to produce death or grievous bodily harm; and
        (v)   That the weapon was a loaded firearm.

    MCM pt. IV, para. 54.b.(4)(a)(i)-(v).

The elements of simple assault are:

        (i)    That the accused attempted or offered to do bodily harm to
               a certain person; and
        (ii)   That the attempt or offer was done with unlawful force or
               violence.

    MCM pt. IV, para. 54.b.(1)(a)-(b).



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United States v. Bean, No. 05-0101/AF


is not a dangerous weapon under the President’s interpretation

of Article 128.”   Id. at 486.

     We review allegations of error involving mandatory

instructions de novo.   United States v. Forbes, 61 M.J. 354, 357

(C.A.A.F. 2005); United States v. Smith, 50 M.J. 451, 455

(1999).   “‘[T]he military judge has a duty to instruct sua

sponte on all lesser-included offenses reasonably raised by the

evidence.’”   United States v. Griffin, 50 M.J. 480, 481

(C.A.A.F. 1999)(quoting United States v. Rodwell, 20 M.J. 264,

265 (C.M.A. 1985)).   An accused is entitled to have a court-

martial consider all reasonable alternatives to guilt.     Smith,

50 M.J. at 455 (citing United States v. Clark, 22 M.J. 576, 580

(C.M.A. 1973)).    Toward this end, as long as an accused can show

“some evidence” that “reasonably raises” the applicability of a

lesser included offense, the military judge must instruct the

panel on that lesser included offense.    United States v. Davis,

53 M.J. 202, 205 (C.A.A.F. 2000).     Evidence “reasonably raises”

a lesser included offense if it could cause members to “attach

credit” or rely upon it if they so choose.    Id.   Finally, “any

doubt whether the evidence is sufficient to raise the need to

instruct on a lesser-included offense must be resolved in favor

of the accused.”   Rodwell, 20 M.J. at 267.

     Appellant is correct that whether he used a loaded firearm

in a manner likely to produce death or grievous bodily harm was


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United States v. Bean, No. 05-0101/AF


a question for the members to determine.          Similarly, Appellant

is correct in stating that his conviction cannot stand if no

rational trier of fact could find beyond a reasonable doubt that

he used the firearm in such a manner.         United States v. Turner,

25 M.J. 324 (C.M.A. 1987).       He is also correct in stating that

if a firearm were not functional a conviction for aggravated

assault could not stand.5       However, it does not necessarily

follow that as a result he was entitled to an instruction on the

lesser included offense of simple assault.          That depends on

whether some evidence reasonably raised the lesser included

offense.

      The evidence indicates the following.         Appellant was drunk

and claimed he could not remember all the events in question.

He threatened his associates with a knife when they sought to

dissuade, and then prevent, him from driving.           Appellant

obtained a .45 caliber weapon from his vehicle, assumed a

“Weaver Stance” and aimed the weapon at three servicemen.

Appellant conceded that the weapon was loaded, but testified

that the safety was on during the altercation.           One witness




5
  In this regard, the military judge’s statement that “the firearm could have
been totally nonfunctional” is an incorrect statement of the law. However,
any error on the military judge’s part was harmless. Appellant did not
contest that the weapon was functional and there is no evidence in the record
suggesting that it was, or might have been, nonfunctional. Further,
consistent with our case law, the military judge stated, “if there was any
evidence whatsoever [in support of the lesser included offense] I’d give an
instruction.”


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United States v. Bean, No. 05-0101/AF


testified that when the weapon was seized from Appellant, the

safety was off and a round was chambered.

        Appellant has cited no authority, nor have we identified

authority, supporting the view that engaging the safety of a

loaded, operable firearm while pointing it at another, as a

matter of law, removes or might remove its character as a

dangerous weapon.         Moreover, the Manual for Courts-Martial,

United States (2005 ed.)(MCM), supports a counter conclusion.

MCM pt. IV, para. 54.e.(1) sets out the maximum punishment for

simple assault and contains two parts.6           Generally for simple

assault, subsection (A) sets the maximum punishment at

confinement for three months and forfeiture of two-thirds pay

per month for three months.          Subsection (B), which is specific

to a simple assault committed with an unloaded firearm, sets a

maximum punishment of confinement for three years, forfeiture of

all pay and allowances, and a dishonorable discharge.              The

analysis for this provision states:          “Threatening a person with

an unloaded firearm places the victim of the assault in fear of

losing his or her life.           Such a traumatic experience is a far


6
    (1) Simple Assault.

              (A) Generally. Confinement for 3 months and forfeiture of two-
                  thirds pay per month for 3 months.
              (B) When committed with an unloaded firearm. Dishonorable
                  discharge, forfeiture of all pay and allowances, and
                  confinement for 3 years.

    MCM pt. IV, para. 54.e.(1).



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United States v. Bean, No. 05-0101/AF


greater injury to the victim than that sustained in the course

of a typical simple assault.”    MCM, Analysis of Punitive

Articles, app. 23 at A23-16.    Common sense supports the same

conclusion in this case.

     Based on the law and the facts of this case, Appellant was

not entitled to an instruction on simple assault.   In sum, where

the evidence shows that an intoxicated accused pointed a loaded

firearm at others, having first threatened the others verbally

and with a knife, and having assumed a firing position, the

lesser included offense of simple assault is not reasonably

raised, whether the firearm’s safety is engaged or not.

                               DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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