

   
   
   
   U.S. v. Griffin



IN THE CASE OF
UNITED STATES, Appellee
v.
Anthony G. GRIFFIN, Private
U.S. Army, Appellant
 
No. 98-1075
Crim.App. No. 9601913
 
United States Court of Appeals for
the Armed Forces
Argued April 6, 1999
Decided July 12, 1999
EFFRON, J., delivered the opinion
of the Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ.,
joined.

Counsel
For Appellant: Captain
Patricia A. Lewis (argued); Colonel John T Phelps,
II, Lieutenant
Colonel Adele H. Odegard, and Major Leslie A. Nepper
(on brief).
For Appellee: Captain
Troy A. Smith (argued); Colonel Russell S. Estey and Lieutenant
Colonel Eugene R. Milhizer (on brief); Major Lyle D. Jentzer
Military Judge: Debra
L. Boudreau
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Judge EFFRON delivered the opinion
of the Court.
A general court-martial composed of
officer members convicted appellant, pursuant to mixed pleas, of absence
without leave (14 days) and assault with a dangerous weapon, in violation
of Articles 86 and 128, Uniform Code of Military Justice, 10 USC
§§ 886 and 928, respectively. He was sentenced to a dishonorable
discharge, 6 months' confinement, total forfeitures, and reduction to E-1.
The convening authority approved the sentence, and credited him with 45
days of confinement. The Court of Criminal Appeals affirmed.
We granted review of the following
issue:


WHETHER THE MILITARY JUDGE ERRED
WHEN SHE FAILED TO INSTRUCT THE PANEL MEMBERS OF ALL LESSER-INCLUDED OFFENSES
OF THE CHARGE OF ASSAULT WITH INTENT TO INFLICT GRIEVOUS BODILY HARM.


We affirm, for the reasons set forth herein.

I. Factual Background
This case grew out of a dispute between
two roommates over a $12.00 cable television bill. On September 30,
1996, Private First Class Loseke demanded that appellant pay the $12.00
balance he owed to Loseke for the cable bill. Appellant agreed to pay his
debt, but said that he would first have to obtain funds from an automated
teller machine. Not satisfied with this response, Loseke went to the dayroom
where he complained to his Squad Leader, Specialist Lane, that his roommate
would not pay the bill. Lane offered to "move upstairs and take care of
it right now."
Loseke returned to the room he shared
with appellant, accompanied by Lane. Loseke unlocked the door and pushed
it slightly ajar. Then Lane kicked the door open, "[j]ust to get the effect
and to let . . . Private Griffin know I was entering the room."
Appellant was seated on the couch opening
mail with a double-edged knife. Lane ordered him to stand at parade rest.
Appellant rose, still grasping the knife in his right hand, while the mail
that had been in his lap fell to the floor. Appellant and Lane exchanged
angry words, which quickly escalated into a physical confrontation.
The parties dispute whether appellant
or Lane delivered the first blow. Lane indicated that appellant made "a
pistol type motion with his hand" and tapped Lane on the nose. Appellant
testified that he neither made such a gesture nor otherwise touched Lane.
He testified, instead, that Lane "just came in fighting, you know, came
in swinging."
Within seconds, both Lane and appellant
were swinging at each other. After taking four or five swings, appellant
dropped the knife and they "continued to fight." Only after the fight,
and after leaving appellant's room, did Lane discover that he had been
stabbed in the arm. Lane later learned that the knife wounds had damaged,
perhaps permanently, "the three main peripheral nerves that supply the
muscles and sensations of the" arm and hand.
Appellant was charged under Article
128 with assault in which grievous bodily harm is intentionally inflicted.
This offense requires proof that: (1) "the accused assaulted a certain
person"; (2) "grievous bodily harm was thereby inflicted upon such person";
(3) the "harm was done with unlawful force or violence"; and (4) the accused,
at the time, specifically intended "to inflict grievous bodily harm." Para.
54b(4)(b), Part IV, Manual for Courts-Martial, United States (1998 ed.).
During a conference under RCM 802,
Manual, supra, defense counsel requested instructions on the lesser-included
offenses of simple assault and simple battery. The military judge declined
to give the instructions, stating that those lesser offenses were not "fairly
raised by the evidence." She instructed the members on another lesser offense,
assault with a dangerous weapon or other means or force likely to produce
death or grievous bodily harm. This offense requires proof that: (1) the
accused attempted, offered, or did "bodily harm to a certain person"; (2)
"the accused did so with a certain weapon, means, or force"; (3) "the attempt,
offer, or bodily harm was done with unlawful force or violence"; and (4)
"the weapon, means, or force was used in a manner likely to produce death
or grievous bodily harm." Para. 54b(4)(a), Part IV.
The military judge also gave instructions
on the defenses of accident and self-defense. The members found appellant
not guilty of assault in which grievous bodily harm is intentionally inflicted,
but guilty of the lesser-included offense of assault with a dangerous weapon.
Appellant now asserts that the evidence
reasonably raised the issue of his intent to stab Lane with the knife,
requiring the military judge to instruct the members on the lesser-included
offense of assault consummated by a battery.

II. Discussion
"[T]he military judge has a duty to
instruct sua sponte on all lesser-included offenses reasonably
raised by the evidence." United States v. Rodwell, 20 MJ 264, 265
(CMA 1985); RCM 920(e)(2) (instructions on findings shall include a "description
of the elements of each lesser included offense in issue"). The non-binding
Discussion accompanying that Rule states that "[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. An instruction on
a lesser included offense is proper when an element from the charged offense
which distinguishes that offense from the lesser offense is in dispute."
There was no dispute at trial over
whether appellant stabbed Lane or whether appellant knew he was holding
the knife when he swung at Lane. In essence, appellant contended that he
just happened to be holding a knife and accidentally stabbed Lane in the
course of defending himself. Appellant insisted that he did not intend
to stab Lane: "I had no intentions with the knife, not to stab him or do
any harm to him. It's just that, when he pushed me he just came in swinging
and I just started, you know, swinging back and defending myself."
The offense with which appellant was
charged -- assault in which grievous bodily harm is intentionally inflicted
-- requires proof that an accused specifically intended to inflict such
harm. The lesser offense of which he was convicted -- assault with a dangerous
weapon -- requires only a general intent to assault the victim. The lesser
offense contains no separate intent requirement with respect to the actual,
resulting harm to the victim, or with respect to the use of a weapon to
accomplish the assault. In other words, the mere use of a weapon in the
course of an assault satisfies the "weapon" element of the lesser offense,
regardless whether the assailant intended to use the weapon to effect his
assault.
In the present case, the military judge
properly instructed the members that assault with a dangerous weapon required
them to first find that appellant "did bodily harm to" the victim, that
he "did so with a certain weapon," that he "used . . . unlawful force or
violence," and finally, "that the weapon was used in a manner likely to
produce grievous bodily harm." She properly omitted any requirement that
they find a specific intent to use the weapon to effect his assault.
The issue in this case is whether the
evidence supporting appellant's position -- that he did not intend to stab
Lane -- put in issue any element of the offense of assault with a dangerous
weapon that would distinguish that offense from an assault consummated
by a battery. The elements of assault consummated by a battery are that:
(1) "the accused did bodily harm to a certain person; and" (2) "the bodily
harm was done with unlawful force or violence." Para. 54b(2), Part IV.
Because specific intent is not an element of either the offense of assault
with a dangerous weapon or assault consummated by a battery, the existence
of a factual issue concerning appellant's specific intent did not raise
an issue that would distinguish assault with a dangerous weapon from an
assault consummated by battery.
There is no factual dispute that appellant
used a dangerous weapon in his assault upon Lane. The Supreme Court has
held that "[a] lesser-included offense instruction is only proper where
the charged greater offense requires the jury to find a disputed
factual element which is not required for conviction of the lesser-included
offense." Sansone v. United States, 380 U.S. 343, 350 (1965)(quoted
in United States v. Jackson, 12 MJ 163, 167 (CMA 1981))(emphasis
added). Although use of a dangerous weapon is an element of the offense
of which appellant was convicted, but not of assault consummated by a battery,
this element is not in dispute in this case.

III. Conclusion
We hold that a factual issue as to
appellant's intent to use a dangerous weapon does not require an instruction
on the offense of assault consummated by a battery where, as here,
there is no factual dispute as to whether appellant knowingly assaulted
the victim while knowingly holding a dangerous weapon.

IV. Decision

The decision of the United States Army
Court of Criminal Appeals is affirmed.

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