UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                  YOB, KRAUSS and BURTON 1
                                   Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                               Sergeant RONALD J. DAVIS
                               United States Army, Appellant

                                        ARMY 20100815

                         Headquarters, III Corps and Fort Hood
                         Jacqueline L. Emanuel, Military Judge
                Colonel Phillip N. Foster, Staff Judge Advocate (pretrial)
                Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)


For Appellant: Captain Jack D. Einhorn, JA (argued); Colonel Patricia A. Ham, JA;
Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. Bashore, JA; Captain
Jack D. Einhorn, JA (on brief); Lieutenant Colonel Imogene M. Jamison, JA; Major
Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on reply brief & supplemental
brief); Lieutenant Colonel Jonathan Potter, JA; Captain John L. Schriver, JA.

For Appellee: Captain Daniel H. Karna, JA (argued); Lieutenant Colonel Amber J.
Roach, JA; Major Robert A. Rodrigues, JA; Captain Daniel H. Karna (on brief &
supplemental brief);


                                           15 July 2013

                                   ----------------------------------
                                    MEMORANDUM OPINION
                                   ----------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

YOB, Senior Judge:



1
 Judge BURTON took final action on this case prior to her permanent change of
duty station.
DAVIS — ARMY 20100815

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of failure to go to his appointed place of
duty, in violation of Article 86 Uniform Code of Military Justice, 10 U.S.C . § 886
(2006) [hereinafter UCMJ]. Contrary to his plea, a general court -martial composed
of officer members convicted appellant of one specification of simple assault with
an unloaded firearm in violation of Article 128, UCMJ, 10 U.S.C. § 928 (2006). Th e
officer 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 against the sentence to confinement, and
approved the remainder of the adjudged sentence.

       This case is before this court for review under Article 66, UCMJ. Appellant
asserts three assignments of error of which only one merits discussion. In this
assignment of error, appellant alleges the military judge erred by not instructing the
panel on appellant’s right to defend his property and stand his ground. We find that
any instructional error was harmless beyond a reasonable doubt.

                                       FACTS

       On 20 February 2010, SPC SS went to a sports bar in Harker Heights, Texas
with his girlfriend AR, appellant, and appellant’s wife, Mrs. Davis. Mrs. Davis had
agreed to allow SPC SS and AR stay at the Davis’s nearby home overnight so they
would not have to drive home after consuming alcohol. A fter staying out for several
hours, Mrs. Davis, AR, and SPC SS returned to the Davis home while appellant
remained out with some of his friends.

       At the Davis residence, SPC SS and AR engaged in a heated verbal
altercation, which took place at least in part in the driveway in front of the house.
Mrs. Davis attempted to calm the arguing couple but was unsuccessful. Mrs. Davis
sent a text message to her husband stating that SPC SS and AR were arguing an d
insisting that he come home. Appellant returned in an agitated state. When he
drove into his driveway, AR was sitting in a car in the front of the house and SPC SS
was on the sidewalk, not directly in front of the house, but nearby. Appellant
entered his house, and quickly reemerged to confront his guests .

       According to SPC SS, appellant approached him and swung his fist at him but
missed. Immediately afterwards, appellant pulled a handgun out of his back pocket,
charged the weapon, and leveled it at SPC SS’s face. According to both SPC SS and
AR, appellant stated, “I’ll shoot you, I’ll shoot her, I’ll shoot everyone.” At that
time, appellant told SPC SS and AR to leave his property.



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DAVIS — ARMY 20100815

       Appellant, gave a different version of events, and testified he shouted to SPC
SS and AR that they were “no longer welcome ,” and to “get . . . off [his] property.”
According to appellant, he went into the house and retrieved a handgun from the
kitchen and put it in his back pocket. On the way outside , appellant testified he
observed SPC SS rapidly approaching the doorway at which time appellant pushed
him backwards. Appellant claimed he pushed SPC SS a second time as he
approached the doorway again, whereupon appellant told SPC SS to “get the hell out
of here.” According to appellant, SPC SS then lunged and swung at him. In
response, appellant then pulled his weapon from his back pocket and pointed it at
SPC SS for approximately “20, 30 seconds.”

                                   DISCUSSION

       We review the adequacy of a military judge’s instructions de novo. United
States v. Dearing, 63 M.J. 478, 482 (C.A.A.F. 2006). The military judge bears
primary responsibility for ensuring that required instructions are given to the panel
and given accurately. United States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003);
Rule for Courts-Martial [hereinafter R.C.M.] 920(a)-(e). If an affirmative defense is
reasonably raised by the evidence, the military judge has a sua sponte duty to
instruct the members on the defense. United States v. Hearn, 66 M.J. 770, 776
(Army Ct. Crim. App. 2008) (citing United States v. Davis, 53 M.J. 202, 205
(C.A.A.F. 2000) (internal citations omitted)). Failure to object to an omission of an
affirmative defense instruction does not constitute waiver. United States v. Stanley,
71 M.J. 60, 63 (C.A.A.F. 2012).

       A defense is reasonably raised when some evidence, without regard to its
source or credibility, has been admitted upon which members might rely if they so
choose. Stanley 71 M.J. at 61; R.C.M. 920 discussion. See also United States v.
Watford¸ 32 M.J. 176, 178 (C.M.A. 1991). If there is any doubt as to whether a
special defense is in issue, the doubt should be resolved in favor of the accused.
Davis, 53 M.J. at 205 (citing United States v. Steinruck, 11 M.J. 322, 324 (C.M.A.
1981)).

       The military judge has a sua sponte duty to instruct on the defense of property
when it has been raised by some evidence. Dep’t of Army, Pam. 27-9, Legal
Service: Military Judges’ Benchbook [hereinafter Benchbook], para. 5 -7, note 1 (1
Jan. 2010). It is well-established that a servicemember has a legal right to eject a
trespasser from his or her property. United States v. Marbury, 56 M.J. 12, 15
(C.A.A.F. 2001). A person is justified in using reasonable force to protect one’s real
or personal property when the person reasonably believes the property is in
immediate danger of trespass or theft. United States v. Regalado, 13 U.S.C.M.A.
480, 482, 33 C.M.R. 12, 14 (1963). See also Benchbook, para. 5-7. However, it is

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DAVIS — ARMY 20100815

also well-established that the right to defend one’s property is not unlimited, and
must be reasonable. Marbury, 56 M.J. at 15 (citing Regalado, 33 C.M.R. at 14).
One who seeks to avail himself of the defense of property defense may only use an
amount of force reasonably necessary to eject the trespasser or otherwise protect the
property. Id. Depending on the situation, reasonable force may include the use of
deadly force. Benchbook, para. 5-7.

       Under the unique facts of this case, we find that the military judge’s failure to
instruct the panel members sua sponte on the defense of property to be error.
According to appellant’s testimony, before retrieving his weapon he told SPC SS,
“You all need to get the hell out of here. I don’ t want you here no more.” Appellant
also testified that he told AR, “You all need to get . . . off my property.” AR
recalled appellant telling she and SPC SS to “Get off my property,” or “Get out of
my driveway.” Mrs. Davis likewise testified that appellant told SPC SS, “You need
to leave.” Altogether this evidence, without regard to source or credibility, plainly
put defense of property “at issue.” See Davis, 53 M.J. at 205.

       Finding error in the military judge’s failure to provide an instruction on
defense of property, we next determine whether the error prejudiced appellant or was
harmless. “If instructional error is found, because there are constitutional
dimensions at play, [the error] must be tested for prejudice under the standard of
harmless beyond a reasonable doubt.” United States v. Medina, 69 M.J. 462, 465
(C.A.A.F. 2011) (quoting United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F.
2006) (internal citations omitted)). See also Neder v. United States, 527 U.S. 1, 15
(1999). Whether an instructional omission i s harmless beyond a reasonable doubt
depends on whether the error complained of contributed to the verdict obtained.
Hearn, 66 M.J. at 777. The test we employ in making this assessment is whether it
is “clear beyond a reasonable doubt that a rational [panel] would have found the
defendant guilty absent the error.” United States v. Baxter, 72 M.J. 507, 513 (Army
Ct. Crim. App. 2013) (quoting Neder, 527 U.S. at 18). Applying this test, we find
the military judge’s failure to instruct harmless beyond a reasonable doubt.

      A person, who is lawfully in possession or in charge of property, and who
requests another to leave, may lawfully use as much force as is reasonably necessary
to remove the person, after allowing a reasonable time for the person to l eave.
Regalado, 33 C.M.R. at 14. A person, who refuses to leave after being asked to do




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DAVIS — ARMY 20100815

so becomes a trespasser and the trespasser may not resist if only reasonable force is
employed in ejecting him or her. Id. 2

        Although appellant’s defense of property against a trespasser was raised by
the evidence, there was overwhelming evidence in the record as a whole that
appellant did not provide SPC SS a reasonable amount of time to comply with his
demand to leave. There was also overwhelming evidence that appellant was the
initial aggressor in the physical confrontation. Appellant ’s initiation of a physical
confrontation with SPC SS was not a reasonable, necessary, or justifiable use of
force under the circumstances, nor was the threat of deadly force appellant employed
immediately thereafter by brandishing a firearm. We further do not find it plausible
that appellant believed his brandishing of a firearm under the circumstances was a
necessary or reasonable response to the trespass, under t he circumstances. SPC SS
was, at least at the outset, an invited guest at appellant’s house and was not provided
a reasonable opportunity to depart.

       Even if a panel concluded SPC SS heard appellant’s direction to leave his
property, no rational panel could conclude appellant’s initiation of physical violence
and threats of deadly force to expel SPC SS from the property in front of his house
were reasonable under the facts presented in this case. Marbury, 56 M.J. at 15;
Regalado, 33 C.M.R. at 14. Nor would any rational panel conclude that appellant
believed his use of force in this manner, or his brandishing of a firearm, was a
necessary action in response to the trespass. We hold that it is clear beyond a
reasonable doubt that a rational panel would have rejected any defense of property
claim under these circumstances and would have found appellant guilty of assault in
the absence of the instructional error. Baxter, 72 M.J. at 213. The omission of the
defense of property instruction did not contribute to appellant’s conviction and the
instructional error in this regard was harmless beyond a reasonable doubt.
Therefore, we find the evidence legally and factually sufficient to support
appellant’s conviction for simple assault with an unloaded firearm.

                                    CONCLUSION

      On consideration of the entire record, including the matters personally raised
by appellant under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and
appellant’s other assignments of error, we find appellant’s arguments to be without
2
  We note that there may be circumstances in which a person confronting a trespasser
is not required to issue a warning or wait for compliance with a request to lea ve
before resorting to physical force to expel a trespasser. In this case, however, none
of these circumstances are present.


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DAVIS — ARMY 20100815

merit. We hold the findings of guilty and the sentence as approved by the convening
authority correct in law and fact. Accordingly, the findings of guilty and the
sentence are AFFIRMED.

      Judge KRAUSS and Judge BURTON concur.


                                      FOR THE
                                      FOR THE COURT:
                                              COURT:




                                      MALCOLM H. SQUIRES, JR.
                                      MALCOLM H. SQUIRES, JR.
                                      Clerk of
                                            of Court
                                               Court
                                      Clerk




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