                          UNITED STATES, Appellee

                                        v.

                Shawn H. RICHARDS, Private First Class
                         U.S. Army, Appellant

                                  No. 01-0084

                          Crim. App. No. 9700809

       United States Court of Appeals for the Armed Forces

                       Argued October 1, 2001

                       Decided February 6, 2002

     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.

                                    Counsel

For Appellant: Captain Stephanie L. Haines (argued); Colonel
Adele H. Odegard, Lieutenant Colonel David A. Mayfield, Major
Mary M. McCord, and Captain Jimmonique R. S. Rodgers (on brief).

For Appellee: Captain Steven D. Bryant (argued); Colonel
David L. Hayden, Lieutenant Colonel Edith M. Rob, and Major
Daniel G. Brookhart (on brief); Colonel Steven T. Salata.

Amicus Curiae: Lisa M. Colone (law student) (argued); Richard
Armstrong and Anne M. Coughlin (supervising attorneys) and
Howard H. Hoege III and Amanda P. Biles (law students) (on
brief) – For the Criminal Justice Program and the Public Service
Center at the University of Virginia School of Law.

Military Judges:      Gregory O. Varo (Trial) and
                      Robert F. Holland (DuBay Hearing)

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Richards, No. 01-0084/AR


      Chief Judge CRAWFORD delivered the opinion of the Court.

      Appellant was tried by general court-martial composed of

officer and enlisted members and, contrary to his pleas, was

found guilty of voluntary manslaughter, in violation of Article

119, UCMJ, 10 USC § 919.       The convening authority approved the

adjudged sentence of a dishonorable discharge, confinement for

eight years, forfeiture of all pay and allowances, and reduction

to Private E1.     The Army Court of Criminal Appeals affirmed in an

unpublished opinion.      We granted review of the following issues:

      I.    WHETHER APPELLANT CAN BE HELD CRIMINALLY LIABLE FOR
            THE STABBING DEATH OF PFC WATERS BY PFC WILSON WHERE
            THE GOVERNMENT FAILS TO PROVE 1) THAT APPELLANT KNEW
            OR HAD A REASON TO KNOW PFC WILSON HAD A KNIFE DURING
            THE FISTFIGHT, 2) THAT APPELLANT’S ACT OF KICKING PFC
            WATERS AFTER THE FIGHT BEGAN ASSISTED OR INCITED PFC
            WILSON IN STABBING PFC WATERS OR 3) THAT APPELLANT
            ENTERED AN AGREEMENT WITH PFC WILSON BEFORE OR DURING
            THE FISTFIGHT TO STAB PFC WATERS.

      II.   WHETHER A STABBING BY A CO-ACCUSED CAN BE CONSIDERED
            THE NATURAL AND PROBABLE CONSEQUENCE OF AN UNARMED
            FISTFIGHT INVOLVING MULTIPLE ASSAILANTS WHERE THERE
            IS NO EVIDENCE APPELLANT KNEW THE CO-ACCUSED WHO
            COMMITTED THE STABBING HAD A KNIFE, HAD A PROPENSITY
            TO USE A KNIFE DURING FISTFIGHTS, OR OTHERWISE
            INTENDED TO STAB THE VICTIM.

      III. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
           PREJUDICE OF APPELLANT WHEN HE FAILED TO INSTRUCT THE
           MEMBERS ON THE LESSER-INCLUDED OFFENSE OF INVOLUNTARY
           MANSLAUGHTER WHEN THERE WAS SUFFICIENT EVIDENCE TO
           RAISE THE OFFENSE.1


1
  We heard oral argument in this case at the University of Virginia School of
Law, Charlottesville, Virginia, as part of this Court’s Project Outreach.
See United States v. Allen, 34 MJ 228, 229 n.1 (CMA 1992). The University of
Virginia School of Law is where we held our first Project Outreach visit on
November 13, 1987, in the case of United States v. Sherrod, 26 MJ 30 (CMA
1988).

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United States v. Richards, No. 01-0084/AR


     We hold as to Issues I and II that the evidence is legally

sufficient to support appellant’s conviction of voluntary

manslaughter under an aider and abettor theory, which was the

theory under which appellant was tried.    As to Issue III, we

hold that the military judge did not err in refusing to instruct

on involuntary manslaughter, because that lesser-included

offense was not reasonably raised by the evidence.

                                FACTS

     Animosity over a six-month period in 1996 between two

groups led to the death of Private First Class (PFC) Dustin

Waters.    One group consisted of the victim and PFC Gregory

Maxwell.   The other group consisted of appellant, a former

soldier named James Morris, PFC Clinton Samuels, and Private E2

Rohan Wilson.    The animosity seems to have fermented out of

several isolated events that created a hostile environment

between the two groups.    For instance, during the summer of

1996, on two separate occasions, appellant and Maxwell got into

an argument because appellant had danced with Maxwell’s

girlfriend at a club.    On another occasion, on November 2, 1996,

appellant and his three friends were at Trooper’s nightclub when

Morris got into a shoving match with the victim.

     The animosity between the two groups came to an unfortunate

head on the evening of November 21, 1996.    Appellant and his

three friends were spectators at a basketball game at Fort


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United States v. Richards, No. 01-0084/AR


Riley, in which the victim and Maxwell were playing.      After the

game, the victim departed the gymnasium before Maxwell and

engaged a woman named Ms. Bradley in a conversation.      Maxwell

then heard one of appellant’s friends say, “That nig*** ‘D’ [the

victim] is talking to that ’B’."       Maxwell was concerned for the

victim and went outside and stood beside him.

     A few minutes later, the victim and Maxwell got into a car

and drove back to their barracks.      Ms. Bradley and a girlfriend

followed them in a second car.    Appellant and his friends

“hopped in” a third car and followed behind the women.      After

the victim, Maxwell, and the women arrived at the barracks

parking lot, Maxwell saw appellant and his friends “creeping up”

or “driving slowly.”    Maxwell then went into the barracks to his

room, and the victim stayed behind to talk to Ms. Bradley.      A

few minutes later, the victim went into the barracks and asked

Maxwell to come outside and talk to the other woman.      Maxwell

complied.

     Meanwhile, Samuels, who lived in the same barracks as the

victim, went into the barracks to have a friend give him a

haircut.    Morris testified that at about the same time, he,

Wilson, and appellant went into a nearby barracks to visit

another friend.    The friend was not there, and they departed the

barracks.   Morris went back to the car.     Appellant and Wilson

then went to a bank of phone booths about ten to fifteen feet


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United States v. Richards, No. 01-0084/AR


from the front door of the victim’s barracks in order for Wilson

to return a page and to wait and see “if [the victim] and

Maxwell [were] going to say anything or try to do anything.”

     While the victim and Maxwell were talking to the two women,

Morris walked over to the phone booths and asked appellant and

Wilson whether the victim or Maxwell had said or done anything.

They replied, “No.”    Morris then went into the victim’s barracks

to use the latrine.    Subsequently, the victim, Maxwell, and the

women decided to go into the barracks because it was cold

outside.   As they walked toward the barracks, they encountered

Morris, who walked up to the victim and asked him whether he had

had fun the other night.   The victim replied, “Yes.”   Morris

then hit the victim with his fist.    There remains disagreement

as to what else was said between the two.

     Appellant and Wilson then balled up their fists and began

walking at a fast gait toward the victim from the phone booths.

As they approached, appellant and Wilson began hitting their

hands with their fists, repeatedly saying, “Yeah, what’s up?”

At the same time, Maxwell entered the barracks building and

encountered Samuels.   They “squared off” momentarily, and

Maxwell ran upstairs, ostensibly to get help.    Meanwhile, Morris

and the victim moved to a grassy area next to the barracks.

According to Morris, Wilson said, “You’ll need to stop.”     In

response, the victim hit Wilson with his fist.    Wilson then


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United States v. Richards, No. 01-0084/AR


grappled with the victim while Morris continued to hit him.

Morris grabbed the victim from behind and moved him to an open

area of the sidewalk because he wanted to get away from any tree

or building so no one’s punches would miss and hit an object as

they tried to hit the victim.

     At some point during the beating, Morris and Wilson knocked

the victim to the ground and began kicking him.    Appellant then

joined them, and the three continued to kick the victim.    Then

Samuels joined the beating, and the four men kicked the victim

repeatedly about the body and head.    Every time the victim would

attempt to get up, he would be kicked back down to the ground.

Morris taunted the victim, telling him that he had “messed” with

the wrong person and that he should have thought about what he

did at the Trooper’s club.   The four men kicked the victim for

about two to ten minutes with their shod feet, stopping only

when the charge of quarters came outside and threatened to call

the military police.

     During the beating, Wilson pulled out a paring knife and

stabbed the victim several times.     Morris testified that he did

not see a knife or know that Wilson was stabbing the victim, but

he noticed blood on the sidewalk.     After the stabbing, appellant

and his friends continued to kick the victim, ending up with

blood on their shoes and pants.




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United States v. Richards, No. 01-0084/AR


     After appellant and his friends had departed, the victim

went back into the barracks holding his chest.    He fell to the

floor, and Maxwell noticed that the victim had “a big gash ...

in his chest and blood was squirting out of it.”     The victim

suffered six stab wounds, the fatal one of which pierced his

heart.   Dr. Lane testified that the victim would have been able

to survive only for five to ten minutes after receiving this

wound.

                              DISCUSSION

                A. Issues I and II - Legal Sufficiency

     Issues I and II ask whether the evidence is legally

sufficient to support appellant's conviction for this crime --

that is, "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt."    Jackson v. Virginia, 443 U.S. 307, 319

(1979); see United States v. Davis, 44 MJ 13, 17-18 (1996).

     Although charged with unpremeditated murder, appellant was

convicted of the lesser-included offense of voluntary

manslaughter.    That crime is defined as the unlawful killing of

a human being “in the heat of sudden passion caused by adequate

provocation” by someone who does so with “intent to kill or

inflict great bodily harm.”    Art. 119(a), supra.




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United States v. Richards, No. 01-0084/AR


     As the military judge noted in his discussion of proposed

instructions with counsel, "the sole cause of the serious injury

and death in this case, based on the testimony of the

government’s expert, appears to be the knife."    There was no

evidentiary dispute that the perpetrator of the knife wounds was

Wilson, and no disagreement that Wilson had the intent to kill

or inflict great bodily harm when he stabbed the victim.      The

theory of the prosecution, with which the defense took issue and

on which the military judge instructed the members, was that

appellant's actions had aided and abetted Wilson's killing the

victim in the heat of sudden passion caused by adequate

provocation.    See Art. 77(a)(1), UCMJ, 10 USC § 877(a)(1)

(defining a “principal” as an individual who “commits an offense

... or aids, abets, counsels, commands, or    procures its

commission”).

     As described by the military judge in his instructions, the

critical contested elements were as follows:    (1) whether, by

kicking the victim, appellant had "aided and abetted Private

Wilson in committing the offense of [voluntary manslaughter]”;

and (2) whether appellant "either intended to kill or inflict

great bodily harm upon [the victim] or ... knew that Private

Wilson had such intent."    See United States v. Jackson, 6 USCMA

193, 201-02, 19 CMR 319, 327-28 (1955) (aider and abettor theory

"requires concert of purpose or the aiding or encouraging of the


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United States v. Richards, No. 01-0084/AR


perpetrator of the offense and a conscious sharing of his

criminal intent").

           1. Aiding and Abetting the Killing by Kicking

     With respect to aiding and abetting, we note that this is

not an instance of mere presence.    See id. at 201, 19 CMR at 327

(mere inactive presence at scene of crime is not aiding and

abetting); see also United States v. Thompson, 50 MJ 257, 259

(1999) ("Our case law has generally interpreted Article 77 to

require an affirmative step on the part of the accused.").

Appellant actively participated, along with his friends, in the

assault on the victim.   Neither was this a superficial assault.

Although the evidence at trial reflects no broken bones or life-

threatening injuries to the victim other than the stab wounds,

the evidence also demonstrates that this was a serious beating.

Appellant's friends knocked the victim to the ground with their

fists and began kicking him, and appellant actively joined in

the kicking.   Appellant and all three of his friends repeatedly

kicked him in the head and body for several minutes.   Every time

the victim tried to arise, he was beaten back down to the

ground.   This active participation in a beating that so

incapacitated the victim and rendered him helpless against the

attack is a satisfactory basis upon which a rational factfinder

could have found that appellant's kicking aided and abetted




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United States v. Richards, No. 01-0084/AR


Wilson's killing the felled victim at some point during this

assault.

       2. Appellant's Intent In Aiding and Abetting Wilson

     As to appellant's intent to kill or inflict great bodily

harm, these same factors provide a legally sufficient basis upon

which the members could have inferred that all of the

assailants, including appellant, acted with such intent.   Cf.

United States v. Martinez, 40 MJ 426, 430 (CMA 1994) ("[F]ists

and shod feet used by multiple assailants can constitute a means

likely to produce death or grievous bodily harm and entitle the

person being attacked to use deadly force.").   He was an active,

voluntary perpetrator of the assaultive kicking while the victim

was on the ground for a number of minutes.   Appellant

voluntarily participated in a chain of events that prevented the

victim’s escape.   Thompson, supra at 259 (a number of

“affirmative step[s]” by the appellant and his cohorts).

     It is not necessary that appellant intended that the victim

be stabbed or even knew that Wilson had a knife.   Article 119(a)

does not require that appellant intended any particular means of

inflicting death or great bodily harm but, rather, that he

intended the consequence.   Cf. United States v. Foushee, 13 MJ

833, 836 (ACMR 1982) (accused not aider and abettor of assault

with intent to commit murder where his intent was limited to

assault and battery); United States v. Hofbauer, 2 MJ 922, 926


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United States v. Richards, No. 01-0084/AR


(ACMR 1976) (accused not aider and abettor of aggravated assault

where intent was limited to assault and battery).    The precise

means by which the consequence of death actually was visited (a

knife rather than the kicking) does not diminish appellant’s

culpability for aiding and abetting a criminal assault “with an

intent to kill or inflict great bodily harm.”    Even if appellant

did not intend death as a consequence, he can be found guilty of

voluntary manslaughter if death in fact resulted and if it

resulted from an assault in which he intended great bodily harm.

There was ample evidence on this record for the members to

conclude that he intended, at a minimum, that the victim suffer

great bodily harm.

         B. Issue III -- Manslaughter by Culpable Negligence

     There was no issue in this case concerning involuntary

manslaughter by culpable negligence.    When discussing proposed

instructions with counsel, the military judge commented:       "The

Court does not see a basis for an involuntary manslaughter

instruction using an aider and abettor theory.    It just does not

seem to fit based on my look at the evidence."    The parties

agreed, and so do we.

     The medical evidence unequivocally established that the

stabbing, not the kicking and beating, caused the victim’s

death.    Accordingly, under the defense’s theory of the case, if

appellant did not share Wilson’s specific intent to kill or


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United States v. Richards, No. 01-0084/AR


inflict great bodily harm, he was not guilty of murder or

involuntary manslaughter.   There is no evidence that appellant’s

culpable negligence caused the victim’s death.   Thus, there was

no need for an instruction on involuntary manslaughter because

it was not raised by the evidence.

                                DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Richards, 01-0084/AR


    SULLIVAN, Senior Judge (concurring in the result):

    Appellant was found guilty of the voluntary manslaughter of

Private First Class (PFC) Waters, even though another soldier,

Private Wilson, actually stabbed PFC Waters to death.     Article

119, UCMJ, 10 USC § 919.   The military judge instructed the

members that they could find appellant guilty of this offense if

they found that he had aided and abetted Private Wilson’s killing

of PFC Waters.   Article 77, UCMJ, 10 USC § 877.    There is a key

issue whether there was legally sufficient evidence admitted in

this case showing that appellant aided or abetted Private

Wilson’s voluntary manslaughter of PFC Waters.     See generally

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



    Appellant initially challenges the legal sufficiency of his

conviction on the basis that there was no evidence in this case

that he knew the actual perpetrator, Private Wilson, had a knife

and intended to stab PFC Waters with that knife.     See generally

2 Wayne R. LaFave and Austin W. Scott, Substantive Criminal Law

§ 6.7 at 136 (1986).   He heavily relies on several military cases

for this argument.   See generally United States v. Jackson,

6 USCMA 193, 203, 19 CMR 319, 329 (1955); see United States v.

Foushee, 13 MJ 833, 835 (ACMR 1982); United States v. Hofbauer,

2 MJ 922, 925 (ACMR 1976).   He also argues that his guilt as an

aider and abettor of Private Wilson required proof that his

kicking of PFC Waters assisted or incited Private Wilson in
United States v. Richards, 01-0084/AR


killing PFC Waters, rather than proof that it simply occurred

after the stabbing, as shown in this case.



   Article 119(a), UCMJ, states:

          § 919.    Art. 119. Manslaughter

          (a) Any person subject to this chapter
          who, with an intent to kill or inflict
          great bodily harm, unlawfully kills a
          human being in the heat of sudden passion
          caused by adequate provocation is guilty
          of voluntary manslaughter and shall be
          punished as a court-martial may direct.

(Emphasis added.)    On its face, it requires that a perpetrator of

this offense have “an intent to kill or inflict great bodily

harm” on the alleged victim.



    Article 77, UCMJ, defines as a principal to an offense:

          § 877.    Art. 77.   Principals

          Any person punishable under this chapter
          who

          (1) commits an offense punishable by this
          chapter, or aids, abets, counsels,
          commands, or procures its commission; or

          (2) causes an act to be done which if
          directly performed by him would be
          punishable by this chapter; is a
          principal.


    In United States v. Thompson, 50 MJ 257, 259 (1999), we

further stated:

               For an accused to be a principal
          under Article 77, and thus to be guilty of
          the offense committed by the perpetrator,


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United States v. Richards, 01-0084/AR


          he must (1) “assist, encourage, advise,
          instigate, counsel, command, or procure
          another to commit, or assist, encourage,
          advise, counsel, or command another in the
          commission of the offense”; and (2) “share
          in the criminal purpose [or] design.”
          Para. 1b(2)(b), Part IV, Manual for
          Courts-Martial, United States, 1984.

(Emphasis added); see also para. 156, Manual for Courts-Martial,

United States, 1969 (Rev. ed.).



    In light of the above, the Government was required to show a

particular mens rea to find appellant guilty of aiding and

abetting the voluntary manslaughter of PFC Waters.    In

particular, it was required to show:

          (1) Private Wilson intended to kill PFC
          Waters or inflict great bodily harm upon
          him; and

          (2) Appellant consciously shared that
          criminal intent.

See United States v. Burroughs, 12 MJ 380, 383 (CMA 1982).

Appellant’s main argument is that he could not legally share

Private Wilson’s criminal intent because he did not know Private

Wilson had a knife or that he intended to use that knife on PFC

Waters.   See United States v. Jackson, supra.    I must disagree.



    Paragraph 1b(4), Part IV, Manual for Courts-Martial, United

States (2000 ed.), states:

            (4) Parties whose intent differs from
          the perpetrator’s. When an offense
          charged requires proof of a specific
          intent or particular state of mind as an


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United States v. Richards, 01-0084/AR


          element, the evidence must prove that the
          accused had that intent or state of mind,
          whether the accused is charged as a
          perpetrator or an “other party” to crime.
          It is possible for a party to have a state
          of mind more or less culpable than the
          perpetrator of the offense. In such a
          case, the party may be guilty of a more or
          less serious offense than that committed
          by the perpetrator. For example, when a
          homicide is committed, the perpetrator may
          act in the heat of sudden passion caused
          by adequate provocation and be guilty of
          manslaughter, while the party who, without
          such passion, hands the perpetrator a
          weapon and encourages the perpetrator to
          kill the victim, would be guilty of
          murder. On the other hand, if a party
          assists a perpetrator in an assault on a
          person who, known only to the perpetrator,
          is an officer, the party would be guilty
          only of assault, while the perpetrator
          would be guilty of assault on an officer.

(Emphasis added.)



    Again, I note that Article 119, UCMJ, requires that the

actual perpetrator of voluntary manslaughter have an intent to

kill or inflict great bodily harm.   Article 77, UCMJ, and our

case law required trial counsel to show that appellant had the

same intent.   Clearly, there is no express legal requirement in

military law that forced trial counsel to show appellant knew

Private Wilson had a knife or intended to stab PFC Waters with

that knife.




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United States v. Richards, 01-0084/AR


   The D.C. Circuit in United States v. Walker, 99 F.3d 439,

442-43 (D.C. Cir. 1996), has spoken to this intent issue under a

statute quite similar to Article 77, UCMJ.   It said:



                The government’s brief, although
          decidedly uncomfortable with and even
          critical of the footnote in North and our
          language in Salamanca, does not clearly
          indicate why appellant’s reliance of those
          cases is misplaced. That seems to be
          because the government reads North and
          Salamanca’s use of the phrase “same
          intent” as requiring an intent which is
          “matched”-which would mean that an aider
          and abettor must have exactly the same
          knowledge and disposition as the
          principal. But that is an overreading; no
          court has ever so held, as it virtually
          would eliminate aider and abettor
          liability. Appellant, ironically, has it
          right when, in defense of our “same
          intent” language, he points to cases that
          have instead used the term shared intent,
          see, e.g., Nye & Nissen v. United States,
          336 U.S. 613, 620, 69 S.Ct. 766, 770, 93
          L.Ed. 919 (1949); United States v.
          Martiarena, 955 F.2d 363, 366 (5th Cir.
          1992); see also United States v. Garrett,
          720 F.2d 705, 713 (D.C. Cir. 1983), cert.
          denied, 465 U.S. 1037, 104 S.Ct. 1311, 79
          L.Ed.2d 708 (1984); United States v.
          Raper, 676 F.2d 841, 850-51 & n.1 (D.C.
          Cir. 1982), which suggests that the intent
          of the aider and abettor must be shown, in
          crucial respects, to overlap with (but not
          necessarily match) the criminal intent of
          the principal. For example, in United
          States v. Edmond, 924 F.2d 261, 267 (D.C.
          Cir.), cert. denied, 502 U.S. 838, 112
          S.Ct. 125, 116 L.Ed.2d 92 (1991), we noted
          that if a jury thought an aider and
          abettor had premeditated a murder, but
          enlisted an executioner at the last
          possible moment, a jury “could
          consistently convict the abettor of first-
          degree murder while finding the actual


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United States v. Richards, 01-0084/AR


          perpetrator guilty only of [second-degree
          murder].”

            The North case footnote upon which
          Salamanca relied, although it used the
          cryptic and somewhat ambiguous phrase
          “same intent,” must be read as meaning no
          more than the traditional notion of shared
          intent because the note explicitly relied
          on United States v. Sampol, 636 F.2d 621,
          676 (D.C. Cir. 1980), and it did not
          purport to alter the principles we applied
          there. In Sampol, we had explained that
          an aider and abettor and a principal must
          have a “common design or plan,” but the
          aider and abettor “need not perform the
          substantive offense, need not know its
          details, and need not even be present.”
          Id. (internal quotation marks and
          citations omitted). And we explicitly
          recognized that once a common design is
          established, the aider and abettor is
          responsible not only for the success of
          the common design, but also for the
          probable and natural consequences that
          flow from its execution, even if those
          consequences were not originally intended.

(Emphasis added.)



    I agree with a concert of purpose approach to liability of an

aider and abettor under Article 77, UCMJ.   See United States v.

Burroughs, 12 MJ at 380.   In my view, the aider and abettor must

share the intent of the perpetrator, not the knowledge of his

particular means of accomplishing that intent.   See para. 1b(4),

Part IV, Manual, supra; see also United States v. Searan, 259

F.3d 434, 444 (6th Cir. 2001).   This case is not like United

States v. Jackson, 6 USCMA at 193, 19 CMR at 319, where evidence

was admitted showing the appellant intended to assault the



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United States v. Richards, 01-0084/AR


victim, but he did not intend to kill the victim or inflict great

bodily harm upon him.    See also Commonwealth v. Hogan, 396 N.E.

2d 978 (Mass. 1979).    Moreover, this is not a case where the

predicate criminal statute violated required proof that a certain

type of weapon was used.    See United States v. Spinney, 65 F.3d

231, 236-39 (1st Cir. 1995); United States v. Rosario-Diaz, 202

F.3d 54, 63-64 (1st Cir. 2000).



    In sum, Article 77, UCMJ, in my view, requires only that an

appellant share a common intent to accomplish the essential

elements of the resulting felony.     See United States v. Jacobs, 1

USCMA 209, 211, 2 CMR 115, 117 (1952).    Jackson, Foushee, and

Hofbauer apply only where the evidence shows that the perpetrator

and the aider and abettor had different criminal intents.    These

cases are simply inapplicable where the accomplice’s own conduct

unequivocally shows his sharing of the perpetrator’s intent to

kill or grievously harm the victim.



    Turning to the actus reus question in this case, evidence was

admitted that showed Private Wilson struggled with PFC Waters

both before and after appellant joined in the kicking of the

victim.   Appellant’s conduct in participating in this group

assault on PFC Waters could be rationally viewed as providing

continued incitement for the killing of PFC Waters by Private

Wilson or assisting him in the killing by preventing PFC Waters’s



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United States v. Richards, 01-0084/AR


escape and survival after he was stabbed.   I agree with the

majority opinion that this evidence was legally sufficient to

establish appellant as an aider and abettor.



   Moving to the other issues in this case, I conclude Issue II

is mooted by my resolution of the first granted issue.    In my

view, Private Wilson’s multiple uses of a knife in the context of

the gang stalking and beating of PFC Waters was clear evidence

that he intended to kill or greatly harm PFC Waters.    Moreover,

appellant’s extended involvement in the stalking and willing

participation in this vicious gang beating of PFC Waters was

evidence that he shared this criminal design.   In this context,

whether the stabbing of PFC Waters was a natural and probable

consequence of the kicking of PFC Waters need not be addressed.

See generally para. 156, 1969 Manual, supra (delineating a

natural or probable consequence liability theory for aiders and

abettors where different crime intended by aider and abbettor).



    Finally, as to Issue III, I do not find that reversible error

occurred as a result of the military judge’s failure to instruct

on the lesser offense of involuntary manslaughter.    Appellant

could be found guilty of this lesser offense if evidence was

admitted showing that he only intended to assault the victim, not

kill or inflict great bodily harm upon him.    See Article 119(b),

UCMJ.   No such evidence was admitted in this case.



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United States v. Richards, 01-0084/AR




   The Government’s evidence in this case shows a brutal gang

attack on PFC Waters, which appellant actively participated in by

kicking the victim.   Appellant essentially disputed the

Government’s proof of his participation in the attack on the

basis that it was supported by untrustworthy testimony from the

Government’s principal witness.   There was no evidence suggesting

a less dangerous attack was intended by appellant in this case.

If the Government’s evidence was not accepted by the members,

appellant would be found not guilty.    In these circumstances, I

see no error in the judge’s unobjected-to ruling not to give an

instruction on involuntary manslaughter in these circumstances.

Cf. United States v. Davis, 53 MJ 202, 205-06 (2000); United

States v. Wells, 52 MJ 126, 130 (1999)(appellate relief warranted

only if appellate court is convinced that the evidence issues are

such that a rational jury could acquit on a charged crime and

convict on a lesser crime).




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