28 M.J. 584 | U.S. Army Court of Military Review | 1989
OPINION OF THE COURT
Despite his plea of not guilty, the appellant was convicted by a special court-martial of the aggravated assault of a fellow soldier. He was sentenced to confinement for six months, forfeiture of $447.00 per month for six months, and a bad-conduct discharge. The convening authority approved the sentence.
There is no serious dispute as to the salient facts. Both appellant and his victim testified at trial. Their testimony was largely congruent as was the testimony of several bystanders.
The issue now raised by the appellant is the failure to instruct the court concerning the possible effect of intoxication on the appellant’s ability to form the requisite intent to inflict grievous bodily harm. The appellant did not request such an instruction at trial nor did he advance the theory or argue that he did not have the necessary intent. In fact, as noted, he specifically testified that he knew what he was doing and did intend to strike the victim and cut him. We will assume, for purposes of analysis, that if there were indications of intoxication that were severe enough to raise some evidence that the appellant could not have formed the requisite intent, an instruction would have been required. DA Pam 27-9, para. 5-12 (Military Judge’s Benchbook); cf, Manual for Courts-Martial, United States, 1984, Rule 916(Z )(2).
That clearly was not the case here. The appellant argues that the standard necessary to raise the issue is evidence of mere intoxication. That is clearly not so. There must be some evidence that the intoxication was of a severity to have had the effect of rendering the appellant incapable of forming the necessary intent. United States v. Bright, 20 M.J. 661 (N.M. C.M.R.1985). In this case, it would-have been completely contrary to the evidence to have given this instruction in face of the appellant’s own testimony that he clearly remembered the events, knew what he was doing, and intended to do what he did. In short, it is not enough to show that alcohol may have clouded the appellant’s judgment; there must be some credible evidence that the alcohol removed his ability to make any judgment.
We have considered the entire record to include the issue raised by the appellant in his request for appellate counsel. We are satisfied that the findings are correct in law and in fact and should be approved. We are likewise satisfied that the sentence is appropriate. We therefore affirm the findings of guilty and the sentence.
. The only real discrepancy was whether the victim, Private First Class Schrader, at the outset of confrontation used a racial epithet (he is white, the appellant black) to which the appellant had responded in kind. One witness said he had, Schrader denied it; interestingly, at trial the appellant testified there were racial overtones, but could not remember what they were. The rest of his testimony was very clear and very detailed as to the events of the evening. Whatever the facts, racial epithets, however abhorrent, do not excuse or justify an aggravated assault.
. The only material discrepancy between the two statements is the possible racial antagonism. The pretrial statement made no such claim. At trial, as recounted previously, the appellant remembered there was some racial aspect to the incident but could not remember the precise words or context.