United States v. Hopkins

55 M.J. 546, 2001 CCA LEXIS 171, 2001 WL 630345
CourtUnited States Air Force Court of Criminal Appeals
DecidedMay 16, 2001
DocketACM 33937
StatusPublished
Cited by7 cases

This text of 55 M.J. 546 (United States v. Hopkins) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hopkins, 55 M.J. 546, 2001 CCA LEXIS 171, 2001 WL 630345 (afcca 2001).

Opinion

OPINION OF THE COURT

YOUNG, Chief Judge:

The appellant pled guilty to adultery, dishonorably failing to pay debts, and making and uttering worthless checks by failing to maintain sufficient funds in his account. Article 134, UCMJ, 10 U.S.C. § 934. In addition, officer and enlisted court members convicted him of committing a battery on his wife, assaulting Milica Pavlovic, bigamy with Ms. Pavlovic, falsifying visa applications for Ms. Pavlovic and her children, additional bad check offenses, and additional allegations of dishonorably failing to pay debts. Articles 128, 134, UCMJ, 10 U.S.C. §§ 928, 934. The convening authority approved the sentence adjudged — confinement for 1 year and reduction to E-4. The appellant assigns five errors to the military judge: (1) The providence inquiry was insufficient; (2) He refused to instruct on the defense of mistake of fact; (3) He erred in admitting a letter of reprimand into evidence; (4) He erred in computing the maximum punishment; and (5) He refused to instruct that the appellant’s expression of remorse was a matter in extenuation and mitigation. The appellant also asserts that (6) the general court-martial promulgating order contains several errors and needs to be redone. We affirm the findings and sentence, but return the record for correction of the court-martial promulgating order.

I. The Providence of the Plea

The appellant pled guilty to three specifications of making and uttering worthless checks by dishonorably failing to maintain sufficient funds in his account. The appellant claims the military judge’s plea inquiry was insufficient because the appellant merely recited conclusions of law. We disagree.

The military judge adequately advised the appellant, by reference to his previous advice concerning the offense of dishonorably failing to pay debts, that his failure to maintain sufficient funds must be due to more than mere negligence. He also advised the appellant that “a grossly indifferent attitude toward one’s just obligations” would be sufficient. We find nothing strange about an E-8 with over 20 years of service using the term “gross negligence” in referring to the lack of attention he paid to his financial affairs. The plea was provident.

II. Mistake of Fact

The appellant had been married to Gloria for 20 years when he deployed to Croatia. There, in April 1997, he started a sexual affair with Milica Pavlovic. On 8 May 1998, the appellant was divorced from Gloria. He remarried her on 17 May 1998. On 30 June 1998, the appellant and Gloria each signed a petition for a second divorce, which was filed with the court on 24 July 1998. On 17 July 1998, exactly one week before the divorce petition was filed, the appellant participated in a wedding ceremony in Alabama purporting to marry him to Milica, who was visiting [548]*548him on a tourist visa. The appellant’s second divorce from Gloria was granted on 3 August 1998. On 20 October 1998, the appellant applied for a permanent visa for Milica and her two children at the U.S. Embassy in Zagreb, Croatia. On the application forms, he listed Milica as his wife, and noted that his former marriage to Gloria ended on 8 May 1998. He did not list his remarriage or subsequent divorce from Gloria on the form. The visa was granted. The appellant married Milica, in Las Vegas, Nevada, in November 1998.

The appellant asserts that the military judge erred by refusing to instruct the members that mistake of fact could be an absolute defense to the charges of bigamy and falsifying the visa applications. The appellant claims the evidence raised the possibility he may not have been aware that the filing of the joint petition for his second divorce in June did not equate to a judgment of divorce. Therefore, he could have been operating under the mistaken belief that Milica was his legal wife and her children were his stepchildren.

A military judge is required to appropriately instruct the court members on special, or affirmative, defenses “reasonably raised by the evidence.” United States v. McDivitt, 41 M.J. 442, 443 (1995) (quoting United States v. Tatum, 36 M.J. 302, 304 (C.M.A.1993)). Accord United States v. Davis, 53 M.J. 202, 205 (2000). A defense is reasonably raised if there is “some evidence to which the military jury may attach credit if it so desires.” United States v. McMonagle, 38 M.J. 53, 58 (C.M.A.1993). “Any doubt whether an instruction should be given should be resolved in favor of the accused.” Davis, 53 M.J. at 205. See Rule for Courts-Martial (R.C.M.) 920(e), Discussion.

“Ignorance or mistake as to a matter of fact or law is a defense if it negatives a mental state required to establish a material element of the crime____” 1 Wayne R. La-Fave & Austin W. Scott, Jr., Substantive Criminal Law 575 (1986). The President has recognized ignorance or mistake of fact as a defense.

If the ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances.

R.C.M. 916(j)(l).

To be convicted of knowingly making false statements on the visa applications of Milica and her two children, the appellant must have actually known that his statements were false. Therefore, the appellant had a defense if he honestly believed that he was divorced from Gloria, no matter how unreasonable that belief may have been. To constitute a defense to bigamy, the mistake of fact, as to whether an accused is still married to his first wife, must be both honestly held and reasonable. United States v. Bateman, 23 C.M.R. 312, 314, 1957 WL 4486 (C.M.A.1957). See Manual for Courts-Martial, United States (MCM), Part IV, H 65c (1998 ed.).

The defense correctly asserts that “the evidence raised the possibility that [the appellant] may not have been aware that the filing of the joint petition for his second divorce in June did not equate to a judgment of divorce” and the appellant “could have been operating under the mistaken belief that Milica was his legal wife and her children were his step-children.” However, they provide no insight as to whether the appellant honestly believed he was divorced from Gloria. Cf. United States v. Willis, 41 M.J. 435, 438 (1995). There was no evidence whatsoever before the members, to which they could attach credit if they so desired, that the appellant honestly believed he was divorced from Gloria when he married Milica. The conjecture of counsel or witnesses that there was a possibility that the appellant could have believed he was divorced is not sufficient.

[549]*549III. Admission of the Letter of Reprimand

At trial, over defense objection, the military judge admitted a letter of reprimand (LOR) given to the appellant for verbally threatening his wife, grabbing her coat, and “inadvertently” leaving a red mark on her chest. The defense claimed the LOR was not properly maintained in the appellant’s personnel records.

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Bluebook (online)
55 M.J. 546, 2001 CCA LEXIS 171, 2001 WL 630345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hopkins-afcca-2001.