United States v. Kopp

9 M.J. 564
CourtU S Air Force Court of Military Review
DecidedApril 9, 1980
DocketACM S24780
StatusPublished
Cited by3 cases

This text of 9 M.J. 564 (United States v. Kopp) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kopp, 9 M.J. 564 (usafctmilrev 1980).

Opinion

[566]*566DECISION

ARROWOOD, Judge:

The accused was found guilty by a special court-martial of attempted aggravated arson; willful damage to government property by burning; willful, wrongful and unlawful writing on doors in a dormitory; and two specifications of setting off false fire alarms, in violation of Articles 80, 108, and 134, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 908, 934.

Appellate defense counsel initially contend that the violations of Article 134, Code, supra, do not state a.n offense. Put simply, the problem before us is whether the conduct described in the specifications allege the commission of acts which are palpably and directly prejudicial to good order and discipline. United States v. Sandinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (1964).

The first specification under Article 134, Code, supra, alleges that the accused willfully, wrongfully and unlawfully wrote the following language on specified doors of the described dormitory with a “magic marker”: “I like your body”; “I want your tits”; “I want your beautiful”; “I want to fuck Becky”; “He did it”; “Not here”; “Pm one horny son of a bitch.”

The words of criminality — wrongfully and unlawfully — serve in this instance to demonstrate the character of the accused’s acts and eliminate the possibility that the acts were done with authority or as part of his duties. The profane language displayed on the doors of the dormitory rooms was clearly offensive to those occupying the rooms as well as those passing by. Placing such language upon property intended for the use and benefit of other military members individually, and the military unit as a whole, infringed upon the rights of the intended beneficiaries to use the building for legitimate purposes. We find the specification alleges the commission of an act which is palpably and directly prejudicial to the good order and discipline and states an offense under the Code, supra.

The remaining specifications under Article 134, Code, supra, allege the accused willfully, wrongfully and unlawfully set off a false fire alarm in Building 776. The words of criminality clearly show the accused lacked the authority to set off a false alarm. By doing so he initiated emergency action without justifiable reason for everyone in the building as well as the fire department. It resulted in considerable inconvenience to the residents and expense to the government. Such action is palpably and directly prejudicial to good order and discipline and is an offense chargeable under the Code, supra.

It is further contended that the military judge erred by failing to instruct the court as to the legal effect of voluntary intoxication on all the offenses charged.

The evidence regarding intoxication before the court members came from three sources. A sergeant who observed the accused at the door to her room did not offer an opinion as to whether he was drunk, but testified that she smelled the distinct odor of liquor in the air and thought the accused was walking peculiarly — slowly and deliberately rather than staggering. His commander, who observed him shortly after the offenses were committed, believed the accused had been drinking but was not drunk. The investigator on the scene described accused’s speech and motor activity as normal, but said accused appeared tired, not drunk.

An instruction on voluntary intoxication should be given if there is evidence before the court members from which a reasonable man could conclude that the degree of intoxication was such that it would impair the capacity of the accused to entertain the specific intent or knowledge involved in the offenses. United States v. Craig, 2 U.S.C.M.A. 650, 10 C.M.R. 148 (1953). We find the evidence in this case is insufficient to raise the issue; therefore, no instruction on voluntary intoxication is warranted. United States v. Sampson, 7 M.J. 513 (A.C.M.R.1979).

In the fourth assignment of error, counsel contend that the military judge erred by [567]*567failing to instruct that attempted simple arson is a lesser included offense of attempted aggravated arson.

The specification in issue alleges that the accused willfully and maliciously attempted to set fire to an inhabited dormitory. The evidence shows that the accused actually set fire to a roll of tissue and a pillow on top of a water fountain in the hall of the dormitory. The damage to the building consisted of black marks on the wall and a charred place on the rug beneath the fountain.

A military judge has a duty to sua spoute instruct the members of a court-martial on the elements of all lesser included offenses included in the offense charged if there is evidence introduced from which the fact finders could reasonably infer the accused’s guilt of the lesser crime. United States v. Moore, 12 U.S.C.M.A. 696, 31 C.M.R. 282 (1962); United States v. Clark, 1 U.S.C.M.A. 201, 2 C.M.R. 107 (1952). The test to determine whether an offense is reasonably raised is whether the record contains some evidence to which the court-martial may attach credit if it desired. United States v. Evans, 17 U.S.C.M.A. 238, 38 C.M.R. 36 (1967).

The elements of simple arson are contained in the offense of aggravated arson. “In aggravated arson, danger to human life is the essential element; in simple arson, it is injury to the property of another.” Manual for Courts-Martial, 1939 (Rev.), paragraph 205a. Accordingly, the element included in aggravated arson which is missing from simple arson is whether the property described is an inhabited dwelling. See United v. Duke, 16 U.S.C.M.A. 460, 37 C.M.R. 80 (1966).

In the case at hand, the property described as the subject of the arson was a dormitory1 in which the evidence shows the accused and other military personnel lived. We see no evidence in the record from which the court members could conclude that the property described in the specification was other than an inhabited dwelling. Therefore, we do not find the lesser offense of attempted simple arson reasonably raised by the evidence, and no instruction was required.

Appellate defense counsel also contend that the government failed to show good cause for its mid-trial severance of the attorney-client relationship between the accused and his appointed defense counsel.

The accused’s trial had to be stopped during sentencing because of the illness of trial defense counsel. The record established that trial defense counsel was hospitalized as a result of the illness with the initial belief that he was suffering from a heart condition. Almost immediately the convening authority, at the military judge’s request, appointed an additional defense counsel to aid the accused during the delay that resulted from the original counsel’s illness. The counsel appointed represented the accused throughout the remainder of the trial.

During various Article 39(a), 10 U.S.C. § 839(a) sessions held in an attempt to reschedule the accused’s trial, it was represented by both counsel that the original defense counsel would be transferred to Wilford Hall Medical Center, San Antonio, Texas, for further evaluation and testing concerning his condition.

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Related

United States v. Jones
13 M.J. 761 (U S Air Force Court of Military Review, 1982)
United States v. Mayo
12 M.J. 286 (United States Court of Military Appeals, 1982)
United States v. Baysinger
11 M.J. 896 (U S Air Force Court of Military Review, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
9 M.J. 564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kopp-usafctmilrev-1980.