United States v. Major CARL W. AXELSON, JR.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
SCHENCK, ZOLPER, and WALBURN
Appellate Military Judges

UNITED STATES, Appellee
v.
Major CARL W. AXELSON, JR.
United States Army, Appellant

ARMY 20020193

United States Army Southern European Task Force (Airborne)
Denise K. Vowell (arraignment) and Kenneth H. Clevenger (trial), Military Judges
Colonel Robert D. Teetsel, Staff Judge Advocate

For Appellant: Major Charles L. Pritchard, Jr., JA (argued); Lieutenant Colonel
Mark Tellitocci, JA; Major Allyson G. Lambert, JA; Captain Terri J. Erisman, JA
(on brief); Colonel John T. Phelps II, JA; Lieutenant Colonel Kirsten V.C. Brunson,
JA (on reply brief); Major Billy B. Ruhling II, JA; Captain Sean F. Mangan, JA.

For Appellee: Captain Edward E. Wiggers, JA (argued); Colonel Steven T. Salata,
JA; Lieutenant Colonel Theresa A. Gallagher, JA; Major Natalie A. Kolb, JA (on
brief).

30 April 2007

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OPINION OF THE COURT
-------------------------------------

SCHENCK, Senior Judge:

A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of failure to obey a lawful general regulation and
obstruction of justice, both on divers occasions, in violation of Articles 92 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 [hereinafter UCMJ].
An officer panel sitting as a general court-martial convicted appellant, contrary to
his pleas, of attempted premeditated murder, 1 attempted willful disobedience of a

1
Appellant pleaded guilty to the lesser-included offense of aggravated assault with a
dangerous weapon or other means or force likely to produce death or grievous bodily
harm. See Manual for Courts-Martial, United States (2000 ed.) [hereinafter MCM,
2000], Part IV, para. 43d(2)(b) and 54b(4)(a). All references in this opinion are to

(continued . . .)
AXELSON – ARMY 20020193

superior commissioned officer, willful disobedience of a superior commissioned
officer on divers occasions (two specifications), and obstruction of justice on divers
occasions, in violation of Articles 80, 90, and 134, UCMJ. The convening authority
approved the adjudged sentence to a dismissal, confinement for seven years, and
forfeiture of all pay and allowances. This case is before our court for review under
Article 66(c), UCMJ.

Appellant raises several assignments of error; two—involving his lack of
memory—merit discussion but no relief. Specifically, appellant asks our court to set
aside the findings of guilty of attempted premeditated murder. First, appellate
defense counsel assert relief is warranted because appellant’s statements during the
plea inquiry and subsequent defense evidence on the merits, including appellant’s
testimony, raised the defenses of partial mental responsibility and automatism.
Furthermore, because the military judge did not explain or discuss these defenses
with appellant, appellant’s guilty pleas to aggravated assault with a dangerous
weapon or other means or force likely to produce death or grievous bodily harm were
not “knowing.” Second, the defense asserts the military judge erred because he
failed to sua sponte instruct the panel regarding the defense of automatism.

We disagree with both assertions of error. In so doing, we hold a military
judge’s responsibilities regarding affirmative defenses are limited to those listed in
Rules for Courts-Martial [hereinafter R.C.M.] 916 (“Defenses”) and 920 (“Instruc-
tions on Findings”), and to those recognized by this court and our superior courts.
These responsibilities apply to guilty plea inquiries and to instructions in contested
cases. We also hold partial mental responsibility is not a defense to aggravated
assault with a dangerous weapon or other means or force likely to produce death or
grievous bodily harm. The defense of partial mental responsibility rebuts a specific
intent mens rea element, such as purposeful, knowing, or premeditated, which this
offense lacks under the UCMJ. 2

(. . . continued)
the MCM, 2000 edition, in effect at the time of appellant’s trial, unless otherwise
specified.
2
Compare MCM, 2000, Part IV, para. 54c(4)(a)(i)–(iv) (“Assault with a dangerous
weapon or other means or force likely to produce death or grievous bodily harm.”)
with id. at para. 54c(4)(b)(i)–(ii) (“Assault in which grievous bodily harm is
intentionally inflicted.”).

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I. FACTS

Appellant pleaded guilty to aggravated assault with a dangerous weapon or
other means or force likely to produce death or grievous bodily harm, in violation of
Article 128, UCMJ. Following trial on the merits for the greater charged offense, an
officer panel convicted appellant of the attempted premeditated murder of his wife
by repeatedly striking her about the head, face, and neck with a club (Charge I and
its specification).

This charge arose after appellant beat his wife with a club while he and his
family were in the hills overlooking Athens, Greece. Although some inconsistencies
regarding the facts were presented during trial on the merits, and despite appellant’s
initial statement to police—that two unknown individuals attacked his wife—it is
undisputed that appellant was the attacker. On 6 June 2001, at around 1800,
appellant, his wife, and their two infant sons, three-month-old CA and fifteen-
month-old JA, drove to the countryside near the Voulas Mountains to take
photographs. After appellant stopped the vehicle, his wife went around the vehicle
to check on CA, who was in a car seat behind the driver. Appellant took a baton
from the driver’s door and struck Mrs. Axelson several times. At some point
thereafter, bicyclists rode by while Mrs. Axelson lay on the ground beside the
vehicle with appellant bent over his wife’s body.

Providence Inquiry

During the Care 3 inquiry, the military judge accurately explained to appellant
the elements of aggravated assault with a dangerous weapon or other means or force
likely to produce death or grievous bodily harm, 4 and appellant agreed his conduct
satisfied each element. Appellant admitted he beat his wife with a club, with
unlawful force or violence, and he used the club as a means or force in a manner
likely to produce death or grievous bodily harm. The parties proceeded to discuss
the factual predicate supporting this offense without the benefit of a stipulation of
fact.

Appellant agreed he did bodily harm to his wife “with a certain weapon or a
means or a force by repeatedly striking her about the face, head, and neck with a
club,” fifteen or sixteen inches long made out of solid wood. The military judge
reminded appellant: “[Y]our counsel has indicated that you intend to raise a defense

3
United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
4
See UCMJ art. 128(b)(1); MCM, 2000, Part IV, para. 54b(4)(a).

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AXELSON – ARMY 20020193

that essentially denies having what the law calls the mens rea, the specific intent to
either premeditate as to a killing, to intend to kill, or to intend to deliberately or
intentionally and purposely inflict grievous bodily harm. Is that correct?”
Appellant responded, “Exactly, sir.”

After discussing with appellant the meaning of unlawful force or violence and
grievous bodily harm, the type of weapon appellant used, how he used it, and the
injuries Mrs. Axelson suffered, the military judge engaged appellant in the following
colloquy:

MJ: Now, you struck this blow apparently repeatedly, is
that right?

ACC: I do not remember that part, sir. I remember once
when I realized what was happening.

MJ: Have you heard or seen other reports or indications
that there may have been more than one blow?

ACC: Considering I was the only person there, sir, and --
yes, sir. I’ve seen reports.

MJ: You’re satisfied then that[,] . . . [h]aving seen those
reports, do you believe those are accurate descriptions of
what has occurred to her, such that you believe that you
did in fact[,] even though you might not personally
remember it now, strike her repeatedly?

ACC: Yes, sir.

Subsequently, when describing the obstruction of justice offense (for
reporting false information regarding the assault on his wife), appellant stated he
parked the vehicle and his wife came around the vehicle to quiet their infant son,
CA. Appellant said he walked away, and when he “turned around, [CA] was quiet,
and at that time, from what [he] was seeing, [he] believed that [CA] was in danger.”
He said he believed his wife was holding a pillow over CA’s face, and, upon “seeing
that,” appellant became upset. Appellant then told the military judge, “seeing that
and getting upset is the point where [he could not] remember. . . . [5] From after that

5
When asked about the concept of “defense of another,” civilian defense counsel
explained that appellant used more force than necessary to defend CA. He also

(continued . . .)
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AXELSON – ARMY 20020193

point, the next thing [he could] recall [was his wife] on the ground and [him] hitting
her and the sounds and the noise. And, at that point, [appellant] stopped.”

Appellant admitted he read his wife’s statement, which described him striking
her with the baton/club repeatedly about the head, face, and neck, and believed her
statement and report to be truthful. Appellant agreed he and his defense counsel
discussed pleading guilty based on reports or statements without completely
recollecting the offense. Appellant remembered seeing his wife holding a pillow
over CA’s head, but his next recollection was seeing his wife “laying on the ground”
and “hitting her with the club or baton.” The following discussion then ensued:

MJ: There is a perception. There is a gap. The memory
comes back to see her on the ground and he’s hitting her,
whether it’s one of multiple blows, and then stops.

ACC: Just one.

MJ: After she’s on the ground.

ACC: Yes, sir.

MJ: So, that’s your recollection though?

(. . . continued)
stated he would forgo this defense regarding the greater offense of attempted
premeditated murder during trial on the merits. The military judge properly
explained and discussed with appellant “defense of another,” and appellant told the
military judge the defense did not apply because he used excessive force. We find
no error in the military judge not instructing the panel on this defense. Appellant
and his civilian defense counsel rejected this affirmative-defense instruction as part
of their conscious, calculated, and well-reasoned presentment of appellant’s guilty
plea to the lesser-included offense of aggravated assault. See United States v.
Moore, 12 U.S.C.M.A. 696, 700, 31 C.M.R. 282, 286 (1962); United States v.
Snyder, 6 U.S.C.M.A. 692, 698-700, 21 C.M.R. 14, 20-22 (1956); United States v.
Gutierrez, 63 M.J. 568, 573-74 (Army Ct. Crim. App. 2006) (stating record must
demonstrate that foregoing required instructions represents “affirmative, calculated,
and designed course of action”), rev’d, 64 M.J. 374, 375 (C.A.A.F. 2007) (“When
[an affirmative] defense is reasonably raised by the evidence, the military judge is
duty-bound to give an instruction, unless it is affirmatively waived. See United
States v. Wolford, 62 M.J. 418, 422 (C.A.A.F. 2006).”).

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AXELSON – ARMY 20020193

ACC: That’s all I can remember, sir.

At the end of the plea inquiry, appellant again affirmatively acknowledged to
the military judge that he understood the elements of the offenses to which he was
pleading guilty, the non-applicability of “defense of another,” and had no questions
regarding these elements. Appellant also expressed satisfaction that each element
accurately described his conduct pertaining to each offense, and reaffirmed that
“defense of another” did not constitute a legal justification for aggravated assault—
even though appellant originally perceived his son to be “in some potential mortal
danger.”

Trial on the Merits

Following the guilty plea inquiry, both parties presented extensive evidence
on the merits regarding the contested offenses to which appellant pleaded not
guilty—attempted premeditated murder, attempted willful disobedience of a superior
commissioned officer, willful disobedience of a superior commissioned officer on
divers occasions (two specifications), and obstruction of justice on divers occasions.

The evidence showed that on the evening of 6 June 2001, appellant drove his
wife of one and a half years and their two sons to a scenic, yet secluded,
mountainous region to take photos. During the months leading up to the charged
offenses, appellant had been engaging in an adulterous affair with “Maria,” a
Bulgarian national and freelance travel writer.

According to Mrs. Axelson, appellant stopped the vehicle in the shade at one
point and told her to check on CA who was in a rear-facing car seat behind
appellant. Appellant said he saw “a little red spot” behind the child’s ear.
Mrs. Axelson went around the vehicle to CA’s side, leaned into the vehicle, and
checked CA’s ears.

She further told the panel:

My husband pinned me down, and at first, he was choking
me with his hands, and then eventually with the baton, and
then all of a sudden, he stopped. While he was doing that,
his facial expression totally deteriorated. It wasn’t like
him at all. When I looked in his eyes, I could see his toes;
that’s how much emptiness I saw. It was like he was in a
[trance], and like he didn’t even recognize me.

Mrs. Axelson described the baton appellant used to attack her as a “black standard
edition police nightstick.” She also told the panel that while appellant was striking

6
AXELSON – ARMY 20020193

her, he said: “‘You are driving me crazy,’ and ‘You are ruining my life and I just
can’t have it anymore.’” When appellant stopped the attack and “snapped out of it,”
he picked up his wife from the ground outside the vehicle and put her on the front
passenger seat floor “curled up in a fetal position.”

Appellant then drove with his family between fifteen and thirty minutes to
their residence. When they arrived, appellant helped Mrs. Axelson from the vehicle
up to their third-floor apartment using the elevator. He brought her inside, removed
her clothing, put her in the bathtub, and briefly tended to her wounds. Appellant
then went downstairs to get his two sons who were still in the truck. He put them in
a playpen when he returned to the apartment. When appellant left to get the boys
from the truck, Mrs. Axelson crawled to the telephone, called the U.S. Embassy, and
told the receptionist she had “been beaten real badly” and to “send a doctor and the
security folks.” Initially, she did not remember that her husband was the assailant.
Several days after the attack, Mrs. Axelson called the Air Force Office of Special
Investigations (AFOSI) and told an agent she was afraid for herself and her two sons
because appellant attacked her.

Doctor (Dr.) Trego, who treated Mrs. Axelson during the ambulance ride from
a public to a private hospital, testified that due to the assault, Mrs. Axelson lost
eleven of her thirty-two teeth, and suffered lacerations, swelling to her lips, and a
torn gum line. She also had a bruised and fractured neck, and a crushed trachea
(which would require forty pounds of steady force applied for twenty to twenty-five
seconds). The victim sustained multiple anterior and posterior cerebral contusions
resulting from “a significant degree of force.” She also had multiple deep
lacerations about the head and face (some down to the bone), resulting from “a
significant amount of force” that “literally splits and separates the scalp.”
Mrs. Axelson also lost approximately four units of blood. Other testimony indicated
appellant struck his wife at least eight or nine times with the baton.

In a 10 June 2001 written, sworn statement, appellant initially told
investigators, in pertinent part, he stopped his truck to take family photos. He and
his older son went for a walk—about 100 yards down the road from, and out of view
of, the truck—to get clear photos of Sounio; meanwhile, his wife and younger son
stayed near the truck in the shade. Appellant said he and his son immediately
returned to the vehicle when he heard what sounded like screams. As he approached
the truck, appellant saw one unknown man attacking his wife with a baton, while
another was in the truck apparently searching for something. Appellant then got into
a scuffle with the man attacking his wife and attempted to take the baton away from
him. The man overpowered appellant, pushed him to the ground, and both unknown
men fled the scene leaving Mrs. Axelson and the boys terrified and screaming.
Appellant then tended to his hysterical wife’s injuries. After calling out to some

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AXELSON – ARMY 20020193

bicyclists for help and deciding what to do next, appellant finally got the whole
family into the vehicle and drove home.

During his testimony on the merits, appellant said when he and his family
were driving in the mountains on the day of the assault, CA was “crying,” his older
son, JA, was “whimpering,” and he told his wife: “I’m not going anywhere until you
quiet [CA] down;” he then “walked away from the truck.” When he did not hear CA
crying anymore, appellant turned around and he “could see that [his wife] was
holding . . . [an] aircraft pillow . . . over [CA’s] head.” Appellant said that seeing
that, and hearing “no noise,” made him become “just so scared.” He further told the
panel he “just [could not] remember what happened next,” and “[t]he next memory
[he had was of his] wife [on] the ground, and [he] was hitting her with the club, and
[he] hit her in the mouth, and [he]’ll never forget the noise . . . and the blood.”
Later in his testimony, appellant reiterated: “[T]he first thing I remember is the
sound, or hitting her in the mouth and the sound and just seeing that blood.” Later,
when the military judge asked appellant, “[A]re you certain in your own mind then
that you at some point had the club in your hand?” appellant responded, “Yes, sir,
because I can remember -- the first thing, the only thing I can remember at that point
is actually going down and hitting her in the mouth . . . with the club.”

Doctor (Major) Fey, a mental health clinical psychiatrist, subsequently
testified for the defense and stated appellant has suffered from “obsessive/
compulsive [disorder (OCD)] . . . for most, . . . if not all[,] of his adult life.”
Appellant suffered from “generalized anxiety disorder [(GAD)] for a period of [six
to seven] months prior to [attacking his wife].” Doctor Fey said appellant was a
workaholic who was quiet, withdrawn, controlling, lacked self-esteem, generally did
not find pleasure in life, and vomited to relieve stress. Civilian defense counsel then
asked Dr. Fey the following questions regarding the defense strategy.

Q. Well, and, again, to clarify for the court members what
we’re not raising here. We’re not raising . . . an issue of
mental responsibility at the time of the act.

A. Right.

Q. In terms of the classic sanity defense.

A. . . . I do not believe he had any mental conditions that
would effect his state of mind to be able to premeditate
long term.

Q. That would impair ---

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AXELSON – ARMY 20020193

A. Right. Exactly. . . . [W]hat I’m saying is that there’s
no psychotic disorder. I don’t believe that his obsessive/
compulsive personality . . . , his generalized anxiety
disorder affected his ability to premeditate from a long-
term perspective . . . . [H]is mental state is not a very big
issue.

....

Q. Was he able to formulate the specific intent to kill at
that time?

A. . . . He describes walking away from the car. At this
point, he’s irritable. Most people would probably be
feeling frustrated, perhaps even angry and would
recognize that.

....

A. . . . I’m certainly not suggesting that Major Axelson
assaulted his wife because his babies were crying;
however, I think the jury must consider, considering that
Major Axelson has testified that his wife put a pillow on
top of the child’s head, I think the jury must consider that
it . . . could be an impetus to break open, from a
metaphoric standpoint, a dam, so he turns around, the
child is suddenly not crying. . . . I believe that the jury
must consider that this was the impetus and that Major
Axelson was in such a state of mind, perhaps rage, that he
did not have the capacity to form the intent to kill his
wife.

Q. Now, what about this, and I’m going to use the term
amnesia, this period of time that he says he has no
recollection of what he did?

....

A. . . . I am not a lie detector. It is possible, and the jury
must consider that Major Axelson is faking amnesia.
Other alternatives are that he had some medical condition,
organic condition, that affected his ability to lay down
memories. I do not believe that that’s an issue either. He

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AXELSON – ARMY 20020193

was not intoxicated. He did not have any sort of seizure.
He did not have a head injury, et cetera, so I don’t believe
that there is any reason that he couldn’t lay down
memories . . . . [Emphasis added.]

....

A. . . . [T]he most important factors that I would consider
are, [first,] did his wife have a pillow in front of [CA]’s
face[,] because if she did not, I do not believe that there
would be such an impetus to bring about an attack of rage
like that. . . . The second thing is[,] did he premeditate for
longer than just seconds[,] because if he didn’t, it comes
down to[,] did he premeditate for seconds or did he not
have the capacity to premeditate or form intent . . . . Also,
did he lure her up to that hill? Did he lure her out of the
car with a rash or was she attending to [CA] to pacify
him?

....

A. . . . It’s not certain to me why Major Axelson would
recall the last hit or part of the assault. That is not clear
to me. I think the fear that he was feeling then continued
into I would say a state of panic at that point. If you’re
inclined to believe that Major Axelson is not faking
amnesia, at this point, he must have been a very confused
individual. His bleeding and battered wife is lying on the
ground. He has got a stick in his hand. At this point, I
think he was in panic mode.

....

Q. . . . In fact, just within a few hours after his wife was
hospitalized, the evidence shows that he was communi-
cating with Maria [by email]. How . . . do you factor that
[into] his disorders you described, the obsessive/
compulsive disorder, the generalized anxiety disorder?

A: Well, I mean, if you’re inclined to believe that he’s
premeditated and that his plans were to kill his wife,
perhaps kill [CA], and establish some kind of life [with]
Maria, then one has to interpret those e-mails in that way,

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AXELSON – ARMY 20020193

but if one is inclined to maybe, whether it’s true or not, it
doesn’t surprise me that an individual[] that’s generally
relying on his relationship with Maria, and again, part is
real, part is fantasy. It would not surprise me that that
individual would be in contact as a means of dealing with
his present problems.

During an Article 39(a), UCMJ, hearing held subsequent to Dr. Fey’s
testimony, the military judge denied trial counsel’s request to release the full
R.C.M. 706 sanity board report to the government for use in rebutting appellant’s
defense. 6 Civilian defense counsel again clarified the defense strategy, stating:
“[W]e are putting on a defense to specific intent. It does not shift the burden to the
defense . . . .” When the military judge asked, “If in my instructions, I were to limit
the characterization of [your defense] to[: ‘T]he evidence in this case has raised an
issue [of] whether the accused had a character disorder[,’] would that suffice as an
instruction in your view?” and “So, you’re not seeking mental disease, defect,
impairment, condition, deficiency, or behavior disorder?” civilian defense counsel
agreed.

Jury Instructions

Elements

Prior to trial on the merits, the military judge told the jury, with civilian
defense counsel’s concurrence, 7 that appellant had “entered pleas of guilty” to:

6
In response to the military judge’s questions, civilian defense counsel agreed the
defense was not pursuing a defense of mental disease, defect, impairment, condition,
deficiency, or behavior disorder. See Military Rule of Evidence [hereinafter Mil. R.
Evid.] 302(c) (authorizing release of full sanity board report to rebut defense of lack
of mental responsibility); see also United States v. Benedict, 27 M.J. 253, 261
(C.M.A. 1988) (“[W]e conclude that a report from a sanity board established
pursuant to . . . R.C.M. 706 . . . is not a report of ‘opinions or diagnoses . . . kept in
the course of a regularly conducted business activity’ or that it ‘was the regular
practice of that business activity to make the . . . report.’ See Mil.R. Evid. 803(6).”)
(fourth and fifth alterations in original).
7
Since this a mixed-plea case, we must distinguish between facts appellant provided
the military judge during the plea inquiry, and those he presented to the members in
his testimony on the merits. During the providence inquiry, the military judge
correctly explained, and appellant agreed, “that the elements or facts [he was]

(continued . . .)
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(1) “the lesser[-]included offense [of] aggravated assault with a dangerous weapon
or a means or force likely to produce death or grievous bodily harm” with respect to
attempted premeditated murder (the Specification of Charge I); (2) obstruction of
justice (redesignated as Specification 1 of Charge III); and (3) failing to obey a
lawful general regulation (the Specification of Additional Charge II) for “wrongfully
using his government computer and/or government internet access and/or electronic
mail account for viewing, downloading, storing, transferring, sending, and receiving
pornography.”

The military judge further informed the panel:

I conducted what the law calls a providence inquiry, and
I’ve entered findings of guilty as to the Additional Charge
II offense and Specification 1 of Charge III. The govern-
ment is going to go forward and attempt to prove up the
greater offense of attempted premeditated murder in
Charge I and its Specification and go forward as [to] all
the offenses for which Major Axelson has [pleaded] not
guilty, and so those are the issues that are pending before
you today, but the defense wanted you to know that he’s
[pleaded] guilty to that lesser[-]included offense in Charge
I as well as to those other two offenses.

(. . . continued)
admitting . . . [regarding the] lesser[-]included offense of aggravated assault could
be used by the government to assist them in proving up the attempted premeditated
murder offense as it was originally charged.” See United States v. Gilchrist, 61 M.J.
785, 794 (Army Ct. Crim. App. 2005) (citing United States v. Caszett,
11 U.S.C.M.A. 705, 707, 29 C.M.R. 521, 523 (1960) (stating guilty plea may “be
used to establish facts and elements common to both the greater and lesser offense
within the same specification”)); United States v. Ramelb, 44 M.J. 625, 628-29
(Army Ct. Crim. App. 1996) (quoting United States v. Dorrell, 18 C.M.R. 424, 425
(N.B.R. 1954) (“It is long-settled judicial policy that while a plea of guilty
constitutes a judicial confession of guilt to a particular offense and is considered the
strongest proof of guilt under the law, such plea ‘admits only what has been charged
and pleaded to.’ . . . [I]t may not be used to prove a separate offense.”)); but see
United States v. Wahnon, 1 M.J. 144, 145 (C.M.A. 1975) (stating guilty plea to one
charge may not be used as evidence to establish separate charge to which plea of not
guilty was entered).

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The military judge provided the panel (upon its request) with tailored, written
instructions regarding the elements of the contested offenses, and told the panel:

The decision you have now is that the accused is presumed
innocent. . . . And, you should also know that as to many
of these offenses, and in particular this first offense, the
attempted premeditated murder charge, there [are] a
number of potential lesser[-]included offenses . . . . You
know this much. That the accused [pleaded] guilty to a
lesser[-]included offense of aggravated assault with a
weapon[], means, or force likely to produce death or
grievous bodily harm, in violation of Article 128[, UCMJ].
So, that’s the bottom level, and that’s already been
established by his plea of guilty.

In advising the panel on the lesser-included offense of aggravated assault by
intentionally inflicting grievous bodily harm, the military judge informed the panel:

Now, as to the second element; that is, that the
accused did so by repeatedly striking her about the head,
face, and neck with a club, if you find the first element to
be proven beyond a reasonable doubt, then the cause of
those injuries as described in the second element has been
established by the accused’s provident plea of guilty to a
lesser[-]included offense of aggravated assault with a
weapon or a means or force likely to produce death or
grievous bodily harm. . . . Additionally, the grievous
bodily harm must have been intentionally caused by the
accused . . . .

Specific Intent and Premeditation

The military judge told the panel it had to find appellant specifically intended
to kill or injure his wife to find him guilty of certain lesser-included offenses other
than the aggravated assault (with a dangerous weapon) to which appellant pleaded
guilty. He also explained appellant presented evidence regarding his mental health
to refute a specific intent mens rea element of the charged offense and the lesser-
included offenses, and not as proof of a lack-of-mental-responsibility defense. The
military judge also told the panel:

[T]he evidence in this case has raised an issue about
whether the accused has a character or personality
disorder and the required state of mind with respect to the

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offenses of attempted premeditated murder, attempted
unpremeditated murder, attempted voluntary manslaugh-
ter, or aggravated assault by intentionally inflicting
grievous bodily harm. You must consider all the relevant
facts and circumstances in the evidence before you. One
of the elements of these offenses is the requirement of
premeditation of the design to kill, and the specific intent
to kill [Mrs.] Axelson or the intent to kill her in the heat
of sudden passion caused by adequate provocation or the
specific intent to inflict grievous bodily harm.

An accused, because of some underlying character or
personality disorder, may be mentally incapable of
entertaining or formulating the premeditated design to kill,
and/or the specific intent to kill a particular named person,
here, [Mrs.] Axelson, or the intent to kill her in the heat of
sudden passion caused by adequate provocation or the
specific intent to inflict grievous bodily harm upon her. . . .

The burden of proof is upon the government to
establish the guilt of the accused by legal and competent
evidence beyond a reasonable doubt, [and,] unless, in light
of all the evidence, you are satisfied beyond a reasonable
doubt that the accused, at the time of the alleged offense
for which you find him guilty[,] was mentally capable of
entertaining or formulating . . . the specific intent to kill
. . . [or] to inflict grievous bodily harm . . . , you must
find the accused not guilty of any of those offenses or
lesser[-]included offenses in Charge I and its Specifi-
cation.

Now, this evidence was not offered to demonstrate
or refute whether the accused is mentally responsible for
his conduct. Lack of mental responsibility; that is, an
insanity defense, is not an issue in this case. . . . You may
consider evidence of the accused’s mental condition
before and after the alleged offense and its lesser[-
]included offenses . . . , as well as evidence as to the
accused’s mental condition on the date of the alleged
offense. The evidence as to the accused’s condition
before and after the alleged offense was admitted for the
purpose of assisting you to determine the accused’s
condition on the date of the alleged offense.

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AXELSON – ARMY 20020193

II. GUILTY PLEA TO AGGRAVATED ASSAULT

Appellate defense counsel now assert appellant’s guilty plea was improvident
to aggravated assault with a dangerous weapon or other means or force likely to
produce death or grievous bodily harm. The defense argues appellant’s statements
during the plea inquiry and subsequent defense evidence on the merits, including
appellant’s testimony, raised the defenses of partial mental responsibility and
automatism. Appellant’s guilty plea was not “knowing,” the defense contends,
because the military judge was required to, but did not, explain or discuss these
defenses with appellant. We disagree.

Law

Standard of Review

To address appellant’s assertion that his guilty pleas to aggravated assault
were “not knowing,” we must review the military judge’s acceptance of
appellant’s guilty pleas for an abuse of discretion. United States v. Abbey,
63 M.J. 631, 632 (Army Ct. Crim. App. 2006) (citing United States v. Eberle,
44 M.J. 374, 375 (C.A.A.F. 1996)). We will not overturn acceptance of the guilty
pleas unless a substantial basis in law and fact for questioning those pleas exists
in the record of trial. United States v. Adams, 63 M.J. 223, 226 (C.A.A.F. 2006)
(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).

A guilty plea inquiry must establish that the accused admits and believes he is
guilty of the offense, and he must admit to factual circumstances that support the
guilty plea. United States v. Firth, 64 M.J. 508, 510 (Army Ct. Crim. App. 2006)
(citing R.C.M. 910(e); United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F. 2006);
United States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004); United States v. Morris,
58 M.J. 739, 742-43 (Army Ct. Crim. App. 2003)); see United States v. Garcia,
44 M.J. 496, 497-98 (C.A.A.F. 1996) (citing United States v. Higgins, 40 M.J. 67, 68
(C.M.A. 1994), and United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980)).
“Mere conclusions of law recited by an accused are insufficient to provide a factual
basis for a guilty plea.” United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996)
(citing United States v. Terry, 21 U.S.C.M.A. 442, 45 C.M.R. 216 (1972)); United
States v. Rokey, 62 M.J. 516, 518 (Army Ct. Crim. App. 2005).

Failure to recall facts pertaining to an offense does not preclude an accused
from pleading guilty, nor does it render improvident an accused’s guilty plea.
United States v. Moglia, 3 M.J. 216, 218 (C.M.A. 1977). If an accused “is
convinced of his guilt[,] . . . personal awareness is not a prerequisite for a plea of
guilty, but, rather, an inquiry must be made to ascertain if an accused is convinced
of his own guilt. Such a conviction . . . may be predicated on an accused’s

15
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assessment of the [g]overnment’s evidence against him.” Id. (internal citations
omitted). As long as amnesia does “not preclude him from intelligently cooperating
in his defense or taking the stand on his own behalf . . . [and] his amnesic condition
[does not] impair his ability to rationally examine and assess the strength of the
[g]overnment’s evidence against him,” an accused may knowingly and voluntarily
plead guilty. United States v. Barreto, 57 M.J. 127, 130 (C.A.A.F. 2002) (internal
citation omitted); see also United States v. Proctor, 37 M.J. 330, 336-37 (C.M.A.
1993) (military judge did not err by finding accused mentally competent to stand
trial despite accused’s delusional psychosis “that God would deliver him from being
sentenced”); United States v. Olvera, 4 U.S.C.M.A. 134, 142, 15 C.M.R. 134, 142
(1954) (stating amnesiac “still quite competent to assume the witness stand, and to
assure the court that he does not remember—and he is certainly able to analyze
rationally the probabilities of his having committed the offense”); Wilson v. United
States, 391 F.2d 460, 463-64 (D.C. Cir. 1968) (setting forth six factors to consider in
assessing amnesic defendant’s capacity to participate in fair and accurate trial).
“When, as here, an accused cannot recall all of the circumstances surrounding his
crimes, he may still plead guilty so long as he or she is personally convinced of his
guilt and is willing to admit that guilt to the military judge.” United States v.
Corralez, 61 M.J. 737, 741 (A.F. Ct. Crim. App. 2005) (citing Moglia, 3 M.J. at
218), pet. denied, 63 M.J. 191 (C.A.A.F. 2006).

Nevertheless, if at any time during the proceeding, the accused sets up a
matter inconsistent with the plea, “the military judge must either resolve the
apparent inconsistency or reject the [guilty] plea.” Garcia, 44 M.J. at 498 (citing
UCMJ art. 45(a), and R.C.M. 910(h)(2)); see also Davenport, 9 M.J. at 367 (stating
same). “In determining whether the providence inquiry provides facts inconsistent
with the guilty plea, we take the accused’s version of the facts ‘at face value.’”
Gilchrist, 61 M.J. at 791 (quoting United States v. Jemmings, 1 M.J. 414, 418
(C.M.A. 1976)); United States v. Pajeaud, 63 M.J. 644, 645 (C.G. Ct. Crim. App.
2006) (“The accused’s . . . statements are taken at face value; their credibility is not
part of the analysis.”).

Additionally, if such “inconsistent matters ‘reasonably raise[] the question of
a defense . . . it [is] incumbent upon the military judge to make a more searching
inquiry to determine the accused’s position on the apparent inconsistency with his
plea of guilty.’” United States v. Estes, 62 M.J. 544, 548 (Army Ct. Crim. App.
2005) (quoting United States v. Timmins, 21 U.S.C.M.A. 475, 479, 45 C.M.R. 249,
253 (1972)). Our superior court recently reaffirmed a military judge’s “duty under
Article 45, UCMJ, to explain to the accused the defenses that an accused raises
during a providence inquiry.” United States v. Zachary, 63 M.J. 438, 444 (C.A.A.F.
2006) (citing United States v. Smith, 44 M.J. 387, 392 (C.A.A.F. 1996)) (internal
footnote omitted). If an accused’s statements “during the providence inquiry
suggest a possible defense to the offense charged, the trial judge is well advised to
16
AXELSON – ARMY 20020193

clearly and concisely explain the elements of the defense in addition to securing a
factual basis to assure that the defense is not available.” Jemmings, 1 M.J. at 418;
see R.C.M. 910(e). Short of volunteering “the facts necessary to establish a defense,
if [an accused] sets up matter raising a possible defense, then the military judge is
obligated to make further inquiry to resolve any apparent ambiguity or inconsis-
tency.” United States v. Phillippe, 63 M.J. 307, 310 (C.A.A.F. 2006). This inquiry,
the Phillippe Court stated, is a necessary prerequisite to “determine[ing] whether the
apparent inconsistency or ambiguity has been resolved.” Id. Therefore, “when,
either during the plea inquiry or thereafter, and in the absence of prior disavowals
. . . circumstances raise a possible defense, a military judge has a duty to inquire
further to resolve the apparent inconsistency.” Id. at 310-11 (internal citation
omitted). “The existence of an apparent and complete defense is necessarily
inconsistent with a plea of guilty.” United States v. Shaw, __ M.J.__, __, 2007
CAAF LEXIS 537, slip op. at 6-7 (C.A.A.F. 24 Apr. 2007).

The military judge’s duty to resolve any inconsistencies continues throughout
a court-martial proceeding, including during any trial on the merits regarding
disputed charges. Article 45(a), UCMJ, requires: “If an accused . . . after a plea of
guilty sets up matter inconsistent with the plea, or if it appears that he has entered
the plea of guilty improvidently . . . a plea of not guilty shall be entered in the
record, and the court shall proceed as though he had pleaded not guilty.” Moreover,
if, during presentencing evidence or trial on the merits, an accused subsequently
presents matters inconsistent with his guilty plea, the military judge is required to
reopen the providence inquiry to resolve the inconsistency or find the accused’s plea
improvident. See Garcia, 44 M.J. at 498 (citing UCMJ art. 45(a), and R.C.M.
910(h)(2)).

Mens Rea and Actus Reus

“Criminal liability is normally based upon the concurrence of two factors, ‘an
evil-meaning mind [and] an evil-doing hand. . . .’” United States v. Bailey, 444 U.S.
394, 402 (1980) (quoting Morissette v. United States, 342 U.S. 246, 251 (1952)).
Essentially, criminal offenses consist of a mental component or mens rea as well as
a physical component or actus reus. R OLLIN M. P ERKINS & R ONALD N. B OYCE ,
C RIMINAL L AW 831 (3d ed. 1982). 8

8
Strict liability offenses, however, impose criminal liability without a requisite
mens rea, scienter, criminal intent, or state of mind, and “are exceptions to the
general rule that criminal liability requires an ‘evil-meaning mind.’” Bailey, 444
U.S. at 404 n.4.

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AXELSON – ARMY 20020193

A specific intent offense includes a mens rea element such as knowledge,
intent, or premeditation. A general intent offense differs from a specific intent
offense because “the former requires that the accused must have intentionally
engaged in the prohibited conduct and not by mistake or accident. The latter
requires that the accused must have acted with the specific purpose of violating the
law.” Corralez, 61 M.J. at 745 (citing United States v. Gonyea, 140 F.3d 649, 653
(6th Cir. 1998)). 9 In other words, proof of a general intent offense requires “that the
defendant possessed knowledge with respect to the actus reus of the crime,” i.e.,
knowingly engaged in the criminal act. United States v. Carter, 530 U.S. 255, 268
(2000). “A second rule of thumb is that a mens rea term ordinarily modifies the
result and conduct elements in the actus reus—e.g., the killing in murder, the sexual
intercourse in rape, and the taking in larceny—but not the attendant circumstances.”
United States v. Binegar, 55 M.J. 1, 11 (C.A.A.F. 2001) (Crawford, C.J. dissenting)
(quoting J OSHUA D RESSLER , U NDERSTANDING C RIMINAL L AW § 10.05 at 107
(1987)) (internal quotation marks omitted). “[T]hough many crimes do require some
sort of mental fault (i.e., a bad mind), other crimes (which are commonly said to
require mens rea) require only some sort of fault which is not mental. The
unadorned word ‘fault’ is thus a more accurate word to describe what crimes
generally require in addition to their physical elements.” W AYNE R. L A F AVE ,
C RIMINAL L AW 224-25 (3d ed. 2000) (footnote omitted).

Nevertheless, “[b]ad thoughts alone cannot constitute a crime; there must be
an act, or an omission to act where there is a legal duty to act.” L A F AVE at 206. In
assessing the physical component or actus reus, “[a] bodily movement, to qualify as
an act forming the basis of criminal liability, must be voluntary.” Id. It, therefore,
follows that “[t]he deterrent function of the criminal law would not be served by
imposing sanctions for involuntary action, as such action cannot be deterred.” Id. at
208.

9
We are mindful of the movement away from the traditional common law distinction
between “general intent” crimes—requiring a general notion of mens rea—and
“specific intent” offenses—requiring a specific mental state as an element. Bailey,
444 U.S. at 403-04. Instead, criminal statutes set forth a hierarchy of culpable states
of mind—in descending order, purpose, knowledge, recklessness, and negligence—
which has replaced the dichotomy of general/specific criminal “intents.” Id. at 404.
A purposeful or “intended” act occurs if the accused “consciously desires that result,
whatever the likelihood of that result happening from his conduct,” while a knowing
act occurs when an accused is aware “that that result is practically certain to follow
from his conduct, whatever his desire may be as to that result.” United States v.
United States Gypsum Co., 438 U.S. 422, 445 (1978) (citation and internal quotation
marks omitted).

18
AXELSON – ARMY 20020193

Assault with a Dangerous Weapon or Other Means or Force
Likely to Produce Death or Grievous Bodily Harm

Aggravated assault with a dangerous weapon or other means or force likely to
produce death or grievous bodily harm (as defined in the UCMJ) is an offense that
does not include a specific intent mens rea element, but includes a physical
component. See UCMJ art. 128(b)(1); MCM, 2000, Part IV, para. 54b(4)(a); see also
United States v. Redding, 14 U.S.C.M.A. 242, 244, 34 C.M.R. 22, 24 (1963)
(“Assault with a dangerous weapon . . . is not a specific intent offense. Rather, it is
a general intent crime which may be committed even by a drunken assailant.”). The
requisite elements are:

(i) That the accused attempted to do, offered to do, or did
bodily harm to a certain person;

(ii) That the accused did so with a certain weapon, means,
or force;

(iii) That the attempt, offer, or bodily harm was done with
unlawful force or violence; and

(iv) That the weapon, means, or force was used in a
manner likely to produce death or grievous bodily harm.

MCM, 2000, Part IV, para. 54b(4)(a)(i)–(iv).

Attacking Mens Rea: Partial Mental Responsibility

Rule for Courts-Martial 916 sets forth special or affirmative defenses “which,
although not denying that the accused committed the objective acts constituting the
offense charged, den[y], wholly or partially, criminal responsibility for those acts.”
R.C.M. 916(a). These defenses include but are not limited to justification,
obedience to orders, self-defense (including defense of others), accident,
entrapment, coercion or duress, inability, ignorance or mistake of fact, and lack of
mental responsibility. R.C.M. 916(c)–(k). An accused may also raise voluntary
intoxication, see R.C.M. 916(l)(2), or partial mental responsibility (as discussed
below) 10 to refute a specific intent mens rea element of an offense.

10
Rule for Courts-Martial 916(k)(2) and discussion. “The [UCMJ] has never
identified a defense of ‘partial mental responsibility.’” United States v. Mansfield,
38 M.J. 415, 419 (C.M.A. 1993). But the MCM, 1969 (Rev. ed.), para. 120c., stated:

(continued . . .)
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AXELSON – ARMY 20020193

(. . . continued)
“A mental condition, not amounting to a general lack of mental responsibility
(120b), which produces a lack of mental ability, at the time of the offense, to
possess actual knowledge or to entertain a specific intent or a premeditated design to
kill, is a defense to an offense having one of these states of mind as an element.”
(Emphasis added.) Thus, partial mental responsibility was recognized as a defense
for the first time in the MCM, 1969. See Dep’t of Army, Pam. 27-2, Analysis of
Contents, Manual For Courts-Martial, United States 1969, Revised Edition, Chpt. 24
(28 July 1970) and cases cited therein. The MCM, 1984 became effective on
1 August 1984. Rule for Courts-Martial 916(k)(2) within the MCM, 1984 mirrored
the language found in para. 120c. of the MCM, 1969. See Exec. Order No. 12473, 49
Fed. Reg. 17152 (Apr. 23, 1984). Subsequently, on 14 November 1986, Congress
enacted Article 50a, UCMJ, ostensibly dispensing with the defense of partial mental
responsibility. See National Defense Authorization Act for Fiscal Year 1987, Pub.
L. No. 99-661, § 802(a)(1), 100 Stat. 3816, 3905 (codified in 10 U.S.C. § 850a(a)).
On 9 March 1987, the President amended R.C.M. 916(k)(2) to reflect the enactment
of Article 50a(a), UCMJ, indicating that partial mental responsibility was not a
defense and prohibiting the admissibility of evidence of a mental condition not
amounting to a full lack of mental responsibility “as to whether the accused
entertained a state of mind” required for the offense. Exec. Order No. 12586, 52
Fed. Reg. 710 (Mar. 9, 1987); see also United States v. Ellis, 26 M.J. 90, 91-92
(C.M.A. 1988) (describing the history of this MCM change). In 2005, however,
R.C.M. 916(k)(2) was modified yet again. See Exec. Order No. 13365, 69 Fed. Reg.
71333 (Dec. 3, 2004). Although the rule now states that “[a] mental condition not
amounting to a lack of mental responsibility . . . is not an affirmative defense,”
R.C.M. 916(k)(2), the discussion states: “Evidence of a mental condition not
amounting to a lack of mental responsibility may be admissible as to whether the
accused entertained a state of mind necessary to be proven as an element of the
offense.” Id. at discussion. Despite this R.C.M. 916(k)(2) discussion change—
providing for partial mental responsibility (or “impaired mental state”) evidence in
the military—the United States Supreme Court recently determined that a state does
not violate due process by barring mental responsibility defenses other than insanity
(the “capacity to tell whether [a criminal act] . . . was right or wrong”), and
prohibiting evidence to negate “the mens rea, or guilty mind,” element (i.e., partial
mental responsibility defense). Arizona v. Clark, __ U.S. __, __, 126 S. Ct. 2709,
2716 (2006). Consequently, partial mental responsibility remains in military
practice a creature of executive enactment, and not a Constitutional requirement.

20
AXELSON – ARMY 20020193

Rule for Courts-Martial 916(k) distinguishes between the defense of lack of
mental responsibility at the time of the offense, see R.C.M. 916(k)(1), 11 and
evidence that amounts to a defense of partial mental responsibility (or “diminished
capacity”). See R.C.M. 916(k)(2) and discussion. With the former, “the defense
bears the burden of proving, by clear and convincing evidence, that an accused was
unable to appreciate the nature and quality or the wrongfulness of his offenses, at
the time he committed them, because he suffered from a severe mental disease or
defect, i.e., he lacked mental responsibility at the time of his crimes.” Estes,
62 M.J. at 548-49 (citing UCMJ art. 50a(b); R.C.M. 916(k)(1) and (k)(3)(A)); see
United States v. Harris, 61 M.J. 391, 399 (C.A.A.F. 2005) (Crawford, J., dissenting)
(stating same); United States v. Berri, 33 M.J. 337, 343 (C.M.A. 1991); see also
Shaw, __ M.J. at __, slip op. at 9 (“[T]he President has assigned the burden of
proving lack of mental responsibility to the accused. R.C.M. 916(b).”). If, however,
the defense presents evidence not amounting to lack of mental responsibility but
negating a required mens rea element of the offense, i.e., the defense of partial
mental responsibility, the defense does not bear the burden of proof. See Berri, 33
M.J. at 343 n.11; Estes, 62 M.J. at 549 n.4; United States v. Pohlot, 827 F.2d. 889,
897 (3d Cir. 1987).

In appellant’s case, R.C.M. 916(k)(2) (2000 ed.), effective at the time of
trial, 12 provided that except for the defense of lack of mental responsibility, partial
mental responsibility or “[a] mental condition not amounting to a lack of mental
responsibility . . . is not a defense, nor is evidence of such a mental condition
admissible as to whether the accused entertained a state of mind necessary to be
proven as an element of the offense.” Despite this R.C.M. provision, in its 1988
Ellis opinion our superior court determined: (1) Article 50a(a), UCMJ (and its
legislative history) mirrored the federal model and lacked Congressional intent to
preclude such evidence; and (2) R.C.M. 916(k)(2) was of questionable
Constitutionality. Ellis, 26 M.J. at 92-94. On these bases, the Ellis Court rejected
R.C.M. 916(k)(2)’s ostensible dispensation with anything less than a complete
defense of lack of mental responsibility, and held that an accused may present

11
For the “affirmative defense of lack of mental responsibility at the time of the
offense, there is no shift in burden and the defense bears the burden of proving each
element of this defense.” Estes, 62 M.J. at 549 n.4. Prior to trial on the merits, the
defense must notify the government of “its intent to offer the defense of . . . lack of
mental responsibility,” R.C.M. 701(b)(2), and its intent “to introduce expert
testimony as to the accused’s mental condition.” R.C.M. 916(k)(2) discussion.
12
Appellant committed the charged offenses in June 2001, but was tried in March
2002. Therefore, the R.C.M. contained in the MCM, 2000 apply.

21
AXELSON – ARMY 20020193

evidence of partial mental responsibility, or evidence of mental disease, defect, or
condition to attack required mens rea elements of offenses such as premeditation,
specific intent, knowledge, or willfulness. Id.; see also Mansfield, 38 M.J. at 419
(finding no error where military “judge omitted a phrase [in panel instruction]
indicating that appellant need not be insane in order to qualify for the defense of
partial mental responsibility”); Berri, 33 M.J. at 338 (agreeing with lower court in
finding military judge erred by giving instruction that “effectively barred the
members from considering the expert evidence on mens rea” element); United States
v. Tarver, 29 M.J. 605, 609 (A.C.M.R. 1989) (“[W]hen the evidence establishes a
mental condition which may negate an accused’s ability to entertain a required mens
rea element of an offense, the military judge must, sua sponte[,] instruct.”); Pohlot,
827 F.2d. at 903 (rejecting “government’s contention that the Insanity Defense
Reform Act[, upon which Article 50a is modeled,] either explicitly or implicitly bars
a defendant from introducing evidence of mental abnormality on the issue of mens
rea”). Therefore, at the time of appellant’s trial, the defense of partial mental
responsibility—evidence such as relevant psychiatric testimony—negating an intent
element was permissible.

Except for the lack of mental responsibility defense discussed previously,
“[g]enerally, once the affirmative defenses listed in R.C.M. 916 are raised by the
evidence at trial, the government bears the burden of proving beyond a reasonable
doubt that the particular defense is not valid or has not been proven in a particular
case.” Estes, 62 M.J. at 549 n.4. The defense, however, may raise partial mental
responsibility to negate a mens rea element without bearing the burden required for
other affirmative defenses. See Berri, 33 M.J. at 343 n.11 (“As always, the
factfinder determines whether mens rea has been proven. If admissible evidence
suggests that the accused, for whatever reason, including mental abnormality, lacked
mens rea, the factfinder must weigh it along with any evidence to the contrary.”);
Pohlot, 827 F.2d at 897 (“[U]se of expert testimony [to attack mens rea] is entirely
distinct from the use of such testimony to relieve a defendant of criminal
responsibility based on the insanity defense or one of its variants . . . .”).

Contesting Actus Reus: Automatism

Appellant asserts his trial evidence raised the defense of “automatism,” which
is not a recognized special or affirmative defense listed in R.C.M. 916. Automatism,
or the “unconsciousness defense,” is viewed in terms of mens rea or actus reus, and
“thus it may be considered as relieving criminal liability either because the
[accused] lacks the mental state required for approval of a crime[, e.g., specific
intent, willfulness, premeditation, or knowledge], or because the [accused] has not
engaged in an act—that is, in a voluntary bodily movement.” Eunice A.
Eichelberger, Annotation, Automatism or Unconsciousness as Defense to Criminal
Charge, 27 A.L.R.4th 1067, § 2 (1984) (current through January 2005). A state of

22
AXELSON – ARMY 20020193

automatism renders a person who is capable of action “not conscious of what he is
doing[, which is] equated with unconsciousness [or] involuntary action[, and]
implies that there must be some attendant disturbance of conscious awareness.”
L A F AVE at 406 (citation omitted).

In asserting “automatism,” those charged with an offense may contend they
are not liable because they lack the mental state required by the criminal statute. Id.
at 407. More correctly, an “automaton-defendant” asserts he is not guilty of an
offense because his conduct was not a “voluntary bodily movement, and without
[such] an act there can be no crime.” Id. at 407-08 (internal footnote omitted).
Voluntary acts do not include: “a reflex or convulsion; a bodily movement during
unconsciousness[,] . . . hypnosis or . . . a bodily movement that otherwise is not a
product of the effort or determination of the actor, either conscious or habitual.” Id.
at 408 n.25.

Essentially, in raising this defense, an accused asserts that at the time he
committed the offense “he was unconscious or in an automatistic state or was subject
to a physical state, such as an epileptic seizure, which ordinarily entails a loss,
however temporary, of consciousness.” 27 A.L.R.4th 1067, § 1a. Simply because an
accused “suffers from amnesia and thus cannot remember the events in question,”
however, is not enough. L A F AVE at 407.

“Clinically[,] automatism or unconsciousness has manifested itself in
epileptic and postepileptic states, clouded states of consciousness associated with
organic brain disease, concussional states following injuries, schizophrenic and
acute emotional disturbances, [and] metabolic disorders such as anoxia and
hypoglycemia, [or] drug-induced loss of consciousness . . . .” 27 A.L.R.4th 1067,
§ 2. Therefore, some civilian courts generally recognize the automatism defense
brought about by physical conditions such as epilepsy, stroke, or physical or
emotional trauma. L A F AVE at 406. “Mere inability to remember an event, in and of
itself, [however,] cannot establish automatism, since relevant inquiry involves the
accused’s knowledge and control at the time of the conduct, not at the time of trial.”
Sellers v. State, 809 P.2d. 676, 686-87 (Okla. Crim. App. 1991), cert. denied, 502
U.S. 912 (1991); see also State v. Jenner, 451 N.W.2d. 710, 721 (S.D. 1990)
(holding defendant’s statements, that she did not remember killing her daughter and
that she slept through the night while the child died, “were inadequate to require
jury instruction[] on” unconsciousness; “[A]mnesia . . . is not a defense to a criminal
charge.”).

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Although “automatic” or involuntary conduct may fall into other defenses
acknowledged in the military, as appellate defense counsel concede in their
pleadings to this court, military courts have not recognized the defense of
automatism. 13 In 1991, our superior court recognized the defense of partial mental
responsibility or “element rebuttal,” but specifically stated: “What the status of
unconsciousness[, i.e., automatism,] might be under the [UCMJ], we do not decide
here.” Berri, 33 M.J. at 341 n.9, 343. Two years later, our court followed suit and,
without recognizing the automatism defense, found an appellant’s assertion that “he
lacked the required mens rea due to automatic and uncontrollable behavior brought

13
Military courts, however, have recognized that when offenses are committed
during an epileptic seizure (“fugue” or “automatistic state”), an accused may be
afforded a possible defense to criminal liability. See United v. Rooks, 29 M.J. 291,
292-93 (C.M.A. 1989) (remanding case for further review and stating: “[S]eizures
attendant to epilepsy render an accused unable to form the mens rea required for
conviction.”), aff’d, 32 M.J. 25 (C.M.A. 1990) (summary disposition); United States
v. Smedley, 15 U.S.C.M.A. 174, 175, 35 C.M.R. 146, 147 (1964) (noting trial
testimony “indicated that the accused committed the offenses charged during an
epileptic seizure, which rendered him incapable of meeting the standards laid down
in military law for mental responsibility”); Olvera, 4 U.S.C.M.A. at 140-42, 15
C.M.R. at 140-42 (stating where amnesia is “rooted in some fundamental mental
disorder[, for example, epilepsy,] existing at the date of the acts charged,” an
accused will “be able to raise the possibility that he was not mentally responsible at
the time” he committed the offenses); United States v. Johnson, 3 U.S.C.M.A. 725,
730, 14 C.M.R. 143, 148 (1954) (“An epileptic seizure which produces an offense,
would, of course, constitute a defense.”). An epilepsy defense must be based on

some substantial evidence . . . tending to show that the
accused was in an epileptic seizure when he performed the
acts alleged, for a true epileptic seizure dethrones the
reason and the condition precludes mental responsibility
while it lasts. Not only does the condition deprive the
actor of self-control, it also robs him of the power to
remember what occurred, and would probably deprive him
of the capacity to distinguish right from wrong. The
characteristic effect is loss or clouding of the conscious-
ness and automatic behavior, an impairment of all the
functions which endow man with the capacity for rational
action and choice.

United States v. Burke, 28 C.M.R. 604, 610 (A.B.R. 1959).

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on by claustrophobia” to be without merit. United States v. Campos, 37 M.J. 894,
901-02 (A.C.M.R. 1993) (agreeing with government assertion that military judge
was not persuaded the evidence “negated any intent elements of the offenses”).

Discussion

Appellant now asserts his guilty plea to aggravated assault was not “knowing”
because the military judge failed to explain or discuss the defenses of partial mental
responsibility and automatism. Appellant contends these defenses were raised by his
statements during the providence inquiry and during subsequent defense evidence on
the merits, including appellant’s testimony. We disagree and hold that regardless of
appellant’s statements and the defense evidence, the military judge had a
responsibility to address only defenses recognized in the military justice system and
defenses to the offenses to which appellant pleaded guilty.

First, partial mental responsibility was not a defense available to appellant
because he pleaded guilty to aggravated assault with a dangerous weapon or other
means or force likely to produce death or grievous bodily harm. This general intent
offense under the code lacks a specific intent mens rea element, such as willfulness
or premeditation. Since partial mental responsibility rebuts only a specific intent
mens rea element, appellant could not have asserted that defense to aggravated
assault, and the military judge did not have a responsibility to explain or discuss this
defense with appellant. Thus, appellant’s ostensible partial mental responsibility or
diminished capacity did not render improvident his guilty plea to this type of
aggravated assault. See Berri, 33 M.J. at 338 (agreeing that because panel was not
allowed to consider psychiatric evidence rebutting mens rea element of specific
intent crime—due to instructional error, lower court did not err by affirming “only a
single, lesser-included, ‘general intent’ charge of assault with a dangerous
weapon”); United States v. Wall, 15 M.J. 531, 534 (A.F.C.M.R. 1982) (citing
Redding, 14 U.S.C.M.A. at 244, 34 C.M.R. at 24, and stating “assault with a
dangerous weapon is a general intent crime”).

Second, nothing appellant stated during his providence inquiry or on the
merits suggested a possible defense to this aggravated assault. The military judge
discussed with appellant the concept of “defense of another,” and appellant aptly
agreed it did not apply under the circumstances. The military judge was under no
obligation to explore other potential defenses, i.e., automatism, not raised during the
plea inquiry or on the merits. See Phillippe, 63 at 310-11 (stating that when
“circumstances raise a possible defense, a military judge has a duty to inquire
further”). Furthermore, automatism is not a defense listed in R.C.M. 916 or
recognized by military law. Appellant did not show how, if at all, his amnesia or
failure to remember his misconduct related to, or was part of, a greater physical
condition amounting to a recognized defense, i.e., an epileptic seizure or other like

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“automatistic state.” 27 A.L.R.4th 1067, § 1a. On the merits, Dr. Fey testified that
appellant exhibited what amounted to character or personality disorders—not any
type of seizure at the time of the attack—and stated: “I do not believe [appellant]
had any mental conditions that would [have affected] his state of mind to be able to
premeditate . . . .” Moreover, although appellant said he could not remember a
portion of the attack upon his wife, appellant was “personally convinced of his
guilt,” Corralez, 61 M.J. at 741, able to evaluate the government’s evidence against
him, and able to “intelligently cooperate[] in his defense.” Barreto, 57 M.J. at 130.
Therefore, we find nothing raised by appellant during the plea inquiry or on the
merits inconsistent with his guilty plea. 14 Appellant’s guilty plea to aggravated
assault was “knowing.” We now turn to appellant’s averments regarding panel
instructions.

III. TRIAL ON THE MERITS

Appellate defense counsel now assert the military judge improperly instructed
the panel regarding findings. The defense specifically argues that “[t]he military
judge . . . instructed the panel that appellant’s guilty plea admitted certain elements
of the greater offense of attempted premeditated murder. The guilty plea allowed the
panel to reject appellant’s testimony on its face and conclude that the fact of an
intentional act was already established.” In attacking the actus reus element of
appellant’s guilty plea to aggravated assault, the defense states in its reply brief:
“The issue whether appellant acted voluntarily was more fundamental than his
specific intent . . . .” The defense also asserts the military judge erred when he
failed to sua sponte instruct the panel regarding the defense of automatism. We
disagree with both assertions.

Law

Instructions

We review de novo the question of law regarding whether a military judge
properly instructed court-martial members. United States v. Simpson, 60 M.J. 674,
680 (Army Ct. Crim. App. 2004) (citing United States v. Hibbard, 58 M.J. 71, 75
(C.A.A.F. 2003), and United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002)).
We also review “the substance of any instructions given[] to determine if they
sufficiently cover the issues in the case and focus on the facts presented by the
evidence.” United States v. Jenkins, 59 M.J. 893, 897 (Army Ct. Crim. App.
2004) (citing McDonald, 57 M.J. at 20) (internal quotation marks omitted).

14
See Davenport, 9 M.J. at 367.

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AXELSON – ARMY 20020193

Our superior court has recently held: “A military judge has a sua sponte duty
to give certain instructions when reasonably raised by the evidence, even though the
instructions are not requested by the parties.” Gutierrez, 64 M.J. at 376; see also
United States v. Dacosta, 63 M.J. 575, 582 n.8. (Army Ct. Crim. App. 2006)
(discussing affirmative-defense instructions). Furthermore, when instructing panel
members on findings, a military judge also “bears the primary responsibility for
ensuring that mandatory instructions . . . are given and given accurately.” United
States v. Miller, 58 M.J. 266, 270 (C.A.A.F. 2003); R.C.M. 920(a) (“The military
judge shall give the members appropriate instructions on findings.”).

Required or mandatory instructions on findings include a “description of the
elements of each offense charged[,] . . . each lesser[-]included offense in issue[,
and] . . . any special [or affirmative] defense under R.C.M. 916 in issue.” R.C.M.
920(e)(1)–(3). The discussion section accompanying R.C.M. 920(e) further
explains: “A matter is ‘in issue’ when some evidence, without regard to its source
or credibility, has been admitted upon which members might rely if they choose.”
R.C.M. 920(e) discussion; United States v. Dearing, 63 M.J. 478, 484 n.20
(C.A.A.F. 2006) (citing R.C.M. 920(e)).

If the military judge has any doubt whether he should give an instruction on a
lesser-included offense or special defense, he should resolve that doubt in favor of
the accused. United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000) (citing
United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981)). “An accused does not
waive his right to [an] instruction by failure to request it or by failure to object to its
omission.” Gutierrez, 64 M.J. at 376. A military judge, however, need not give a
lesser-included offense or special defense instruction if “affirmatively waived by the
defense” and “the [defense counsel’s] statements signify that there was a ‘purposeful
decision’ at play.” Id. at 376-77.

Prior Guilty Pleas: Informing Members and Use on the Merits

In a case involving a mixed plea,

in the absence of a specific request made by the accused
on the record, members of a court-martial should not be
informed of any prior pleas of guilty until after findings
on the remaining contested offenses are made. This rule is
long-standing and embodied in the [Dep’t of Army, Pam.
27-9, Legal Services: Military Judges’ Benchbook, para.
2–5–4 (1 Apr. 2001)], R.C.M. 910(g), R.C.M. 913(a) and
our decisions in [United States v. Smith, 23 M.J. 118
(C.M.A. 1986), United States v. Rivera, 23 M.J. 89

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(C.M.A. 1986), and United States v. Davis, 26 M.J. 445
(C.M.A. 1988)].

United States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003). If an accused pleads
guilty to a lesser-included offense, and the government intends “to prove the greater
offense, findings should not be entered until after” trial on the merits, and the
military judge should inform the court-martial panel “that if they find the accused
not guilty of the greater offense and other contested lesser[-]included offenses, then
they must enter a finding of guilty to the lesser[-]included offense to which the
accused [pleaded] guilty.” United States v. Baker, 28 M.J. 900, 901 (A.C.M.R.
1989); R.C.M. 910(g)(2); R.C.M. 913(a); R.C.M. 920(e) discussion.

If the military judge accepts an accused’s plea to a lesser-included offense,
that guilty plea “may be used to establish ‘facts and elements common to both the
greater and lesser offense within the same specification.’” United States v.
Grijalva, 55 M.J. 223, 228 (C.A.A.F. 2001) (quoting Dorrell, 18 C.M.R. at 425-26).
An accused’s plea of guilty fulfills the elements of a lesser offense that can then be
used to prove common elements of a greater offense to which the accused has
pleaded not guilty. Id. (holding “military judge did not err by considering
appellant’s admissions concerning the elements of the lesser-included offense of
aggravated assault” in determining appellant was guilty of the greater offense of
attempted premeditated murder). 15 The military judge in a judge-alone trial,
however, may not use admissions made during the plea inquiry elicited to prove
elements contained in the greater offense to which an accused has pleaded not
guilty. Id. Accordingly, the military judge should inform court-martial members,
upon a specific request by an accused on the record, to accept as proven, common
elements of the greater and lesser-included offenses the accused has admitted by his
guilty plea. R.C.M. 920(e) discussion; see Grijalva, 55 M.J. at 228; Caszatt, 11
U.S.C.M.A. at 707, 29 C.M.R. at 523; United States v. Gray, 51 M.J. 1, 25 (C.A.A.F.
1999) (finding court-martial can consider admissions made during state court guilty-
plea proceedings).

Elements of the Offenses

Article 80, UCMJ, provides: “An act, done with specific intent to commit an
offense under this chapter, amounting to more than mere preparation and tending,

15
This principle is equally applicable to cases tried before members. In practice,
however, members are not present when a military judge conducts a plea inquiry,
and later receive appropriately-tailored findings instructions regarding an accused’s
guilty pleas.

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even though failing, to effect its commission, is an attempt to commit that offense.”
UCMJ art. 80(a). Under the punitive articles section of the MCM, an attempt has the
following requisite elements:

(1) That the accused did a certain overt act;

(2) That the act was done with the specific intent to
commit a certain offense under the code;

(3) That the act amounted to more than mere preparation;
and

(4) That the act apparently tended to effect the commis-
sion of the intended offense.

MCM, 2000, Part IV, para. 4b(1)–(4).

Article 118, UCMJ, provides: “Any person subject to this chapter who,
without justification or excuse, unlawfully kills a human being, when he . . . has a
premeditated design to kill . . . is guilty of murder.” UCMJ art. 118. Under the
punitive articles section of the MCM, premeditated murder has the following
requisite elements:

(1) Premeditated murder.

(a) That a certain named or described person is dead;

(b) That the death resulted from the act or omission of
the accused;

(c) That the killing was unlawful; and

(d) That, at the time of the killing, the accused had a
premeditated design to kill.

MCM, 2000, Part IV, para. 43b(1)(a)–(d).

Discussion

The panel convicted appellant of attempting to murder his wife, “with
premeditation, by repeatedly striking [her] about the head, face, and neck with a
club.” (Emphasis added.) Prior to trial on the merits, the military judge properly
informed the panel (with appellant’s consent) that appellant pleaded guilty to

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aggravated assault with a dangerous weapon as a lesser-included offense to
attempted premeditated murder. He also told the panel the government was going to
attempt to prove up the attempted premeditated murder charge. During the merits,
the military judge commented to the panel: “So, [aggravated assault with a
dangerous weapon is] the bottom level, and that’s already been established by
[appellant’s] plea of guilty.”

Before the panel withdrew to deliberate on findings, the military judge
instructed the panel in pertinent part:

In order to find the accused guilty of [attempted premed-
itated murder], you must be convinced . . . beyond a
reasonable doubt first, that . . . the accused did certain
acts; that is, repeatedly strike [his wife] about the head,
face[,] and neck with a club . . . .

(Emphasis added.) The military judge did not specifically describe the elements of
the lesser-included offense of aggravated assault with a dangerous weapon or means
or force likely to produce death or grievous bodily harm to which appellant pleaded
guilty. After explaining the requisite specific intent elements for attempted
premeditated murder, and the lesser-included offenses of attempted unpremeditated
murder and attempted voluntary manslaughter—and how they differ for each
offense—the military judge did cover the elements of aggravated assault by
intentionally inflicting grievous bodily harm. When instructing on the elements of
this lesser-included offense, the military judge told the panel:

[A]s to the second element; that is, that the accused did so
by repeatedly striking her about the head, face, and neck
with a club, if you find the first element[—describing the
injuries—]to be proven beyond a reasonable doubt, then
the cause of those injuries as described in the second
element has been established by the accused’s provident
plea of guilty to a lesser[-]included offense of aggravated
assault with a weapon or a means or force likely to
produce death or grievous bodily harm. . . .

(Emphasis added.) The military judge also reminded the panel that appellant
pleaded “guilty to the next lower lesser[-]included offense of aggravated assault
with a weapon, means, or force likely to produce death or grievous bodily harm”—a
general intent offense not requiring any specific intent or premeditation.

We find the military judge properly instructed the panel regarding appellant’s
guilty plea to aggravated assault with a dangerous weapon or means or force likely

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to produce death or grievous bodily harm as a lesser-included offense of attempted
premeditated murder. Nothing in the military judge’s instructions regarding
appellant’s admitted criminal act or actus reus, i.e., that he repeatedly struck Mrs.
Axelson about the head, face, and neck with a club, was improper. By instructing
the panel in this fashion, and based on the particular facts in this case, the panel
could properly resolve the issue regarding appellant’s specific intent at the time he
committed the charged offense.

Appellant testified before the panel during the case on the merits—consistent
with his plea inquiry admissions—that he “just [could not] remember what happened
next,” and “[t]he next memory [he had was of his] wife [on] the ground, and [he]
was hitting her with the club, and [he] hit her in the mouth, and [he]’ll never forget
the noise . . . and the blood.” Later in his testimony, appellant reiterated: “[T]he
first thing I remember is the sound, or hitting her in the mouth and the sound and
just seeing that blood.” Responding to the military judge’s question, “[A]re you
certain in your own mind then that you at some point had the club in your hand?”
appellant responded, “Yes, sir, because I can remember -- the first thing, the only
thing I can remember at that point is actually going down and hitting her in the
mouth . . . with the club.”

Doctor Fey testified that appellant exhibited what amounted to character or
personality disorders; he suffered from “[OCD] . . . for most . . . of his adult life[,]
. . . [and GAD] for a period of [six to seven] months prior to [attacking his wife].”
Putting these disorders into perspective for the panel, Dr. Fey stated: “I do not
believe [appellant] had any mental conditions that would [have affected] his state of
mind to be able to premeditate long term. . . . [T]here’s no psychotic disorder.”

Doctor Fey further opined for the panel:

I believe that the jury must consider that [Mrs. Axelson’s
actions were] the impetus[,] and that Major Axelson was
in such a state of mind, perhaps rage, that he did not have
the capacity to form the intent to kill his wife.

....

[T]he jury must [also] consider that Major Axelson is
faking amnesia. Other alternatives are that he had some
medical condition, organic condition, that affected his
ability to lay down memories. I do not believe that that’s
an issue either. He was not intoxicated. He did not have
any sort of seizure. He did not have a head injury, et

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cetera, so I don’t believe that there is any reason that he
couldn’t lay down memories . . . .

With respect to appellant’s contention that he remembered only the tail end of the
attack, Dr. Fey commented: “It’s not certain to me why Major Axelson would recall
the last hit or part of the assault.”

As for the defense assertion that the military judge erred because he failed to
sua sponte instruct the panel regarding the automatism defense, we hold a military
judge’s responsibilities regarding instructions on affirmative defenses pertain only
to those defenses listed in the R.C.M. and recognized in military law. Automatism
is not a defense listed in R.C.M. 916 or recognized by military law. Furthermore, a
military judge is under no obligation to explore potential defenses not raised on the
merits and not requested by the defense at trial. See Phillippe, 63 at 310-11 (stating
that when “circumstances raise a possible defense, a military judge has a duty to
inquire further”).

Nevertheless, the evidence presented on the merits did not show appellant had
a diagnosed physical condition amounting to a recognized defense under military
law, or that appellant’s lack of memory (amnesia) related to such a condition.
Despite appellant’s faulty memory, the record demonstrates appellant believed and
admitted he was guilty of committing an aggravated assault with a dangerous
weapon upon his wife. He could also evaluate all the evidence against him, and
intelligently and meaningfully cooperate in his own defense.

IV. CONCLUSION

We hold a military judge’s responsibilities regarding affirmative defenses, in
both guilty plea and contested cases, are limited to those listed in R.C.M. 916 and
920, and to those recognized by this court and our superior courts. We also hold
partial mental responsibility is not a defense to aggravated assault with a dangerous
weapon or other means or force likely to produce death or grievous bodily harm. A
partial mental responsibility defense rebuts a specific intent mens rea element,
which this assault-type offense lacks under the UCMJ.

Moreover, the military judge properly instructed the panel regarding
appellant’s guilty pleas. In any case, appellant’s guilty pleas to the general intent
crime of aggravated assault with a dangerous weapon were knowing and voluntary,
and therefore, provident. Neither the plea inquiry nor the additional defense
evidence on the merits provided any “evidence that appellant’s conduct was beyond
his control.” Sellers, 809 P.2d. at 687. No evidence suggested a possible defense of
partial mental responsibility or automatism.

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Even if automatism was a recognized defense in the military, “the evidence at
trial could not have supported the [automatism] defense, [and] the trial court
committed no error by [failing] to [sua sponte] instruct.” Id. In sum,

[w]hile we cannot characterize the accused’s story as
inherently improbable in any precise meaning of the term,
we cannot avoid the conclusion that—even if accepted in
every detail—the accused signally failed to link his
amnesia [or lack of memory] to any type of automatism, or
to demonstrate that the [brutally] executed [attack on his
wife] was related in any way to a “mental defect, disease
or derangement” depriving him of legal responsibility.

Olvera, 4 U.S.C.M.A. at 140, 15 C.M.R. at 140. Appellant has therefore failed in
his attempt to convert his “amnesia into an unconsciousness [or automatism]
defense.” Jenner, 451 N.W.2d. at 721 (“[A]mnesia . . . is not a defense to a criminal
charge.”).

We have considered appellant’s remaining assignment of error and find it
without merit.

Accordingly, the findings of guilty and the sentence are affirmed.

Judge ZOLPER and Judge WALBURN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

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