(concurring in part and in the result):
11. I concur in the majority opinion except that portion which treats the military judge’s incorrect instruction that, to convict appellant, they “must be satisfied that the evidence is such as to exclude not every fair and rational hypothesis or theory of innocence.” (Emphasis added.) Noting that there was no objection to this instruction, the majority invokes waiver in the absence of plain error. I do not join in this analysis.
12. The court below faced the same dilemma: Finding that the insertion of “not” was incorrect, it proceeded to consider the repercussion of appellant’s failure to object to the instruction. 38 MJ 566, 577 (1993). The court noted that, in Sullivan v. Louisiana, — U.S. -, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the Supreme Court held that an erroneous reasonable-doubt instruction was not subject to the harmless-error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Nonetheless, based on the following rationale, the court concluded that Sullivan was not applicable in this case:
In analyzing the issue, the Court found that the reasonable doubt instruction is based on two interrelated constitutional rights found in the Fifth and Sixth Amendments. Insofar as the reasonable doubt instruction is a requirement of the Fifth Amendment, errors are subject to a Chapman harmless error analysis. The Court found, however, that the reasonable doubt instruction is also based on the Sixth Amendment right to a jury trial, violations of which are not subject to a harmless error analysis. Because of the Sixth Amendment implications, the Court concluded that errors involving the right to a jury trial require reversal. We note one important distinction between the civilian criminal proceeding in Sullivan and the court-martial proceeding before us. “[Cjourts-martial have never been considered subject to the jury-trial demands of the Constitution.” United States v. McClain, 22 MJ 124, 128 (CMA 1986). Consequently, we conclude that an error in the reasonable doubt instruction is subject to the harmless error analysis.
38 MJ at 577 (footnote omitted).
13. The Court of Military Review certainly was correct, as far as it went. The following excerpt from the Government’s brief in this Court, however, reflects an analysis that suggests that the court may not have been appropriately sensitive to the complexity of that issue:
If the reasonable doubt instruction in question is constitutionally defective, i.e., there was a “reasonable likelihood” that the jury applied the challenged instruction in an unconstitutional manner, then the instruction is not susceptible to harmless error review. Sullivan v. Louisiana, [— U.S. -,---] 113 S.Ct. 2078, 2081-82 [124 L.Ed.2d 182] (1993). In Sullivan, the Supreme Court held that a constitutionally defective “reasonable doubt” instruction constitutes a “structural defect ] in the constitution of the trial mechanism.” Id. [at-, 113 S.Ct.] at 2082. In Arizona v. Fulminante, [499 U.S. 279,] 111 S.Ct. 1246 [113 L.Ed.2d 302] (1991), it held that a criminal trial marred by a “structural defect ... ‘cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment [resulting from such a trial] may be regarded as fundamentally fair.’ ” [499 U.S. at 310,] Id, [111 S.Ct.] at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-78 [106 S.Ct. 3101, 3106, 92 L.Ed.2d 460] (1986)) (emphasis added) [sic]. Thus, regardless of an objection or not, a consti*172tutionally deficient reasonable doubt instruction falls in the category of forfeited errors, whose prejudice may be presumed. See United States v. Olano, [— U.S.-, -] 113 S.Ct. 1770, 1778 [123 L.Ed.2d 508] (1993); Sullivan, [— U.S. at-- -] 113 S.Ct. at 2081-82.
Answer to Final Brief at 6. In any event, I do not need to resolve this question today,* since I agree fully with the Government’s assessment that, “[b]ecause the instructions, as a whole, are not constitutionally defective, addressing whether the ‘harmless error’ analysis applies to the military becomes moot.” Id. at 6-7.
14. “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Boyde v. California, 494 U.S. 370, 378, 110 S.Ct. 1190, 1196, 108 L.Ed.2d 316 (1990), quoting Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). When the instructions quoted in the majority opinion are viewed as a whole, so that the misstatement may be seen in its full context, I am satisfied that there is no “reasonable likelihood” that the members applied the challenged aspect of the instruction in an unconstitutional manner. See Victor v. Nebraska, — U.S.-,-, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994).
15. The language both before and following the particular words in issue offer, in context, a correct view of reasonable doubt; indeed, the surrounding sentences would make no sense if “not” were given its usual meaning. Further, the full instruction provided numerous alternative definitions of reasonable doubt that either are unchallenged or are correctly sustained by the majority today. In these ways, the language surrounding the problematic word served to clarify and sanitize the erroneous “not.” See Victor v. Nebraska, — U.S. at-, 114 S.Ct. at 1250.
16. Moreover, of particular importance in this case is that the precise aspect of reasonable doubt that is the focus of the criticized instruction was not especially important under the facts of this court-martial. The other alternative definitions of reasonable doubt to which I just referred all strive to offer synonyms that directly relate to weight of the evidence, and as I just mentioned, I am satisfied that notion was correctly conveyed to the members.
17. The challenged part of the instruction is a bit different, however. Rather than simply offering yet another characterization of weight that is contemplated by the phrase “reasonable doubt,” that instruction instead tells the jury how to view that phrase in the context of their considering how the evidence might offer possible options to the prosecution’s hypothesis of guilt—that is, how the same evidence might offer possible hypotheses that would be consistent with innocence, *173as well as with the Government’s hypothesis of guilt.
18. In a case in which the defense were to offer a view of the facts that presented a clear alternative to the Government’s theory of guilt, it might be problematic whether a misstatement like the military judge made here could be minimized simply by pointing to the other definitions of weight. That is not the state of this record, however.
19. That being the case, and in light of the considerations mentioned earlier, I believe that there is not “a reasonable likelihood that the jury understood the instructions to allow conviction based on a proof insufficient to meet the [reasonable doubt] standard.” Victor v. Nebraska, — U.S. at -, 114 S.Ct. at 1243; accord Sullivan v. Louisiana, — U.S. at---, 113 S.Ct. at 2081-82. In other words, while insertion of “not” most clearly was incorrect, in this case it did not impregnate the “reasonable doubt” instruction with constitutional error. On this basis, I concur with the majority in affirming the decision below.
As noted earlier, the majority sub silentio follows the same path as trod by the Court of Military Review, when it says, "There were no objections to the instructions; thus, absent plain error, we hold there was a waiver.” ¶ 8. One of the cases cited by the majority is United States v. Hanley, 974 F.2d 14 (4th Cir.1992). There, the court faced an instruction in which the trial court had told the jury: “On the other hand, if a reasonable doubt exists in your mind concerning the guilt of the defendant as to one or more of the counts, then it will be your duty to find the defendant guilty as to such count or counts." Id. at 17-18. Of course, the word “not” should have preceded “guilty” to be correct—a rather fundamental omission. Without even acknowledging Sullivan v. Louisiana,-U.S.-, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), much less analyzing it in the context of that case, the court simply proceeded, "Since no objection was made, we review for plain error.” 974 F.2d at 18.
In a per curiam opinion in United States v. Robinson, 38 MJ 30 (CMA 1993), this Court, too, applied a plain-error analysis to an arguably defective reasonable-doubt instruction without citation to or analysis of Sullivan v. Louisiana, supra. Quite possibly, this Court was not forthrightly asked by the parties there to consider Sullivan and its potential bar to our plain-error treatment.
Not so in this case. The second granted issue, which is fully set out in the majority opinion (¶ 1), squarely asks this Court whether the Court of Military Review’s testing for harmless error contravenes Sullivan v. Louisiana, supra. Notwithstanding, that case is nowhere cited or discussed by the majorily thereafter in its opinion. While I conclude that the Court does not need to answer that question to resolve this appeal, the majority implicitly answers it without squarely coming to grips with the issue. I cannot agree with that approach.