(dissenting):
In my view, the victim in this case was appellant, not Sergeant First Class (SFC) Pitts. Appellant was attacked when she unsuccessfully attempted to persuade a drunken, violent trespasser to leave her bedroom. I would set aside the conviction and dismiss the charge.
I believe that appellant took reasonable measures in an unsuccessful effort to persuade a trespasser to leave her bedroom. During a barracks party that involved heavy drinking, SFC Pitts went into appellant’s bedroom, uninvited, while she was getting dressed and grooming herself in preparation for leaving the barracks. When SFC Pitts first entered appellant’s bedroom, he was at best an interloper. When appellant told him to leave her bedroom and he refused, he became a trespasser.
SFC Pitts is a martial arts expert. The record does not reflect SFC Pitts’s height and weight, but it does reflect that appellant is only 65 inches tall and weighs 125 pounds.
They began arguing after SFC Pitts went into appellant’s bedroom and told her that she was too drunk to leave the barracks. The court below found that, during the argument, SFC Pitts hit appellant in the mouth. 50 MJ at 528. In the ensuing altercation, they both fell backwards onto her bed, with SFC Pitts on top of appellant. She bit him, pushed him away, and ran out of her room. She asked another senior noncommissioned officer (NCO), SFC Beanum, to help her remove SFC Pitts from her room. Instead, SFC Beanum made a crude comment and the other NCOs who were present laughed at appellant.
Appellant obtained a steak knife from the common kitchen, returned to her room, walked past SFC Pitts to the back corner of the room, stood “four or five feet away,” held the knife “nonchalantly” in front of her, and told SFC Pitts to “get out of my room now.” One of the NCOs in the common area saw appellant carrying the knife, “but he didn’t take it seriously because she was not carrying the knife in an aggressive manner.” Id. SFC Pitts had a clear path to the door and no need to take the knife from appellant. However, instead of leaving the room, SFC Pitts demanded that appellant give him the knife, and then he attacked her in an effort to take it from her. Id. They struggled and appellant fell backwards onto the bed, with SFC Pitts on top of her, holding her hands above her head. After two other NCOs separated SFC Pitts and appellant and they both stood up, SFC Pitts delivered a martial arts kick to appellant’s chest, lifting her off her feet and knocking her across the room. Sometime during this struggle, SFC Pitts suffered a “glancing, relatively superficial wound over the rib.”
SFC Pitts was given testimonial immunity and testified for the prosecution. He denied hitting appellant in the mouth. He testified that another NCO told him that he had kicked appellant. His memory of the events was vague. He did not know how he was cut. He testified that his injury was “an accident,” but he did not know exactly how it happened. He testified, “I didn’t see Sergeant Marbury come at me with no knife.” After asserting that he considered appellant his friend and expressing his understanding that she might go to jail, he testified, “I wouldn’t want no one to go to jail for something they probably didn’t do.”
It is well settled that “reasonable force may be used to eject a trespasser.” United States v. Richey, 20 MJ 251, 252 n. 2 (CMA 1985), citing United States v. Regalado, 13 USCMA 480, 482, 33 CMR 12, 14 (1963). *19“When one with the right to do so has ordered another from the premises, the latter has no right to refuse or resist.” Regalado, 13 USCMA at 483, 33 CMR at 15. It is also well settled that “a greater degree of force may be used where the person sought to be ejected violently resists or assaults” the rightful owner or occupant. Id. at 482, 33 CMR at 15, quoting 4 Am.Jur., Assault and Battery § 77. Finally, it is well settled in the law of self-defense that a defender “is not limited to the exercise of precisely identical force or degree thereof as is asserted against him.” United States v. Acostar-Vargas, 13 USCMA 388, 393, 32 CMR 388, 393 (1962). A defender may lawfully defend herself by offering to use deadly force, without intending to actually use it, if she reasonably believes that the attacker is about to inflict any bodily harm, not necessarily death or grievous bodily harm. See RCM 916(e)(2), Manual for Courts-Martial, United States (2000 ed.) * (defender may offer, but not actually apply or attempt to apply, force likely to cause death or grievous bodily harm in order to deter assailant from inflicting bodily harm); see also 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7 at 651 (1986), citing United States v. Black, 692 F.2d 314 (4th Cir.1982). A person has no duty to retreat from his or her home. Id. at 650.
Applying the above principles, I conclude that no rational factfinder could find beyond a reasonable doubt that appellant acted unreasonably in her unsuccessful effort to persuade SFC Pitts to leave her room. While summoning the military police might have been a “reasonable” course of action, it was not the only reasonable course of action. Appellant had already been assaulted once by SFC Pitts and verbally abused by the other NCOs in the area when she asked for their help. The circumstances were such that appellant could reasonably expect that an attempt to summon the military police would have subjected her to further verbal and physical abuse.
The court below and the majority of this Court appear to take the curious view that, because the trespasser assaulted her, appellant lost her right to make a reasonable show of force in an effort to persuade the trespasser to leave her bedroom. The court below also took the position, which this Court appears to uphold, that appellant was negligent because she “challenged” SFC Pitts. 50 MJ at 530. Appellant did not challenge SFC Pitts; SFC Pitts challenged appellant.
In my opinion, appellant was entitled to display a knife in an effort to persuade SFC Pitts to leave. Her first attempt to persuade him failed when he attacked and overpowered her. I believe that, under the circumstances, it was reasonable for her to protect herself before trying again to persuade him to leave her bedroom. She acted in a reasonable manner, not endangering SFC Pitts and giving him a clear path to leave her bedroom.
The reasonableness of appellant’s conduct is demonstrated by SFC Pitts’s response to her request that he leave her bedroom. His response was totally inconsistent with “reasonable apprehension of receiving immediate bodily harm,” an essential element of an offer-type assault. Para. 54c(l)(b)(ii), Manual, supra. He responded to appellant’s request by attacking her instead of leaving. The evidence overwhelmingly demonstrates SFC Pitts’s confidence that his physical strength and martial arts prowess would protect him from bodily harm. The NCOs who observed appellant with the knife did not take it seriously because she was not carrying the knife in an aggressive manner. In my opinion, no reasonable factfinder could find beyond a reasonable doubt that SFC Pitts was in “reasonable apprehension of receiving immediate bodily harm.” Cf. United States v. Gibson, 43 MJ 343, 346 (1995) (aggravated assault by culpable negligence established by terrified reactions of nearby soldiers).
I believe that appellant’s conviction was a gross injustice, contrary to the law and the facts. Accordingly, I dissent.
Cited Manual provisions are identical to the ones in effect at the time of appellant’s court-martial.