Opinion
COX, Judge:Appellant was tried by a special court-martial composed of officer and enlisted members and a military judge on September 16-17, 1982, at Marine Corps Recruit Depot, Parris Island, South Carolina. Contrary to his pleas, he was found guilty of making false official statements, assault and battery, solicitation of an assault, and solicitation of others to make a false official statement, in violation of Articles 107, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 907, 928, and 934, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor for 3 months, forfeiture of $367.00 pay per month for 3 months, and reduction to pay grade E-l. The convening authority approved the sentence as adjudged but suspended the forfeitures for 6 months. The United States Navy-Marine Corps Court of Military Review affirmed.
The critical factual issue1 in this case was whether appellant had the requisite criminal intent for the offenses for which he was convicted. Character evidence may be relevant to disprove the existence of such criminal intent. See 1A Wigmore, Evidence § 56(3) at 1173-74 (Till*27ers rev. 1983). With regard to similar offenses, this Court has held military character is relevant. See United States v. McNeil, 17 M.J. 451 (C.M.A. 1984); United States v. Piatt, 17 M.J. 442 (C.M.A. 1984). We agree with the Court of Military Review that such evidence was “improperly excluded” in the present case. Unpublished opinion at 3.
We also agree with the Court of Military Review that the error in excluding the evidence was harmless beyond a reasonable doubt. See United States v. Vandelinder, 20 M.J. 41 (C.M.A. 1985).
Using the analysis we adopted in United States v. Weeks, 20 M.J. 22 (C.M.A. 1985), cf. United States v. Lewis, 482 F.2d 632, 637 (D.C. Cir. 1973), we conclude that there was overwhelming evidence of the criminal acts constituting the charged offenses and that, from the acts, one can infer the requisite criminal intent. Although the Government’s case was circumstantial on the issue of criminal intent, appellant not only denied the intent, but his commanding officer was allowed to testify on this issue. He stated, regarding a briefing given by appellant:
A. I was the Commanding Officer of “D” Company at the time. Staff Sergeant KLEIN was in squad bay B-2 of “D” Company. ... right next door to the Company Commander’s office. ... and it’s very easy to hear everything that goes on in the DI house that is conducted in normal conversational tones.
Q. ... , do you know basically who was there during that briefing?
A. I didn’t see who was taking part in the conversation. From what — from the voices I heard and from what Staff Sergeant KLEIN was saying it sounded as if it was the Platoon leaders, the guide and the squad leaders.
* * * * * *
A. The only voice I heard was Staff Sergeant KLEIN’s.
Q. And what did Staff Sergeant KLEIN say?
A. It was approximately about a ten minute brief that he gave his recruits. It dealt with the ICT . . . you know, the different training evolutions they were going through ... He noted the fact that recruit leaders would have more responsibility while they were at ICT. They would lead their squads through various courses ... and they would be given more responsibility than what they had in the rear.
Q. What was discussed about problem recruits, if anything?
A. Towards the end of the conversation he began to talk about what would happen when the Platoon came back from ICT, that ... they’d have to make a decision to keep the recruits, recommend recycling them, whatever. He told the squad leaders and the guide that he wanted them to work with the recruits, get them squared away.
Q. He did use the term “squared away”?
A. Yes, he did, and hopefully the problem Privates and Privates that were having difficulties would come up to speed and be able to graduate with the Platoon, and if not, another decision would have to be made on them.
Q. What if anything did Staff Sergeant KLEIN tell the billet holders not to do?
A. As kind of an aside he used the term — what he said was: “I want you to work with these individuals. I want you to square them away. I don’t want to see any broken bones or blood or anything like that. I just want you to work with them.”
Q. Did it appear that he was advocating physical abuse?
A. Not at all.
*28Q. And what would you have done if it had appeared he was advocating physical abuse?
A. I would have stepped into the DI house immediately, told the recruits to leave, and I would have suspended Staff Sergeant KLEIN on the spot.
Q. Now, was it necessary to intervene at this time?
A. Absolutely not.
Q. And why not?
A. I felt Staff Sergeant KLEIN was giving a very good brief, a brief that I would like to have heard other of my drill instructors use. He always talked to his Privates more as a Platoon Sergeant would do out in the Fleet, rather than, say, a drill instructor oftentimes down here does. I thought he was giving a very good brief, telling them what they were responsible for. Everything was very proper, very appropriate, and I felt that he was just using a figure of speech when he said that. Like I said, it was over like that, it was just something he just — an aside to what he was telling these Privates to do, and not something he was telling the Privates to take literally, just like when a drill instructor goes to púgil sticks he tells his recruits he wants to kill the other Platoons. Well, everybody knows he doesn’t actually want to kill the other Platoon, it’s just a figure of speech.
While the defense theory was not patently “feeble or implausible,” United States v. Weeks, supra at 25, it was obviously not accepted by the finders of fact even though corroborated by the accused’s commanding officer. Finally, although “the quality of the” character evidence offered was substantial, the record is clear that appellant’s good military character was certainly before the court members prior to findings and provided an adequate substitute.2
The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.3
Judge FLETCHER did not participate.. In addition to the issue discussed hence, we also specified the following issue:
WHETHER THE EVIDENCE IS SUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT OF SPECIFICATION 2 OF CHARGE I.
After consideration of the record, and the briefs and argument of counsel, we hold that there was sufficient evidence to sustain appellant’s conviction.
. For example, the record indicates that Sergeant Klein appeared in the appropriate service uniform with all awards and decorations; his commanding officer testified that his conduct was very proper, analogizing his conduct to that of "a Platoon Sergeant ... out in the Fleet.” He also testified as to Klein’s military integrity. In addition, the military judge invited defense counsel to call Klein’s rating officer to express an opinion as to his military character, but the invitation was not pursued.
. I take no exception to Chief Judge Everett’s opinion concurring in the result, as a fair reading of the record supports waiver. I am sensitive, however, to the limited and narrow approach of the military judge here and can understand how trial defense counsel may have been confused as to how far he could have gone with his evidence. Counsel should not hesitate, in the zealous representation of their clients, to pin the military judge down to preserve an issue. To do this, counsel must, at a minimum, make an offer of proof, which was not done in this case.