Chief Judge joins (concurring in part and in the result):
For the reasons stated by the majority, I agree that the affirmative defense of inability reasonably was raised by the evidence and that, accordingly, the military judge was required, sua sponte, to instruct thereon. I agree, as well, with that part of footnote 1 to the majority opinion that the Court of Military Review erred in applying a plain-error analysis to the judge’s instructional omission. Plain error is a device for overcoming passive waiver. See Mil.R.Evid. 103(d), Manual for Courts-Martial, United States, 1984. Since the judge’s duty was sua sponte and, thus, since passive waiver through failure to request the instruction is not relevant, a plain-error analysis has no proper role in this context.
I disagree, however, with that portion of the opinion that proceeds to determine whether “ ‘there is a reasonable possibility’ the judge’s error in failing to instruct ‘might have contributed to the conviction’____” 39 MJ at 233. There is no error at all unless the affirmative defense reasonably was raised by the evidence. Once an appellate court concludes that the evidence does raise a defense, it is ill-positioned to speculate what evidence the factfinders might have believed and what weight the factfinders might have given to conflicting evidence. See United States v. Rankins, 34 MJ 326, 328 (CMA 1992). “When a defense is reasonably raised by some evidence, it must be the subject of instruction if trial is by members, and the trier of fact must be convinced beyond a reasonable doubt that the ‘defense does not exist.’ ” United States v. Williams, 21 MJ 360, 362 (CMA 1986). Accord RCM 916(b), Manual, supra.
Accordingly, in my view, once we decide that some evidence reasonably raised an affirmative defense that was not the subject of instruction by the military judge, we may not insinuate ourselves into the factfinders’ responsibility in such a way that requires us to evaluate the weight of the evidence.* Instead, appellant is entitled to have his evidence weighed by the factfinders in their process of deciding whether he is guilty beyond a reasonable doubt. As I expressed a similar concern in my dissenting opinion in Rankins:
It is for the factfinder at trial — not the military judge as a matter of law and not the Court of Military Review ab initio as a matter of fact — to weigh its credibility against the Government’s evidence to the contrary.
34 MJ at 340. Since the majority’s disposition of this appeal is consistent with these views, I can concur in the result ordered.
The majority cites United States v. Palacios, 37 MJ 366, 368 (CMA 1993), for its harmless-error standard. That case, however, involved erroneous admission of evidence, not failure to instruct on an affirmative defense that reasonably was raised by the evidence. Those are seriously different issues, and the difference in the nature of the errors leads to a difference in the repercussions that flow from them. Accordingly, Palacios does not support the harmless-error test applied in this case.