U.S. v. Griffin, 50 M.J. 480

Military Justice Personnel: Military Judge: Instructions

1. the military judge has duty to instruct sua sponte on all lesser-included offenses reasonably raised by the evidence; the lesser-included offense instruction is proper where the greater offense in issue requires the members to find a disputed factual element which is not required for conviction of the lesser-included offense
2. where appellant used a knife during an altercation, but contended that he did not intend to stab or harm his victim, no instruction on the lesser-included offense of assault consummated by a battery was required where there was no factual dispute that appellant used a dangerous weapon in his assault upon the victim; there was no disputed factual element which was not required for conviction of the lesser-included offense

Core Criminal Law Subjects: Crimes: Article 128 - Assault Pre-2019 offenses

1. assault with a dangerous weapon requires a general intent to assault the victim, and the mere use of a weapon in the course of an assault satisfies the weapon element of the offense, regardless whether the assailant intended to use the weapon to effect the assault

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Multiplicity

1. the military judge has duty to instruct sua sponte on all lesser-included offenses reasonably raised by the evidence; the lesser-included offense instruction is proper where the greater offense in issue requires the members to find a disputed factual element which is not required for conviction of the lesser-included offense
2. where appellant used a knife during an altercation, but contended that he did not intend to stab or harm his victim, no instruction on the lesser-included offense of assault consummated by a battery was required where there was no factual dispute that appellant used a dangerous weapon in his assault upon the victim; there was no disputed factual element which was not required for conviction of the lesser-included offense