U.S. v. Diggs, 52 M.J. 251

Core Criminal Law Subjects: Crimes: Article 95 - Resistance, Flight, Breach of Arrest, and Escape Pre-2019 offenses

1. legally sufficient evidence of the element of clear notice of apprehension was presented where extraordinary situation was evidenced, in which criminal liability was suggested by the circumstances and expressly admitted by a senior noncommissioned officer, and personal control or custody was exercised by subordinate noncommissioned officer

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

1. whether noncommissioned officer is on a frolic of revenge when attempting to apprehend suspect is question of fact for finder of fact; a legally sufficient evidentiary basis exists for deciding that apprehending individual was acting as a noncommissioned officer in the execution of his office where: (1) there was evidence of a soldier being caught in the act of committing a crime; (2) there was evidence of restraint by a noncommissioned officer; and (3) there was evidence the noncommissioned officer employed normal apprehension procedures to terminate this potentially explosive situation
2. whether noncommissioned officer divested himself of the protections of office is a question of fact for the members to decide based on the circumstances of the case and under appropriate instructions
3. divestiture case law does not establish a per se rule that once an officer engages in misconduct, he can never assert or regain his status or office; legally sufficient evidence to overcome divestiture existed where noncommissioned officer desisted in his illegal conduct and, thereafter, attempted to resolve the issue within appropriate military channels