U.S. v. Marbury, 56 M.J. 12

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

1. assault with a dangerous weapon does not require that the prosecution prove that the person assaulted suffered bodily harm; the critical question is whether appellant’s threatening conduct with the weapon created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm, not whether it caused the injuries
2. a claim that the victim’s injury was an accident did not raise a viable defense to an offer-type assault with a dangerous weapon where the question is whether appellant’s threatening conduct with the weapon created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm, not whether it caused the injuries
3. where appellant testified that she clearly brandished her knife in the victim’s face in an effort to scare him into leaving her room, and then he jumped her, the Court of Criminal Appeals and the members could draw an inference that a reasonable apprehension of bodily harm was created in the victim by appellant’s conduct

Core Criminal Law Subjects: Defenses: Accident

1. a claim that the victim’s injury was an accident did not raise a viable defense to an offer-type assault with a dangerous weapon where the question is whether appellant’s threatening conduct with the weapon created in the mind of the victim a reasonable apprehension of receiving immediate bodily harm, not whether it caused the injuries

Core Criminal Law Subjects: Defenses: Defense of Property

1. a servicemember has a legal right to eject a trespasser from his or her military bedroom and a legal right to protect his or her personal property; these rights are, however, not unlimited, and they must be exercised reasonably, meaning that reasonable force must be used
2. where the record showed that appellant could, but did not, call the military police to have the victim removed from her military quarters or arrested, this was some evidence from which the Court of Criminal Appeals and the members could find beyond a reasonable doubt that appellant’s immediate return to her military bedroom brandishing a knife for the purpose of ejecting her assailant was excessive or unreasonable force, hence unlawful conduct