U.S. v. Parker, 59 M.J. 195

Core Criminal Law Subjects: Motions, Generally: Merits

1. under RCM 917(a), the military judge shall enter a finding of not guilty if the evidence is insufficient to sustain a conviction of the offense affected; RCM 917(d) states that a motion for a finding of not guilty shall be granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged; the evidence shall be viewed in the light most favorable to the prosecution without an evaluation of the credibility of witnesses

Trial Stages: Pretrial: Charges and Specifications

1. minor changes to charges and specifications after arraignment are permitted prior to the announcement of findings, but major changes may not be made over the objection of the accused
2. charges and specifications may be modified during deliberations on findings; the panel, or the military judge in a bench trial, may modify the charges and specifications under the authority to make exceptions and substitutions; this power may be used to conform the findings to the evidence, but it may not be used to substantially change the nature of the offense
3. changing the date or place of the offense may, but does not necessarily, change the nature or identity of the offense

Trial Stages: Merits: Motions

1. under RCM 917(a), the military judge shall enter a finding of not guilty if the evidence is insufficient to sustain a conviction of the offense affected; RCM 917(d) states that a motion for a finding of not guilty shall be granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged; the evidence shall be viewed in the light most favorable to the prosecution without an evaluation of the credibility of witnesses
2. where the Government introduced no evidence of sexual interaction during the charged period, and where proof of improper sexual activity outside of the charged period, without more, did not demonstrate directly or by reasonable inference that appellant engaged in sexual activity with the alleged victim during the charged period, the evidence introduced by the prosecution at the close of the Government’s case was legally insufficient under RCM 917 to prove that appellant raped the alleged victim in the charged period or that he engaged in adultery with her during that period; the military judge erred by not granting the motion to dismiss those specifications