U.S. v. Bean, 62 M.J. 264

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

1. engaging the safety of a loaded, operable firearm while pointing it at another, as a matter of law, does not remove its character as a dangerous weapon

Trial Stages: Merits: Instructions › Lesser-included offenses

1. a military judge has a duty to instruct sua sponte on all lesser-included offenses reasonably raised by the evidence; an accused is entitled to have a court-martial consider all reasonable alternatives to guilt; toward this end, as long as an accused can show some evidence that reasonably raises the applicability of a lesser-included offense, the military judge must instruct the panel on that lesser-included offense; evidence reasonably raises a lesser-included offense if it could cause members to attach credit or rely upon it if they so choose; finally, any doubt whether the evidence is sufficient to raise the need to instruct on a lesser-included offense must be resolved in favor of the accused
2. where the evidence showed that an intoxicated accused pointed a loaded firearm at others, having first threatened the others verbally and with a knife, and having assumed a firing position, the lesser-included offense of simple assault was not reasonably raised, whether the firearm’s safety was engaged or not

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews allegations of error involving mandatory instructions de novo