U.S. v. Upham, 66 M.J. 83

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence

Trial Stages: Merits: Instructions › Lesser-included offenses

1. a military judge has a sua sponte duty to instruct the members on lesser included offenses reasonably raised by the evidence
2. an accused may seek to waive an instruction on lesser included offenses and present an all or nothing defense as a matter of trial tactics; no rule prevents the government from acquiescing in such a defense strategy

Trial Stages: Appeals: Generally

1. an appellate court may disapprove a finding because proof of an essential element is lacking or, as a result of instructional errors concerning lesser included offenses, may substitute a lesser included offense for the disapproved findings; this is true even if the lesser included offense was neither considered nor instructed upon at the trial of the case

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. a court of criminal appeals may approve a conviction for a lesser included offense even though both parties waived an instruction on the lesser offense and the military judge did not instruct the members on the lesser offense, where evidence was presented and evaluated on the greater offense

Trial Stages: Appeals: Harmless / Prejudicial Error

1. Article 59(a), UCMJ, states that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; an appellate court applies the Supreme Court’s structural error analysis, requiring mandatory reversal, when the error affects the framework within which the trial proceeds, rather than simply an error in the trial process itself
2. an instructional error as to the elements of an offense should be tested for harmlessness, and should not be treated as a structural error; harmless error analysis can be applied not only to omitted instructions, but also to instructions that are defective because they incorrectly describe elements or presume elements
3. when an erroneous instruction raises constitutional error, an appellate court assesses two factors: whether the matter was contested, and whether the element at issue was established by overwhelming evidence; where an appellate court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless
4. an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was not so intrinsically harmful as to require automatic reversal of appellant’s conviction on the lesser included offense of assault consummated by battery; as such, the erroneous instruction was subject to a harmlessness test
5. an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was harmless, and thus did not preclude affirming appellant’s conviction on the lesser included offense of assault consummated by battery, where appellant did not contest the element of offensive touching at trial, but acknowledged that he had no justification for engaging in unprotected sex with the victim without informing her of his HIV status, and that his actions caused her great mental anguish

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

1. Article 59(a), UCMJ, states that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; an appellate court applies the Supreme Court’s structural error analysis, requiring mandatory reversal, when the error affects the framework within which the trial proceeds, rather than simply an error in the trial process itself
2. an instructional error as to the elements of an offense should be tested for harmlessness, and should not be treated as a structural error; harmless error analysis can be applied not only to omitted instructions, but also to instructions that are defective because they incorrectly describe elements or presume elements
3. when an erroneous instruction raises constitutional error, an appellate court assesses two factors: whether the matter was contested, and whether the element at issue was established by overwhelming evidence; where an appellate court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless
4. an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was not so intrinsically harmful as to require automatic reversal of appellant’s conviction on the lesser included offense of assault consummated by battery; as such, the erroneous instruction was subject to a harmlessness test
5. an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was harmless, and thus did not preclude affirming appellant’s conviction on the lesser included offense of assault consummated by battery, where appellant did not contest the element of offensive touching at trial, but acknowledged that he had no justification for engaging in unprotected sex with the victim without informing her of his HIV status, and that his actions caused her great mental anguish