U.S. v. Rauscher, 71 M.J. 225

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

1. the elements of the offense of assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm, under Article 128, UCMJ, are: (1) that the accused attempted to do, offered to do, or did bodily harm to a certain person; (2) that the accused did so with a certain weapon, means, or force; (3) that the attempt, offer, or bodily harm was done with unlawful force or violence; and (4) that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm
2. even assuming that the charged specification alleging an assault with intent to commit murder under Article 134, UCMJ, was defective for failing to allege the terminal element of conduct prejudicial to good order and discipline or service discrediting conduct, the specification clearly alleged every element of the lesser included offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, where the specification alleged (1) that appellant did bodily harm to the victim by stabbing him in the hand and chest, (2) that he did so with a knife, (3) that the bodily harm was done with unlawful force or violence, without authorization or justification, and (4) that the weapon was used in a manner likely to produce death or grievous bodily harm - stabbing the victim in the chest; the specification clearly placed appellant on notice of that against which he had to defend, and the government’s theory of the case from beginning to end was that appellant stabbed the victim with a knife in the hand and chest; appellant defended against this theory throughout the trial; appellant proposed instructions for the Article 128 offense and did not object to the instructions given by the military judge; in closing, defense counsel even asked the panel to closely look at Article 128 because that was much more aligned with what happened; through these actions, appellant demonstrated that he was on notice, and his substantial right to be tried only on charges presented in a specification was not violated

Trial Stages: Pretrial: Charges and Specifications

1. a fundamental purpose of a specification is to provide notice to an accused as to the matters against which he must defend
2. even assuming that the charged specification alleging an assault with intent to commit murder under Article 134, UCMJ, was defective for failing to allege the terminal element of conduct prejudicial to good order and discipline or service discrediting conduct, the specification clearly alleged every element of the lesser included offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, where the specification alleged (1) that appellant did bodily harm to the victim by stabbing him in the hand and chest, (2) that he did so with a knife, (3) that the bodily harm was done with unlawful force or violence, without authorization or justification, and (4) that the weapon was used in a manner likely to produce death or grievous bodily harm - stabbing the victim in the chest; the specification clearly placed appellant on notice of that against which he had to defend, and the government’s theory of the case from beginning to end was that appellant stabbed the victim with a knife in the hand and chest; appellant defended against this theory throughout the trial; appellant proposed instructions for the Article 128 offense and did not object to the instructions given by the military judge; in closing, defense counsel even asked the panel to closely look at Article 128 because that was much more aligned with what happened; through these actions, appellant demonstrated that he was on notice, and his substantial right to be tried only on charges presented in a specification was not violated
3. in order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial; he may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute

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

1. whether a specification states an offense is a question of law that an appellate court reviews de novo