U.S. v. Payne, 73 M.J. 19

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. both Article 51(c) UCMJ, and RCM 920(e)(1), require a military judge to instruct the members on the elements of each offense charged

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. there are four elements of attempt: (1) that the accused did a certain overt act; (2) that the act was done with the specific intent to commit a certain offense under the code; (3) that the act amounted to more than mere preparation; and (4) that the act apparently tended to effect the commission of the intended offense
2. specification alleging that the accused knowingly attempted to persuade, induce, entice, or coerce someone he believed was a female 14 years of age, who was, in fact, an undercover police detective, to create child pornography by requesting that she send nude photos of herself to him, which conduct was prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces, alleged all of the elements of attempt and it provided the accused with notice that he was charged with an attempt to commit an Article 134, UCMJ, offense
3. the military judge’s instruction on the offense of attempted persuasion of a minor to create child pornography, in violation of the general article, Article 134, UCMJ, adequately covered the first two elements of attempt, but failed to cover the third element which requires that the overt act taken amount to more than mere preparation – that is, that the accused take a substantial step toward commission of the crime; although the military judge did instruct the members that they needed to find that the accused’s statements constituted a serious request that the offense be committed, this instruction was not the equivalent of an instruction that an accused must have taken a substantial step toward the commission of the substantive offense; the serious request instruction focused the members upon the accused’s mental state at the time of the act in question, not on the extent to which the accused actually acted in furtherance of his attempted crime
4. where a military judge’s instructions did not include the third element of attempt, the error is plain and obvious
5. a military judge’s failure to instruct on the fourth element of attempt constitutes plain and obvious error

Core Criminal Law Subjects: Crimes: Article 134 -- Child Pornography (para 68b, MCM, *** Post-2012 Amendment) Pre-2019 offenses

1. the military judge properly instructed the members as to what constituted child pornography by defining that term and then providing proper definitions of sexually explicit conduct and lascivious exhibition

Core Criminal Law Subjects: Evidence: Generally

1. with respect to the adequacy of evidentiary objections, the law does not require the moving party to present every argument in support of an objection, but does require argument sufficient to make the military judge aware of the specific ground for objection if the specific ground was not apparent from the context

Core Criminal Law Subjects: Evidence: Waiver

1. with respect to the adequacy of evidentiary objections, the law does not require the moving party to present every argument in support of an objection, but does require argument sufficient to make the military judge aware of the specific ground for objection if the specific ground was not apparent from the context

Trial Stages: Merits: Instructions › Generally

1. RCM 920(f) states that failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes waiver of the objection in the absence of plain error
2. the same level of specificity that is required for evidentiary objections is required for objections to instructions; a party must state distinctly the matter to which that party objects and the grounds of the objection
3. a generalized objection to an instruction is insufficient to preserve a specific objection on appeal
4. appellant’s general objection at trial to the military judge’s instructions on the elements of the offenses failed to preserve any instructional error and waived any instructional issue in the absence of plain error; defense counsel did not identify which specification or specifications he was referring to or which elements he felt the military judge should have instructed on because he did not want to assist the military judge in correcting any alleged instructional error at trial
5. an element cannot be considered to be properly instructed upon simply because legally sufficient evidence had previously been admitted at trial
6. the failure to instruct on an element does not constitute structural error and can be tested for harmlessness, overruling US v. Mance, 26 MJ 244 (CMA 1988)
7. words generally known and in universal use do not need judicial definition; the word “create” is such a word
8. the military judge properly instructed the members as to what constituted child pornography by defining that term and then providing proper definitions of sexually explicit conduct and lascivious exhibition

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the failure to instruct on an element does not constitute structural error and can be tested for harmlessness, overruling US v. Mance, 26 MJ 244 (CMA 1988)
2. the omission of instructions on the third and fourth elements of attempt did not materially prejudice appellant’s substantial rights, where appellant did not contest those elements at trial as he relied primarily upon the defense of entrapment; furthermore, the evidence on those elements was overwhelming

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there is no objection to an instruction at trial, an appellate court reviews for plain error
2. a generalized objection to an instruction is insufficient to preserve a specific objection on appeal
3. appellant’s general objection at trial to the military judge’s instructions on the elements of the offenses failed to preserve any instructional error and waived any instructional issue in the absence of plain error
4. under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
5. where a military judge’s instructions did not include the third element of attempt, the error is plain and obvious
6. a military judge’s failure to instruct on the fourth element of attempt constitutes plain and obvious error

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

1. the question of whether the members were properly instructed is a question of law and thus review by an appellate court is de novo
2. where there is no objection to an instruction at trial, an appellate court reviews for plain error
3. under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused
4. the failure to instruct on an element does not constitute structural error and can be tested for harmlessness, overruling US v. Mance, 26 MJ 244 (CMA 1988)