U.S. v. Oliver, 76 M.J. 271

First Principles: Constitutional Matters: Generally

1. while there is a presumption against the waiver of constitutional rights, an appellant may waive the right to raise such issue on appeal provided it is clearly established that there was an intentional relinquishment or abandonment of a known right
2. an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice

First Principles: Constitutional Matters: Due Process

1. the rights at issue when determining whether one offense is a lesser included offense of another are constitutional in nature, as the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted
2. an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice

Core Criminal Law Subjects: Crimes: Article 79 - Conviction of Lesser Included Offenses Pre-2019 offenses

1. the rights at issue when determining whether one offense is a lesser included offense of another are constitutional in nature, as the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted

Trial Stages: Pretrial: Charges and Specifications

1. an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice

Trial Stages: Appeals: Preservation of Error / Plain Error

1. typically, a trial defense counsel’s affirmative assertion at a court‑martial that he had no objection to the military judge considering a lesser included offense to a charged offense would constitute waiver of the issue as to whether the offense was in fact a lesser included one; however, in this case, given the seemingly unsettled nature of the law at the time of his court-martial and its clear resolution in his favor at the time of his appeal, forfeiture rather than waiver applied
2. when an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews for plain error
3. under the plain error standard of review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; failure to establish any one of the prongs is fatal to a plain error claim
4. in this case, where the military judge committed plain or obvious error in considering wrongful sexual contact as a lesser included offense of the charged offense of abusive sexual contact, appellant was not prejudiced and the error did not rise to the level of plain error where appellant was on notice as to what conduct he was charged with and where his theory throughout the court-martial was that his alleged victim had consented to the sexual activity

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

1. when an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews for plain error
2. under the plain error standard of review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; failure to establish any one of the prongs is fatal to a plain error claim
3. an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice

Trial Stages: Appeals: Waiver

1. while there is a presumption against the waiver of constitutional rights, an appellant may waive the right to raise such issue on appeal provided it is clearly established that there was an intentional relinquishment or abandonment of a known right
2. typically, a trial defense counsel’s affirmative assertion at a court‑martial that he had no objection to the military judge considering a lesser included offense to a charged offense would constitute waiver of the issue as to whether the offense was in fact a lesser included one; however, in this case, given the seemingly unsettled nature of the law at the time of his court-martial and its clear resolution in his favor at the time of his appeal, forfeiture rather than waiver applied

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. the rights at issue when determining whether one offense is a lesser included offense of another are constitutional in nature, as the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted
2. typically, a trial defense counsel’s affirmative assertion at a court‑martial that he had no objection to the military judge considering a lesser included offense to a charged offense would constitute waiver of the issue as to whether the offense was in fact a lesser included one; however, in this case, given the seemingly unsettled nature of the law at the time of his court-martial and its clear resolution in his favor at the time of his appeal, forfeiture rather than waiver applied