U.S. v. Armstrong, 77 M.J. 465

First Principles: Constitutional Matters: Right to Present a Defense

1. to prepare a defense, the accused must have notice of what the government is required to prove for a finding of guilty; the charge sheet provides the accused notice that he or she will have to defend against any charged offense and specification

Military Justice Personnel: Military Judge: Instructions

1. it is error for the military judge to instruct the members that they may find the accused guilty of an offense that is not necessarily included of the offense charged

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

1. Article 79, UCMJ, authorizes a court-martial to find the accused guilty of an offense necessarily included in the offense charged; the theory of Article 79, UCMJ, is that the accused will have notice of an offense necessarily included in the charged offense because the elements of the lesser offense are a subset of the elements of the greater offense alleged, thereby putting the accused on notice to be prepared to defend against the lesser offense in addition to the offense specifically charged; no article of the UCMJ, however, currently authorizes a court-martial to find the accused guilty of an offense that is not necessarily included in a charged offense
2. when the Military Justice Act of 2016 becomes effective, a court-martial will be authorized to find an accused guilty not only of an offense that is necessarily included in the offense charged but also any lesser included offense so designated by regulation prescribed by the President
3. it is error for the military judge to instruct the members that they may find the accused guilty of an offense that is not necessarily included of the offense charged
4. the elements test determines whether an offense is necessarily included in the offense charged under Article 79, UCMJ; the elements test is applied in two ways; the first way is by comparing the statutory definitions of the two offenses; an offense is a lesser included offense of the charged offense if each of its elements is necessarily also an element of the charged offense; the second way is by examining the specification of the charged offense; an offense can also be a lesser included offense of the charged offense if the specification of the charged offense is drafted in such a manner that it alleges facts that necessarily satisfy all the elements of each offense; if the elements test is satisfied in either way, the accused will have the notice necessary to prepare a defense
5. the elements test does not require the elements of the lesser and greater offense to be defined with identical statutory language

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Pre-2019 offenses › (d) Abusive Sexual Contact

1. any person subject to the UCMJ who commits or causes sexual contact upon or by another person, if to do so would constitute sexual assault had the sexual contact been a sexual act, is guilty of abusive sexual contact under Article 120(d), UCMJ; understanding this provision requires reference to definitions in four other sections of Article 120, UCMJ, to include (1) section (b)(1)(B) which defines the offense of sexual assault to include committing a sexual act upon another person by causing bodily harm to that other person, (2) section (g)(1)(A)–(B) which defines a sexual act to include contact between the penis and the vulva or anus or mouth or penetration, however slight, of the vulva or anus or mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person, (3) section (g)(2)(A)–(B) which defines sexual contact to include touching either directly or through the clothing, the genitalia with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person, and (4) section (g)(3) which defines bodily harm to mean any offensive touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact
2. at issue here is abusive sexual contact involving the touching of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person by causing bodily harm; the President has determined that this offense has three elements: (i) that the accused committed sexual contact upon another person by touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, (ii) that the accused did so by causing bodily harm to that other person, and (iii) that the accused did so with intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person
3. in this case, assault consummated by a battery was not a lesser included offense of abusive sexual contact by causing bodily harm where the elements of the former offense were not necessarily included in the latter offense and the specification at issue did not allege facts sufficient to state all of the elements of both offenses; assault consummated by a battery requires bodily harm that was done with unlawful force or violence while abusive sexual contact by bodily harm does not

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

1. any person subject to the UCMJ who attempts or offers with unlawful force to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault under Article 128, UCMJ; and the President has identified the two elements of the offense of assault consummated by a battery as follows: (a) that the accused did bodily harm to a certain person, and (b) that the bodily harm was done with unlawful force or violence
2. in this case, assault consummated by a battery was not a lesser included offense of abusive sexual contact by causing bodily harm where the elements of the former offense were not necessarily included in the latter offense and the specification at issue did not allege facts sufficient to state all of the elements of both offenses; assault consummated by a battery requires bodily harm that was done with unlawful force or violence while abusive sexual contact by bodily harm does not

Core Criminal Law Subjects: Defenses: Generally

1. to prepare a defense, the accused must have notice of what the government is required to prove for a finding of guilty; the charge sheet provides the accused notice that he or she will have to defend against any charged offense and specification

Trial Stages: Pretrial: Charges and Specifications

1. to prepare a defense, the accused must have notice of what the government is required to prove for a finding of guilty; the charge sheet provides the accused notice that he or she will have to defend against any charged offense and specification

Trial Stages: Merits: Instructions › Lesser-included offenses

1. it is error for the military judge to instruct the members that they may find the accused guilty of an offense that is not necessarily included of the offense charged
2. in cases involving incorrect instructions regarding lesser included offenses, prejudice can be caused by not having notice as to the offense that must be defended against

Trial Stages: Appeals: Harmless / Prejudicial Error

1. in cases involving incorrect instructions regarding lesser included offenses, prejudice can be caused by not having notice as to the offense that must be defended against
2. in this case, although it was a clear or obvious error for the military judge to have instructed the members that assault consummated by a battery was a lesser included offense of abusive sexual contact, appellant was not materially prejudiced where the record shows that appellant requested instructions before the presentation of evidence regarding defenses to assault consummated by a battery, and one of these instructions concerned unlawful touching, thus addressing the requirement of unlawful force; therefore, appellant had notice of how he needed to defend himself at the start of the case, and he suffered no material prejudice resulting from the error where he did not object to the lesser included offense instruction

Trial Stages: Appeals: Preservation of Error / Plain Error

1. while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge
2. where trial defense counsel, in response to the military judge’s inquiry as to whether assault consummated by a battery was a lesser included offense of abusive sexual contact, failed to make known both the defense’s position and the basis for it, appellant did not preserve the issue, the issue was forfeited, and the issue is reviewed for plain error
3. in cases of forfeiture, an appellate court reviews for plain error
4. under plain error review, the appellant has the burden of demonstrating (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; under this standard, even if there was an error, no relief is warranted unless the appellant can show the second and third requirements

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

1. in cases of forfeiture, an appellate court reviews for plain error
2. under plain error review, the appellant has the burden of demonstrating (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; under this standard, even if there was an error, no relief is warranted unless the appellant can show the second and third requirements