U.S. v. Schmidt, 82 M.J. 68

Core Criminal Law Subjects: Crimes: Article 120b - Rape and Sexual Assault of a Child Offenses on/after 1 Jan 2019 › (c) Sexual Abuse of a Child

1. in this case involving the offense of sexual abuse of a child by indecent conduct charged under Article 120b, UCMJ, when the members sent a question to the military judge during deliberations wanting to know the meaning of the phrase “in the presence of” a child, as used to define the term “lewd act” for purposes of the offense (Article 120b(h)(5)(D), UCMJ), the military judge told the members to rely on their common sense to define the phrase, and the trial defense counsel had no objection; despite this failure to object, appellant did not waive the opportunity to object on appeal to the military judge’s instruction because at the time of appellant's trial, it was unsettled whether the phrase “in the presence of” required the child to be aware of the lewd act where the statute did not define the phrase and there was no case law interpreting it

Trial Stages: Merits: Instructions › Generally

1. in this case involving the offense of sexual abuse of a child by indecent conduct charged under Article 120b, UCMJ, when the members sent a question to the military judge during deliberations wanting to know the meaning of the phrase “in the presence of” a child, as used to define the term “lewd act” for purposes of the offense (Article 120b(h)(5)(D), UCMJ), the military judge told the members to rely on their common sense to define the phrase, and the trial defense counsel had no objection; despite this failure to object, appellant did not waive the opportunity to object on appeal to the military judge’s instruction because at the time of appellant's trial, it was unsettled whether the phrase “in the presence of” required the child to be aware of the lewd act where the statute did not define the phrase and there was no case law interpreting it

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

1. whether an appellant has waived an issue is a legal question that an appellate court reviews de novo
2. while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal

Trial Stages: Appeals: Waiver

1. whether an appellant has waived an issue is a legal question that an appellate court reviews de novo
2. waiver is the intentional relinquishment or abandonment of a known right
3. while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal
4. in this case involving the offense of sexual abuse of a child by indecent conduct charged under Article 120b, UCMJ, when the members sent a question to the military judge during deliberations wanting to know the meaning of the phrase “in the presence of” a child, as used to define the term “lewd act” for purposes of the offense (Article 120b(h)(5)(D), UCMJ), the military judge told the members to rely on their common sense to define the phrase, and the trial defense counsel had no objection; despite this failure to object, appellant did not waive the opportunity to object on appeal to the military judge’s instruction because at the time of appellant's trial, it was unsettled whether the phrase “in the presence of” required the child to be aware of the lewd act where the statute did not define the phrase and there was no case law interpreting it