U.S. v. George, 86 M.J. 38

First Principles: Constitutional Matters: Generally

1. both the Fifth and Sixth amendments ensure the right of an accused to receive fair notice of what they are being charged with

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Offenses on/after 1 Jan 2019

1. although appellant contends that the charged attempted sexual assault specification (an attempted sexual assault of a female airman by penetrating her mouth with his penis without her consent) pleaded the complete offense as the overt act, it is implausible to think that the government would have charged an attempt in lieu of the completed offense if the attempt required them to prove the completed offense; in any event, it appears that both parties at trial reasonably understood that the challenged language did not describe an expressly alleged overt act but instead served to provide proper notice of the predicate offense; the government argued that that there were two overt acts – the act of holding the victim's head down toward appellant's lap and the act of undoing his pants prior to holding the victim's head down toward his crotch; the defense argued that those acts did not occur; at trial, defense counsel did not move for a bill of particulars, made no objection based on a lack of notice as to what to defend against, and did not object to the military judge's instructions to the members regarding the specification; all of this indicates that the parties at trial understood that the challenged language did not describe an expressly alleged overt act, but instead served to provide proper notice of the predicate offense; while the specification could have been drafted more clearly, it was not so poorly drafted that there was no conceivable interpretation that rendered the charge invalid, nor does it appear any of the parties viewed it as invalid at the trial; accordingly, there was no error, plain or otherwise
2. in this case, appellant conviction for attempted sexual assault of a female airman by penetrating her mouth with his penis without her consent was legally sufficient where the evidence established both that appellant undid his pants and forced the victim's head down toward his lap, and either of these actions, when viewed in a light most favorable to the prosecution, provided the overt act necessary to prove the charge of attempted sexual assault

Trial Stages: Pretrial: Charges and Specifications

1. a specification is sufficient if it fairly informs an accused of the offense he must defend against and enables the accused to plead an acquittal or conviction in bar of future prosecutions for the same offense
2. a specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication
3. both the Fifth and Sixth amendments ensure the right of an accused to receive fair notice of what they are being charged with
4. where there was no objection to the wording of the specification and no claim of a lack of notice at trial, an appellate court will adopt the reading of the charge and specification that it appears the parties at trial adopted if that interpretation is reasonable

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there was no objection to a specification at trial, the scope of appellate review is limited to whether there was plain error; under plain error review, appellant 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 appellant; an error is plain when it is obvious or clear under current law
2. although appellant contends that the charged attempted sexual assault specification (an attempted sexual assault of a female airman by penetrating her mouth with his penis without her consent) pleaded the complete offense as the overt act, it is implausible to think that the government would have charged an attempt in lieu of the completed offense if the attempt required them to prove the completed offense; in any event, it appears that both parties at trial reasonably understood that the challenged language did not describe an expressly alleged overt act but instead served to provide proper notice of the predicate offense; the government argued that that there were two overt acts – the act of holding the victim's head down toward appellant's lap and the act of undoing his pants prior to holding the victim's head down toward his crotch; the defense argued that those acts did not occur; at trial, defense counsel did not move for a bill of particulars, made no objection based on a lack of notice as to what to defend against, and did not object to the military judge's instructions to the members regarding the specification; all of this indicates that the parties at trial understood that the challenged language did not describe an expressly alleged overt act, but instead served to provide proper notice of the predicate offense; while the specification could have been drafted more clearly, it was not so poorly drafted that there was no conceivable interpretation that rendered the charge invalid, nor does it appear any of the parties viewed it as invalid at the trial; accordingly, there was no error, plain or otherwise

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

1. an appellate court reviews issues of legal sufficiency de novo; the test for legal sufficiency is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution; thus, the standard for legal sufficiency involves a very low threshold to sustain a conviction
2. where there was no objection to a specification at trial, the scope of appellate review is limited to whether there was plain error; under plain error review, appellant 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 appellant; an error is plain when it is obvious or clear under current law
3. where there was no objection to the wording of the specification and no claim of a lack of notice at trial, an appellate court will adopt the reading of the charge and specification that it appears the parties at trial adopted if that interpretation is reasonable