The military judge, on motion by the accused or sua sponte , shall enter a finding of not guilty of one or more offenses charged at any time after the evidence on either side is closed but prior to entry of judgment if the evidence is insufficient to sustain a conviction of the offense affected. If a motion for a finding of not guilty at the close of the prosecution’s case is denied, the defense may offer evidence on that offense without having reserved the right to do so.

In a case with members, the military judge may reserve ruling on a motion until any time prior to entry of judgment, including after the members return with findings. See R.C.M. 908 on appeals by the United States when the military judge sets aside a panel’s finding of guilty.

The motion shall specifically indicate wherein the evidence is insufficient.

Before ruling on a motion for a finding of not guilty, whether made by counsel or sua sponte , the military judge shall give each party an opportunity to be heard on the matter.

For a motion made under R.C.M. 917(a), the military judge ordinarily should permit the trial counsel to reopen the case as to the insufficiency specified in the motion before findings on the general issue of guilt are announced. See R.C.M. 1104(b)(1)(B) regarding post-trial motions to set aside a finding of guilty.

A motion for a finding of not guilty shall be granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably tend to establish every essential element of an offense charged. The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation of the credibility of witnesses.

A motion for a finding of not guilty may be granted as to part of a specification and, if appropriate, the corresponding charge, as long as a lesser offense charged is alleged in the portion of the specification as to which the motion is not granted. In such cases, the military judge shall announce that a finding of not guilty has been granted as to specified language in the specification and, if appropriate, corresponding charge. In cases before members, the military judge shall instruct the members accordingly, so that any findings later announced will not be inconsistent with the granting of the motion.

Except as provided in R.C.M. 908(a), a ruling granting a motion for a finding of not guilty is final when announced and may not be reconsidered. Such a ruling is a finding of not guilty of the affected specification, or affected portion thereof, and, when appropriate, of the corresponding charge. A ruling denying a motion for a finding of not guilty may be reconsidered at any time before entry of judgment.

If all the evidence admitted before findings, regardless by whom offered, is sufficient to sustain findings of guilty, the findings need not be set aside upon review solely because the motion for finding of not guilty should have been granted upon the state of the evidence when it was made.