2006
United
States v. Bean, 62 M.J. 264 (engaging the safety of a loaded,
operable
firearm while pointing it at another, as a matter of law, does not
remove its
character as a dangerous weapon).
United
States v. Rivera, 54 MJ 489 (testing for legal
sufficiency
of the evidence, and in the context of this case, the members could
have
properly rejected the parental discipline defense and concluded that
one
closed-fist punch to the stomach can cause substantial risk of serious
bodily
injury; the burden of establishing substantial risk can be met without
manifestation of actual harm).
United
States v. Szentmiklosi, 55 MJ 487 (the forcible
taking of
property belonging to one entity from the person or presence of
multiple
individuals jointly or constructively possessing the property on behalf
of the
entity is one offense chargeable under Article 122, UCMJ; however,
liability
for the lesser-included offense of intentional infliction of grievous
bodily
harm in violation of Article 128, UCMJ, may lie if the violence
committed
against one or more of the victims is gratuitous and distinct from the
violence
necessary to effect the robbery).
United
States v. Marbury, 56 MJ 12 (assault with a
dangerous
weapon does not require that the prosecution prove that the person
assaulted
suffered bodily harm; the critical question is whether appellant’s
threatening
conduct with the weapon created in the mind of the victim a reasonable
apprehension of receiving immediate bodily harm, not whether it caused
the
injuries).
(a claim that the victim’s injury was an accident did not raise a
viable
defense to an offer-type assault with a dangerous weapon where the
question is
whether appellant’s threatening conduct with the weapon created in the
mind of
the victim a reasonable apprehension of receiving immediate bodily
harm, not
whether it caused the injuries).
(where appellant testified that she clearly brandished her knife in
the
victim’s face in an effort to scare him into leaving her room, and then
he
jumped her, the Court of Criminal Appeals and the members could draw an
inference that a reasonable apprehension of bodily harm was created in
the
victim by appellant’s conduct).
2000
United
States v. Diggs, 52 MJ 251 (whether
noncommissioned
officer is on a frolic of revenge when attempting to apprehend suspect
is
question of fact for finder of fact; a legally sufficient evidentiary
basis
exists for deciding that apprehending individual was acting as a
noncommissioned officer in the execution of his office where: (1)
there
was evidence of a soldier being caught in the act of committing a
crime; (2)
there was evidence of restraint by a noncommissioned officer; and (3)
there was
evidence the noncommissioned officer employed normal apprehension
procedures to
terminate this potentially explosive situation).
(whether noncommissioned officer divested himself of the protections
of
office is a question of fact for the members to decide based on the
circumstances of the case and under appropriate instructions).
(divestiture case law does not establish a per se rule that
once an
officer engages in misconduct, he can never assert or regain his status
or
office; legally sufficient evidence to overcome divestiture existed
where
noncommissioned officer desisted in his illegal conduct and,
thereafter,
attempted to resolve the issue within appropriate military channels).
United
States v. Johnson, 54 MJ 67 (while backrubs may,
under
some circumstances, constitute offensive touching and thus be an
assault
consummated by a battery under Article 128, UCMJ, the evidence in this
case was
legally insufficient to sustain a finding of guilty: (1) there
was no
indication that the alleged victim was unable to protest appellant’s
actions;
(2) the alleged victim felt comfortable enough to simply shrug
appellant off;
(3) the alleged victim provided no testimony that any of the various
touchings
that marked her relationship with appellant were offensive; (4) the
only
difficulty the alleged victim had with the backrubs was related to
appellant’s
poor judgment in giving the backrubs openly and notoriously in the work
environment; (5) although appellant’s conduct may have violated other
social or
military norms, his bad judgement did not support a criminal conviction
for
assault consummated by a battery; and (6) the alleged victim did not
report any
of appellant’s conduct until she heard about a separate charge against
appellant).
1999
United
States v. Mayo, 50 MJ 473 (the intentional throwing of a
19-month-old child into a pile of clothes on the floor, with sufficient
force
and from a sufficient height to fracture the child’s femur, is an act
that a
reasonable factfinder could determine was culpably negligent; the
intentional
act of throwing the child, combined with the resulting injury,
completes the
battery and provides legally sufficient evidence to support conviction
for
assault consummated by a battery on a child under 16 years).