2010 (September Term)
(whether an accused is guilty
of escape from
custody or escape from confinement under Article 95, UCMJ, logically
depends
upon the accused’s status at the time of the escape; in this case,
appellant
had been lawfully ordered into confinement by his company commander and
physical restraint had been imposed, but he had not been placed in a
confinement facility prior to his escape; confinement, however, is not
effected
by an order to confinement and the imposition of some restraint, but is
effected by the actual imposition of confinement; confinement must be
actually
imposed to initiate confinement status; once an accused is placed in a
confinement status, he is in that status until released by an
authorized
person; if an accused escapes while in a confinement status, even if he
is
being escorted outside of a confinement facility, he has escaped from
confinement; in this case, where appellant was neither within a
confinement
facility nor under guard or escort after having been placed in a
confinement
facility, he was not in a confinement status at the time of his escape,
but
rather in custody, and his guilty plea to escape from confinement was
not
provident).
2008 (September
Term)
United
States v. Marshall, 67 M.J. 418 (the military
judge’s findings created a fatal
variance where appellant pled not guilty to escaping from the custody
of one
individual but was convicted, by exceptions and substitutions, of
escaping from
the custody of another individual).
(the elements of escape from
custody under
Article 95, UCMJ, are as follows: (a) that a certain person apprehended
the
accused; (b) that said person was authorized to apprehend the accused;
and (c)
that the accused freed himself or herself from custody before being
released by
proper authority).
(in an escape from custody
charge, a variance
substituting the identity of the custodian from whom appellant was
alleged to
have escaped was material; although the nature of the offense remained
the same
- escape from custody - by substituting the charged custodian with
another, the
military judge changed the identity of the offense against which the
accused
had to defend, and this denied him the opportunity to defend against
the
charge).
(in an escape from custody
charge, a material
variance in the custodian from whom appellant was alleged to have
escaped was
prejudicial where appellant could not have anticipated being forced to
defend
against the charge of which he was ultimately convicted; had appellant
known
that he would be called upon to refute an agency theory or to defend
against a
charge that he escaped from a different individual than the one
charged,
appellant was unlikely to have focused his defense and his closing
argument on
the lack of evidence that charged individual placed him in custody or
that he
escaped from the custody of the charged individual).
United
States v. Miller, 67 M.J. 385 (a simple
disorder under Article 134, UCMJ, is
not a lesser included offense of resisting apprehension under Article
95, UCMJ,
because Article 134, UCMJ, has an element not present in Article 95,
UCMJ;
clauses 1 and 2 of Article 134, UCMJ, include the element that, in
addition to
doing or failing to do a certain act, “under the circumstances, the
accused’s
conduct was to the prejudice of good order and discipline or was of a
nature to
bring discredit upon the armed forces” - an element not contained in
the
textual exposition of Article 95, UCMJ).
United
States v. Diggs, 52 MJ 251 (legally sufficient
evidence of the
element of clear notice of apprehension was presented where
extraordinary
situation was evidenced, in which criminal liability was suggested by
the
circumstances and expressly admitted by a senior noncommissioned
officer, and
personal control or custody was exercised by subordinate
noncommissioned
officer).
1999