2011 (September Term)
United States v. Rauscher, 71 M.J. 225 (the elements of the offense of assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm, under Article 128, UCMJ, are: (1) that the accused attempted to do, offered to do, or did bodily harm to a certain person; (2) that the accused did so with a certain weapon, means, or force; (3) that the attempt, offer, or bodily harm was done with unlawful force or violence; and (4) that the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm).
(even assuming that the charged specification alleging an assault with intent to commit murder under Article 134, UCMJ, was defective for failing to allege the terminal element of conduct prejudicial to good order and discipline or service discrediting conduct, the specification clearly alleged every element of the lesser included offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, where the specification alleged (1) that appellant did bodily harm to the victim by stabbing him in the hand and chest, (2) that he did so with a knife, (3) that the bodily harm was done with unlawful force or violence, without authorization or justification, and (4) that the weapon was used in a manner likely to produce death or grievous bodily harm - stabbing the victim in the chest; the specification clearly placed appellant on notice of that against which he had to defend, and the government’s theory of the case from beginning to end was that appellant stabbed the victim with a knife in the hand and chest; appellant defended against this theory throughout the trial; appellant proposed instructions for the Article 128 offense and did not object to the instructions given by the military judge; in closing, defense counsel even asked the panel to closely look at Article 128 because that was much more aligned with what happened; through these actions, appellant demonstrated that he was on notice, and his substantial right to be tried only on charges presented in a specification was not violated).
2010 (September Term)
United
States v. Bonner, 70 M.J. 1 (assault
consummated by a battery, under Article
128, UCMJ, is an LIO of wrongful sexual contact, Article 120(m), UCMJ).
(the offense of assault occurs
when any person
attempts or offers with unlawful force or violence to do bodily harm to
another
person, whether or not the attempt or offer is consummated; the
elements for an
assault consummated by a battery are: (1) that the accused did bodily
harm to a
certain person; and (2) that the bodily harm was done with unlawful
force or
violence).
(with respect to the meaning
of the two elements
of assault consummated by a battery, doing bodily harm means committing
any
offensive touching of another, however slight, and unlawful force or
violence
means that the accused wrongfully caused the contact, in that no
legally
cognizable reason existed that would excuse or justify the contact).
(assault consummated by a
battery is an LIO of
wrongful sexual contact where both offenses require wrongful contact;
furthermore, in this case, because appellant was charged with wrongful
sexual
contact by tapping the victim on the head with his exposed penis, he
knew that
he had to defend against having caused the victim to make contact with
his
genitalia without the victim’s permission and with the intent of
abusing,
humiliating, or degrading the victim; such contact would, at a minimum,
be
offensive given the ordinary understanding of what it means for contact
to be
offensive; in fact, in this case, one could transplant the essential
facts from
the wrongful sexual contact specification, without alteration, into a
legally
sufficient specification for assault consummated by a battery under
Article
128, UCMJ).
United
States v. Dacus, 66 M.J. 235 (the four
elements of assault with a dangerous
weapon or other means or force likely to produce death or grievous
bodily harm
under Article 128(b)(1), UCMJ, are: (1)
that the accused attempted to do, offered to do, or did bodily harm to
a certain
person; (2) that the accused did so with a certain weapon, means, or
force; (3)
that the attempt, offer, or bodily harm was done with unlawful force or
violence; and (4) that the weapon, means, or force was used in a manner
likely
to produce death or grievous bodily harm).
(in
the context of the aggravated assault offense, the
(in HIV aggravated assault
cases, the word,
“likely,” is not construed as involving nice calculations of
statistical
probability; the question is not the statistical probability of HIV
invading
the victim’s body, but rather the likelihood of the virus causing death
or
serious bodily harm if it invades the victim’s body; the probability of
infection need only be more than merely a fanciful, speculative, or
remote
possibility).
(statements made by appellant
during the
providence inquiry that he wore a condom with one woman and barely
penetrated
her and evidence he introduced at sentencing that due to his low viral
load,
the risk of his transmitting HIV was extremely low were not in
substantial
conflict with his pleas of guilty to two specifications of aggravated
assault
based on his having sexual intercourse with two women without informing
them of
his HIV-positive status; despite appellant’s claim that his statements
and the
sentencing evidence substantially conflicted with the risk and
magnitude prongs
of the likelihood element of aggravated assault, the record revealed no
conflict; first, as to the magnitude of harm, both appellant’s
statements and
his sentencing evidence confirmed that if HIV were transmitted by
sexual
intercourse, death or grievous bodily harm was a natural and probable
consequence; and second, although the risk of transmitting the virus
was low on
account of appellant’s low viral load and therefore arguably “remote,”
the risk
was certainly more than fanciful or speculative, as both appellant’s
statements
and the sentencing evidence confirmed that transmission of the virus
during
sexual intercourse was possible, even if a condom were worn; the
likelihood of
death or grievous bodily harm is determined by measuring both prongs,
not just
the statistical risk of harm; where the magnitude of the harm is great,
there
may be an aggravated assault, even though the risk of harm is
statistically
low; while the risk here may have been low, the magnitude of harm was
significant; as such, there is no substantial conflict in the record
with his
pleas).
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).