2020 (October Term)
United States v. Mader, 81 M.J. 105 (consent is generally a defense to assault consummated by a battery).
(an assault consummated by battery is defined as bodily harm to another done without legal justification or excuse and without the lawful consent of the person affected; bodily harm is defined as any offensive touching).
(as a general matter, consent can convert what might otherwise be offensive touching into non-offensive touching).
(the RCMs make clear that even if an alleged victim did not consent to being touched, an accused cannot be convicted of assault consummated by a battery if the accused mistakenly believed that the alleged victim consented and that that belief was reasonable under all the circumstances; a reasonable and honest mistake of fact as to consent constitutes an affirmative defense in the nature of a legal excuse).
(consent is a well-established defense to simple assault).
(consent is generally not a defense to aggravated assault).
(junior Marines who appellant supervised could have lawfully consented to being burned with a cigarette by appellant in an apparent attempt to bond with them during a farewell party in the barracks, and the consent of those junior Marines would be a defense to a charge of assault consummated by a battery; although the government might have charged appellant with hazing as a violation of a general order or with aggravated assault, both of which would have eliminated the opportunity to raise a consent defense, it did not, and there was no policy reason to strip appellant of a defense to which he was otherwise legally entitled).
2017 (October Term)
United States v. Armstrong, 77 M.J. 465 (any person subject to the UCMJ who attempts or offers with unlawful force to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault under Article 128, UCMJ; and the President has identified the two elements of the offense of assault consummated by a battery as follows: (a) that the accused did bodily harm to a certain person, and (b) that the bodily harm was done with unlawful force or violence).
(in this case, assault consummated by a battery was not a lesser included offense of abusive sexual contact by causing bodily harm where the elements of the former offense were not necessarily included in the latter offense and the specification at issue did not allege facts sufficient to state all of the elements of both offenses; assault consummated by a battery requires bodily harm that was done with unlawful force or violence while abusive sexual contact by bodily harm does not).
2015 (September Term)
United States v. Atchak, 75 M.J. 193 (an individual cannot consent to aggravated assault).
(grievous bodily harm was not likely to occur in the context of HIV exposure when there was a 1-in-500 chance of transmission).
United States v. Riggins, 75 M.J. 78 (under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged).
(the elements of 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; assault consummated by a battery must be done without legal justification or excuse and without the lawful consent of the person affected; as such, lack of consent is an element of the offense of assault consummated by a battery).
(the “placing in fear” element of the sexual assault and abusive sexual contact offenses is different from the “unlawful force or violence” element of the assault consummated by a battery offense; specifically, the “placing in fear” element requires “a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action; thus, under the original charges in the instant case, it was sufficient for the government to merely prove that the alleged victim was fearful that appellant would negatively affect her military career; however, “unlawful force or violence” under Article 128, UCMJ, requires the government to prove an application of physical force; this distinction between physical contact (for assault consummated by a battery) and a mental state of fear concerning the potential effect on the victim’s military career (for sexual assault and abusive sexual contact) further demonstrates that assault consummated by a battery contains an element that is not included in the sexual assault and abusive sexual contact offenses charged here).
(it may be possible for the government to charge an accused with sexual assault and/or abusive sexual contact in such a manner that assault consummated by a battery may be a lesser included offense if the specification placed the accused on notice of fear of bodily harm and raised the issue of consent).
2014 (September Term)
United States v. Torres, 74 M.J. 154 (aggravated assault under Article 128(b)(4), UCMJ, contains the following elements: (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).
United States v. Gutierrez, 74 M.J. 61 (under Article 128, an assault includes an offensive touching; an aggravated assault includes the element that the assault was committed with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; applying a plain English definition of likely, as well appellant court precedent regarding aggravated assault outside the context of HIV, testimony that the means used to commit the assault had a 1–in-500 chance of producing death or grievous bodily harm is not legally sufficient to meet the element of likely to produce death or grievous bodily harm; as a result, appellant’s conviction for aggravated assault is reversed and the lesser included offense of assault consummated by battery is affirmed).
(in the area of assault through exposure to HIV, the CAAF has repeatedly has held that the risk of harm need only be more than merely a fanciful, speculative, or remote possibility; this statement is not consistent with the statutory language of Article 128 as generally applied in the context of Article 128, overruling United States v. Weatherspoon, 49 MJ 209, 211 (CAAF 1998), United States v. Klauck, 47 MJ 24, 25 (CAAF 1997); United States v. Joseph, 37 MJ 392, 396–97 (CMA 1993); and United States v. Johnson, 30 MJ 53, 57 (CMA 1990)).
(likely must mean the same thing in an Article 128 prosecution for an aggravated assault involving HIV transmission as it does in any other prosecution under the statute; in determining whether grievous bodily harm is likely, the ultimate standard remains whether, in plain English, the charged conduct was likely to bring about grievous bodily harm; the question is: was grievous bodily harm the likely consequence of appellant’s sexual activity?).
(as to unprotected oral sex, the expert testimony in this case was that the risk of HIV transmission was almost zero; a risk of almost zero does not clear any reasonable threshold of probability; appellant’s conviction for aggravated assault, to wit, engaging in unprotected oral sex without disclosing his HIV-positive status, was legally insufficient because no rational trier of fact could conclude that his conduct was likely to cause grievous bodily harm).
(in the case of protected vaginal sex, the risk of HIV transmission was only remotely possible, meaning that appellant’s conviction for aggravated assault by protected vaginal sex was legally insufficient, and expressly overruling United States v. Klauk, 47 MJ 24, 25 (CAAF 1997).
(as to unprotected vaginal sex, the maximal risk of HIV transmission was 1 in 500; accepting that statistic and consistent with the obligation to construe the evidence in the light most favorable to the prosecution, HIV transmission was not the likely consequence of unprotected vaginal sex; this is so because, in law, as in plain English, an event is not likely to occur when there is a 1-in-500 chance of occurrence; as a result, appellant’s conviction for aggravated assault by engaging in unprotected vaginal sex is legally insufficient).
(an attempted aggravated assault charge may lie when an accused knew he was infected with HIV and, using a syringe of his blood or intentionally using his body as a weapon, specifically intended to inflict grievous bodily harm as demonstrated by the evidence at trial; in this case, no evidence of specific intent to inflict grievous bodily harm was presented).
(the offense of assault consummated by battery requires that the accused did bodily harm; bodily harm means any offensive touching of another, however slight; in this case, without appellant’s disclosure of his HIV status to his sexual partners, appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent; therefore, he is guilty of assault consummated by battery, as a lesser included offense of aggravated assault).
2012 (September Term)
United States v. Gaskins, 72 M.J. 225 (after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault).
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).