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UNITED STATES, Appellee, v. Jeremy L. RAUSCHER, Machinists Mate Second Class, U.S. Navy, Appellant

United States Court of Appeals for the Armed Forces2012-06-18No. No. 12-0172; Crim.App. No. 201100684
71 M.J. 225

Summary

Holding. The court affirmed the conviction, holding that the specification alleged all elements of the offense of assault with a deadly weapon or force likely to produce death or grievous bodily harm, and provided the accused adequate notice to defend against that charge.

A Navy machinist mate was charged with assault with intent to commit murder under Article 134 of the Uniform Code of Military Justice, based on allegations that he stabbed a shipmate in the hand and chest with a knife during a drunken altercation. The court-martial instructed the jury on both the charged offense and the lesser included offense of aggravated assault with a deadly weapon or force likely to produce death or grievous bodily harm under Article 128. The accused was convicted of the Article 128 offense and challenged whether the specification properly alleged that lesser offense.

The court held that even assuming the original specification had defects in alleging the Article 134 charge, the specification clearly set forth all elements of the Article 128 offense for which he was ultimately convicted. The stabbing of the victim in the hand and chest with a knife was plainly described in the charging document and provided adequate notice of the conduct at issue. The accused's trial conduct—including his proposed jury instructions and closing argument focused on the Article 128 offense—demonstrated he understood the case against him and suffered no prejudice.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a specification charging one offense can support conviction of a lesser included offense without separately alleging all elements
  • Sufficiency of notice to an accused when convicted of a charge different from the one formally alleged
  • Relationship between Article 134 and Article 128 assault offenses in military law

Procedural posture

The appellant appealed his conviction from the Navy-Marine Corps Court of Criminal Appeals, which had affirmed the trial court's judgment.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM:

Appellant was charged under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), with assault with intent to commit murder but convicted, contrary to his pleas, of assault with a deadly weapon or other means or force likely to produce death or grievous bodily harm, under Article 128, UCMJ, 10 U.S.C. § 928 (2006). We granted review to consider whether “aggravated assault is a lesser included offense of an Article 134 specification that fails to allege the terminal element” — that Appellant’s conduct was prejudicial to good order and discipline or was of a nature to bring discredit upon the armed forces. We hold that Appellant was convicted of an offense that was alleged in the charged specification. We affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (CCA).

I. Background

After becoming intoxicated during shore liberty, Appellant became embroiled in arguments with some shipmates. He cut and stabbed one and assaulted several who were trying to bring Appellant under control. Contrary to his pleas, Appellant was convicted by court members of willfully disobeying the order of a petty officer; wrongfully using provoking words; and various assaults, batteries, and aggravated assault. Articles 91, 117, and 128, UCMJ, 10 U.S.C. §§ 891, 917, 928 (2006). The convening authority approved the adjudged sentence: a bad-conduct discharge, confinement for nine months, and reduction to the lowest enlisted grade. The CCA affirmed. United States v. Rauscher, No. 201000684, 2011 CCA LEXIS 165, at *8-*9, 2011 WL 4505922, at *3 (N.M.Ct.Crim.App. Sept. 27, 2011).

II. The Specification and Trial

A fundamental purpose of a specification is “to provide notice to an accused as to the matters against which he must defend.” United States v. Wilkins, 29 M.J. 421, 424 (C.M.A.1990); see Russell v. United States, 369 U.S. 749, 767, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Appellant was charged with assault with intent to commit murder, a violation of Article 134, UCMJ, as follows:

In that [Appellant], on active duty, did, ... on or about 29 March 2010, with the intent to commit murder, commit an assault upon Machinist’s Mate Second Class Petty Officer [JD], U.S. Navy, by stabbing him in the hand and chest with a knife.

The military judge instructed the members on the offense of assault with intent to commit murder. At the request of both parties, the military judge also instructed the members on 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, and that is what he was convicted of. The elements of that offense are:

(i) That the accused attempted to do, offered to do, or did bodily harm to a certain person;

(ii) That the accused did so with a certain weapon, means, or force;

(iii) That the attempt, offer, or bodily harm was done with unlawful force or violence; and

(iv) That the weapon, means, or force was used in a manner likely to produce death or grievous bodily harm.

United States v. Dacus, 66 M.J. 235, 238 (C.A.A.F.2008) (citing Manual for Courts-Martial, United States pt. IV, ¶ 54.b.(4)(a) (2005 ed.)).

Whether a specification states an offense is a question of law we review de novo. United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.2006). Even if we assumed that the specification was defective in alleging an assault with intent to commit murder, we are convinced that the specification clearly alleges every element of the offense of assault with a dangerous weapon or means or force likely to produce death or grievous bodily harm, the offense he was convicted of:

(1) Appellant did bodily harm to JD— stabbing him in the hand and chest;

(2) He did so with a certain weapon, means, or force—a knife;

(3) The bodily harm was done with unlawful force or violence—without authorization or justification; and

(4) The weapon, means, or force was used in a manner likely to produce death or grievous bodily harm—stabbing JD in the chest.

The specification clearly placed Appellant on notice of that against which he had to defend. The Government’s theory of the ease from beginning to end was that Appellant stabbed the victim with a tactical 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’s 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. Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

III.

The judgment of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

. In order to determine whether an indictment charges an offense against the United States, designation by the pleader of the statute under which he purported to lay the charge is immaterial. He may have conceived the charge under one statute which would not sustain the indictment but it may nevertheless come within the terms of another statute.

United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788 (1941).