5 Elements of a Crime Knowing the name of a crime is not enough: Look it up!!Investigation/prosecution depends on understanding the elementsEACH element must be proven beyond a reasonable doubtMotive IS NEVER an element of a crime
6 Elements of a Crime Criminal Intent General intent crimes rare (e.g., battery)DO NOT need to prove accused intended the precise harm or result which occurredMust prove act was VOLUNTARY so that accused’s act was not accidentalSpecific intent crimesAccused possessed the mental state specified by the statuteCues : “knowingly,” “willfully,” “for the purpose of,” “premeditated design,” & “with intent to”
7 Severity of OffenseThe severity of an offense is gauged by its maximum punishmentAs between several offenses, the one that has the highest maximum punishment is the most serious offenseWhat are the punitive discharges and which is most severe?
8 General Nature of Criminal Law Applicable criminal codes:Uniform Code of Military Justice [UCMJ]Federal statutesState statutesAssimilation adoptionArt. 134, UCMJ, assimilates federal criminal laws18 USC §13 assimilates state criminal laws
9 General Nature of Criminal Law: Article 134 - The General Article Prejudicial to GOADITAFDirect and palpable impactNot remote or indirect possibilityService-discreditingDirectly injure reputation of serviceTend to bring service into disreputeCrimes and offenses not capitalAssimilation
10 General Nature of Criminal Law: Article 133 - Conduct Unbecoming Officer Examples:Cheating on examinationInsulting another officerConsorting with known prostitutesNonsupport
11 Disrespect and Disobedience Article 89:Article 90:Article 91:Article 92:Disrespect toward an officerAssault or disobey an officerAssault, disobey or disrespect an NCO, warrant or petty officerDisobey General order or reg;Disobey some other orderDereliction of duty
12 Disrespect What is disrespect? Behavior that detracts from good order and disciplineName-calling, refusal to salute, marked disdainInsolence, undue familiarity, other rudenessMust “victim” be in the execution of his office?NO for officersYES for NCO, warrant & petty
13 Disrespect Superior to accused? Knowledge? For Officers, MUST be superiorSame armed force? Must be superior but need not be in chainDifferent armed forces? Must be superior AND in chain of commandFor NCO, warrant & petty, superior = added elementKnowledge?Accused MUST have knowledge that person disrespected had the alleged rank
14 Disrespect Truthful remarks OK? Actual presence required? NO; TRUTH IS NO DEFENSEActual presence required?Officers: Need not be presentNCO, warrant & petty: MUST be present (within sight or sound of offender)
15 Disrespect Is “victim’s” behavior always irrelevant? NO, victim can lose protected “status”DIVESTITURE: behavior that departs substantially from required standards appropriate to rank or positionMarine officer said, “Let me see you put me flat on my back”Enlisted Marine did – NOT DISRESPECTWhat about assault though?
16 Disrespect: Differences between Officer and NCO offenses Commissioned officer cannot be found guilty of Disrespect to NCO (but try Article 133)Disrespect to NCO does not require that “victim” be accused’s superior (required in Article 89)Disrespect to NCO requires that “victim” be in execution of office (not true for officers, Article 89)Disrespect to NCO requires that disrespectful behavior or language be within the sight or hearing of the “victim” (not true for officers, Article 89)
17 Disrespect ExamplesAccused contemptuously turned and walked away from superior who was still talking to accused - Ferenczi, 27 CMR 77Accused greeted female superior with “Hi, sweetheart” - Dornick, 16 MJ 642Accused pointed finger at trial counsel and said, “You are going to get it.” - Gray, 14 MJ 551
18 Disrespect Examples“Sergeant, well, if you don’t like it, I’ll take you in the back room and fight you too” - Richardson, 6 CMR 88[When read his Art. 31 rights] “Aw, man, I don’t have time to listen to this sh*t” - Lewis, 7 MJ 348“If you have something to say, say it to my face.” - Barber, 8 MJ 153
19 Disobedience Common Themes Lawfulness of orders presumedYou disobey a superior’s order at your perilOrder must relate to a military dutyaccomplish a military mission or safeguard or promote the morale and disciplineFrom someone with authority
20 Disobedience Common Themes Ideally, an enforceable order is:A positive commandSpecificContains time for complianceBut something less will often doPolitely phrased orders are still ordersLack of suspense implies immediate compliance expected
21 DisobediencePersonal orders [Arts. 90 (Officer), 91(NCO), and 92 (MP, sentinel)Knowledge of “victim’s” status must be provenCan be proven by circumstantial evidence“Impersonal” orders [Art. 92]AR or general order (GO or GCMCA)Accused’s lack of knowledge not a defense
22 Failure to Obey Other Lawful Order or Regulation [Art. 92, UCMJ] 1. Lawful general orders or regulationLack of knowledge not a defense2. Other lawful ordersKnowledge requiredMPs, guards, and sentinelsAlso policy orders from CO3. Dereliction of duty imposed by:Treaty, Statute, Regulation, Lawful order, SOP, or custom of the service
24 Trespass Offenses• Offenses are similar because all involve an unauthorized entry• Offenses differ mainly because each involves different:- Intent by accused- Kind of place entered
25 Burglary - ElementsAccusedUnlawfullyBroke andEnteredDwelling houseOf anotherBreaking in the nighttimeEntering in the nighttimeBreaking with the intent to commit [except 123a]Entering with the intent to commit [except 123a]Breaking = Pushing aside closed venetian blinds and entering otherwise closed window (Thomspon [ACMR/CMA 91]); Opening closed door; Opening barely-open windowConstructive breaking = Gaining entry by trick [Trojan horse]; Entering thru false pretenses [“Candygram”];Entering: E.G., Entering by proxy [child]; Getting an arm insideDwelling house: Includes outbuildings in curtilage; At time of B&E need not be actually occupied, but must be used as a dwelling, i.e., no burglary if building not yet used as dwelling or has been abandoned as a dwelling. Barracks room, apartment or hotel room can be burglarized by other building occupants or by landlord.Nighttime: Period between sunset and sunrise when there is not sufficient daylight to distinguish a person’s face. Breaking and entering can occur on different nights (If not nighttime, then medieval offense of hamesecken)
26 Burglary - Elements: Intent Both breaking and entering must be done with the intent to commit a crime insideCrime need not be actually committed so long as intent existed at the time of the breaking and the enteringCriminal intent formed after breaking or entering will not suffice to support burglaryIntended crime must be a violation of Arts [except 123a]Apply to interrogation questions where accused forced window, entered and caught inside house by occupant:“Why did you enter the house?” No evidence of intent at time of breaking“When did you force the window/” Maybe no evidence that entry occurred in the nighttimeSome offenses not covered: Espionage, drug offenses, kidnapping, assaults aggravated by status [Arts. 90, 91] or intent [Art. 134]Ask the follow-up question:“Of course you knew that you’d be stealing the child’s clothes at the same time.”If criminal offense committed inside, criminal intent at time of breaking and entering may be inferred.
27 Housebreaking - Art. 130 A lesser included offense of burglary No breaking required“Building or structure of another”:Includes rooms, tents, houseboats, storage sheds, holds, boxcars, enclosed trucksNeed not be in use at time of entryCan occur in daytime or nighttimeIntent: Must intend to commit a UCMJ violation [except a purely military offense] at the time of entryProtects walk-in freezer - Scimeca 12/937 [NMCR 82]Does not protect track vehicle - Sutton 45C/118 [CMA 72]
28 Unlawful Entry - Article 134 A lesser included offense of burglary and housebreakingNo breaking requiredWHERE?Real property (land) -OR-Structure (usually used for habitation or storage)Usually would not include vehicle even if used for storage [but could be an Art. 134 offense]A simple trespass onto land, into dwelling or storage shed, or personal property amounting to a structure usually used for habitation [trailer] or storage [storage shed]Incl’s fenced storage area - Wickersham 14/404 [CMA 83]Incl’s troop billeting tent - Love 15C/260 [CMA 54]N/I car - Reese 12/770 [CMA 81]No breaking required, mere entry sufficesIllustrates feature of Art 134: This enumerated offense, by its terms would not be violated by entry into truck cab or wall lockerBut Art. 134 prohibits any act or omission which is service discrediting or of a nature to prejudice GOADITAF, so could draft a charge under Art. 134
29 Unlawful Entry - Article 134 Specific criminal intent to commit a criminal offense of any kind once inside is NOT REQUIREDEntry must be “unlawful”: Made without the consent of anyone authorized to permit entry or without other lawful authorityMust be either service-discrediting or prejudicial to GOADITAFSunbathing on the general’s lawn without general’s permissionWalking incontinent dog in national cemetery without permission
30 Trespass Offenses Burglary Housebreaking Unlawful Entry Breaking requiredBreaking NOT requiredBreaking NOT requiredDwelling houseBuildingReal or personal property amounting to a structureSpecific intent to commit Art offense at time of break & enterSpecific intent to commit any “nonmilitary” offense at time of entryGeneral intent, w/o permission, AND service-discrediting or prejudicial to good order & discipline
31 Applying the ElementsAt 0900 hrs SFC enters dining facility and finds PFC on couch in his office sleeping. PFC says he was coming home from a party - was cold/tired - so he entered the facility through an open window to get warm.What is the misconduct??Offenses? Issues?Article Burglary
32 ExampleSoldier A enters B’s home. The door is ajar, but A has to move the door a little to enter. A enters to retrieve his 9mm handgun (actually A agreed to sell the gun to B, but B has not finished paying for it).What is the most serious offense committed by A?What if he entered at 1300 hours?
33 Crimes Against the Person MurderManslaughterNegligent HomicideAssaultSimpleBattery (also called ACB)Aggravated
34 UCMJ Homicides Intentional Killings Reckless Killings Deaths a consequence of accused’s decision to commit a crimeSerious Negligence
36 Murder - Art. 118, UCMJ Premeditated murder - capital Intentional murderWanton murderFelony murder - capital
37 Premeditation Two components: Order of these components immaterial A consciously conceived thought of taking life, ANDAn intentional act or omission by which the life is takenOrder of these components immaterialLack of delay between formation of mental element and action is immaterial
38 Premeditation: Proof of Intent ConfessionInferred from circumstances:US v. Matthews [ACMR 1982] - Victim stabbed 53 timesUS v. Teeters [ACMR 1981] - Victim pursued until she collapsed unconscious; accused tied her, raped her & after putting towel around neck to catch blood, slit her throat; accused then stabbed victim 32 timesUS v. Bullock [ACMR 1981] - Prior anger & threats indicative of premeditation
39 Premeditation: Transferred Intent US v. Black [CMA 1953]:Accused and Lewis argueAccused: “I have 8 rds in my M-1 for you”Accused gets M-1 and finds LewisAccused fires, hitting Lewis in left chestBullet exits right rear chest & hits KirchnerAccused: “Sorry, buddy, it was not meant for you… it was meant for Lewis”Kirchner and Lewis dieConvicted of premeditated & unpremeditatedShould have been convicted of 2 x premed.
40 Premeditated Murder Capital Offense - RCM 1004 Premeditated murder is a capital offense if:Accused in confinement for at least 30-year termAccused committed murder while committing or attempting to commit enumerated offensesAccused committed murder for hireAccused hired or compelled other to murderAccused murdered to avoid apprehension or effect escape from custody or confinementAccused guilty in same case of another murder
41 Premeditated Murder Capital Offense - RCM 1004 Premeditated murder is a capital offense if:Accused murdered protected person (US official, cop, foreign official, firefighter, military officer or NCO in execution of office)Accused murdered w/intent to obstruct justiceAccused first intentionally inflicted substantial physical harm or prolonged, substantial mental or physical pain and suffering on victimMandatory minimum - imprisonment for life
42 Intentional Murder Intentional murder is unpremeditated Can result from:Reluctance to refer as capital offenseProsecution unable to convince judge or jury beyond reasonable doubt that premeditation existedReluctance to find guilty of capital offenseMCM example: Housebreaker kills homeowner suddenly blocking his escapeIntentional murder more serious than voluntary manslaughter
43 Wanton Murder - Mental Elements Requires intentional act (just don’t care)“He knew it could kill and decided to do it anyway”Failure to act is NOT enoughRequires knowledge that death or great bodily harm a probable consequence of that intentional act“He knew he could easily kill somebody”
44 Wanton Murder - Action Elements Action must be of nature to be inherently dangerous to othersExamples:Blasting in housing areaStaging sham firefight in inhabited areaActs must show a “wanton disregard” for human life“Anyone would know he could easily kill somebody”
45 Wanton Murder - In Plain English He knew his actions could result in death,A reasonable person would know thisHe decided to do it anywayWanton murder is an unpremeditated murder
46 Felony Murder - Elements A named or described person is deadKilling was unlawfulAt the time of the killing, accused was engaged in the perpetration or attempted perpetration ofburglary,robbery,rape,sodomy, oraggravated arsonThe death resulted from an act or omission of the accusedIn other words, the death was a consequence of the perpetration or attempted perpetration of one of these offenses
47 Felony Murder - Example US v. Borner [CMA 1953]3 soldiers took 3 pistols into Korean hills to hunt birds and ended up in isolated villageOne expresses desire for sexual intercourse, another agrees, & both enter house occupied by 2 women while third acts as look-outOne rapes woman while her sister-in-law hidesSister-in-law’s husband responds to sceneSomeone shoots and kills husbandHELD: All three soldiers guilty of felony murder
48 Manslaughter Art 119 Voluntary manslaughter Involuntary manslaughter Culpably negligent act …orWhile perpetrating an offense affecting another
49 “Heat of Sudden Passion” “Adequate Provocation” Heat of passion = Act and intent to kill provoked by fear or rage causing total loss of self-controlAdequate provocation = Sufficient to send a reasonable man into an uncontrollable rageNo cooling off period:Fatal attack must be made before self-control returnsIf sufficient time passes between provocation and fatal attack for reasonable man to “cool off,” crime is not voluntary manslaughter
50 Voluntary Manslaughter Essentially, this kind of provoked passion is a partial affirmative defense to intentional murderReduces what would otherwise be intentional murder to the less serious crime of voluntary manslaughter
51 Heat of Passion – Adequate Provocation US v. Saulsberry [ACCA 1995] Accused quietly watching TV when victim enters his room uninvited, takes drink, and becomes verbally abusiveShoving match ensues, which accused quitsVictim attacks accused from rear, throws him on bed and begins choking him, pinning him in front of othersAccused retreats to corner of room, victim begins taunting him verballyIn the accused’s face, victim says, “What are you going to do, mother------, f--- you, what are you going to do, chicken----? Do you want me to teach you a lesson?”Accused stabs victim once in the heartCONVICTED of intentional murderHELD: Reduced to voluntary manslaughter - “These provocations were adequate to provoke uncontrollable rage, fear and passion in a reasonable person.”
52 Involuntary Manslaughter Culpable negligence - death is foreseeableWhile committing an offense directly affecting the person, other than those covered by felony murder
53 Involuntary Manslaughter Culpable Negligence “Degree of carelessness greater than simple negligence”Examples:Setting up range with houses in zoneTriggering pistol at another without clearingAssisting the injection of heroin in anotherRepeatedly striking & shaking crying infantLeaving Child with known abusive spouse!
54 Involuntary Manslaughter While Committing Offense Affecting the Person “Misdemeanor manslaughter” Rule: Perpetrating or attempting to perpetrate an offense other than burglary, robbery, rape, sodomy, or aggravated arson“Directly affecting”: Offense must affect a particular person rather than society in general
55 Negligent Homicide Death resulted from simple negligence of accused Simple negligence: An act or omission of a person who is under a duty to use due care, but who fails to use due care of a reasonable person in similar circumstancesExamples:Running red light, hitting and killing anotherErecting radio antenna next to high tension lines
56 Intent versus Negligence Degrees of intent:PremeditationSpecific IntentWanton disregard (reckless, immoral, shameless)Culpable negligence (blameworthy, degree of carelessness greater than simple negligence)Simple negligence (failure to exercise that degree of care expected of reasonably prudent individual)
57 Homicide ExampleMan in an alley is raping an unconscious girl behind a dumpster. Bystander is walking down the alley when he and rapist see each other. Rapist suddenly pulls out his knife and slits bystander’s throat.What is the most serious offense rapist can be charged with?What if rapist is now a burglar and sees homeowner suddenly while in the home, then kills?What if it’s 0800 hours?What if homeowner just has a heart attack?
58 Homicide ExampleGrandma has temporary custody of child while Mom serves sentence for drugs. Mom gets out and wants child. Child has been beaten before. Child comes to Grandma’s over the next few months after school, and Grandma can see evidence of new beatings. One day, child is lethargic and looks ill, and he was apparently beaten the night before (marks on child’s back). Child dies that night.What is the most serious offense Grandma can be charged with?
59 Robbery - Article 122 Accused wrongfully took certain property From the victim’s person or from the possession and in the presence of the victimAgainst the will of the victimBy means of:Force and/or violence ORPutting the person in fear of force and/or violenceSuch property not belonging to the accusedSuch property of some valueIntent to steal (permanently deprive)A composite crime combining: 1) assault by offer or ACB with2) larcenyA specific intent crime: Taking must be with the intent to stealIntent need not focus on specific property:“Give me that watch” = robbery“Give me what’s in your pocket” = robberyIntent to rob need not precede or be simultaneous with the actual taking; need only be contemporaneous with the taking
60 Robbery - Elements “Taking” required: Forcible retention or withholding insufficient“From the victim’s person or from the possession and in the presence of the victim”:Holding victim while his property is removed from another building and then destroyed in front of him will suffice“Taking” required: Forcible retention, withholding or borrowing insufficient - Brazil 5/509 [ACMR 78]“From the victim’s person or from the possession and in the presence of the victim”: Holding victim while his property is removed from another building and then destroyed in front of him will suffice - Maldonado - Thomas owed Givens money from game of pool he lost. Thomas gave IOU to Givens. Thomas drinking with Malonado and Vargas and mentions IOU. Maldonado says “You go get Givens and bring him over here and Vargas and I will get your IOU back. Thomas takes Givens to Thomas’ room where Maldonado and Vargas with handkerchiefs over their face hold knife to his throat and ask where IOU is. Givens first says billfold, but when Thomas brings billfold back, it’s not there. Then says it’s in drawer under his towels, Thomas gets it, brings it back and tears it up. AFCMR yrs CHL
61 Robbery - Elements: “By means of…” Force or violence (or both)Picking pocket by stealth not sufficientPurposeful bump by pickpocket will sufficeKnocking unconscious will sufficeBy fear of:Immediate or future injuryTo person or property of:SelfMember of family or a relativeAnyone in victim’s company at time of robberyTwo theories: 1) By force or violence2) By placing V in fear of harmAnalogize to: 1) Assault consummated by battery2) Assault by offerForce or violence:V need not be put in fearAmount of force: 1) Overcomes actual resistance2) Puts V in position not to resist or3) Overcomes restraint of a fasteningForce and intent to steal need merely be contemporaneous, not simultaneous, eg:D binds V of intended rape, then decides to steal wallet = robberyFear: Fear must be reasonable, ie sufficient to warrant:giving up propertymaking no resistance
62 Robbery - Elements: “By means of…” IF force, violence, or both are used, THEN fear is not requiredIF victim is placed in reasonable apprehension [fear] of immediate or future injury, THEN actual force not requiredTwo theories: 1) By force or violence2) By placing V in fear of harmAnalogize to: 1) Assault consummated by battery2) Assault by offerForce or violence:V need not be put in fearAmount of force: 1) Overcomes actual resistance2) Puts V in position not to resist or3) Overcomes restraint of a fasteningForce and intent to steal need merely be contemporaneous, not simultaneous, eg:D binds V of intended rape, then decides to steal wallet = robberyFear: Fear must be reasonable, ie sufficient to warrant:giving up propertymaking no resistance
63 Example Sneak up from behind and hit on head, take wallet? Point a gun and take wallet?Pick pocket and take wallet?2-man-team, one bumps, the other picks wallet?
64 ExampleSoldier’s wallet is taken from him at knife-point. Soldier is NOT in imminent fear because he is a black belt in Karate and knows he can defend himself from a knife-wielding assailant. Soldier does not attack assailant or defend himself. He just hands over the wallet.What is the most serious crime committed?Was there any type of assault?
65 Simple Assault - Art. 128a. Assault by offerb. Assault by attempt
66 Elements of Simple Assault AccusedOffered or AttemptedTo do bodily harmTo a certain personWith unlawfulForce or violence
67 Offer vs. AttemptOFFER“An unlawful demonstration of violence, either by an intentional or culpably negligent act or omission, which creates in the mind of another a reasonable apprehension of immediate bodily harm.”
68 Offer vs. Attempt ATTEMPT “Requires a specific intent [by the accused] to inflict bodily harm and an overt act”Overt act = an act that amounts to more than mere preparation and apparently tends to effect the intended bodily harm.
69 Offer vs. Attempt Investigative Focus Attempt (key = mind of the accused)Did the accused specifically intend to inflict bodily harm on the victim?Offer (key = mind of the victim)Did the actions of the accused cause the victim to form a reasonable apprehension of immediate bodily harm?Can both types exist together?Yes, assaults are not mutually exclusive.
70 Simple AssaultMust physical contact be made to constitute either assault by offer or by attempt?No, if physical contact is made, see ACB - Art. 128Can mere words or threats of future violence constitute either an assault by offer or by attempt?No, but see provoking speeches - Art. 117Maybe, if accompanied by menacing acts or gesturesCan “mere preparation” constitute either assault by offer or by attempt?No
71 Assault Consummated by a Battery [ACB] - Art. 128, UCMJ - Elements AccusedWith unlawfulForce or violenceDid bodily harmTo a certain person
72 ACB - Elements - “Unlawful” “Lawful” force = OKE.G., MPs break up fight or forcefully apprehendPlaying football or rugby (within the rules)Even a “touch” is enough, but touching must be intentional or culpably negligentTouching merely for the purpose of attracting attention is not unlawfulMutual affray is unlawful
73 ACB - Elements - “Bodily Harm” Covers any harmful or offensive touching, however slightExamples:Nonconsensual kissingNonconsensual unbuttoning blouseSpitting on aware victimGiving a shot to sleeping victim
74 ACB - Elements - “Bodily Harm” Pain not requiredLeaving marks not requiredDirect contact not requiredStriking a victim’s skittish horseLoosing a vicious dog on victimCutting clothes of victim without touching victim
75 Aggravated Assault (Distinguished from Simple Assault and ACB) Blow never landedACB:Harmful or offensive touching, however slightAggravated assault:Used means likely to inflict grievous bodily harm, ORGrievous bodily harm was intentionally inflicted
76 Aggravated AssaultsTwo separate crimes of aggravated assault, both of which are committed in the typical aggravated assault scenario:Assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm (START)Assault in which grievous bodily harm is actually (intentionally) inflicted (FINISH)(Actual, intentional infliction of grievous bodily harm is more serious)
77 Aggravated Assault “Means Likely” Accused unlawfullyWith a certain weapon, means or forceUsed in a manner likely to produce death or grievous bodily harmAttempted to do, offered to do or didBodily harmTo a certain person
78 “Grievous Bodily Harm” Grievous bodily harm = Serious bodily injuryDoes not include:Black eyeBloody noseOr other minor injuries
79 Dangerous Weapon – “Means Likely” Refers to “ordinary items” being used as a weaponHammerBottleRockPipeBoiling WaterFocus is on how the item is actually used
80 Dangerous Weapon – “Means Likely” Firearms:Use of loaded firearm increases punishmentJust pointing an unloaded firearm (not using it as club) is NOT an instrumentality (it’s just a simple assault with a more severe punishment)Can include another person:US v. McGee [ACMR 1989] - Accused leaves child with boyfriend
81 Dangerous Weapon – “Means Likely” Grievous bodily harm need not ACTUALLY occurExamples:Bottle, pool cue, flashlight vicious swingFirecracker avalancheSugar packet plane fuel tankFists helpless victimSteel-toed boots head of victim
82 Dangerous Weapon – “Means Likely” Unwarned sex:by HIV-infected accused is an aggravated assault with a means likely to produce death or grievous bodily harm (with or without condom)by genital herpes-infected accused is an aggravated assault with a means likely to produce death or grievous bodily harm (only without condom)
83 Aggravated Assault “GBH Intentionally Inflicted” AccusedUnlawfullyWith the specific intent to inflict grievous bodily harmWith force or violenceAssaultedA certain personAnd grievous bodily harm was actually inflicted upon the certain person
84 ADD Firearm UNLOADED firearm, point only Simple Assault (DD, 3yrs) Aggravated Assault “means likely” (DD, 8yrs)STRIKE with firearm (loaded or not)Injury?If GBH, then “intentionally inflicted”If no GBH, then “means likely”SHOOT firearmAttempted murder or murderAggravated assaults
85 ADD Firearm: Examples Point an unloaded firearm? Simple AssaultPoint an unloaded firearm?Strike with a loaded firearm?Point a loaded firearm?Shoot a loaded firearm?First question to answer at the crime scene?Agg AssaultAgg AssaultMurder or AssaultLOADED???
86 ExamplePFC Doe is sitting in the mess hall. He sees SPC Cheese and gets mad (Doe should have been promoted before Cheese). Doe grabs a chair and swings it as hard as he can at Cheese’s head. Cheese luckily ducks just in time.What is Doe guilty of?What if Doe actually hit Cheese?
87 ExampleTwo soldiers argue and eventually soldier A hits soldier B in the mouth with a closed fist? Soldier B then hits A with a steel flashlight.What is the most serious crime soldier A can be charged with?What about soldier B?
88 Options other than Assault Riot or breach of peace Art. 116Violent in nature (e.g.: discharge a weapon)Provoking speeches/gestures Art. 117Words that would make a reasonable react with violenceConduct unbecoming Art. 133Lawlessness, indecorum, crueltyCommunicating a threats Art. 134Intent to wrongfully injure
89 Arson - Art. 126 Aggravated arson Confinement Simple arson Inhabited dwelling 20 yearsOccupied structure 20 yearsSimple arsonValue $ yearValue > $ yearsCommon elements:Accused burned or set on fireAct was willful and maliciousProperty belonged to someone & had valueTwo degrees of arson: Simple and aggravatedTwo kind of aggravated arson, but both involve risk to human life - both involve same severe punishmentTwo levels of punishment for simple arson“Burned or set fire”Charring [rather than mere smoke damage] requiredArson of structure requires charring of structure itselfBurning of desk w/i structure insufficient for aggravated arson, BUT would support charge of attempted aggravated arson - Littrell 46C/628 [ABR 72]“Willful and malicious” - More than mere negligence or accidentProperty has value - no arson of abandoned property
90 Arson - Art. 126: Distinctions Aggravated (1a)Aggravated (1b)Simple (2)Inhabited dwellingStructureProperty ofanotherHuman being insideat the timeAccused knew orNo simple arson of accused’s own propertyAccused can be charged with aggravated arson of his own propertyInhabited dwelling Includes outbuildings that form part of the cluster of buildings used as a residenceDoes not include temporarily abandoned house or one not yet occupiedOtherwise, not necessary to show actual occupancy at time of arson or accused’s knowledge that dwelling was occupiedStructure Can include tent, boat or any other type of structure or edifice, whehter public or private, so long as accused knew there was a human being insideAccused’s knowledge can be proven when the nature of structure and its habituaL use were such that a reas person would know that a human being was inside at that time or under those circumstances - Examples: Church on Sunday - picnic shelter in crowded park during thunderstormshould have knownhuman being insideat the time
91 Aggravated Arson - Art. 126 Distinctions Aggravated Arson can be to your own house if occupied.Structure = Theater, Church, Boat, Trailer, Tent, Auditorium, or Shelter.No injury required
93 Sex Crimes Rape Carnal Knowledge Sodomy Indecent assault Indecent acts or liberties with a childIndecent acts with anotherIndecent exposureAdulteryProstitution and Pandering
94 Rape - Art. 120(a), UCMJ - Elements Accused committed an act of sexual intercourseAny penetration, however slight, sufficesBy forceAnd without consent
95 Rape – Elements Force Force can be actual or constructive Constructive force [enough to penetrate] may suffice if:Victim incapable of consenting (passed out)Resistance is futile or is overcome by threats [express or implied] of death or physical injury ORNonphysical coercion used to make victim comply, for example:Parental compulsionMilitary authority
96 Rape – Elements Lack of Consent Generally means:Saying NO, or showing physical resistanceMore than a mere lack of acquiescenceBut, lack of consent can be inferred IF:Resistance would have been futile;Consent was overcome by threats of death or great bodily harm; ORVictim was unable to resist because of lack of physical or mental faculties
97 Rape – Elements Lack of Consent She DID consent?If victim fails to make her lack of consent reasonably manifest by taking such measures of resistance as are reasonably called for by the circumstances, the inference MAY be drawn that she DID consent.Victim’s physical resistance = manifestation of lack of consent
98 Rape – Certain Issues Spouse can be charged with raping spouse Voluntary intoxication not a defenseConsent obtained by fraud can be a defense (e.g., promise to marry, pay)
99 ExampleSoldier A enters B’s room. A is 250 pounds and B is 120 pounds. A is 6’ 3” tall. A has sexual intercourse with B. B says nothing and does nothing.Has A committed rape?What if A held a gun to B’s head?What if A and B are same sex?
100 Carnal Knowledge, Art. 120Vaginal intercourse with a child under the age of 16, not your spouse, that does not involve force.Under Military and Federal criminal law, a child under the age of 16 may not legally consent to a sex act.Criminal liability is based on the absence of “legal” consent, not “factual” consent.Example: Nineteen year-old soldier has consensual sexual intercourse with her 15 year-old boyfriend.Max punishment: V < 12 = Life + DD;V > 12 but <16 = 20 yrs + DD
101 Sodomy, Art. 125Oral or anal sexual intercourse with another person (same or different sex) or with an animal.Forcible sodomy raises the same Force and Lack of Consent issues as rape.Consensual sodomy is an offense in the Armed Forces. No marital exception.Max punishment:By Force & w/o Consent: Life + DD;With a child < 12: Life + DD;With a child > 12 but < 16: 20 yrs + DD;Consensual: 5 yrs + DD
102 Indecent Acts With Another Art. 134 Indecent: immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave morals with respect to sexual relations.Consent is not an issueExample: A couple engages in sexual intercourse in a commo van during a field training exercise.Max punishment: 5 yrs + DD
103 Indecent Assault Art. 134An unlawful touching of another, not your spouse, where the touch is intended to gratify your lust or sexual desires.“Indecent” = conduct relating to sexual impurity that is grossly vulgar, obscene, or tends to excite lust and deprave morals with respect to sexual relationsExample: On the pretext of correcting a uniform discrepancy, a male soldier repeatedly brushes his hand over a female co-worker’s breast.Max punishment: 5 yrs + DD
104 Indecent Acts with a Child Art. 134 An unlawful touching of a person under 16, not your spouse, where the touching arouses, appeals to, or gratifies your lust, passion, or sexual desires, the victim’s, or bothPhysical contact is required for this offense.Consent not a defense (remember that a child < 16 cannot “legally” consent to sexual acts)Example: Suspect digitally penetrates his 3-year-old daughter’s vaginaMax punishment: 7 yrs + DD(THIS IS A FAIRLY COMMON CRIME IN THE SERVICE)
105 Indecent Liberties with a Child Art. 134 Liberties (no contact) versus Acts (contact)Is conducted in the presence of a person under 16, not your spouse, that is intended to arouse, appeal to, or gratify your lust, passion, or sexual desires, the victim’s, or both.No physical contact is required for this offense.Examples: A step-father requires his 13-year-old step-daughter to view a pornographic video with him; or a soldier masturbates in a 14-year-old girl’s presence.Max punishment: 7 yrs + DD
106 Indecent Language Art. 134Oral or written communication to another which contains indecent language.“Indecent Language” = grossly offensive, shocks the morals, or incites lustful thoughts.Example: A male soldier masquerading as a woman calls women who have recently delivered babies to ask questions about their breast feeding experiences.Max punishment:Victim < 16: 2 yrs + DDOther cases: 6 months + BCD
107 Indecent Exposure Art. 134Intentionally exposing a part of your body to public view in an indecent manner.Negligent exposure is not punishable under the UCMJ.Example: A male soldier works out in the nude on a trampoline in his backyard and deliberately bounces above the level of the privacy fence around his yard.Max punishment: 6 months + BCD
108 Adultery Art. 134Engaging in sexual intercourse with another person if you or the other person are married to someone else (either party is married)Must also demonstrate prejudice to good order and discipline or service discrediting conduct.Commonly added to other offenses, but seldom pursued on its own. However, if there is adultery, there is often other misconduct.Max punishment: 1 yr + DD
109 Prostitution and Pandering Art. 134 Engaging inCompelling, inducing, enticing or procuringArranging or receiving considerationProstitution = 1yr; Pandering = 5yrsNew offense (13 Nov 05):Patronizing a ProstituteMax punishment: 1 yr + DD
110 Theft Offenses Larceny Wrongful appropriation Obtaining Services by Fraud
111 Larceny - Art. 121(a): Elements Accused wrongfully took, withheld OR obtainedCertain tangible propertyFrom the possession of the owner or any other personSuch property having some valueWith the intent to permanently deprive...
112 Larceny - Elements: Property of Another and Value Property = things, money, negotiable instrumentsNot services [taxi, phone, gov’t quarters]Lost or abandoned property?ValueFair market valueA penny will doFrom owner or from possessor?
113 Larceny – Elements Taking, Withholding or Obtaining Must be wrongful (without consent, by fraud)There must be some movement of the property OR exercise of dominion or control over propertyThere must be a “carrying away”Includes taking by false pretensesIncludes embezzlement [wrongful withholding]Taking broadly defined:Any movement of property or exercise of dominion or control over itMovement = asportationExercise of dominion or control can = concealingFalse pretenses: Materially and knowingly false made before change of posession and an effective [need not be sole] cause of turning property over to accusedWithholding = failure to return, account for or deliver when due even if owner has not made such demandShoplifting - offense complete when item concealed with requisite intent - caveat: reguisite intent hard to prove BRDFailure to return rental car - offense complete when item not returned by due date - caveat: reguisite intent hard to prove BRD
114 Larceny – Elements Wrongful NOT wrongful if:authorized by lawauthorized by apparently superior orders ORdone by a person who has an equal or greater right to possession than the right of the person from whom property is takenSham marriage: Larceny of BAH?Wrongful will not include:Authorized by law: Repo, condemnation, search and s seizureAuthorized by apparently superior orders: wartime confiscationRepossession of lent property without force or violenceSham marriage = wrongful larceny of BAQ and VHA where, although marriage was lawful, accused and wife lived separately and H did not support WSelf-help after repo: Generally, if driver is in arrears on loan, he loses right of possession to lender and lender’s agent [the repo man]
115 Larceny – Elements Intent With the intent:To permanently deprive or defraud another person of the use and benefit of the property ORTo permanently appropriate the property for the use of the accused or any other person other than the ownerHaving a “good” motive does NOT negate wrongful intent [e.g., joke, teach lesson, demonstrate physical security defects]Plain English:“I’m taking it so you can’t have it or use it” OR“I’m taking it so I can have it or give it to somebody else”Intent to pay for or replace property not a defenseReturn of property not a defense - Caveat: Will generally negate proving intent to permanently deprive BRD absent statement or admission of accusedGood motive does not negate wrongful intentTeach a lesson = larcenyPlay a joke = larcenyStealing government property to show security weaknesses [without authority] = larcenyRobin Hood’s campaign = larcenyDonating Army property w/o auth to orphanage = larceny
116 Wrongful Appropriation - Art. 121(b) A lesser included offense of larcenyWrongful appropriation occurs when wrongful taking of the property of another is done with the intent to TEMPORARILY:Deprive or defraud another person of the use and benefit of the property ORAppropriate property for use of accused or any other person other than the owner
117 Criminal Intent: Temporary vs. Permanent Jewelry:Car:Food:Cash:Book:Clothing:Government vehicleSell, pawn, donatePaint, tag, stripConsumeSpend, donateLabel it w/ your nameAlter itUse for nonofficial purpose and return
118 Criminal Intent: Temporary vs. Permanent Return of property before being caught or suspected generally negates larceny but will still support conviction for wrongful appropriation
119 ExampleSoldiers A and B live in barracks. They are friends, and A wants to borrow B’s PS2. B has said NO several times, but mainly because they play it together all the time. Lately B has been gone a lot (girlfriend off-post), and A has lost his PS2 buddy. A decides that if B were here he would surely let him borrow the PS2. A knocks on B’s door and B’s roommate lets him in. A takes the PS2 assuring B’s roommate that B is OK with it.What is the most serious offense committed by A?What if A kept it for three days? A week? A month?What if A rented out the PS2 to someone else?
120 Obtaining Services Under False Pretenses Art 134 Theft of services is NOT an Art 121 offenseFalse pretense can be by means of any “act, word, symbol or token”“Can I borrow your watch” (then keep it for good)Accused must KNOW that what he is saying to get the services is untrue
121 False Official Statement Article 107“Official” statementMade in the line of dutyIncludes statements to investigatorsIncludes statements to civilian police IF related to military or there is a military interestRequires knowledge AND intent to deceiveIt happens more often than it’s prosecuted
122 False Swearing Article 134 Official-ness not required (like Art 107) Intent to deceive not required (like Art 107)Requires OATH or AFFIRMATION
123 DrugsDistribution and possession require KNOWLEDGE on the part of the subjectActual or constructive knowledgeIf you know what you are buying or selling is truly NOT a drug, then there can be no drug offense (attempted or otherwise)
124 Criminal Liability Principals Accessory after the fact Attempts ConspiracySolicitation
125 Principals - Article 77 A principal is one who: CommitsAidsAbetsCounselsCommands orProcurescommission of a UCMJ offense ANDshares in the criminal intent or design
126 Principals - Article 77Presence at scene of crime: Not necessary Not sufficientAll principals are guilty of all crimes committed by other principals which are a natural and probable consequence of the original intended offenseCompare: Felony murder
127 Principals - Article 77 What if perpetrator is acquitted? Withdrawal: A person may withdraw from a common venture or plan and avoid liability for any offences committed after the withdrawal if:Withdrawal occurs before the offense is committedWithdrawer effectively negates earlier assistance, command, instigation, etc. ANDWithdrawal is communicated to would-be perps in time for them to abandon plan OR to LEO in time for them to prevent the offense
128 Principals – Max Punishment A principal is subject to SAME max punishment as charged offenseWhether they perpetrated crime orAided, abetted, counseled or commanded itWhether or not they were presentWhether or not the actual perpetrator is convicted
129 Accessory After the Fact - Article 78 Accused has knowledge of offenseReceives, comforts, assists the offenderTo prevent apprehension, trial or punishmentHide evidenceLoan your carLet accused hide in your quartersIs mere knowledge of the crime enough?
130 Accessory After the Fact - Article 78 What if perpetrator:Is not subject to UCMJ?Is acquitted?Actual knowledge is required, but may be proven circumstantiallyA specific intent offense:accused must intend to hinder or prevent apprehension, trial or punishment
131 Accessories After the Fact: Max Punishment 1/2 max of crime charged, except:No more than 10 yrs;No death
132 Misprision of serious offense Art. 134 Knowledge alone is not enoughNeed a “positive act of concealment”MORE THAN just failed to notify authoritiesMust “do” something to conceal the offenseGive advice, alter log book, etc.Principal need not be subject to the code.Serious Offense = Potential sentence of Death or confinement for over 1 year.
133 Attempts - Article 80 Specific Intent Overt Act Goes beyond mere preparationSolicitation of another is NOT enoughMUST be direct movement toward the commission of the offenseBut need not be the last link in a chain of acts necessary to complete the offense
134 Attempt ExampleWhat if a person intends to rape a girl. He and two companions actually do rape the girl, but it turns out the girl was actually deceased at the time.Charge RAPE?Charge Attempted RAPE?Charge another crime?Charge attempted rape!! (real case)There was specific intent and overt act because they intended to rape and they did have intercourse (overt act).
135 Attempts - Article 80 Voluntary abandonment Valid defense IF accused: Voluntarily and completely abandon crimeONLY because of her own decision that crime was wrong.NOT if they:Feared detection?Wanted better odds?Ran into unexpected problems?
136 Attempts - Article 80 Requires “more than mere preparation” A characteristic of the actus reus used to prove the mens rea circumstantiallyPunishmentsSame as for completed offense except:No deathNo mandatory minimumsNot more than 20 years [except attempted murder]
137 Conspiracy - Article 81 Agreement Overt act Common understanding between two criminalsOvert actThe agreement itself is NOT enoughAny overt act, no matter how preliminary or preparatory in natureMay be done by any of the conspiratorsNeed not be a criminal actLegally buy a firearm or roundsBecome a security guard to get access
138 Conspiracy - Article 81 Criminal liability ALL conspirators are guilty Of EACH criminal offenseCommitted by EACH co-conspiratorsIn furtherance of the conspiracySo long as the conspiracy continuesSo long as the conspirator remains a party to the conspiracy
139 Conspiracy - Article 81 Termination of the conspiracy Important because:Long-running conspiracies mean long-running investigationsStatute of limitationsStatement of co-conspirator admissible so long as made during and in furtherance of conspiracyWithdrawal can terminate conspiracy; BUT does not exonerate withdrawing conspirator from charge of conspiracy
140 Conspiracy - Article 81 Withdrawal Must be affirmative act Wholly inconsistent with adherence to conspiracyMere passive noninvolvement in final stages of crime not enoughExamples of effective withdrawal:Going to MPLeaving presence of co-conspirators [maybe]
141 Conspiracy - Article 81 Maximum punishment Same as for offense conspirators intend to commit, except no death penaltyPile on maximum punishment for each:ConspiracyPreparatory offensesUltimate offense
142 Solicitation - Articles 82 & 134 Article 82 confined to four specified offenses:– Sedition (Revolt against civil auth.)Desertion– Mutiny (Revolt against mil. auth.)Commit act of misbehavior before enemyArticle 134 covers any other UCMJ offense
143 Solicitation - Articles 82 & 134 ActAsk or adviseWritten, oral or by conductState of mindWith the specific intent that the offense actually be committedCrime of solicitation is complete once solicitation made or announced or advice givenWhat if solicitation is accepted?
144 Distinctions: Attempt, Conspiracy and Solicitation Nature of the ACT:Attempt: Overt act amounting to more than mere preparationConspiracy: Any overt act (no matter how preliminary or preparatory in nature) is enough so long as it shows the agreement is being executedSolicitation: Ask or advise - no other act required
145 Example B asks A to help him rob bank Solicitation A + B agree to rob B steals a gun for the robbery B kills his wife because she knows about the robbery A tells the police about the job B robs bank & 1 person dies SolicitationNot yet…ConspiracyMurder 2Withdrawal?A = consp + murder 2B = sol; consp; murder 2; robbery; murder 4
149 Affirmative Defenses Self-defense Defense of another Intoxication InsanityParental discipline
150 Self-Defense & Defense of Another LEGITIMATE THREAT (Danger)Objective standardFactors = height/weight, strength, was retreat possible/reasonable?FORCE USED (Necessity)Subjective standardFactors = age, intelligence, emotional control, experience
151 Potential Defenses Self-Defense: Victim may respond to attack with the same level of force as his assailant and still claim S/D.Victim may “offer” more force than permitted to use in an attempt dissuade assailant from continuing the attack and still claim S/D.Rules on the use of deadly force for S/D are complicated (talk to JAG)
152 Defense of OthersEquivalent force: Can use no more force than the one he is defending is entitled to useAccused acts at his peril: If he takes the wrong side in a fight, then he’s not entitled to this defense (can’t defend the aggressor)You can defend anyone (not an aggressor)Meaning you do not have to have a “duty” to protect the person being defended
153 IntoxicationInvoluntary intoxication [accused was legally faultless] generally a valid defenseVoluntary intoxication generally NOT a valid defense UNLESS accused was so intoxicated that he was unable to form a required mental state of offenseE.G.: Specific intent or knowledge requirement
154 Voluntary Intoxication Murder Only negates specific intent; therefore, only a defense to premeditated and intentional murderBy operation of law, voluntary intoxication will only reduce premeditated murder to an unpremeditated murderBy operation of law, voluntary intoxication will NOT reduce either premeditated or unpremeditated murder to manslaughter or any other lesser offense
155 Other Defenses - RCM 916 Justification Obedience to orders Accident EntrapmentCoercion or duressInabilityIgnorance or mistake of fact
156 Accident “A death, injury or other event which occurs as the unintentional andunexpected resultof doing a lawful actin a lawful manneris an accident and is excusable.”
157 Accident Not a defense to involuntary manslaughter: Airman D decided to look for his brother at a local bar [and] told wife to get his pistol. Wife gave him the pistol, but asked that he reconsider. D then said that he better not go because if someone messes with him he ‘would do this.’ At that time he raised his hand in the air, checked to see if there was a clip in the gun and ‘lowered my hand toward her….’ The gun fired. He estimated he was standing about 5 1/2 feet from her. Powder burns on the skin showed that the pistol could not have been fired more than 9 inches from her head.”No Accident!
158 AlibiAlibi can create a reasonable doubt that accused not present when crime committedDefense of choice for the semi-clever guiltyNever survives good investigation
159 Mistake of Fact Mistake of fact: Accused entered building or structure thinking it was his ownAccused set fire to personal property or uninhabited structure thinking it was his ownAccused took property thinking it was his ownSpecific Intent Crimes - must be an “honest” mistake of factGeneral Intent Crimes - must be an “honest” and “reasonable” mistake of fact
160 Factual Impossibility Two men have sex with an apparently unconscious female.Rape?What if female is actually dead?Factual Impossibility. CANNOT be rape.BUT, what about attempted rape?(Thomas)
161 DisclosureRCM 701 requires disclosure of certain defenses before beginning of trial:Names of witnessesDocuments & physical evidenceExams or tests conducted; expertsCertain defenses:AlibiInnocent ingestionMental condition