At that point there were three versions of the charged offense: First, it is impossible to discern from the record before us whether a material variance occurred between the pleadings and proof in this case.
At the conclusion of the oral argument in this case, Chief Big mess analysis Stucky said: Military justice blogs are to blogs as military music is to music.
Litigators and jurists often speak of protecting the record. Did, at or near Dove [sic] Air Force Base, Delaware, on or about 1 February and on about 30 Aprilengage in sexual contact, to wit: Seizing on the discussion accompanying R.
The charge as referred for trial stated: Did the military judge err? Judge Ohlson writes for a Big mess analysis court. Counsel for both sides having manfully striven to make something of this mess, the case is now submitted.
NG to the LIO of assault consummated by a battery. Namely, the record fails to definitively identify what offense Appellant was convicted of. With multiple versions of the charged offense, inconsistency from the Government division on appeal, and doubts about the sufficiency of the evidence, however, the record in this case was anything but protected.
Indeed, the record before us is such a tangled morass that we are precluded from conducting an appropriate Article 67, UCMJ, review of this case.
So, had the Government Division stuck with the argument that Honea was convicted of touching the vulva, the conviction likely would have been reversed for insufficiency. CAAF granted review of two issues: But the evidence elicited at an Article 32 pretrial investigation supported only a touching of the broader pelvic region.
A different military judge took over for trial, however, and employed an odd procedure. CAAF then granted review. A military judge concluded that this specification failed to state a sexual offense, but found that it stated the lesser included offense of assault consummated by a battery by touching of the vulva, and Honea pleaded not guilty to that offense.
But Judge Ohlson then outlines two points that require dismissal of the charge with prejudice: One alleged a sexual touching of the vulva of the alleged victim as an abusive sexual contact in violation of the version of Article h in effect from The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the Government to roceed to trial on the purported lesser included offense of assault consummated by a battery.
The mess, however, prevails. Rather, he begins his analysis with the bottom line up front: On appeal, Honea challenged the conviction, asserting that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, and also asserting that the evidence is insufficient to prove the charged offense of touching of the vulva.
This leads to reversal. Honea III, 77 M. The military judge then sentenced Honea to confinement for one month and a dismissal.Informed news analysis every weekday.
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