United States v. Morris

71 M.J. 184, 2012 CAAF LEXIS 259

Opinion

CCA 20081169. Review granted on the following issue raised by appellate defense counsel:

WHEN THE GOVERNMENT FAILS TO ALLEGE AN ARTICLE 134 TERMINAL ELEMENT, THE CHARGE FAILS TO STATE AN OFFENSE UNLESS THE TERMINAL ELEMENT CAN BE “NECESSARILY IMPLIED” FROM THE LANGUAGE OF THE SPECIFICATION. THE MISSING TERMINAL ELEMENT FROM THE SPECIFICATION OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

And the following issue specified by the Court:

WHETHER APPELLANT’S CONVICTION FOR ASSAULT AS A LESSER-INCLUDED OFFENSE OF INDECENT ASSAULT UNDER ARTICLE 134 MAY BE AFFIRMED WHERE THE ARTICLE 134 SPECIFICATION WAS DEFECTIVE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Briefs will be filed under Rule 25.