United States v. Stewart

70 M.J. 331, 2011 CAAF LEXIS 671

Opinion

CCA 201000021. Review granted on the following issues:

I. UNDER UNITED STATES v. PRATHER, IS IT LEGALLY POSSIBLE FOR THE PROSECUTION TO DISPROVE AN AFFIRMATIVE DEFENSE BEYOND A REASONABLE DOUBT ONCE THE MILITARY JUDGE HAS DETERMINED THAT THE DEFENSE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE AND, IF NOT, IS THE MILITARY JUDGE REQUIRED TO ENTER A FINDING OF NOT GUILTY IN SUCH A CASE UNDER RCM 917?

II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING THE EVIDENCE FACTUALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUSTAIN APPELLANT’S CONVICTION UNDER SPECIFICATION 2 BECAUSE IN DOING SO IT (1) VIOLATED THE PRATHER LEGAL-IMPOSSIBILITY PRINCIPLE AND (2) IMPERMISSIBLY FOUND AS FACTS ALLEGATIONS THAT HE WAS FOUND NOT GUILTY OF IN SPECIFICATION 1.

III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY REQUIRING THE DEFENSE TO PRESENT EVIDENCE ON THE DEFENSE OF CONSENT AT AN ARTICLE 39(a) SESSION PRIOR TO TRIAL.

Briefs will be filed under Rule 25.