United States v. Honea , 76 M.J. 354 ( 2017 )

CCA 38905. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. IMMEDIATELY BEFORE THE DEFENSE RESTED ITS CASE, THE MILITARY JUDGE INVITED THE PARTIES’ ATTENTION TO R.C.M. 910, AND DIRECTED THE DEFENSE TO PROVIDE THE MILITARY JUDGE WITH A DRAFT SPECIFICATION OF ASSAULT CONSUMMATED BY A BATTERY. DID THE LOWER COURT ERR WHEN IT HELD THAT THE DEFENSE’S COMPLIANCE WITH THE MILITARY JUDGE’S DIRECTIVE CONSTITUTED A DE FACTO DEFENSE REQUEST TO MODIFY THE SPECIFICATION PURSUANT TO R.C.M. 603 WHERE THERE IS NO EVIDENCE THAT EITHER THE DEFENSE OR THE CONVENING AUTHORITY WERE AWARE THE CHARGE WAS BEING AMENDED PURSUANT TO R.C.M. 603?

II. 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 PROCEED TO TRIAL ON THE PURPORTED LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY A BATTERY. DID THE MILITARY JUDGE ERR?

Briefs will be filed under Rule 26.