Crimes
Elements & Examples
CPT Kennebeck
Law Division
Overview
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
Elements of a crime
General nature of criminal law
Trespass Offenses
Crimes against the person
Arson
Sex crimes
Theft Offenses
Drug Offenses
Inchoate Offenses
Defenses
Terminal Learning Objective
• Action: Discuss specific crimes,
elements and the UCMJ.
• Condition: Given a guided classroom
discussion.
• Standard: Discussed specific crimes,
elements and the UCMJ.
Elements of a crime
and
Max Punishment
Elements of a Crime
• Knowing the name of a crime is not
enough:
– Look it up!!
• Investigation/prosecution depends on
understanding the elements
• EACH element must be proven beyond
a reasonable doubt
• Motive IS NEVER an element of a crime
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 occurred
– Must prove act was VOLUNTARY so that
accused’s act was not accidental
• Specific intent crimes
– Accused possessed the mental state specified
by the statute
– Cues : “knowingly,” “willfully,” “for the purpose
of,” “premeditated design,” & “with intent to”
Severity of Offense
• The severity of an offense is gauged by its
maximum punishment
• As between several offenses, the one that
has the highest maximum punishment is the
most serious offense
• What are the punitive discharges and which
is most severe?
General Nature of Criminal Law
• Applicable criminal codes:
– Uniform Code of Military Justice [UCMJ]
– Federal statutes
– State statutes
• Assimilation  adoption
– Art. 134, UCMJ, assimilates federal
criminal laws
– 18 USC §13 assimilates state criminal laws
General Nature of Criminal Law:
Article 134 - The General Article
• Prejudicial to GOADITAF
– Direct and palpable impact
– Not remote or indirect possibility
• Service-discrediting
– Directly injure reputation of service
– Tend to bring service into disrepute
• Crimes and offenses not capital
– Assimilation
General Nature of Criminal Law:
Article 133 - Conduct Unbecoming Officer
• Examples:
– Cheating on examination
– Insulting another officer
– Consorting with known prostitutes
– Nonsupport
Disrespect and Disobedience
• Article 89: Disrespect toward an officer
• Article 90: Assault or disobey an officer
• Article 91: Assault, disobey or disrespect
an NCO, warrant or petty officer
• Article 92: a. Disobey General order or reg;
b. Disobey some other order
c. Dereliction of duty
Disrespect
• What is disrespect?
– Behavior that detracts from good order and
discipline
– Name-calling, refusal to salute, marked disdain
– Insolence, undue familiarity, other rudeness
• Must “victim” be in the execution of his office?
– NO for officers
– YES for NCO, warrant & petty
Disrespect
• Superior to accused?
– For Officers, MUST be superior
• Same armed force? Must be superior but need not be in
chain
• Different armed forces? Must be superior AND in chain of
command
– For NCO, warrant & petty, superior = added element
• Knowledge?
– Accused MUST have knowledge that person
disrespected had the alleged rank
Disrespect
• Truthful remarks OK?
– NO; TRUTH IS NO DEFENSE
• Actual presence required?
– Officers: Need not be present
– NCO, warrant & petty: MUST be present
(within sight or sound of offender)
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 position
– Marine officer said, “Let me see you put me flat on
my back”
• Enlisted Marine did – NOT DISRESPECT
• What about assault though?
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)
Disrespect Examples
• Accused contemptuously turned and walked
away from superior who was still talking to
accused - Ferenczi, 27 CMR 77
• Accused greeted female superior with “Hi,
sweetheart” - Dornick, 16 MJ 642
• Accused pointed finger at trial counsel and
said, “You are going to get it.” - Gray, 14 MJ
551
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
Disobedience
Common Themes
• Lawfulness of orders presumed
– You disobey a superior’s order at your peril
• Order must relate to a military duty
– accomplish a military mission or safeguard
or promote the morale and discipline
• From someone with authority
Disobedience
Common Themes
• Ideally, an enforceable order is:
– A positive command
– Specific
– Contains time for compliance
• But something less will often do
– Politely phrased orders are still orders
– Lack of suspense implies immediate
compliance expected
Disobedience
• Personal orders [Arts. 90 (Officer), 91(NCO),
and 92 (MP, sentinel)
– Knowledge of “victim’s” status must be proven
– Can be proven by circumstantial evidence
• “Impersonal” orders [Art. 92]
– AR or general order (GO or GCMCA)
– Accused’s lack of knowledge not a defense
Failure to Obey Other Lawful Order or
Regulation
[Art. 92, UCMJ]
1. Lawful general orders or regulation
– Lack of knowledge not a defense
2. Other lawful orders
– Knowledge required
– MPs, guards, and sentinels
– Also policy orders from CO
3. Dereliction of duty imposed by:
– Treaty, Statute, Regulation, Lawful order, SOP, or
custom of the service
TRESPASS OFFENSES
• Burglary [Art. 129, UCMJ]
• Housebreaking [Art. 130, UCMJ]
• Unlawful Entry [Art. 134, UCMJ]
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
Burglary - Elements
•
•
•
•
•
•
•
Accused
Unlawfully
Broke and
Entered
Dwelling house
Of another
Breaking in the
nighttime
• Entering in the
nighttime
• Breaking with the
intent to commit
118-128 [except
123a]
• Entering with the
intent to commit
118-128 [except
123a]
Burglary - Elements: Intent
• Both breaking and entering must be done
with the intent to commit a crime inside
• Crime need not be actually committed so long
as intent existed at the time of the breaking
and the entering
• Criminal intent formed after breaking or
entering will not suffice to support burglary
• Intended crime must be a violation of Arts.
118 - 128 [except 123a]
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 trucks
– Need not be in use at time of entry
• Can occur in daytime or nighttime
• Intent: Must intend to commit a UCMJ violation
[except a purely military offense] at the time of
entry
Unlawful Entry - Article 134
• A lesser included offense of burglary and
housebreaking
• No breaking required
• WHERE?
– 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]
Unlawful Entry - Article 134
• Specific criminal intent to commit a criminal
offense of any kind once inside is NOT
REQUIRED
• Entry must be “unlawful”: Made without the
consent of anyone authorized to permit entry
or without other lawful authority
• Must be either service-discrediting or
prejudicial to GOADITAF
Trespass Offenses
Burglary
Housebreaking
Unlawful Entry
Breaking
required
Breaking NOT
required
Breaking NOT
required
Dwelling house
Building
Real or personal
property amounting to
a structure
Specific intent
to commit Art.
118-128 offense
at time of break
& enter
Specific intent to
commit any
“nonmilitary”
offense at time
of entry
General intent, w/o
permission, AND
service-discrediting
or prejudicial to good
order & discipline
Applying the Elements
• At 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?
Example
• Soldier 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?
Crimes Against the Person
1.
2.
3.
4.
Murder
Manslaughter
Negligent Homicide
Assault
a) Simple
b) Battery (also called ACB)
c) Aggravated
UCMJ Homicides
• Intentional Killings
• Reckless Killings
• Deaths a consequence of accused’s
decision to commit a crime
• Serious Negligence
UCMJ Homicides
• Murder
– Premeditated murder
– Intentional murder
– Wanton murder
– Felony murder
• Manslaughter
– Voluntary manslaughter
– Involuntary manslaughter
• Negligent homicide
Murder - Art. 118, UCMJ
1. Premeditated murder - capital
2. Intentional murder
3. Wanton murder
4. Felony murder - capital
Premeditation
• Two components:
– A consciously conceived thought of taking
life, AND
– An intentional act or omission by which the
life is taken
• Order of these components immaterial
• Lack of delay between formation of
mental element and action is immaterial
Premeditation:
Proof of Intent
• Confession
• Inferred from circumstances:
– US v. Matthews [ACMR 1982] - Victim stabbed 53
times
– US 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 times
– US v. Bullock [ACMR 1981] - Prior anger &
threats indicative of premeditation
Premeditation:
Transferred Intent
• US v. Black [CMA 1953]:
–
–
–
–
–
–
Accused and Lewis argue
Accused: “I have 8 rds in my M-1 for you”
Accused gets M-1 and finds Lewis
Accused fires, hitting Lewis in left chest
Bullet exits right rear chest & hits Kirchner
Accused: “Sorry, buddy, it was not meant for
you… it was meant for Lewis”
– Kirchner and Lewis die
• Convicted of premeditated & unpremeditated
• Should have been convicted of 2 x premed.
Premeditated Murder
Capital Offense - RCM 1004
• Premeditated murder is a capital offense if:
1. Accused in confinement for at least 30-year term
2. Accused committed murder while committing or
attempting to commit enumerated offenses
3. Accused committed murder for hire
4. Accused hired or compelled other to murder
5. Accused murdered to avoid apprehension or effect
escape from custody or confinement
6. Accused guilty in same case of another murder
Premeditated Murder
Capital Offense - RCM 1004
• Premeditated murder is a capital offense if:
7. Accused murdered protected person (US official, cop,
foreign official, firefighter, military officer or NCO in
execution of office)
8. Accused murdered w/intent to obstruct justice
9. Accused first intentionally inflicted substantial
physical harm or prolonged, substantial mental or
physical pain and suffering on victim
• Mandatory minimum - imprisonment for life
Intentional Murder
• Intentional murder is unpremeditated
• Can result from:
– Reluctance to refer as capital offense
– Prosecution unable to convince judge or jury
beyond reasonable doubt that premeditation
existed
– Reluctance to find guilty of capital offense
• MCM example: Housebreaker kills homeowner
suddenly blocking his escape
• Intentional murder more serious than voluntary
manslaughter
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 enough
• Requires knowledge that death or great
bodily harm a probable consequence of
that intentional act
– “He knew he could easily kill somebody”
Wanton Murder - Action Elements
• Action must be of nature to be inherently
dangerous to others
– Examples:
• Blasting in housing area
• Staging sham firefight in inhabited area
• Acts must show a “wanton disregard” for
human life
• “Anyone would know he could easily kill
somebody”
Wanton Murder - In Plain English
• He knew his actions could result in
death,
• A reasonable person would know this
• He decided to do it anyway
• Wanton murder is an unpremeditated
murder
Felony Murder - Elements
• A named or described person is dead
• Killing was unlawful
• At the time of the killing, accused was engaged in the
perpetration or attempted perpetration of
1.
2.
3.
4.
5.
burglary,
robbery,
rape,
sodomy, or
aggravated arson
• The death resulted from an act or omission of the
accused
– In other words, the death was a consequence of the
perpetration or attempted perpetration of one of these offenses
Felony Murder - Example
• US v. Borner [CMA 1953]
– 3 soldiers took 3 pistols into Korean hills to
hunt birds and ended up in isolated village
– One expresses desire for sexual intercourse,
another agrees, & both enter house occupied
by 2 women while third acts as look-out
– One rapes woman while her sister-in-law hides
– Sister-in-law’s husband responds to scene
– Someone shoots and kills husband
– HELD: All three soldiers guilty of felony
murder
Manslaughter
Art 119
1. Voluntary manslaughter
2. Involuntary manslaughter
– Culpably negligent act …or
– While perpetrating an offense
affecting another
“Heat of Sudden Passion”
“Adequate Provocation”
• Heat of passion = Act and intent to kill provoked
by fear or rage causing total loss of self-control
• Adequate provocation = Sufficient to send a
reasonable man into an uncontrollable rage
• No cooling off period:
– Fatal attack must be made before self-control returns
– If sufficient time passes between provocation and fatal
attack for reasonable man to “cool off,” crime is not
voluntary manslaughter
Voluntary Manslaughter
• Essentially, this kind of provoked passion is a
partial affirmative defense to intentional
murder
• Reduces what would otherwise be
intentional murder to the less serious
crime of voluntary manslaughter
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 abusive
• Shoving match ensues, which accused quits
• Victim attacks accused from rear, throws him on bed and begins
choking him, pinning him in front of others
• Accused retreats to corner of room, victim begins taunting him
verbally
• In 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 heart
• CONVICTED of intentional murder
• HELD: Reduced to voluntary manslaughter - “These provocations
were adequate to provoke uncontrollable rage, fear and passion in
a reasonable person.”
Involuntary Manslaughter
1. Culpable negligence - death is foreseeable
2. While committing an offense directly
affecting the person, other than those
covered by felony murder
Involuntary Manslaughter
Culpable Negligence
• “Degree of carelessness greater than
simple negligence”
• Examples:
– Setting up range with houses in zone
– Triggering pistol at another without clearing
– Assisting the injection of heroin in another
– Repeatedly striking & shaking crying infant
– Leaving Child with known abusive spouse!
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
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 circumstances
• Examples:
– Running red light, hitting and killing another
– Erecting radio antenna next to high tension lines
Intent versus Negligence
Degrees of intent:
1. Premeditation
2. Specific Intent
3. Wanton disregard (reckless, immoral, shameless)
4. Culpable negligence (blameworthy, degree of
carelessness greater than simple negligence)
5. Simple negligence (failure to exercise that degree of
care expected of reasonably prudent individual)
Homicide Example
• Man 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?
Homicide Example
• Grandma 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?
Robbery - Article 122
• Accused wrongfully took certain property
• From the victim’s person or from the possession
and in the presence of the victim
• Against the will of the victim
• By means of:
– Force and/or violence OR
– Putting the person in fear of force and/or violence
• Such property not belonging to the accused
• Such property of some value
• Intent to steal (permanently deprive)
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
Robbery - Elements:
“By means of…”
1. Force or violence (or both)
– Picking pocket by stealth not sufficient
– Purposeful bump by pickpocket will suffice
– Knocking unconscious will suffice
2. By fear of:
– Immediate or future injury
– To person or property of:
• Self
• Member of family or a relative
• Anyone in victim’s company at time of robbery
Robbery - Elements:
“By means of…”
• IF force, violence, or both are used, THEN
fear is not required
• IF victim is placed in reasonable
apprehension [fear] of immediate or future
injury, THEN actual force not required
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?
Example
• Soldier’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?
Simple Assault - Art. 128
a. Assault by offer
b. Assault by attempt
Elements of Simple Assault
•
•
•
•
•
•
Accused
Offered or Attempted
To do bodily harm
To a certain person
With unlawful
Force or violence
Offer vs. Attempt
OFFER
“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.”
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.
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.
Simple Assault
• Must physical contact be made to constitute either
assault by offer or by attempt?
– No, if physical contact is made, see ACB - Art. 128
• Can mere words or threats of future violence constitute
either an assault by offer or by attempt?
– No, but see provoking speeches - Art. 117
– Maybe, if accompanied by menacing acts or gestures
• Can “mere preparation” constitute either assault by
offer or by attempt?
– No
Assault Consummated by a Battery
[ACB] - Art. 128, UCMJ - Elements
•
•
•
•
•
Accused
With unlawful
Force or violence
Did bodily harm
To a certain person
ACB - Elements - “Unlawful”
• “Lawful” force = OK
– E.G., MPs break up fight or forcefully apprehend
– Playing football or rugby (within the rules)
• Even a “touch” is enough, but touching must
be intentional or culpably negligent
• Touching merely for the purpose of attracting
attention is not unlawful
• Mutual affray is unlawful
ACB - Elements - “Bodily Harm”
• Covers any harmful or offensive
touching, however slight
• Examples:
– Nonconsensual kissing
– Nonconsensual unbuttoning blouse
– Spitting on aware victim
– Giving a shot to sleeping victim
ACB - Elements - “Bodily Harm”
• Pain not required
• Leaving marks not required
• Direct contact not required
– Striking a victim’s skittish horse
– Loosing a vicious dog on victim
– Cutting clothes of victim without touching
victim
Aggravated Assault
(Distinguished from Simple Assault and ACB)
• Simple Assault:
– Blow never landed
• ACB:
– Harmful or offensive touching, however slight
• Aggravated assault:
1. Used means likely to inflict grievous bodily harm,
OR
2. Grievous bodily harm was intentionally inflicted
Aggravated Assaults
• Two separate crimes of aggravated assault,
both of which are committed in the typical
aggravated assault scenario:
1. Assault with a dangerous weapon or other means
or force likely to produce death or grievous
bodily harm (START)
2. Assault in which grievous bodily harm is actually
(intentionally) inflicted (FINISH)
(Actual, intentional infliction of grievous bodily harm is more serious)
Aggravated Assault
“Means Likely”
• Accused unlawfully
• With a certain weapon, means or force
• Used in a manner likely to produce
death or grievous bodily harm
• Attempted to do, offered to do or did
• Bodily harm
• To a certain person
“Grievous Bodily Harm”
• Grievous bodily harm = Serious bodily
injury
– Does not include:
• Black eye
• Bloody nose
• Or other minor injuries
Dangerous Weapon –
“Means Likely”
• Refers to “ordinary
items” being used as a
weapon
–
–
–
–
–
Hammer
Bottle
Rock
Pipe
Boiling Water
• Focus is on how the item
is actually used
Dangerous Weapon –
“Means Likely”
• Firearms:
– Use of loaded firearm increases punishment
– Just 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
Dangerous Weapon –
“Means Likely”
• Grievous bodily harm need not ACTUALLY occur
• Examples:
–
–
–
–
–
Bottle, pool cue, flashlight
Firecracker
Sugar packet
Fists
Steel-toed boots
vicious swing
avalanche
plane fuel tank
helpless victim
head of victim
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)
Aggravated Assault
“GBH Intentionally Inflicted”
• Accused
• Unlawfully
• With the specific intent to inflict grievous
bodily harm
• With force or violence
• Assaulted
• A certain person
• And grievous bodily harm was actually
inflicted upon the certain person
ADD Firearm
• UNLOADED firearm, point only
– Simple Assault (DD, 3yrs)
• LOADED firearm, point only
– 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 firearm
– Injury?
• Attempted murder or murder
• Aggravated assaults
ADD Firearm: Examples
• Point an unloaded firearm?
Simple Assault
• Strike with a loaded firearm?
• Point a loaded firearm?
• Shoot a loaded firearm?
Agg Assault
Agg Assault
Murder or Assault
• First question to answer at the crime scene?
LOADED???
Example
• PFC 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?
Example
• Two 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?
Options other than Assault
• Riot or breach of peace
Art. 116
– Violent in nature (e.g.: discharge a weapon)
• Provoking speeches/gestures
Art. 117
– Words that would make a reasonable react with
violence
• Conduct unbecoming
Art. 133
– Lawlessness, indecorum, cruelty
• Communicating a threats
– Intent to wrongfully injure
Art. 134
Arson - Art. 126
• Aggravated arson
– Inhabited dwelling
– Occupied structure
Confinement
20 years
20 years
• Simple arson
– Value  $100
– Value > $100
1 year
5 years
• Common elements:
– Accused burned or set on fire
– Act was willful and malicious
– Property belonged to someone & had
value
Arson - Art. 126: Distinctions
Aggravated (1a)
Inhabited dwelling
Aggravated (1b)
Structure
Human being inside
at the time
Accused knew or
should have known
human being inside
at the time
Simple (2)
Property of
another
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
SEX CRIMES
Sex Crimes
1.
2.
3.
4.
5.
6.
7.
8.
9.
Rape
Carnal Knowledge
Sodomy
Indecent assault
Indecent acts or liberties with a child
Indecent acts with another
Indecent exposure
Adultery
Prostitution and Pandering
Rape - Art. 120(a), UCMJ - Elements
• Accused committed an act of sexual
intercourse
– Any penetration, however slight, suffices
• By force
• And without consent
Rape – Elements
Force
• Force can be actual or constructive
• Constructive force [enough to penetrate] may
suffice if:
1. Victim incapable of consenting (passed out)
2. Resistance is futile or is overcome by threats
[express or implied] of death or physical injury OR
3. Nonphysical coercion used to make victim comply,
for example:
• Parental compulsion
• Military authority
Rape – Elements
Lack of Consent
• Generally means:
– Saying NO, or showing physical resistance
– More than a mere lack of acquiescence
• But, lack of consent can be inferred IF:
– Resistance would have been futile;
– Consent was overcome by threats of death
or great bodily harm; OR
– Victim was unable to resist because of lack
of physical or mental faculties
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
Rape – Certain Issues
• Spouse can be charged with raping spouse
• Voluntary intoxication not a defense
• Consent obtained by fraud can be a defense
(e.g., promise to marry, pay)
Example
• Soldier 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?
Carnal Knowledge, Art. 120
• Vaginal 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
Sodomy, Art. 125
• Oral 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:
With a child < 12:
With a child > 12 but < 16:
Consensual:
Life + DD;
Life + DD;
20 yrs + DD;
5 yrs + DD
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 issue
• Example: A couple engages in sexual intercourse in a
commo van during a field training exercise.
• Max punishment: 5 yrs + DD
Indecent Assault
Art. 134
• An 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
relations
• Example: 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
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 both
• Physical 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 vagina
• Max punishment: 7 yrs + DD
(THIS IS A FAIRLY COMMON CRIME IN THE SERVICE)
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
Indecent Language
Art. 134
• Oral 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:
– Other cases:
2 yrs + DD
6 months + BCD
Indecent Exposure
Art. 134
• Intentionally 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
Adultery
Art. 134
• Engaging 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
Prostitution and Pandering
Art. 134
1. Engaging in
2. Compelling, inducing, enticing or procuring
3. Arranging or receiving consideration
•
•
Prostitution = 1yr; Pandering = 5yrs
New offense (13 Nov 05):
– Patronizing a Prostitute
•
Max punishment: 1 yr + DD
Theft Offenses
1. Larceny
2. Wrongful appropriation
3. Obtaining Services by Fraud
Larceny - Art. 121(a):
Elements
• Accused wrongfully took, withheld OR
obtained
• Certain tangible property
• From the possession of the owner or
any other person
• Such property having some value
• With the intent to permanently deprive...
Larceny - Elements:
Property of Another and Value
• Property = things, money, negotiable
instruments
– Not services [taxi, phone, gov’t quarters]
• Lost or abandoned property?
• Value
– Fair market value
– A penny will do
• From owner or from possessor?
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 property
• There must be a “carrying away”
• Includes taking by false pretenses
• Includes embezzlement [wrongful withholding]
Larceny – Elements
Wrongful
• NOT wrongful if:
– authorized by law
– authorized by apparently superior orders
OR
– done by a person who has an equal or
greater right to possession than the right
of the person from whom property is
taken
• Sham marriage: Larceny of BAH?
Larceny – Elements
Intent
• With the intent:
– To permanently deprive or defraud another
person of the use and benefit of the property
OR
– To permanently appropriate the property for
the use of the accused or any other person other
than the owner
• Having a “good” motive does NOT negate wrongful
intent [e.g., joke, teach lesson, demonstrate
physical security defects]
Wrongful Appropriation - Art. 121(b)
• A lesser included offense of larceny
• Wrongful 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 OR
– Appropriate property for use of accused or
any other person other than the owner
Criminal Intent:
Temporary vs. Permanent
•
•
•
•
•
•
•
Jewelry:
Car:
Food:
Cash:
Book:
Clothing:
Government vehicle
Sell, pawn, donate
Paint, tag, strip
Consume
Spend, donate
Label it w/ your name
Alter it
Use for nonofficial
purpose and return
Criminal Intent:
Temporary vs. Permanent
• Return of property before
being caught or
suspected generally
negates larceny but will
still support conviction for
wrongful appropriation
Example
• Soldiers 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?
Obtaining Services Under False Pretenses
Art 134
• Theft of services is NOT an Art 121 offense
• False 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
False Official Statement
• Article 107
– “Official” statement
• Made in the line of duty
• Includes statements to investigators
• Includes statements to civilian police IF related to
military or there is a military interest
• Requires knowledge AND intent to deceive
• It happens more often than it’s prosecuted
False Swearing
• Article 134
– Official-ness not required (like Art 107)
– Intent to deceive not required (like Art 107)
– Requires OATH or AFFIRMATION
Drugs
• Distribution and possession require
KNOWLEDGE on the part of the subject
– Actual or constructive knowledge
• If you know what you are buying or
selling is truly NOT a drug, then there
can be no drug offense (attempted or
otherwise)
Criminal Liability
•
•
•
•
•
Principals
Accessory after the fact
Attempts
Conspiracy
Solicitation
Principals - Article 77
A principal is one who:
– Commits
– Aids
– Abets
– Counsels
– Commands or
– Procures
commission of a UCMJ offense AND
shares in the criminal intent or design
Principals - Article 77
• Presence at scene of crime:
Not necessary
Not sufficient
• All principals are guilty of all crimes
committed by other principals which are
a natural and probable consequence of
the original intended offense
– Compare: Felony murder
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 committed
– Withdrawer effectively negates earlier assistance,
command, instigation, etc. AND
– Withdrawal is communicated to would-be perps in
time for them to abandon plan OR to LEO in time for
them to prevent the offense
Principals – Max Punishment
• A principal is subject to SAME max
punishment as charged offense
– Whether they perpetrated crime or
– Aided, abetted, counseled or commanded it
– Whether or not they were present
– Whether or not the actual perpetrator is convicted
Accessory After the Fact Article 78
• Accused has knowledge of offense
• Receives, comforts, assists the offender
• To prevent apprehension, trial or punishment
– Hide evidence
– Loan your car
– Let accused hide in your quarters
• Is mere knowledge of the crime enough?
Accessory After the Fact Article 78
• What if perpetrator:
– Is not subject to UCMJ?
– Is acquitted?
• Actual knowledge is required, but may be
proven circumstantially
• A specific intent offense:
– accused must intend to hinder or prevent
apprehension, trial or punishment
Accessories After the Fact:
Max Punishment
• Accessories after the fact:
– 1/2 max of crime charged, except:
• No more than 10 yrs;
• No death
Misprision of serious offense
Art. 134
• Knowledge alone is not enough
• Need a “positive act of concealment”
– MORE THAN just failed to notify authorities
– Must “do” something to conceal the offense
– Give 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.
Attempts - Article 80
• Specific Intent
• Overt Act
– Goes beyond mere preparation
– Solicitation of another is NOT enough
– MUST be direct movement toward the
commission of the offense
– But need not be the last link in a chain of
acts necessary to complete the offense
Attempt Example
• What 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).
Attempts - Article 80
• Voluntary abandonment
– Valid defense IF accused:
• Voluntarily and completely abandon crime
• ONLY because of her own decision that crime
was wrong.
– NOT if they:
• Feared detection?
• Wanted better odds?
• Ran into unexpected problems?
Attempts - Article 80
• Requires “more than mere preparation”
– A characteristic of the actus reus used to
prove the mens rea circumstantially
• Punishments
– Same as for completed offense except:
• No death
• No mandatory minimums
• Not more than 20 years [except attempted murder]
Conspiracy - Article 81
• Agreement
– Common understanding between two criminals
• Overt act
– The agreement itself is NOT enough
– Any overt act, no matter how preliminary or preparatory
in nature
– May be done by any of the conspirators
– Need not be a criminal act
• Legally buy a firearm or rounds
• Become a security guard to get access
Conspiracy - Article 81
• Criminal liability
– ALL conspirators are guilty
– Of EACH criminal offense
– Committed by EACH co-conspirators
• In furtherance of the conspiracy
• So long as the conspiracy continues
• So long as the conspirator remains a party to
the conspiracy
Conspiracy - Article 81
• Termination of the conspiracy
– Important because:
• Long-running conspiracies mean longrunning investigations
• Statute of limitations
• Statement of co-conspirator admissible so
long as made during and in furtherance of
conspiracy
– Withdrawal can terminate conspiracy; BUT
does not exonerate withdrawing
conspirator from charge of conspiracy
Conspiracy - Article 81
• Withdrawal
– Must be affirmative act
– Wholly inconsistent with adherence to
conspiracy
– Mere passive noninvolvement in final
stages of crime not enough
– Examples of effective withdrawal:
• Going to MP
• Leaving presence of co-conspirators
[maybe]
Conspiracy - Article 81
• Maximum punishment
– Same as for offense conspirators intend to
commit, except no death penalty
– Pile on maximum punishment for each:
• Conspiracy
• Preparatory offenses
• Ultimate offense
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 enemy
• Article 134 covers any other UCMJ offense
Solicitation - Articles 82 & 134
• Act
– Ask or advise
– Written, oral or by conduct
• State of mind
– With the specific intent that the offense
actually be committed
• Crime of solicitation is complete
once solicitation made or announced
or advice given
– What if solicitation is accepted?
Distinctions:
Attempt, Conspiracy and Solicitation
• Nature of the ACT:
– Attempt: Overt act amounting to more than mere
preparation
– Conspiracy: Any overt act (no matter how
preliminary or preparatory in nature) is enough so
long as it shows the agreement is being executed
– Solicitation: Ask or advise - no other act required
Example
• B asks A to help him rob bank
 Solicitation
• A + B agree to rob
 Not yet…
• B steals a gun for the robbery
 Conspiracy
• B kills his wife because she knows
about the robbery
 Murder 2
• A tells the police about the job
 Withdrawal?
• B robs bank & 1 person dies
 A = consp + murder 2
B = sol; consp; murder 2;
robbery; murder 4
Defenses
Affirmative Defenses
An affirmative defense wholly or partially
denies criminal responsibility
Affirmative Defenses
•
•
•
•
•
Self-defense
Defense of another
Intoxication
Insanity
Parental discipline
Self-Defense & Defense of Another
1. LEGITIMATE THREAT (Danger)
– Objective standard
– Factors = height/weight, strength, was
retreat possible/reasonable?
2. FORCE USED (Necessity)
– Subjective standard
– Factors = age, intelligence, emotional
control, experience
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)
Defense of Others
• Equivalent force: Can use no more force
than the one he is defending is entitled to use
• Accused 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
Intoxication
• Involuntary intoxication [accused was legally
faultless] generally a valid defense
• Voluntary intoxication generally NOT a valid
defense UNLESS accused was so intoxicated
that he was unable to form a required mental
state of offense
– E.G.: Specific intent or knowledge requirement
Voluntary Intoxication
Murder
• Voluntary intoxication
– Only negates specific intent; therefore, only a
defense to premeditated and intentional murder
– By operation of law, voluntary intoxication will only
reduce premeditated murder to an unpremeditated
murder
– By operation of law, voluntary intoxication will NOT
reduce either premeditated or unpremeditated
murder to manslaughter or any other lesser
offense
Other Defenses - RCM 916
•
•
•
•
•
•
•
Justification
Obedience to orders
Accident
Entrapment
Coercion or duress
Inability
Ignorance or mistake of fact
Accident
• “A death, injury or other event which
occurs as
– the unintentional and
– unexpected result
– of doing a lawful act
– in a lawful manner
is an accident and is excusable.”
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!
Alibi
• Alibi can create a reasonable doubt that
accused not present when crime
committed
– Defense of choice for the semi-clever guilty
– Never survives good investigation
Mistake of Fact
• Mistake of fact:
– Accused entered building or structure thinking it was
his own
– Accused set fire to personal property or uninhabited
structure thinking it was his own
– Accused took property thinking it was his own
• Specific Intent Crimes - must be an “honest”
mistake of fact
• General Intent Crimes - must be an “honest”
and “reasonable” mistake of fact
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)
Disclosure
• RCM 701 requires disclosure of certain
defenses before beginning of trial:
– Names of witnesses
– Documents & physical evidence
– Exams or tests conducted; experts
– Certain defenses:
• Alibi
• Innocent ingestion
• Mental condition
Questions?