United States v. Rauscher

UNITED STATES, Appellee
v.
Jeremy L. RAUSCHER, Machinist’s Mate Second Class
U.S. Navy, Appellant
No. 12-0172
Crim. App. No. 201100684
United States Court of Appeals for the Armed Forces
Argued May 16, 2012
Decided June 18, 2012
PER CURIAM
Counsel
For Appellant: Captain Michael D. Berry, USMC (argued).
For Appellee: Captain David N. Roberts, USMC (argued); Colonel
Kurt J. Brubaker, USMC, Lieutenant Benjamin J. Voce-Gardner,
JAGC, USN, and Brian K. Keller, Esq. (on brief).
Military Judge: J. Kirk Waits
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rauscher, No. 12-0172/NA
PER CURIAM:
Appellant was charged under Article 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2006), with assault
with intent to commit murder but convicted, contrary to his
pleas, of assault with a deadly weapon or other means or force
likely to produce death or grievous bodily harm, under Article
128, UCMJ, 10 U.S.C. § 928 (2006). We granted review to
consider whether “aggravated assault is a lesser included
offense of an Article 134 specification that fails to allege the
terminal element” -- that Appellant’s conduct was prejudicial to
good order and discipline or was of a nature to bring discredit
upon the armed forces. We hold that Appellant was convicted of
an offense that was alleged in the charged specification. We
affirm the judgment of the United States Navy-Marine Corps Court
of Criminal Appeals (CCA).
I. Background
After becoming intoxicated during shore liberty, Appellant
became embroiled in arguments with some shipmates. He cut and
stabbed one and assaulted several who were trying to bring
Appellant under control. Contrary to his pleas, Appellant was
convicted by court members of willfully disobeying the order of
a petty officer; wrongfully using provoking words; and various
assaults, batteries, and aggravated assault. Articles 91, 117,
and 128, UCMJ, 10 U.S.C. §§ 891, 917, 928 (2006). The convening
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authority approved the adjudged sentence: a bad-conduct
discharge, confinement for nine months, and reduction to the
lowest enlisted grade. The CCA affirmed. United States v.
Rauscher, No. 201000684, 2011 CCA LEXIS 165, at *8–*9, 2011 WL
4505922, at *3 (N-M. Ct. Crim. App. Sept. 27, 2011).
II. The Specification and Trial
A fundamental purpose of a specification is “to provide
notice to an accused as to the matters against which he must
defend.” United States v. Wilkins, 29 M.J. 421, 424 (C.M.A.
1990); see Russell v. United States, 369 U.S. 749, 767 (1962).
Appellant was charged with assault with intent to commit murder,
a violation of Article 134, UCMJ, as follows:
In that [Appellant], on active duty, did, . . . on or
about 29 March 2010, with the intent to commit murder,
commit an assault upon Machinist’s Mate Second Class
Petty Officer [JD], U.S. Navy, by stabbing him in the
hand and chest with a knife.
The military judge instructed the members on the offense of
assault with intent to commit murder. At the request of both
parties, the military judge also instructed the members on the
offense of assault with a dangerous weapon or other means or
force likely to produce death or grievous bodily harm, under
Article 128, UCMJ, and that is what he was convicted of. The
elements of that offense are:
(i) That the accused attempted to do, offered to do,
or did bodily harm to a certain person;
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(ii) That the accused did so with a certain weapon,
means, or force;
(iii) That the attempt, offer, or bodily harm was done
with unlawful force or violence; and
(iv) That the weapon, means, or force was used in a
manner likely to produce death or grievous bodily
harm.
United States v. Dacus, 66 M.J. 235, 238 (C.A.A.F. 2008) (citing
Manual for Courts–Martial, United States pt. IV, ¶ 54.b.(4)(a)
(2005 ed.)).
Whether a specification states an offense is a question of
law we review de novo. United States v. Crafter, 64 M.J. 209,
211 (C.A.A.F. 2006). Even if we assumed that the specification
was defective in alleging an assault with intent to commit
murder, we are convinced that the specification clearly alleges
every element of the offense of assault with a dangerous weapon
or means or force likely to produce death or grievous bodily
harm, the offense he was convicted of:1
(1) Appellant did bodily harm to JD -- stabbing him in the
hand and chest;
1
In order to determine whether an indictment charges an
offense against the United States, designation by the
pleader of the statute under which he purported to lay
the charge is immaterial. He may have conceived the
charge under one statute which would not sustain the
indictment but it may nevertheless come within the
terms of another statute.
United States v. Hutcheson, 312 U.S. 219, 229 (1941).
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United States v. Rauscher, No. 12-0172/NA
(2) He did so with a certain weapon, means, or force -- a
knife;
(3) The bodily harm was done with unlawful force or
violence -- without authorization or justification; and
(4) The weapon, means, or force was used in a manner
likely to produce death or grievous bodily harm -- stabbing JD
in the chest.
The specification clearly placed Appellant on notice of
that against which he had to defend. The Government’s theory of
the case from beginning to end was that Appellant stabbed the
victim with a tactical knife in the hand and chest. Appellant
defended against this theory throughout the trial. Appellant
proposed instructions for the Article 128 offense and did not
object to the instructions given by the military judge. In
closing, defense counsel even asked the panel to “closely look”
at Article 128 because “that’s much more aligned with what
happened.” Through these actions, Appellant demonstrated that
he was on notice, and his “substantial right to be tried only on
charges presented in [a specification]” was not violated.
Stirone v. United States, 361 U.S. 212, 217 (1960).
IV.
The judgment of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
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