United States v. Davis

CCA 20101022. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER, IN LIGHT OF UNITED STATES v. HUMPHRIES, 71 M.J. 209 (C.A.A.F. 2012), APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE IV.

The portion of the decision of the Court of Criminal Appeals as to Charge IV and its Specification and the sentence is reversed. The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further consideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

(dissenting): Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.