Back at the beginning of May I wrote about an en banc, published opinion from the NMCCA in United States v. Hunt, No. 201100398  (N-M. Ct. Crim. App., April 30, 2012) in which the NMCCA affirmed a finding of guilty to an Article 134 specification in a contested case, where the specification did not allege the terminal element and the CCA found that the terminal element was not necessarily implied. The court found error but, noting that the accused did not object at trial, the court found no prejudice.

In an unpublished, per curiam opinion in United States v. Boyer, No. 201100548 (N-M. Ct. Crim. App., May 22, 2012), the NMCCA did it again, affirming findings of guilty to two Article 134 specifications that did not expressly allege a terminal element. The court again finds that the terminal element is not necessarily implied, and again, noting the lack of an objection, finds no prejudice.

The appellant has the burden of demonstrating prejudice. On this record, the appellant has failed to meet that burden. We can discern nothing from this record that might suggest that the appellant did not know or was confused as to the elements of the offenses and what he had to defend against. We reach this conclusion based on the absence of any of the following: a request for a bill of particulars; any indication that the defense was misled or confused by the pleadings; or, a motion to dismiss for failure to state an offense, prior to the pleadings before this court. We also note that neither the appellant nor his defense counsel objected or demonstrated surprise when the trial counsel introduced evidence as to the terminal element, or when trial counsel argued that the Government satisfied the terminal element of adultery and solicitation of a prostitute. The absence of an objection to such evidence and argument suggests that the appellant knew that it was relevant, i.e., it went to an element of the offenses.

Boyer, slip op. at 2-3 (citations omitted). However, Senior Judge Perlak, who concurred in the court’s opinion in Hunt (but only because he found that the terminal element was necessarily implied in that case), writes separately in Boyer, dubitante (doubting):

PERLAK, Senior Judge (dubitante):

Based on the rationale developed in my separate opinions in United States v. Hackler, 70 M.J. 624, 629 (N.M.Ct.Crim.App. 2011) (en banc), rev. denied, __ M.J. __, No. 12-0283, 2012 CAAF LEXIS 429 (C.A.A.F. Apr. 20, 2012), United States v. Redd, No. 201000682, 2011 CCA LEXIS 413, at *28, unpublished op. (N.M.Ct.Crim App. 29 Dec 2011), rev. granted, __ M.J. __, 2012 CAAF LEXIS 483 (C.A.A.F. Apr. 19, 2012), and United States v. Lonsford, 71 M.J. 501, 504 (N.M.Ct.Crim.App. 2012), petition for rev. filed (C.A.A.F. Apr. 19, 2012), I join the opinion of the court with analytical reservations on the treatment of the Article 134, UCMJ, offenses contained therein. Mindful of the Court of Appeals for the Armed Forces’ decision in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), the not guilty pleas entered in this case must receive an analysis consistent with or closer to United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

Boyer, slip op. at 3. Surprisingly, the court’s published opinion in Hunt doesn’t get a single mention in Boyer. We’ll have to wait and see if CAAF finds a common theme in these two cases.

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