In United States v. Moya, No. 201100444 (N-M.Ct.Crim.App. Aug. 22, 2012) (unpublished), the NMCCA set-aside a conviction of indecent language in violation of Article 134, UCMJ, as failing to state an offense based on the lack of a charged terminal element, despite no objection from the accused.
The court’s reasoning follows:
Regardless of whether the appellant contested the charge or pled guilty, a charge found defective for failure to allege an offense is tested for plain error. Under the plain error analysis, the appellant shoulders the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the appellant.
Looking to the plain language contained within the four corners of the specification, we are unable to conclude that it alleges the terminal element expressly or by necessary implication. Having found error, and recognizing that it was plain and obvious error, we test for prejudice. The third prong of the plain error analysis asks “whether the defective specification resulted in material prejudice to Appellee’s substantial right to notice.” Where prejudice to a material right is rooted in notice, the record is examined to determine if the omitted element is somewhere extant in the trial record, or whether the element is essentially uncontroverted.
Here, the pretrial proceedings did not make any mention of the terminal element. The Government made no reference to the terminal element during its opening statement and did not introduce evidence on the merits that might satisfy the element. Although the trial counsel argued the terminal element during closing arguments, and the military judge instructed the panel on the terminal element, these references occurred after the close of evidence. The record lacks any indication that the appellant was on notice as to the terminal element of the charged offense prior to the close of evidence. We are convinced that the appellant’s substantial rights were materially prejudiced by the lack of notice as to what exactly he must defend against. Accordingly, the findings of guilty of the Additional Charge and the specification thereunder must be set aside and that the Additional Charge and its specification are dismissed.
Moya, slip op. at 9-10 (citations omitted). What’s missing, as I discussed in The Hazard of Humphries, is an effort to hold the appellant to his “burden to prove material prejudice to a substantial right,” (United States v. Humphries, 71 M.J. 209, slip op. at 21, n.10 (C.A.A.F. 2012) (citing United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011))) by requiring a showing that but for the error the appellant would not have been convicted, or a clear indication that this lesser burden is limited to cases tried before CAAF’s decision in United States v. Fosler, 70 M.J. 225 (C.A.A.F. Aug. 8, 2011) (ruling that failure to allege a terminal element is error).