In a petition filed today (available here), the appellant in the Air Force case of United States v. Gutierrez, 74 M.J. 61, No. 13-0522/AF (C.A.A.F. Feb. 23, 2015) (CAAFlog case page) (link to opinion analysis), seeks reconsideration from CAAF of its decision affirming convictions of assault consummated by a battery as lesser included offenses of aggravated assault.
The 10-page petition (the PDF includes over 100 pages of Canadian law in two appendices) seeks reconsideration for three reasons:
I. Appellant now stands convicted of offenses based on a legal theory not presented at trial, or on review at the court below, and this court’s decision misapprehended the general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances.
II. The court’s decision overlooks well-settled precedent involving consent obtained by fraud.
III. The court’s decision misapprehends well-settled principles of consent.
Disclaimer: I assisted in drafting this petition and appear as counsel for the petitioner.