In a published opinion in United States v. Mitchell, __ M.J. __, No. 201600327 (N.M. Ct. Crim. App. Mar. 27, 2018) (link to slip op.), Judge Fulton writes for a three-judge panel and explains that for the Presidentially-prescribed offense of assault of a child under the age of 16, the age of the alleged victim is merely a sentence escalator and not a statutory element.
Aviation Electronics Technician Second Class (E-5) Mitchell was accused of the attempted premeditated murder of his infant son by poisoning with opiate medication. A general court-martial composed of a military judge alone acquitted Mitchell of attempted premeditated murder but convicted him of the lesser included offense of aggravated assault with a means likely to produce death or grievous bodily harm in violation of Article 128 (Mitchell was also charged with and convicted of child endangerment in violation of article 134). The military judge’s findings convicting Mitchell of assault – made by exceptions and substitutions – included that the child was under the age of 16.
Mitchell sought to reverse his conviction on appeal, arguing that “assault on a child under 16 with means likely to cause death or grievous bodily harm is not a lesser included offense of attempted murder,” because the assault offense includes the factor of a child under 16 that is not included in the offense of attempted murder. Slip op. at 2.
Affirming Mitchell’s conviction, Judge Fulton explains that:
Article 128, UCMJ makes no reference to the age of the victim. Therefore the matter of the victim’s age is not a statutory element. Rather, it is a sentence escalator that the President has determined should increase the maximum authorized punishment in aggravated assault cases.
Slip op. at 9.
In Article 56(a), Congress gave the President the power to set the maximum punishments for offenses under the UCMJ. The President exercises that power in the Manual for Courts-Martial by describing offenses and listing their maximum authorized punishment. The statutory text of Article 128 is silent as to the age of the victim, but the President considers it a factor justifying a higher maximum authorized sentence. See Manual for Courts-Martial, Part IV, ¶ 54.e.(7) and (8) (2016 ed.). The President can do this, but by doing this he does not add an element to Article 128.
But even if the President’s action did add an element, Judge Fulton explains that it wouldn’t have mattered in this case:
Failing to plead a functional element implicates an accused’s substantial right to notice under the Fifth and Sixth Amendments. To determine whether lack of notice prejudiced an appellant, “we look to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is ‘essentially uncontroverted.’”
We find that both considerations favor the government. First, the missing element is found not only elsewhere in the record, but on the charge sheet [in the separate, child endangerment charge -zds] . . . . Second, RM’s age was not—and could not have been—seriously contested by the appellant at trial. The evidence that RM was an infant at the time of the offenses was overwhelming and uncontroverted.
Slip op. at 12.