Army Court of Criminal Appeals

United States v. Alsobrooks. The court finds the MJ erred in 

• admitting the victim's statement to a male friend that appellant raped her as both an excited utterance--however, there is no prejudice because it was admissible as a prior consistent statement.
  
• admitting a prior consistent statement of the victim's description of the assault provided to a sexual assault nurse examiner. The medical exception did not apply because the facts show the victim went to hospital in order as part of reporting her allegations and not for a medical purpose. But again, that was not prejudicial.

United States v. Gloverstukes. An Article 62 appeal. The military judge had dismissed two allegations of assault because they failed to state an offense under Article 128b (DV). They

did not expressly allege that appellant committed a "violent offense" against his intimate partner, they failed to state an offense. The specifications alleged: 

     SPECIFICATION 3: In that [appellant] did, at or near Cameron, North Carolina, on or about 13 May 2021, unlawfully pick up and throw the body of [the victim], an intimate partner of the accused, on a desk. 

      SPECIFICATION 4: In that [appellant] did, at or near Cameron, North Carolina, on or about 11 May 2021, unlawfully strike[the victim], an intimate partner of the accused, in the face with his hand.

The military judge ultimately concluded that because the specifications did  not contain "direct, that is to say, express language to apprise the accused of the government's theory of criminality under Article 128b," the "omission of the words 'violent offense' .... constitute a failure to state an offense of domestic violence under Article 128b." During argument, the military judge also cut off trial counsel when he tried to argue lack of prejudice, ruling "I don't even reach prejudice on a jurisdictional issue."

ACCA finds the MJ erred. See United States v. Heng, No. ARMY 20210404, 2022 CCA LEXIS 377 (A. Ct. Crim. App. Jun. 24, 2022) (unpub.) for a discussion of the maximum sentence for 128b v. 128.