                         UNITED STATES, Appellee

                                         v.

        Jeremy L. RAUSCHER, Machinist’s Mate Second Class
                       U.S. Navy, Appellant

                                  No. 12-0172
                        Crim. App. No. 201100684

       United States Court of Appeals for the Armed Forces

                            Argued May 16, 2012

                          Decided June 18, 2012

                                   PER CURIAM


                                     Counsel


For Appellant:    Captain Michael D. Berry, USMC (argued).


For Appellee: Captain David N. Roberts, USMC (argued); Colonel
Kurt J. Brubaker, USMC, Lieutenant Benjamin J. Voce-Gardner,
JAGC, USN, and Brian K. Keller, Esq. (on brief).


Military Judge:    J. Kirk Waits


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Rauscher, No. 12-0172/NA


     PER CURIAM:

     Appellant was charged under Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006), with assault

with intent to commit murder but convicted, contrary to his

pleas, of assault with a deadly weapon or other means or force

likely to produce death or grievous bodily harm, under Article

128, UCMJ, 10 U.S.C. § 928 (2006).    We granted review to

consider whether “aggravated assault is a lesser included

offense of an Article 134 specification that fails to allege the

terminal element” -- that Appellant’s conduct was prejudicial to

good order and discipline or was of a nature to bring discredit

upon the armed forces.   We hold that Appellant was convicted of

an offense that was alleged in the charged specification.    We

affirm the judgment of the United States Navy-Marine Corps Court

of Criminal Appeals (CCA).

                           I.   Background

     After becoming intoxicated during shore liberty, Appellant

became embroiled in arguments with some shipmates.   He cut and

stabbed one and assaulted several who were trying to bring

Appellant under control.   Contrary to his pleas, Appellant was

convicted by court members of willfully disobeying the order of

a petty officer; wrongfully using provoking words; and various

assaults, batteries, and aggravated assault.   Articles 91, 117,

and 128, UCMJ, 10 U.S.C. §§ 891, 917, 928 (2006).    The convening


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authority approved the adjudged sentence:    a bad-conduct

discharge, confinement for nine months, and reduction to the

lowest enlisted grade.   The CCA affirmed.   United States v.

Rauscher, No. 201000684, 2011 CCA LEXIS 165, at *8–*9, 2011 WL

4505922, at *3 (N-M. Ct. Crim. App. Sept. 27, 2011).

                 II.   The Specification and Trial

     A fundamental purpose of a specification is “to provide

notice to an accused as to the matters against which he must

defend.”   United States v. Wilkins, 29 M.J. 421, 424 (C.M.A.

1990); see Russell v. United States, 369 U.S. 749, 767 (1962).

Appellant was charged with assault with intent to commit murder,

a violation of Article 134, UCMJ, as follows:

     In that [Appellant], on active duty, did, . . . on or
     about 29 March 2010, with the intent to commit murder,
     commit an assault upon Machinist’s Mate Second Class
     Petty Officer [JD], U.S. Navy, by stabbing him in the
     hand and chest with a knife.

     The military judge instructed the members on the offense of

assault with intent to commit murder.   At the request of both

parties, the military judge also instructed the members on the

offense of assault with a dangerous weapon or other means or

force likely to produce death or grievous bodily harm, under

Article 128, UCMJ, and that is what he was convicted of.     The

elements of that offense are:

     (i) That the accused attempted to do, offered to do,
     or did bodily harm to a certain person;



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     (ii) That the accused did so with a certain weapon,
     means, or force;

     (iii) That the attempt, offer, or bodily harm was done
     with unlawful force or violence; and

     (iv) That the weapon, means, or force was used in a
     manner likely to produce death or grievous bodily
     harm.

United States v. Dacus, 66 M.J. 235, 238 (C.A.A.F. 2008) (citing

Manual for Courts–Martial, United States pt. IV, ¶ 54.b.(4)(a)

(2005 ed.)).

     Whether a specification states an offense is a question of

law we review de novo.   United States v. Crafter, 64 M.J. 209,

211 (C.A.A.F. 2006).   Even if we assumed that the specification

was defective in alleging an assault with intent to commit

murder, we are convinced that the specification clearly alleges

every element of the offense of assault with a dangerous weapon

or means or force likely to produce death or grievous bodily

harm, the offense he was convicted of:1

     (1)   Appellant did bodily harm to JD -- stabbing him in the

hand and chest;



1
     In order to determine whether an indictment charges an
     offense against the United States, designation by the
     pleader of the statute under which he purported to lay
     the charge is immaterial. He may have conceived the
     charge under one statute which would not sustain the
     indictment but it may nevertheless come within the
     terms of another statute.

United States v. Hutcheson, 312 U.S. 219, 229 (1941).

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     (2)     He did so with a certain weapon, means, or force -- a

knife;

     (3)     The bodily harm was done with unlawful force or

violence -- without authorization or justification; and

     (4)     The weapon, means, or force was used in a manner

likely to produce death or grievous bodily harm -- stabbing JD

in the chest.

     The specification clearly placed Appellant on notice of

that against which he had to defend.    The Government’s theory of

the case from beginning to end was that Appellant stabbed the

victim with a tactical knife in the hand and chest.    Appellant

defended against this theory throughout the trial.    Appellant

proposed instructions for the Article 128 offense and did not

object to the instructions given by the military judge.    In

closing, defense counsel even asked the panel to “closely look”

at Article 128 because “that’s much more aligned with what

happened.”    Through these actions, Appellant demonstrated that

he was on notice, and his “substantial right to be tried only on

charges presented in [a specification]” was not violated.

Stirone v. United States, 361 U.S. 212, 217 (1960).

                                  IV.

     The judgment of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




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