Warning: mysqli_num_fields() expects parameter 1 to be mysqli_result, boolean given in /home/ucmjdef1/public_html/wp-includes/wp-db.php on line 3283

Resistance, Breach of Arrest, and Escape. MCM, pt. IV, 19; UCMJ art. 95

  1. test1 039 (Side 39)Elements.
    1. Resisting apprehension.
      1. That a certain person attempted to apprehend the accused;
      2. That said person was authorized to apprehend the accused; and
      3. That the accused actively resisted the apprehension.
    2. Flight from apprehension.
      1. That a certain person attempted to apprehend the accused;
      2. That said person was authorized to apprehend the accused; and
      3. That the accused fled from the apprehension.
    3. Breaking arrest.
      1. That a certain person ordered the accused into arrest;
      2. That said person was authorized to order the accused into arrest; and
      3. That the accused went beyond the limits of arrest before being released from that arrest by proper authority.
    4. Escape from custody.
      1. That a certain person apprehended the accused;
      2. That said person was authorized to apprehend the accused; and
      3. That the accused freed himself or herself from custody before being released by proper authority.
    5. Escape from confinement.
      1. That a certain person ordered the accused into confinement;
      2. That said person was authorized to order the accused into confinement; and
      3. That the accused freed himself or herself from confinement before being released to proper authority.
      4. [If the escape was from post-trial confinement, add the following element:] That the confinement was the result of a court-martial conviction.
  2. Applications.
    1. Resisting Apprehension.
      1. Article 95 now includes a prohibition against flight from apprehension, but prior to offenses occurring on 10 February 1996 (the FY 96 amendment to art. 95), subject’s flight from apprehension, by itself, was insufficient to constitute resisting apprehension under Article 95, UCMJ. United States v. Pritt , 54 M.J. 47 (C.A.A.F. 2000); United States v. Harris , 29 M.J. 169 (C.M.A. 1989); United States v. Burgess , 32 M.J. 446 (C.M.A. 1991).
      2. United States v. Malone , 34 M.J. 213 (C.M.A. 1992) (attempt to prevent apprehension by accelerating stolen vehicle, driving around a police barricade, swerving to avoid another vehicle placed in his path, and scattering sentries posted at the gate constituted “active resistance” sufficient to satisfy Article 95).
      3. United States v. Webb , 37 M.J. 540 (A.C.M.R. 1993) (acts were sufficient to constitute the offense of resisting apprehension where he temporarily terminated his flight, turned, faced his pursuer, and adopted a “fighting stance,” and allowed pursuer to approach within five feet before resuming flight).
      4. United States v. Rhodes , 47 M.J. 790 (Army Ct. Crim. App. 1998) (resistance of apprehension by civilian law enforcement officers with no military affiliation was not an offense under Article 95, because the apprehending officers were not within any category of individuals authorized to apprehend under R.C.M. 302).
      5. The prosecution must prove that the accused had “clear notice of the apprehension.” United States v. Diggs, 52 M.J. 251 (C.A.A.F. 2000).
    2. Escape.
      1. test1 024 (Side 24)United States v. Standifer , 35 M.J. 615 (A.F.C.M.R. 1992) (unauthorized visits with wife did not constitute the offense of escape from confinement where the visits occurred with the consent of accused’s escorts and accused did not “cast off” his moral suasion), aff’d in part, rev’d in part on other grounds, 40 M.J. 440 (C.M.A. 1994).
      2. United States v. Felix , 36 M.J. 903 (A.F.C.M.R. 1993) (plea of guilty to escape from correctional custody was provident where accused knowingly and freely admitted to status of physical restraint by being in correctional custody and stating that he avoided a monitor in order to depart) aff’d , 40 M.J. 356 (C.M.A. 1994)).
      3. United States v. Anderson , 36 M.J. 963 (A.F.C.M.R. 1993) (conviction for escape was not supported by evidence that accused was allowed to go off base with escort, that escort left accused at accused’s apartment, intending that accused would return to base with his wife, and that accused then killed his wife and fled) aff’d, 39 M.J. 431 (C.M.A. 1994).
      4. Where soldier is placed in confinement and is then temporarily removed from confinement facility while remaining under guard of another soldier, prisoner remains in confinement status, for purposes of escape charge, regardless of whether guard is armed or otherwise has physical prowess to subdue prisoner. United States v. Jones , 36 M.J. 1154 (A.C.M.R. 1993).
      5. Once lawfully placed into confinement, unless released by proper authorities, a Soldier may be convicted of escape from confinement, regardless of the nature of the facility in which he is held. United States v. McDaniel , 52 M.J. 618 (Army Ct. Crim. App. 1999) (accused was under physical restraint while outside of confinement facility, as required for escape under Article 95, and the escape was from confinement rather than custody because of the accused’s status at the time), but see Edwards, below.
      6. Until actually placed in a confinement facility, an escaping Soldier who has been ordered “into confinement” but not yet processed into the facility is guilty of an escape from custody. United States v. Edwards , 69 M.J. 375 (C.A.A.F. 2011)(clarifying McDaniel ; accused had been ordered into confinement by unit commander but had not yet left the installation, escaping from custody while meeting with his TDS cousel).

Flight from apprehension.

Breaking arrest.