NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: BCD, TF, 1 year, E-1. (Category 1)
b. SAMPLE SPECIFICATION:
In that _________ (personal jurisdiction data), did, (at/on board--location), on or about _________, resist being apprehended by _________, (an armed force policeman) (_________), a person authorized to apprehend the accused.
c. ELEMENTS:
(1) That (state the time and place alleged), (state the name and status of the person alleged to be apprehending) attempted to apprehend the accused;
(2) That (state the name and status of the person alleged to be apprehending) was authorized to apprehend the accused; and
(3) That the accused actively resisted the apprehension.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
“Apprehension” means taking a person into custody; that is, placing a restraint on a person’s freedom of movement. The restraint may be physical and forcible, or it may be imposed by clearly informing the person being apprehended that (he) (she) is being taken into custody. An apprehension is attempted, then, by clearly informing a person orally or in writing that (he) (she) is being taken into custody or by attempting to use a degree and kind of force which clearly indicates that (he) (she) is being taken into custody.
To resist apprehension, a person must actively resist the restraint attempted to be imposed by the person apprehending. (This resistance may be accomplished by assaulting or striking the person attempting to apprehend the accused.) (Mere use of words of protest or of argumentative or abusive language will not amount to the offense of resisting apprehension.)
(An attempt to escape from custody after an apprehension is complete does not amount to the offense of resisting apprehension.)
NOTE 2: Flight. In US v. Harris, 29 MJ 169 (CMA 1989), the court held that mere flight is insufficient to establish the offense. Note that fleeing apprehension is an offense under Article 87a (See Instruction 3a-12-2). Accordingly, the following instruction may be given when appropriate:
(Evidence of flight, if any, may be considered by you, along with all other evidence, in determining whether the accused committed the offense of resisting apprehension. (However, mere flight is insufficient to establish the offense of resisting apprehension.))
NOTE 3: Lawfulness of apprehension at issue. The military judge resolves, as an interlocutory question, whether a certain status would authorize that person to apprehend the accused and ordinarily determines whether the apprehension was lawful. The fact finder decides whether the person who attempted to make the apprehension actually had such a status. Resisting a person not authorized to apprehend is not an offense under this article. Specifically, resisting apprehension by non-military affiliated law enforcement officers for non-military offenses is not a violation of this article. Military affiliated law enforcement officials and commissioned, warrant, petty, and noncommissioned officers may lawfully apprehend any person subject to the UCMJ. Article 7c, UCMJ. MCM, RCM 302(b). A civil officer who has the authority to apprehend offenders under the laws of the United States or a state, territory, commonwealth, or the District of Columbia may lawfully apprehend a deserter from the armed forces. Article 8, UCMJ. (In such cases, the military judge must determine as a matter of law that the reason for the apprehension was, inter alia, because the accused was suspected of desertion.) When there is an issue as to whether the person who either attempted to apprehend or apprehended the accused actually occupied a position that authorized him to apprehend the accused, the following instruction may be appropriate:
An accused may not be convicted of this offense unless the person who (attempted to apprehend) (apprehended) (him) (her) was authorized to apprehend the accused.
As a matter of law, a [military or military affiliated law enforcement official] [(commissioned) (warrant) (petty) (noncommissioned) officer] [police officer] [constable] [highway patrolman] [__________] was authorized to apprehend the accused at the time of the alleged offense.
However, you may find the accused guilty of this offense only if you are satisfied beyond a reasonable doubt that the person who (attempted to apprehend) (apprehended) the accused actually was a (military or military affiliated law enforcement official) ([commissioned] [warrant][petty] [noncommissioned] officer) ([police officer] [constable] [highway patrolman] [__________]) at the time of the [attempted] apprehension.
NOTE 4: Mistake of Fact. The accused’s belief at the time that no basis exists for the apprehension is not a defense. It is a defense, however, that the accused held a reasonable belief that the person attempting to apprehend did not have authority to do so. If there is evidence raising such a defense, the following instruction should be given.
The evidence has raised the issue of mistake on the part of the accused concerning whether (state the name and status of the person alleged to be apprehending) was authorized to apprehend (him) (her).
The accused is not guilty of the offense of resisting apprehension (1) if (he) (she) mistakenly believed that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend (him) (her), and (2) if such belief on (his) (her) part was reasonable.
(The accused’s belief that (state the name and status of the person alleged to be apprehending) had no basis to apprehend (him) (her) is not a defense.)
To be reasonable the belief must have been based on information, or lack of it, which would indicate to a reasonable person that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend him/her. (Additionally, the mistake cannot be based on a negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances.)
You should consider the accused’s (age) (education) (experience) (__________) along with the other evidence on this issue, (including, but not limited to (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
The burden is on the prosecution to establish the accused’s guilt. If you are convinced beyond a reasonable doubt that, at the time of the charged offense, the accused was not under the mistaken belief that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend (him) (her), the defense of mistake does not exist. Even if you conclude that the accused was under the mistaken belief that (state the name and status of the person alleged to be apprehending) was not authorized to apprehend (him) (her), if you are convinced beyond a reasonable doubt that, at the time of the charged offense, the accused’s mistake was unreasonable, the defense of mistake does not exist.
NOTE 5: Voluntary intoxication and mistake of fact. If there is evidence the accused may have been under the influence of an intoxicant, the following instruction should ordinarily be given in conjunction with the above mistake of fact instruction:
There has been some evidence concerning the accused’s state of intoxication at the time of the alleged offense. On the question of whether the accused’s belief was reasonable, you may not consider the accused’s intoxication, if any, because a reasonable belief is one that an ordinary, prudent, sober adult would have under the circumstances of this case. Voluntary intoxication does not permit what would be an unreasonable belief in the mind of a sober person to be considered reasonable because the person is intoxicated.