Deny motion if there is any evidence which, together with all reasonable inferences and presumptions, could reasonably tend to establish every element of the offense.
The evidence shall be viewed in the light most favorable to the prosecution, without an evaluation of the credibility of witnesses. See , e.g. , United States v. Felix , 25 M.J. 509 (A.F.C.M.R. 1987). Allegations of deviation from standard operating procedure at a drug-testing lab. Trial judge did not abuse his discretion when he denied the defense motion for a finding of not guilty.
Grant motion if the government has introduced no evidence at all of an offense occurring during the charged dates of the offense. In United States v. Parker , 59 M.J. 195 (C.A.A.F. 2004), the Government charged the accused with raping a woman in 1995. At trial, the woman testified that the rape had actually occurred in 1993. The Government unsuccessfully moved to amend the charge, but persuaded the military judge give a variance instruction that would permit the members to substitute 1993 for 1995. The CAAF held the military judge erred in denying the defense’s R.C.M. 917 motion for the 1995 rape offense; the Government had introduced no evidence of any sexual interaction between the accused and the victim in 1995.
