AFCCA’s published opinion today in United States v. Aguilar, __ M.J. __, No. ACM 37545 (A.F. Ct. Crim. App. March 30, 2011) started off as a typical sufficiency-of-the-evidence case, but the court specified an additional issue in light of CAAF’s decision in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). Staff Sergeant Aguilar was tried at General Court-Martial by Military Judge alone of one charge and three specifications of sexual assault under Art. 120, related to two separate sexual encounters with two female Staff Sergeants in his unit. He was acquitted of all three charged specifications, but was convicted of lesser included offenses of assault consummated by a battery in violation of Art. 128 (as a LIO of rape) and abusive sexual contact in violation of Art. 120 (as a LIO of aggravated sexual assault), and was sentenced to 6-months confinement, reduction to E-1, and a BCD. The court specified the issue of the validity of the finding on the lesser included offense of assault consummated by a battery after the the issue was identified in a footnote to a Government appellate filing.
In Jones, CAAF ruled that an offense is a lesser included offense of another offense only if the two offenses have common elements, and that the listing of an offense (particularly an offense under Art. 134) as a LIO in the MCM is not sufficient to put an Accused on notice. Subsequently, in United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010), CAAF ruled that aggravated sexual assault was properly instructed to the Members as a LIO of rape, despite the fact that aggravated sexual assault is not listed as a LIO of rape in the MCM, because while the two offenses do not have identical statutory language, the elements are the same when “applying the common and ordinary understanding of the words in the statute.”
The AFCCA applied the “elements” and “common and ordinary understanding” tests to conclude that:
the two offenses [rape and assault consummated by a battery] clearly share this common element: that the appellant did bodily harm to SSgt SJF with unlawful force or violence. The greater offense of rape additionally requires that this force cause another to engage in a sex act … because the appellant was on notice to defend against an act of violence that compelled sexual intercourse, he must have been on notice to defend against the act of violence itself. Applying the principles of Jones and Alston to the present case, we find that the military judge properly considered assault consummated by a battery as a lesser included offense of the charged rape by force.
The court also found the evidence sufficient to support the findings and the sentence not inappropriately severe.