Opinion Analysis: Wrongful sexual contact is not a lesser included offense of abusive sexual contact, but the error was harmless in United States v. Oliver, No. 16-0484/AF (corrected)
CAAF decided the Air Force case of United States v. Oliver, 76 M.J. 271, No. 16-0484/AF (CAAFlog case page) (link to slip op.), on Wednesday, May 24, 2017. Finding forfeiture (and not waiver) in the absence of objection to the military judge considering wrongful sexual contact as a lesser included offense of abusive sexual contact, CAAF concludes that wrongful sexual contact is not a lesser included offense of abusive sexual contact but the conviction may stand nevertheless because there was no prejudice to the defense in this case. CAAF affirms the finding of guilty and the decision of the Air Force CCA.
Judge Sparks writes for the court joined by all by Judge Stucky, who concurs in the result but would have found the error was waived.
Senior Airman Oliver was tried on numerous charges by a general court-martial composed of a military judge alone. One charge alleged abusive sexual contact by placing in fear in violation of Article 120(h) (2006) in that Oliver – who was at the time a Staff Sergeant assigned as a training instructor at Lackland Air Force Base – groped a female trainee “by placing her in fear of an impact on her military career through the use and abuse of [his] military rank, position, and authority.” Slip op. at 2 (quoting charge sheet). Oliver’s defense was that the touching occurred but was consensual.
The military judge acquitted Oliver of abusive sexual contact by placing in fear and instead convicted him of wrongful sexual contact, which occurs when:
Any person subject to this chapter who, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission. . .
Article 120(m) (2006). The military judge notified both sides that he was going to consider this potential lesser included offense in his deliberations and Oliver’s defense counsel did not object. CAAF granted review to determine:
Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.
In yesterday’s opinion, Judge Sparks grapples with the defense failure to object but ultimately applies last term’s decision in United States v. Riggins, 75 M.J. 78 (C.A.A.F. Jan. 7, 2016) (CAAFlog case page), to hold that wrongful sexual contact is not a lesser included offense of abusive sexual contact. However, because Oliver’s “theory throughout the court-martial was that [the alleged victim] consented to the sexual activity. . . there is nothing to indicate material prejudice to Appellant’s substantial rights” to notice, and so the conviction is affirmed. Slip op. at 7.
Judge Sparks begins by explaining that:
The rights at issue when determining whether one offense is a lesser included offense of another are constitutional in nature, as the due process principal of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted.
Slip op. at 3 (marks and citations omitted). Those rights, while constitutional in nature, may nevertheless be waived so long as “it is clearly established that there was an intentional relinquishment or abandonment of a known right.” Slip op. at 3 (marks and citations omitted).
Here, Oliver’s defense counsel “affirmatively asserted he had no objection to the military judge’s consideration of wrongful sexual contact as a lesser included offense of abusive sexual contact.” Slip op. at 4. Judge Sparks finds that, “typically, trial defense counsel’s affirmative assertion at the court-martial would constitute waiver of this issue.” Slip op. at 4 (citations omitted). However, this is not the typical case:
the time of Appellant’s court-marital, courts were grappling with whether, and to what extent, lack of consent was an element for Article 120, UCMJ, violations. The 2007 amendment to Article 120, UCMJ, omitted “lack of consent” as an element of virtually all sexual misconduct offenses, except the offense of wrongful sexual contact. . . . Following the 2007 amendment, some courts of criminal appeals continued to struggle with the issue of lack of consent. . . .
The question of consent, as applied to abusive sexual contact, was definitively resolved after Appellant’s court-martial, where in United States v. Riggins, 75 M.J. 78, 83-84 (C.A.A.F. 2016), we held, applying the 2012 version of the MCM, that lack of consent is not an implied element of abusive sexual contact by placing in fear. However, given the seemingly unsettled nature of the law at the time of Appellant’s court-martial and its clear resolution in his favor by Riggins at the time of appeal, we conclude that forfeiture rather than waiver applies in this case. Cf. United States v. Vazquez, 72 M.J. 13, 16-17 (C.A.A.F. 2013) (holding an exception to the waiver of constitutional rights where appellant challenged “the application [of] procedures in [a] context [that] has not previously been addressed by this Court); Henderson v. United States, 133 S. Ct. 1121, 1130 (2013) (“[W]hen there is a new rule of law, when the law was previously unsettled, and when the [trial court] reached a decision contrary to [a] subsequent rule…. ‘it is enough that an error be plain at the time of appellate consideration.’ ” (citation omitted)).
Slip op. at 5-6.
Judge Stucky’s concurring opinion is based on this conclusion, as he would find that Oliver’s defense waived the issue:
the issue at bar was manifestly raised and outlined at trial by the military judge, and defense counsel clearly, knowingly, and intelligently relinquished or abandoned Appellant’s right to challenge this lesser included offense. . . .
Appellant’s situation is close to the paragon of waiver.
Con. op. at 1-2.
Having found forfeiture, Judge Sparks applies the plain error test under which Oliver “has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.”Slip op. at 6 (citations omitted).
For the first two prongs, Judge Sparks finds that “here, in the wake of Riggins, there was error and it was plain or obvious at the time of appellate review.” Slip op. at 6.
But for the third prong:
Ultimately, the manner in which the case was contested diminishes any argument that Appellant was not on notice as to what he had to defend against. Whether abusive sexual contact or wrongful sexual contact, Appellant knew which part of the body he was alleged to have wrongfully touched, and his theory throughout the court-martial was that A1C LMS consented to the sexual activity. Accordingly, under the facts of this case, there is nothing to indicate material prejudice to Appellant’s substantial rights.
Slip op. at 7.
Judge Sparks does distinguish this case from Riggins, noting that the error in Riggins was preserved by objection. Slip op. at 7 (citing Riggins, 75 M.J. at 85). But I don’t think that’s the dispositive factor in CAAF’s decision here because the decision in Riggins also included a prejudice analysis that found that the military judge’s finding of guilty was based on “a specific rationale neither advanced by the Government nor defended by [Riggins].” 75 M.J. at 85. In Olvier, however, the question of consent was hotly contested.
CAAF’s decision ultimately turns on the fact that the trial proceedings, and the theory of Oliver’s defense, would have been no different had he been separately (and properly) charged with wrongful sexual contact. The requirement to show how things would have been different but for the error is a significant lesson for appellate lawyers.
But Judge Stucky’s concurring opinion includes this significant warning to trial lawyers:
[W]e should expect counsel to object when the law is unsettled and a certain interpretation is favorable to their client.
Con. op. at 1. It’s a warning that appears, in one form or another, in many of this term’s cases.
• AFCCA opinion
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis
Note: Post corrected to reflect that Judge Stucky’s opinion is a concurring opinion, not a dissent. I’m on the road and under-caffeinated.