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.

Case Links:
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. 

9 Responses to “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)”

  1. Isaac Kennen says:

    No prejudice, except, of course, that of being convicted of something that was not charged.

  2. Bill Cassara says:

    Oh Zeke. Now you’re just being picky.

  3. Zachary D Spilman says:

    That’s the error, Isaac Kennen, not the prejudice.

    I think the following section of my argument preview is worth repeating:

    CAAF has made it clear that in a case such as this the issue is “whether the record sufficiently demonstrates that an accused was on notice as to [the elements] he needed to defend against.” United States v. Goings, 72 M.J. 202, 208 (C.A.A.F. 2013) (CAAFlog case page). See also United States v. Tunstall, 72 M.J. 191 (CAAFlog case page) (conviction affirmed because defense presented evidence to rebut missing element); United States v. Gaskins, 72 M.J. 225 (CAAFlog case page) (conviction reversed because there was no mention or evidence of the missing element is the record).

    It’s even possible for an accused to be notice of an offense different from the one identified on the Charge Sheet. See United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (CAAFlog case page).

  4. Isaac Kennen says:

    It’s hard for me to wrap my head around someone being on notice that they have to defend against something that was not charged.  Notice is the whole purpose of charging.  When something is necessarily included in the charged offense, then, logically, it too has been charged. I get that method of notice – the LIO is implicit because it is a necessary component of what was actually alleged.  But, the offense of conviction in this case was not a LIO of the charged offense.  The Court concluded that much. In other words, it was uncharged. It was – fundamentally and factually – not part of the notice given the the accused.  He was not arraigned on that offense because it was not charged.  He stands convicted of an offense without so much as an arraignment.
    This whole opinion feels like doublespeak. The Court agrees that an accused must be on notice of what he has to defend against.  Unless, apparently, the government didn’t put that offense on the charge sheet.  In that case, the Court will dig up a way to say the accused was on notice despite not having been actually and officially notified.  The Court will then affirm a conviction that was never even charged, never arraigned, and it will pretend that it has jurisdiction to do so and that it has provided due process of law.

  5. stewie says:

    LIOs are often not charged, yet we recognize them and prepare to defend against them. The DC here wasn’t surprised by this LIO even if ultimately it wasn’t a proper LIO. They could have objected, but did not. There was no apparent surprise, and given the defense raised no obvious or speculative difference that would have happened has the offense been on the charge sheet. It seems like they were on notice, or at least accepted notice at some point during the trial.
    Even under the old 32 rules, if somehow the wrongful contact charge was later added to a case like this, odds are they wouldn’t have to go back and do another 32 hearing because the facts would have been likely sufficient to cover the new charge as well given the defense.
    One can argue whether or not CAAF is right, but I see no evidence of some grand scheme to hold one dude guilty for a minor sexual assault offense.

  6. Zachary D Spilman says:

    Check out United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (CAAFlog case page), Isaac Kennen. I think you’ll find that CAAF has been consistent on this issue (over the past decade, at least). 

  7. Vulture says:

    The structure of the Courts analysis may be consistent and applicable in this case.  But in order for a broad statement about the acceptance of a “not lesser included offense” to be adequately charged, there should be some kind of synonymity between the choice of words.  Abusive and wrongful, in the sexual context, are just too easily misconstrued.  Consider a charge that reads “impaired driving” and compare it to “drunken driving.”  Are they the same?  No, but the line there is closer than that between abusive and wrongful. 
    More sloppy work getting a pass from CAAF.

  8. Alfonso Decimo says:

    I’m with Stewie on this one, but not only did the TDC fail to object, the MJ specifically asked the TDC if there was an objection to the LIO and the TDC said, “no”. From the MJ perspective, that’s a good job making a record that the issue was considered during trial and it should not be an issue on appeal.

  9. Alex Pritchard says:

    I totally agree with you Alfonso.  Judge Stucky states it simply and correctly.  This issue did not simply involve a failure to object, it involved an explicit affirmation and therefore waiver.