Last week CAAF granted review of an interesting pair of issues in an Air Force case with an odd factual background:

No. 17-0347/AF. U.S. v. Robert L. Honea III. CCA 38905. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. IMMEDIATELY BEFORE THE DEFENSE RESTED ITS CASE, THE MILITARY JUDGE INVITED THE PARTIES’ ATTENTION TO R.C.M. 910, AND DIRECTED THE DEFENSE TO PROVIDE THE MILITARY JUDGE WITH A DRAFT SPECIFICATION OF ASSAULT CONSUMMATED BY A BATTERY. DID THE LOWER COURT ERR WHEN IT HELD THAT THE DEFENSE’S COMPLIANCE WITH THE MILITARY JUDGE’S DIRECTIVE CONSTITUTED A DE FACTO DEFENSE REQUEST TO MODIFY THE SPECIFICATION PURSUANT TO R.C.M.603 WHERE THERE IS NO EVIDENCE THAT EITHER THE DEFENSE OR THE CONVENING AUTHORITY WERE AWARE THE CHARGE WAS BEING AMENDED PURSUANT TO R.C.M. 603?

II. THE MILITARY JUDGE DISMISSED SPECIFICATION 2 OF CHARGE II, ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM, FOR FAILURE TO STATE AN OFFENSE, BUT SHE ALLOWED THE GOVERNMENT TO PROCEED TO TRIAL ON THE PURPORTED LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY A BATTERY. DID THE MILITARY JUDGE ERR?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant was charged with two specifications of abusive sexual contact of the alleged victim’s vulva in violation of Article 120(h) (2006), one specification alleging that the contact was while the alleged victim was substantially incapacitated and the other alleging that it was by causing bodily harm (the harm being the contact). But the alleged victim testified at an Article 32 that the touching was only to her pelvic region, which is insufficient to constitute a sexual contact. The military judge eventually granted a defense motion to dismiss both of the specifications, concluding that they failed to state offenses. But the military judge determined that assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm (the harm being the contact). The charged touching for that specification, however, was touching of the vulva, not the pelvic region.

The appellant pleaded not guilty and trial proceeded before a military judge alone. At the end of the trial, the military judge asked the defense to draft a specification for the assault offense (apparently based on a non-binding discussion to R.C.M. 910(a)(1) that states: “When the plea [of guilty] is to a lesser included offense without the use of exceptions and substitutions, the defense counsel should provide a written revised specification to be included in the record as an appellate exhibit.”). The defense provided a specification that identified the touching as to the pelvic region, not to the vulva. The appellant was convicted of only this offense and was sentenced to confinement for one month and a dismissal.

A three-judge panel of the CCA concluded that assault consummated by a batter is a valid lesser included offense of abusive sexual contact by causing bodily harm (the harm being the contact), and that “the Defense’s submission of the modified specification constituted a request for a minor change and, with the concurrence of the Government, it was permissible for the military judge to accept this change.” Slip op. at 10. The CCA observed that:

Although it would have been preferable for the military judge to ask Appellant, as opposed to his counsel, whether he consented to this change in the wording of the specification, under these circumstances we find that the change in the location of the battery from “vulva” to “pelvic region” was not done over the objection of Appellant.

Slip op. at 11.

Chief Judge Drew concurred in the result but would have gone further and found that the appellant’s pleas affirmatively waived the issue of the propriety of the lesser included offense.

The appellant was also charged with attempted sexual assault of the same alleged victim, and of rape and forcible sodomy of a different alleged victim, but he was acquitted of all of those charges. That means that the entire prosecution now hinges on the assault specification that may well have been considered “a throw away charge” at trial. See United States v. Humphries, 71 M.J. 209, 217 n.10 (C.A.A.F. 2012) (CAAFlog case page) (discussing adultery specification in a rape case).

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