Argument Preview: Evaluating a charge of one offensive touching but a conviction of a different offensive touching, in United States v. Honea
CAAF will hear oral argument in the Air Force case of United States v. Honea III, No.17-0347/AF (CAAFlog case page), on Wednesday, December 6, 2017, after the argument in Harpole. The court granted review of two issues involving the appellant’s conviction of assault consummated by a battery in violation of Article 128 as a lesser included offense of abusive sexual contact by causing bodily harm in violation of Article 120(h) (2007):
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?
Captain (O-3) Honea was charged with numerous offenses. One alleged a sexual touching as abusive sexual contact in violation of the version of Article 120 in effect from 2007-2012. But the military judge determined that the specification failed to state a sexual offense. Instead, the military judge found that the specification stated only the lesser included offense of assault consummated by a battery, and Honea pleaded not guilty to that offense.
The wording of the specification charged Honea with touching the alleged victim’s vulva, but the evidence supported that he touched only her pelvic region. At the conclusion of the evidence, the military judge discussed the wording of the specification with the parties, and Honea’s defense counsel submitted language that alleged only a touching of the pelvic region. The military judge then found Honea guilty of that touching and not guilty of all other allegations, and sentenced him to confinement for 30 days and to be dismissed.
On appeal, Honea challenged the conviction, asserting that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, and also asserting that the evidence is insufficient to prove the charged offense of touching of the vulva. The Air Force CCA rejected the challenges, finding that assault consummated by a battery is a lesser included offense (LIO) and also finding that:
the military judge, at the request of the Defense and with the concurrence of the Government, found Appellant guilty of a specification that differed slightly from that alleged, we must consider whether this was permissible. We conclude 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. . . .
Even if we concluded this was a major change, the change would still be permissible. Not only did Appellant fail to object to the change, he proposed it.
United States v. Honea, No. 38905, slip op. at 10 (A.F. Ct. Crim. App. Feb. 15, 2017).
CAAF is reviewing both of those findings.
The second granted issue poses a threshold question, because if the offense of assault consummated by a battery was not properly before the court-martial then it doesn’t matter whether the change to the nature of the touching was permissible. The Air Force CCA’s conclusion was that “as charged in this case, assault consummated by a battery was an LIO of abusive sexual contact. Proof of the elements for abusive sexual contact by bodily harm necessarily required proof of the elements for assault consummated by a battery.” Honea, No. 38905, slip op. at 7.
The Air Force Government Appellate Division goes further, however, arguing that Honea “waived any challenge to consideration of the LIO of assault consummated by a battery” by “affirmatively recogniz[ing] assault consummated by a battery as an appropriate LIO in this case.” Gov’t Div. Br. at 38-39. Honea responds (in a reply brief) by pointing to last term’s decision in United States v. Oliver, 76 M.J. 271 (C.A.A.F. May 24, 2017) (CAAFlog case page), and its conclusion that forfeiture (not waiver) applies because of the law regarding consent as an element of a sexual contact was unsettled at the time of trial.
Waived or not, the Government Division seems to have the better argument on whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm because:
the abusive sexual assault specification in the case was charged by bodily harm, the government was required to demonstrate a lack of consent. As such, assault consummated by a battery was an LIO in this case.
Gov’t Div. Br. at 44. But Honea’s reply brief makes the strong point that:
This reading ignores the plain language of the statute, which states consent is “not an issue” with respect to abusive sexual contact but may be raised as an affirmative defense. United States v. Barlow, 2014 CCA LEXIS 166, *18 (A. F. Ct. Crim. App. 2014) (“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.”).
Reply Br. at 7.
As for the change from vulva to pelvic region, the Government Division’s brief asserts that:
[T]he change to “pelvic region” in this case merely increased the scope of the area touched, and did so only by a matter of inches. Even more instructive, the pelvic region actually encompasses the vulva.
Gov’t Div. Br. at 31. This looks like a remarkably bad argument for finding a minor change. Increasing the scope of the area touched to include an area encompassing (meaning bigger than) the charged area means that something new was added. Nevertheless, the Government Division asserts that:
If anything, the modification in this case decreased the severity of the offense. It is therefore by definition, a minor change.
Gov’t Div. Br. at 31. Just because the offense is less severe, that doesn’t mean it isn’t materially different or more broad. If the military judge had, for example, convicted Honea of touching of the body based on evidence of touching the hand, the body would certainly encompass the pelvic region but the alleged misconduct could hardly be considered to be the same.
Honea’s reply brief seizes on this point:
[P]ermitting the government to replace vulva with pelvic region at the close of the defense case resulted in a major change and precisely the unfair surprise prohibited by R.C.M. 603. United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017). Beginning with his Article 32, UCMJ, hearing on July 23, 2014, Captain Honea defended himself on the theory that the charged touching never occurred, and that any incidental touching occurred during a consensual “hook up” as he and Captain RVS mutually kissed and undressed each other in a guest bedroom. (JA at 156.)
The government’s concession that the change at issue “merely increased the scope of the area touched,” (Gov’t Ans. at 31), should be dispositive in determining whether the change was “slight” and “fairly included in the original specification.” Reese, 76 M.J. at 300.
Reply Br. at 4.
Last term, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF viewed the language of a specification in a way that I think was very narrow, and its review in Honea might continue that trend. But in Reese the defense counsel specifically objected to the change, while in Honea the defense didn’t make such an objection (and could be said to have acquiesced).
“The military is a notice pleading jurisdiction.” United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011). While the Government Division will likely make waiver the focus of its argument tomorrow, I predict CAAF will focus on notice.