CAAF decided the Army case of United States v. Armstrong, __ M.J. __, No. 17-0556/AR (CAAFlog case page) (link to slip op.), on Thursday, June 28, 2018. The court holds that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm because even though both offenses require bodily harm, a battery must involve unlawful force or violence, while abusive sexual contact need only involve a certain mental state. Nevertheless, reviewing for plain error (because the defense failed to preserve the issue with a timely objection) CAAF finds no material prejudice to the defense in this case and affirms the conviction of assault consummated by a battery and the decision of the Army CCA.

Judge Maggs writes for the court, joined by Chief Judge Stucky and Judge Ryan. Judge Ohlson writes a separate concurring opinion, joined by Judge Sparks.

Captain (O-3) Armstrong was charged with abusive sexual contact by causing bodily harm in violation of Article 120(d) (incorporating Article 120(b)(1)(B)) (2012). A general court-martial composed of members convicted Armstrong of assault consummated by a battery as a lesser included offense, and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.

The factual basis for the convicton was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The charge sheet alleged that Armstrong:

did . . . commit sexual contact upon [Mrs. G.]., to wit: touching through the clothing the genitalia of the said [Mrs. G.], by causing bodily harm to the said [Mrs. G.], to wit: wedging his hands between her thighs.

Slip op. at 2 (quoting charge sheet) (modifications in original). Sexual contact is a legal term of art that encompasses touching “with an intent to abuse, humiliate, or degrade any person,” or “with an intent to arouse or gratify the sexual desire of any person.” Article 120(g)(2)(A) and (B).

In advance of trial Armstrong’s defense counsel requested instructions relevant to a possible lesser included offense of assault consummated by a battery, including “a mistake of fact instruction with regard to battery, the lesser included offense.” Slip op. at 3 (marks omitted) (emphasis added). Despite this and other requested instructions referencing battery as a lesser included offense, CAAF finds that:

Defense counsel, however, never expressly agreed that assault consummated by a battery was a lesser included offense of abusive sexual contact by causing bodily harm.

Slip op. at 3. But at trial, when it was time to instruct the members, the prosecution requested that they be instructed that they could convict Armstrong of assault consummated by a battery as a lesser included offense of abusive sexual contact. The military judge asked Armstrong’s defense counsel for their position, to which the defense responded: “Taking no position on it, judge.” Slip op. at 3 (quoting record).

Bad move. That equivocation is why CAAF now affirms Armstrong’s conviction of assault consummated by a battery despite finding that it is not actually a lesser included offense of abusive sexual contact.

Judge Maggs’ opinion of the court explains that because Armstrong’s defense counsel did not clearly object to the lesser included offense instruction, the error is not preserved:

Considering the entire exchange between the military judge and defense counsel, we conclude that defense counsel failed to make known both the defense’s position and the basis for it, on whether assault consummated by a battery is a lesser included offense. . . . defense counsel’s subsequent statement that counsel was “[t]aking no position” on the Government’s assertion that assault consummated by a battery was a lesser included offense and the lack of response when the military judge asked for contrary authority indicate that defense counsel, in the end, was leaving the task of determining what was or was not a lesser included offense to the military judge. Appellant thus did not preserve the issue.

Slip op. at 4-5 (modification in original). Judge Maggs briefly considers whether waiver or forfeiture applies, but concludes that the error was merely forfeited by the failure to object (the right answer I’m sure, considering that waiver generally requires an affirmative act by an accused).

Because the error is forfeited, plain error review applies. And:

Under plain error review, the appellant has the burden of demonstrating “(1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (citation omitted). Under this standard, even if there was an error, no relief is warranted unless the appellant can show the second and third requirements. United States v. Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018).

Slip op. at 5 (emphasis added). It’s worth mentioning – only because CAAF doesn’t – that the briefs show that it was a civilian defense counsel who made the taking no position remark. The briefs do not, however, identify the counsel.

Having determined the standard of review, Judge Maggs turns to the test for whether one offense is a lesser included offense of another: the elements test. 

The “elements test” determines whether an offense is “necessarily included in the offense charged” under Article 79, UCMJ. United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010). We have applied the elements test in two ways.

The first way is by comparing the statutory definitions of the two offenses. An offense is a lesser included offense of the charged offense if each of its elements is necessarily also an element of the charged offense. See, e.g., United States v. Gaskins, 72 M.J. 225, 235 (C.A.A.F. 2013) (holding that assault consummated by a battery is a lesser included offense of indecent assault based solely on a comparison of statutory elements of the two offenses); MCM pt. IV, para. 3.b.(1) (2012 ed.).

The second way is by examining the specification of the charged offense. An offense can also be a lesser included offense of the charged offense if the specification of the charged offense is drafted in such a manner that it alleges facts that necessarily satisfy all the elements of each offense. See, e.g., United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011).

Slip op. at 6 (paragraphing added). We once called the elements test and CAAF’s decision in Jones the easy button for determining LIOs but, as Judge Maggs explains, it’s not as easy as just pushing that button because the charge sheet might nevertheless provide notice of the non-lesser offense. A good example of how that works is United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (per curiam) (CAAFlog case page), where the court held the designation of a specific statute on the charge sheet immaterial when the elements of a different offense are explicitly alleged in the specification. Accordingly, there seem to be two versions of the elements test: the statutory definition version and the notice version.

Applying the statutory definition version of the elements test to the elements of abusive sexual contact by causing bodily harm (the charged offense) and to the elements of assault consummated by a battery (the offense of conviction), Judge Maggs finds a significant difference:

In comparing the elements of the offense of abusive sexual contact by causing bodily harm to the elements of the offense of assault consummated by a battery, we begin by noting that they both require proof of “bodily harm.” Bodily harm is defined as an “offensive touching.” Assault consummated by a battery requires the accused to commit the offensive touching “with unlawful force or violence.” Abusive sexual contact by causing bodily harm requires the accused to commit the offensive touching with “an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.”

. . . the question under the elements test is whether the elements of one offense are  necessarily included in the elements of another. Looking at just the elements of the two offenses, assault consummated by a battery is not necessarily included in abusive sexual contact by causing bodily harm.

Slip op. at 9-10. Put differently, a sexual contact does not necessarily involve unlawful force or violence (and Judge Maggs gives an example of a sexual contact accomplished by the accused positioning himself so that a person would touch his genitals, without the accused using any force).

Judge Ohlson’s concurring opinion takes a slightly different approach to reach the same result:

Aggravated sexual contact explicitly requires proof of “unlawful force,” but abusive sexual contact does not. Compare Article 120(a)(1), (c), UCMJ, and MCM pt. IV, para. 45.b.(5)(a), with Article 120(b)(1)(B), (d), UCMJ, and MCM pt. IV, para. 45.b.(7)(b). If we were to graft onto abusive sexual contact the requirement that the Government prove “unlawful force,” we would be vitiating the statutory distinction between aggravated sexual contact and abusive sexual contact. . . .

I write separately because I believe that this application of the elements test to the relevant statutory provisions in the instant case—standing alone—is sufficient to demonstrate that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm.

Con. op. at 2.

Judge Maggs then turns to the notice version of the elements test, concluding that the charge sheet did not put the defense on notice:

the charging language did not suffice to state both offenses. . . . Neither the definition of bodily harm nor any factual averment in the Specification provided notice that the Government would have to prove that the wedging of his hands was done “with unlawful force or violence.” The Specification therefore did not state the elements of both abusive sexual contact by causing bodily harm and assault consummated by a battery.

Slip op. at 11. A footnote, however, adds an important caveat:

The analysis would be different if the Specification originally had contained words such as “unlawfully touch,” as added by the members in their finding in this case, see supra note 2, and as recommended in the MCM’s sample specification, see MCM pt. IV, para. 54.f.(2) (2012 ed.).

Slip op. at 11 n. 9.

Judge Ohlson’s concurring opinion agrees that “the specification did not use language that references in any manner ‘unlawful force or violence.'” Con. op. at 3.

Because assault consummated by a battery fails both the statutory definition and the notice versions of the elements test, CAAF concludes that “the military judge erred in instructing the members that assault consummated by a battery was a lesser included offense of abusive sexual contact by causing bodily harm.” Slip op. at 12. That, however, doesn’t win Armstrong reversal because under the plain error test he must also show material prejudice.

And CAAF finds no prejudice based on the way Armstrong’s defense presented his case:

In this case, although Appellant later said that he did not see any lesser included offenses, the record shows that Appellant requested instructions before the presentation of evidence regarding defenses to assault consummated by a battery. One of these instructions concerned “unlawful touching,” and thus addressed the requirement of unlawful force. We therefore agree with the Government that Appellant had notice of how he needed to defend himself at the start of the case. Therefore, he suffered no material prejudice resulting from error in this case.

Slip op. at 13.

Recognizing the possibility of this outcome, Armstrong’s appellate defense counsel also argued that CAAF should apply last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), to hold that the conviction of assault consummated by a battery was a major change requiring reversal, but again the failure to object undermines the argument. Judge Maggs explains:

Even if we were to equate the erroneous instruction in this case to a major change to the Specification, the reasoning in Reese would not apply. R.C.M. 603(d) requires preferral anew only when a major change is “made over the objection of the accused.” In this case, as explained above, Appellant did not object to the lesser included offense instruction. He, therefore, had to show material prejudice to obtain relief.

Slip op. at 14.

Case Links:
• ACCA decision (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

23 Responses to “Opinion Analysis: Assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm, but it doesn’t matter in United States v. Armstrong”

  1. A Random JAG says:

    Am I the only one that thinks this is a really big opinion?  I don’t think, in all the years I practiced, I ever saw a judge express any skepticism that assault and battery was an LIO of abusive sexual contact.  Not saying CAAF got it wrong, but I find it very surprising it comes out this way.  I wonder how many trailers will be affected (although probably less than I would think, both because A&B convictions are often unlikely to have automatic appellate jurisdiction, and because Defense has probably asked for the instruction in a lot of cases).
     
    Sounds like there’s an easy fix to this, too, for Government counsel who want to keep the LIO a possibility – just include language in the abusive sexual contact specification regarding unlawful force and violence.  Although even that is strange, because then you’ve basically charged aggravated sexual contact.

  2. Confused says:

    I’m confused by this decision.  Does it mean that assault consummated by battery can only be a lesser included offense, if the bodily harm was caused by “unlawful” force (i.e.-aggravated sexual contact)?  Bodily harm is caused by some form of force.  The difference between aggravated sexual contact by force and abusive sexual contact by causing bodily harm, is the application of “unlawful force”.  (Abusive sexual contact by causing bodily harm being an LIO of aggravated sexual contact by force)  How can the force, that is causing bodily harm, be considered “lawful” in the offense of abusive sexual contact, if the offense is being committed with the intent to abuse, humiliate, degrade, arouse, gratify the sexual desire, of any person?  

  3. Nathan Freeburg says:

    It was probably only a “bad move” if the defense was certain the judge was going to give the instruction anyway. 

  4. K fischer says:

    Nathan,
     
    C’mon man, I’m sure that panel would have acquitted him of sexual assault rather than taking the position of, “Well, we need to convict him of something.”

  5. stewie says:

    I’m going to assume DC was hoping to have his cake and eat it too…get the panel to consider a lower level offense, and then hope that an appeals court strikes it through under Jones because it was only forfeited not affirmatively waived.

  6. jagaf says:

    Apropos of nothing, this is interesting: 
    http://www.abajournal.com/news/article/supreme_court_to_weigh_double_jeopardy_issue_that_could_affect_state_cases 

  7. Isaac Kennen says:

    So, the take away: CAAF will, without blinking, affirm a conviction on an offense that, according to the Court, was never even charged. But, Lord help the prosecutor who fails to charge the terminal element of an Article 134 offense. And, Heaven save a judge who gives a propensity instruction for other charged sexual misconduct.  

  8. Lone Bear says:

    This seems bad for the defense to me.  What you have a 120, it’s nice having a non-120 out.  A 128 plea is often in play in these cases.  I guess it’s easy enough to agree to a 128 charge, or for the prosecution to charge both, but I think in many cases the defense benefits from the 128 LIO.

  9. stewie says:

    This is all about to be mooted anyways with Jones being done away with legislatively yes?

  10. BT says:

    I often think that CAAF just gets bored with the current state of the law every year or two and just decides to issue a mildly nonsensical opinion just to stir the pot. 

  11. Zachary D Spilman says:

    For those – like A Random JAG – who think this is a really big opinion, and those – like Lone Bear – who think this is bad for the defense, here are two reasons why I don’t agree.

    First, as noted in my analysis in the post above, this opinion includes an important caveat in a footnote:

    The analysis would be different if the Specification originally had contained words such as “unlawfully touch,” as added by the members in their finding in this case, see supra note 2, and as recommended in the MCM’s sample specification, see MCM pt. IV, para. 54.f.(2) (2012 ed.).

    Slip op. at 11 n.9. The analysis discussed in this footnote is the notice version of the elements test. Judge Maggs explains that “the charging language did not suffice to state both” abusive sexual contact and assault consummated by a battery. Slip op. at 11. And that matters because:

    The fact that an act might have been charged as an offense other than the charged offense is irrelevant to the elements test if the charging language does not cover both offenses.

    Slip op. at 7 n.4. Put differently, many unlawful sexual touchings could be charged as an assault consummated by a battery, and many such touchings (where the allegations involves affirmative acts by the accused) also amount to a battery, but a battery requires unlawful force or violence while a sexual contact does not (because there are situations where a sexual contact can occur without the use of any force or violence; like when a person positions themselves in such a way as to cause another person to touch their genitals, see slip op. at 10 (discussing United States v. Claxton, No. ACM 38188 (rem), 2016 CCA LEXIS 649, 2016 WL 6575036 (A.F. Ct. Crim. App. Oct. 31, 2016), aff’d, 76 M.J. 356 (C.A.A.F. 2017) (CAAFlog case page))). 

    So, CAAF’s decision in this case is merely a recognition that abusive sexual contact does not necessarily involve a battery, because a sexual contact may occur even without the application of unlawful force or violence (based on the statutory definition version of the elements test). The circumstances of a particular case, however, will control (based on the notice version of the elements test).

    Second, Armstrong challenged his conviction of assault consummated by a battery. That challenge means that he does not (and did not at trial) agree that it was a lesser included offense of abusive sexual contact under the circumstances of his case.

    Now it’s possible to believe that when Armstrong’s civilian defense counsel took no position on the issue that was because the defense both wanted a battery instruction but also wanted to later object to a battery instruction. Because that strategy raises ethical concerns, I’m not going to speculate that it was the goal. 

    But in a different case, with an accused who believes that any touching was at most a battery (perhaps because it lacked the mental state required for a sexual contact), there’s no reason to believe that a military judge will refuse to instruct the members that battery is a lesser included offense. Particularly considering that when defense counsel tells the military judge that they’ve been on notice of a battery (based on the language of the specification), that satisfies the notice version of the elements test.

  12. Nathan Freeburg says:

    ”Because that strategy raises ethical concerns, I’m not going to speculate that it was the goal.”
     
    No it doesn’t. 

  13. Philip D. Cave says:

    What is the ethical concern?  It’s worth feathering that out for the benefit of counsel in future cases.
     
    United States v. Strachan, 35 M.J. 362, 364 (C.M.A. 1992) (Instructions on lesser-included offenses are required unless affirmatively waived by the defense. See, e.g., United States v. Moore, 12 U.S.C.M.A. 696, 31 C.M.R. 282 (1962). We hold that defense counsel affirmatively indicated his desire to withdraw his request for the instruction and, thereby, waived the instruction. An affirmative waiver is not the same as a passive failure to request an instruction or object to its omission [or inclusion?]. See United States v. Taylor, 26 M.J. 127 (CMA 1988)).
     
    So where does “I take no position” fall between affirmative and passive?
     

  14. Zachary D Spilman says:

    I don’t really know what taking no position meant in this case, but I think the ethical concerns are obvious if we expand upon what it might have meant:

    MJ: Does either side request any additional instructions?

    TC: We request that you instruct the members on the lesser included offense of assault consummated by a battery, your honor.

    MJ: OK. Defense, what’s your position on that?

    DC: Our position, your honor, is that we want you to give that instruction so that we can argue for a conviction of assault consummated by a battery instead of abusive sexual contact, but if there is a conviction of assault consummated by a battery then we also want to argue that you erred when you gave that instruction. I don’t exactly know what I am required to say in order for that to happen, but could we just assume that I said it?

  15. Sir Visdis Crediting says:

    John Nash should’ve asked her if she wanted a cup of tea.

  16. stewie says:

    So you think Zach that there is an ethical concern for defense counsel to try and have it both ways? How so? What ethical obligation are they breaking? It’s not like they aren’t being obvious about what they are doing. Nothing is being hidden. They had a two-pronged approach:
     
    1. Try to have a non-SOR offense on the line that the panel could grasp at if they wanted to (obviously pros and cons to that approach since they might have acquitted him in theory).
    2. Recognizing that the GOV screwed up by not separately listing it on the charge sheet, hope that if he is convicted of that, that he can later be acquitted of that because of Jones.
     
    The greatest risk was that he would be convicted of the lesser charge and the challenge wouldn’t work (which is what happened). The next risk was that by giving the panel a lesser charge, he lessened the chances of an acquittal (but one assumes the DC knew their case and knew there was a risk of a greater, SOR offense that made taking this chance advisable).
    So, not hidden, clear and obvious…what’s the ethical problem??

  17. Zachary D Spilman says:

    Well, stewie, I don’t think there’s any ethical issue with wanting it both ways. So, for instance, if one side makes a deliberately weak objection for the purpose of preserving an issue even though it doesn’t mind the error, I think that’s perfectly fine strategy. Similarly, if one side deliberately doesn’t object (meaning says nothing) when it could object (but doesn’t have to), that merely forfeits the error.

    But assuming that the taking no position comment was an effort to have it both ways in this case, that seems to me to be a less-than-candid response to the military judge (and I know – from CAAF’s decision – that it was a less-than-effective response).

    Now I’m not actually calling the defense counsel in this case unethical, mostly because I don’t know what the taking no position comment means, but also because I believe that when a judge asks a question, the judge should insist on an actual answer. So I think the military judge deserves more criticism on this issue than the civilian defense counsel.

    But had the military judge in this case pressed the defense to actually say whether it objected to the LIO instruction, and the defense responded that it wanted the instruction but also wanted to preserve an objection to the instruction (as outlined with the hypothetical exchange in my comment above), then I think the military judge would have been right to call bullshit. 

  18. stewie says:

    There are all sorts of things one can “call bullshit” on that are not unethical.
    I just think throwing the e-word around is something one needs to be awfully careful with.

  19. Philip D. Cave says:

    I see nothing from the ACCA opinion that leads to any conclusion or implication that the trial defense counsel (or trial counsel) were on the edge of an ethical issue.  They might have proceeded differently–noting that this Monday morning has passed but to quote Stewie, “BS.”

  20. Isaac Kennen says:

    Perhaps the exchange could go something like this:

    MJ: Does either side request any additional instructions?
    TC: We request that you instruct the members on the lesser included offense of assault consummated by a battery, your honor.
    MJ: OK. Defense, what’s your position on that?
     
    DC: The accused’s position, Your Honor, is that he “shall [not] be compelled in any criminal case to be a witness against himself.” There is no answer to your query which the accused, or I on his behalf, could give that would not prejudice his interests in this criminal proceeding. Thus, we respectfully and regretfully decline to answer your query, and ask that you not hold that silence against us.

  21. Noman says:

    Isaac Kennen:

     DC: The accused’s position, Your Honor, is that he “shall [not] be compelled in any criminal case to be a witness against himself.” There is no answer to your query which the accused, or I on his behalf, could give that would not prejudice his interests in this criminal proceeding. Thus, we respectfully and regretfully decline to answer your query, and ask that you not hold that silence against us.

    I don’t think that’s how it works.  You seem to be equating the right to remain silent with some sort of right to have your attorney avoid taking a position on an issue.  Or rather, a right to be able to have your cake and eat it too.  You have a right not to take the stand or say anything.  You don’t have a right to be able to adopt a “best of both worlds” strategy on any given issue.

  22. Isaac Kennen says:

    You seem to be equating the right to remain silent with some sort of right to have your attorney avoid taking a position on an issue. 

     
    It is not merely a right to remain silent. It is, by the text of the amendment, a right to not be compelled to speak against your own interests. And, if the accused has a right to proceed pro se, then he certainly has a right to tell his attorney to exercise that constitutional right to not harm him. Heck, an accused has a right to not be compelled to enter a plea. If he cannot be made to say whether he is guilty or not of the offense charged, then he certainly has the right to not say whether he believes he has been actually charged with that offense in the first place.

  23. Vulture says:

    Isaac says:
    Heck, an accused has a right to not be compelled to enter a plea. 
    That is rudimentary arraignment stuff.  The basic of correct trial procedure that is supposed to be a sin qua non to a trial, just like correct reading of a charge, and notice.  Maybe the CDC was thinking by the time the trial got to this point that there was nothing to salvage.  This opinion left me wondering, “Didn’t anything else happen in this trial?”
     
    CAAF’s continuous HBRD has gotten stale.  Like ‘moldy to the point of penicillin’ stale.  Something that green needs to be a good remedy for something.  But CAAF keeps on with its autoclave purity instead of, I don’t know, being doctors of jurisprudence.

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