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
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.
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