CAAFlog » October 2017 Term » United States v. Armstrong

CAAF decided the Army case of United States v. Armstrong, 77 M.J. 465, 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.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Burris, No.17-0605/AR (CAAFlog case page): Oral argument audio.

United States v. Barry, No. 17-0162/NA (CAAFlog case page)Oral argument audio.

United States v. Armstrong, No. 17-0556/AR (CAAFlog case page): Oral argument audio.

United States v. Kelly, No.17-0559/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Armstrong, No. 17-0556/AR (CAAFlog case page), on Wednesday, March 21, 2018. The court granted review of a single issue:

Whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm.

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 him of assault consummated by a battery as a lesser included offense (LIO), and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.

The factual basis for the charge 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 specification as charged alleged that Armstrong: “commit[ed] sexual contact upon Mrs. BG, to wit: touching through the clothing the genitalia of the said Mrs. BG, by causing bodily harm to the said Mrs. BG, to wit: wedging his hands in between her thighs.” Gov’t Div. Br. at 9 (quoting record) (marks in original).

In United States v. Jones, CAAF explained that “the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged.” 68 M.J. 465, 468 (C.A.A.F. 2010) (marks and citation omitted). When the decision was issued we analogized it to an easy button for determining LIOs.

The question in this case is whether the elements of assault consummated by a battery are a subset of the elements of abusive sexual contact by causing bodily harm

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