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.
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.