Opinion Analysis: Aggravated sexual contact was not a lesser included offense of rape under a prior version of Article 120, but holding otherwise was not a clear or obvious error in United States v. Gonzales
CAAF decided the Army case of United States v. Gonzales, __ M.J. __, No. 18-0347/AR (CAAFlog case page) (link to slip op.), on Friday, June 7, 2019. Analyzing the version of Article 120 effective from 2007-2012, the court holds that the offense of aggravated sexual contact with a child is not a lesser included offense of rape of a child. Nevertheless, reviewing the appellant’s conviction of the lesser offense for plain error (because there was no objection at trial), CAAF finds that the error is not plain or obvious because the law was unsettled, and the court affirms the conviction.
Judge Maggs writes for a unanimous court.
Specialist (E-4) Gonzales was convicted by a general court-martial composed of a military judge alone of aggravated sexual contact with a child, aggravated sexual abuse of a child, indecent liberty with a child, and child endangerment, and sentenced to confinement for 22 years, reduction to E-1, total forfeitures, and a dishonorable discharge. CAAF’s review involves only the conviction of aggravated sexual contact with a child. Gonzales was actually charged with the offense of rape of a child, with a specification that alleged that he:
engage[d] in a sexual act, to wit: penetrating, with his penis, the vulva of Miss AP, a child who had not attained the age of 12 years.
Slip op. at 9 (marks omitted). The evidence at trial, however, did not prove the element of penetration, and the military judge acquitted Gonzales of rape but convicted him of aggravated sexual contact, ostensibly as a lesser included offense. The two offenses are different, in that rape of a child (in violation of Article 120(b) (2006)) requires a sexual act (potentially without any specific intent), while aggravated sexual contact requires only sexual contact but with specific intent. The defense did not object when the military judge announced the findings, and CAAF eventually granted review to determine:
Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.
Applying both versions of the elements test outlined in United States v. Armstrong, 77 M.J. 465 (C.A.A.F. 2018) (CAAFlog case page), Judge Maggs explains that the statutory elements of aggravated sexual contact with a child are not necessarily included in the statutory elements of rape of a child, and that the charge sheet did not provide notice of the different elements of the sexual contact offense. Accordingly, the military judge erred in convicting Gonzales of aggravated sexual contact with a child. The error, however, was not plain or obvious because “it was subject to reasonable doubt both at the time of trial and on appeal,” slip op. at 10, and so – because Gonzales failed to object at trial – he gets no relief.