CAAF decided United States v. Tunstall, No. 12-0516/AF, 72 M.J. 191 (opinion) (CAAFlog case page) on Thursday, May 23, 2013, finding that the trial judge erred in instructing the members on the offense of indecent acts as a lesser included offense of aggravated sexual assault, reversing the AFCCA on this issue, and remanding the case to the CCA for further proceedings. The court also finds that despite the Government’s failure to allege a terminal element in the Article 134 offense of adultery, the record or trial demonstrates that the Appellant was on actual notice of the terminal element, and CAAF affirms this finding of guilty.
Judge Erdmann writes for the court, joined by Judge Ryan and Senior Judge Effron. Judge Stucky writes separately concurring in part and in the result. Chief Judge Baker dissents.
The Appellant was convicted, contrary to his pleas by a general court-martial composed of members, of one specification of aggravated sexual assault, one specification of indecent acts (as a lesser included offense of a second specification of aggravated sexual assault), and one specification of adultery, in violation of Articles 120 (2007) and 134, UCMJ. He was sentenced to confinement for six months, a reprimand, reduction to E-1, and a bad-conduct discharge. The convening authority approved the adjudged sentence, and the AFCCA affirmed the findings and sentence.
CAAF granted review of two issues:
I. Whether appellant’s conviction for indecent acts must be set aside because the military judge erred in instructing the jury that indecent acts is a lesser included offense of aggravated sexual assault.
II. Whether the finding of guilty to adultery must be dismissed in accordance with Rule for Courts-Martial 907(b)(1) because it fails to state an offense.
The Appellant engaged in a number of sexual encounters with a very intoxicated Airman KAS. One involved the Appellant digitally penetrating KAS’ vagina while she was leaning over a sink, dry heaving after having vomited, while another airman stood nearby (the other airman eventually said to the Appellant, “[i]t’s not time for that. I mean she’s sick. We need to take care of her.” Slip op. at 4-5). For this specific encounter (there were others) the Appellant was charged with aggravated sexual assault of KAS while she was substantially incapable of declining participation. “During his instructions on findings, the military judge sua sponte instructed the members that the offense of indecent acts was a lesser included offense of the charged offense of aggravated sexual assault.” Slip op. at 5. The Defense did not object to this instruction, and the Appellant was acquitted of aggravated sexual assault and convicted of indecent acts. The CCA affirmed, reasoning “one cannot engage in a ‘sexual act’ with someone who was vomiting in a sink in the presence of a third party without also engaging in an indecent act.” Slip op. at 6 (quoting Tunstall, No. ACM 37592, slip op. at 10).
Beginning his analysis of this instructional issue, Judge Erdmann notes that CAAF reviews for plain error because the Defense did not object to the instruction. He then details the three-prong test for plain error that later becomes a significant theme in the opinion:
Under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.
Slip op. at 6. The Government’s argument was that “the aggravated sexual assault specification at issue could, without alteration, constitute a legally sufficient indecent acts specification. The crux of the Government’s argument is that the act alleged in [the specification] constituted indecent conduct under the above definition because KAS was substantially incapable of declining the participation in the sexual act.” Slip op. at 9. However, Judge Erdmann notes that:
It has long been recognized that a jury must be able to rationally acquit on the greater offense but still convict on the lesser offense. Sansone v. United States, 380 U.S. 343, 350 (1965) (“[T]he lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.”).
Slip op. at 9-10. Normally, when challenging a lesser included offense, the argument is that the lesser offense is too different from the charged offense. But in this case the argument is reversed, and the indecent acts offense fails as a lesser included offense because it is too similar to the charged offense of aggravated sexual assault. Judge Erdmann explains:
Under the facts of this case, where there is no additional fact that the members would need to find in order to establish the offense of aggravated sexual assault which would be unnecessary to establish the offense of indecent acts, the two offenses do not stand in a relationship of greater/lesser offense, because a rational trier of fact could not acquit on the greater offense and convict on the lesser offense.
Slip op. at 11 (emphasis added). But Judge Erdmann continues, also finding error in another instruction given by the trial judge that “engaging in a sexual act in the presence of others is considered ‘open and notorious’ behavior which could constitute an indecent act.” Id. Open and notorious is not a theory of aggravated sexual assault, and this instruction “essentially took the ‘substantially incapable of declining participation’ theory for the offense of indecent acts off the table and instead provided the members with detailed instructions as to the ‘open and notorious’ theory for the offense.” Slip op. at 12. Accordingly, “[a]s Tunstall was neither charged with nor on notice of the offense of indecent acts under the ‘open and notorious’ theory until the military judge’s instruction, he was not on fair notice to defend against that offense and his due process rights were violated.” Slip op. at 12-13.
On my first reading of this portion of Judge Erdmann’s opinion, I saw the discussion of the “open and notorious” instruction as superfluous and dicta. But then I remembered last term’s per curiam opinion in United States v. Rauscher, No. 12-0172/NA, in which CAAF explained that it doesn’t matter what offense the Government thinks its charging, so long as the specification itself sets forth all of the elements of the offense of conviction (this principle was again applied in this term’s decision in United States v. Wilkins, No. 11-0486/NA). So, if the charge of aggravated sexual assault in this case had encompassed the “open and notorious” theory, then the conviction for indecent acts could have been affirmed, not as a lesser included offense but simply as a charged offense. I think this is why Judge Erdmann writes that the Appellant was “neither charged with nor on notice. . .”
Unfortunately, Judge Erdmann doesn’t explain this point, or cite Rauscher at all, and he only cites Wilkins for the test for plain error. Moreover, while Judge Stucky’s concurring opinion cites both Wilkins and Rauscher in its first paragraph, he also doesn’t explain why they matter to the treatment of the LIO issue. These omissions make it easy to miss this important part of this opinion (assuming that this is really what the court is trying to say).