U.S. v. Bonner, 70 M.J. 1

Core Criminal Law Subjects: Crimes: Article 79 - Conviction of Lesser Included Offenses Pre-2019 offenses

1. an accused may be found guilty of an offense necessarily included in the offense charged; Article 79 requires application of the elements test to determine whether one offense is an LIO of a charged offense; under the elements test, the elements of the lesser offense are a subset of the elements of the charged offense; where the lesser offense requires an element not required for the greater offense, no instruction regarding an LIO is to be given
2. the elements test to determine whether one offense is an LIO of a charged offense does not require that the two offenses at issue employ identical statutory language; instead, after applying the normal principles of statutory construction, a court asks whether the elements of the alleged LIO are a subset of the elements for the charged offense; thus, it first determines the elements of the charged offense and the alleged LIO by applying the principles of statutory construction; then, it compares the elements of the two offenses to see if the latter is a subset of the former

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (m) Wrongful Sexual Contact

1. assault consummated by a battery, under Article 128, UCMJ, is an LIO of wrongful sexual contact, Article 120(m), UCMJ
2. the offense of wrongful sexual contact occurs when any person, without legal justification or lawful authorization, engages in sexual contact with another person without that other person’s permission; in the MCM, the President has defined the elements for wrongful sexual contact as follows: (a) that the accused had sexual contact with another person; (b) that the accused did so without that other person’s permission; and (c) that the accused had no legal justification or lawful authorization for that sexual contact
3. with respect to the meaning of the three elements of wrongful sexual contact, the UCMJ defines sexual contact, in relevant part, as intentionally causing another person to touch the genitalia of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; second, the statute requires the contact to be without permission, and third, the final element requires that the sexual contact was wrongful, in that no legally cognizable reason existed that would excuse or justify the contact
4. assault consummated by a battery is an LIO of wrongful sexual contact where both offenses require wrongful contact; furthermore, in this case, because appellant was charged with wrongful sexual contact by tapping the victim on the head with his exposed penis, he knew that he had to defend against having caused the victim to make contact with his genitalia without the victim’s permission and with the intent of abusing, humiliating, or degrading the victim; such contact would, at a minimum, be offensive given the ordinary understanding of what it means for contact to be offensive; in fact, in this case, one could transplant the essential facts from the wrongful sexual contact specification, without alteration, into a legally sufficient specification for assault consummated by a battery under Article 128, UCMJ

Core Criminal Law Subjects: Crimes: Article 128 - Assault Pre-2019 offenses

1. assault consummated by a battery, under Article 128, UCMJ, is an LIO of wrongful sexual contact, Article 120(m), UCMJ
2. the offense of assault occurs when any person attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated; the elements for an assault consummated by a battery are: (1) that the accused did bodily harm to a certain person; and (2) that the bodily harm was done with unlawful force or violence
3. with respect to the meaning of the two elements of assault consummated by a battery, doing bodily harm means committing any offensive touching of another, however slight, and unlawful force or violence means that the accused wrongfully caused the contact, in that no legally cognizable reason existed that would excuse or justify the contact
4. assault consummated by a battery is an LIO of wrongful sexual contact where both offenses require wrongful contact; furthermore, in this case, because appellant was charged with wrongful sexual contact by tapping the victim on the head with his exposed penis, he knew that he had to defend against having caused the victim to make contact with his genitalia without the victim’s permission and with the intent of abusing, humiliating, or degrading the victim; such contact would, at a minimum, be offensive given the ordinary understanding of what it means for contact to be offensive; in fact, in this case, one could transplant the essential facts from the wrongful sexual contact specification, without alteration, into a legally sufficient specification for assault consummated by a battery under Article 128, UCMJ

Trial Stages: Merits: Instructions › Lesser-included offenses

1. an accused may be found guilty of an offense necessarily included in the offense charged; Article 79 requires application of the elements test to determine whether one offense is an LIO of a charged offense; under the elements test, the elements of the lesser offense are a subset of the elements of the charged offense; where the lesser offense requires an element not required for the greater offense, no instruction regarding an LIO is to be given

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the elements test to determine whether one offense is an LIO of a charged offense does not require that the two offenses at issue employ identical statutory language; instead, after applying the normal principles of statutory construction, a court asks whether the elements of the alleged LIO are a subset of the elements for the charged offense; thus, it first determines the elements of the charged offense and the alleged LIO by applying the principles of statutory construction; then, it compares the elements of the two offenses to see if the latter is a subset of the former