U.S. v. Wilkins, 71 M.J. 410

First Principles: Constitutional Matters: Due Process

1. constitutional due process requires that an accused be on notice as to the offense that must be defended against, and that only lesser included offenses that meet these notice requirements may be affirmed by an appellate court

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

1. aggravated sexual assault, the charged offense in this case, requires that the accused “engage in a sexual act”; abusive sexual contact, the alleged LIO, piggybacks the definition of aggravated sexual assault: “Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact . . . .”; because abusive sexual contact piggybacks the definition of aggravated sexual assault, all of the elements of the two offenses necessarily line up, except that aggravated sexual assault requires a “sexual act” whereas abusive sexual contact requires “sexual contact”; a “sexual act” is defined as: “(A) contact between the penis and the vulva . . .; or (B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person”; “sexual contact” is defined as: “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person”; accordingly, abusive sexual contact is an LIO of aggravated sexual assault in some instances; for example, if an accused is charged with aggravated sexual assault by penetrating the genital opening of another, then any penetration of the genital opening would also require a touching of the genital opening
2. in this case, appellant was charged with aggravated sexual assault by digitally penetrating the anus of a male victim; however, a sexual act is statutorily limited to genital openings, and the anus is not such an opening; courts are confined to the definitions formulated by Congress, and thus cannot construe “sexual act” to include the digital penetration of another’s anus; accordingly, there is plain and obvious error in this case because appellant was charged with a legal impossibility; the actions alleged could never constitute the offense of aggravated sexual assault; therefore, the specification was defective because it failed to allege the elements of aggravated sexual assault, and instructing on abusive sexual contact as an LIO was error

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

1. aggravated sexual assault, the charged offense in this case, requires that the accused “engage in a sexual act”; abusive sexual contact, the alleged LIO, piggybacks the definition of aggravated sexual assault: “Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (c) (aggravated sexual assault) had the sexual contact been a sexual act, is guilty of abusive sexual contact . . . .”; because abusive sexual contact piggybacks the definition of aggravated sexual assault, all of the elements of the two offenses necessarily line up, except that aggravated sexual assault requires a “sexual act” whereas abusive sexual contact requires “sexual contact”; a “sexual act” is defined as: “(A) contact between the penis and the vulva . . .; or (B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person”; “sexual contact” is defined as: “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person”; accordingly, abusive sexual contact is an LIO of aggravated sexual assault in some instances; for example, if an accused is charged with aggravated sexual assault by penetrating the genital opening of another, then any penetration of the genital opening would also require a touching of the genital opening
2. in this case, appellant was charged with aggravated sexual assault by digitally penetrating the anus of a male victim; however, a sexual act is statutorily limited to genital openings, and the anus is not such an opening; courts are confined to the definitions formulated by Congress, and thus cannot construe “sexual act” to include the digital penetration of another’s anus; accordingly, there is plain and obvious error in this case because appellant was charged with a legal impossibility; the actions alleged could never constitute the offense of aggravated sexual assault; therefore, the specification was defective because it failed to allege the elements of aggravated sexual assault, and instructing on abusive sexual contact as an LIO was error
3. although in this case appellant’s alleged actions could not have constituted the charged offense of aggravated sexual assault, his right to due process was not violated by his conviction for abusive sexual contact, which was erroneously instructed upon as a lesser included offense; appellant was not prejudiced by the substitution of the term “sexual act” for “sexual contact” because he was on notice of what he needed to defend against throughout his court-martial, given that the specification expressly stated that he placed his fingers or another object in the victim’s anus, and the defense’s strategy demonstrated that appellant understood that he was defending against all the elements of abusive sexual contact; this strategy would not have changed had the specification properly alleged “contact” instead of “act”; accordingly, appellant failed to demonstrate prejudice to a substantial right

Trial Stages: Merits: Instructions › Lesser-included offenses

1. an appellate court applies the elements test to determine whether one offense is an LIO of another; the test does not require that the offenses at issue employ identical statutory language; rather, after applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; rather, an appellate court tests for prejudice
2. where appellant failed to object at trial to a lesser included offense instruction, he bears the burden of proving prejudice; he must show that under the totality of the circumstances in this case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice
3. although in this case appellant’s alleged actions could not have constituted the charged offense of aggravated sexual assault, his right to due process was not violated by his conviction for abusive sexual contact, which was erroneously instructed upon as a lesser included offense; appellant was not prejudiced by the substitution of the term “sexual act” for “sexual contact” because he was on notice of what he needed to defend against throughout his court-martial, given that the specification expressly stated that he placed his fingers or another object in the victim’s anus, and the defense’s strategy demonstrated that appellant understood that he was defending against all the elements of abusive sexual contact; this strategy would not have changed had the specification properly alleged “contact” instead of “act”; accordingly, appellant failed to demonstrate prejudice to a substantial right

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there was no objection to a lesser included offense instruction at trial, an appellate court reviews for plain error
2. under a plain error analysis, appellant 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

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

1. whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo
2. where there was no objection to a lesser included offense instruction at trial, an appellate court reviews for plain error
3. under a plain error analysis, appellant 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
4. an appellate court applies the elements test to determine whether one offense is an LIO of another; the test does not require that the offenses at issue employ identical statutory language; rather, after applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense
5. an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; rather, an appellate court tests for prejudice
6. where appellant failed to object at trial to a lesser included offense instruction, he bears the burden of proving prejudice; he must show that under the totality of the circumstances in this case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice