U.S. v. Tunstall, 72 M.J. 191

First Principles: Constitutional Matters: Due Process

1. the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; the Due Process Clause of the Fifth Amendment also does not permit convicting an accused of an offense with which he has not been charged

Military Justice Personnel: Military Judge: Instructions

1. a military judge can only instruct on a lesser included offense where the greater offense requires members to find a disputed factual element which is not required for conviction of the lesser violation
2. in his instructions on indecent acts as a lesser included offense of aggravated sexual assault, the military judge improperly instructed the members on a theory indecency on which appellant was neither charged nor on notice, where he instructed the members that engaging in a sexual act in the presence of others is considered “open and notorious” behavior which could constitute an indecent act; “open and notorious” is not a basis or theory for the offense of aggravated sexual assault, and that instruction was the first mention in the trial of the “open and notorious” theory; the military judge went on to instruct the members that the greater offense of indecent acts differed from the offense of aggravated sexual assault as it did not require them to find that the victim was substantially incapable of declining participation, but only that the act itself was indecent; in providing these instructions, the military judge 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; this error resulted in material prejudice because the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; because appellant 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

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

1. a military judge can only instruct on a lesser included offense where the greater offense requires members to find a disputed factual element which is not required for conviction of the lesser violation
2. as charged in this case, indecent acts (committing a sexual act in an open and notorious manner) is not a lesser included offense of aggravated sexual assault (engaging in a sexual act with an incapacitated person)
3. an appellate court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements
4. a factfinder must be able to rationally acquit on the greater offense but still convict on the lesser offense; the 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 factfinder to find a disputed factual element which is not required for conviction of the lesser-included offense

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

1. as charged in this case, indecent acts (committing a sexual act in an open and notorious manner) is not a lesser included offense of aggravated sexual assault (engaging in a sexual act with an incapacitated person); as charged in this case and under the government’s lesser included theory, there is no additional fact that the members would need to find in order to convict for the offense of aggravated sexual assault which would be unnecessary to convict for the offense of indecent acts; neither requires a factual finding which the other does not; the first element of both offenses is established by the same set of facts: the “sexual act” (aggravated sexual assault) and “certain conduct” (indecent acts) refer to the digital penetration of the victim’s vagina; the second element of each offense is also established by the same alleged fact: the victim was substantially incapable of declining participation (aggravated sexual assault); and the conduct was indecent because the victim was substantially incapable of declining participation (indecent acts); although the MCM in effect at the time recognized that treating indecent acts as a lesser included offense of aggravated sexual assault was appropriate depending on the factual circumstances in each case, 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
2. the elements of aggravated sexual assault under Article 120, as charged in this case, are: (1) that the accused engaged in a sexual act with another person; and (2) the other person was substantially incapable of declining participation in the sexual act

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

1. the elements of indecent acts are: (1) the accused engaged in certain conduct; and (2) the conduct was indecent; the offense of indecent acts occurs when any person engages in indecent conduct, which is defined as that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations
2. as charged in this case, indecent acts (committing a sexual act in an open and notorious manner) is not a lesser included offense of aggravated sexual assault (engaging in a sexual act with an incapacitated person); as charged in this case and under the government’s lesser included theory, there is no additional fact that the members would need to find in order to convict for the offense of aggravated sexual assault which would be unnecessary to convict for the offense of indecent acts; neither requires a factual finding which the other does not; the first element of both offenses is established by the same set of facts: the “sexual act” (aggravated sexual assault) and “certain conduct” (indecent acts) refer to the digital penetration of the victim’s vagina; the second element of each offense is also established by the same alleged fact: the victim was substantially incapable of declining participation (aggravated sexual assault); and the conduct was indecent because the victim was substantially incapable of declining participation (indecent acts); although the MCM in effect at the time recognized that treating indecent acts as a lesser included offense of aggravated sexual assault was appropriate depending on the factual circumstances in each case, 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
3. in his instructions on indecent acts as a lesser included offense of aggravated sexual assault, the military judge improperly instructed the members on a theory indecency on which appellant was neither charged nor on notice, where he instructed the members that engaging in a sexual act in the presence of others is considered “open and notorious” behavior which could constitute an indecent act; “open and notorious” is not a basis or theory for the offense of aggravated sexual assault, and that instruction was the first mention in the trial of the “open and notorious” theory; the military judge went on to instruct the members that the greater offense of indecent acts differed from the offense of aggravated sexual assault as it did not require them to find that the victim was substantially incapable of declining participation, but only that the act itself was indecent; in providing these instructions, the military judge 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; this error resulted in material prejudice because the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; because appellant 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

Core Criminal Law Subjects: Crimes: Article 134 - Adultery Pre-2019 offenses

1. in the context of an adultery specification, the government may prove the terminal element in one of two ways - either that, under the circumstances, the adulterous conduct was to the prejudice of good order and discipline or that it was of a nature to bring discredit upon the armed forces
2. appellant did not meet his burden to demonstrate material prejudice to a substantial right by the failure of an adultery specification to state the terminal element, where evidence in the trial record indicates that the defense introduced evidence on the merits for the specific purpose of negating both theories of the terminal element, the military judge instructed on the terminal element of the offense without defense objection, and, during its closing argument, the defense argued that the government had not proven either theory of the terminal element

Trial Stages: Pretrial: Charges and Specifications

1. the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; the Due Process Clause of the Fifth Amendment also does not permit convicting an accused of an offense with which he has not been charged

Trial Stages: Merits: Instructions › Lesser-included offenses

1. a military judge can only instruct on a lesser included offense where the greater offense requires members to find a disputed factual element which is not required for conviction of the lesser violation
2. a factfinder must be able to rationally acquit on the greater offense but still convict on the lesser offense; the 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 factfinder to find a disputed factual element which is not required for conviction of the lesser-included offense
3. in his instructions on indecent acts as a lesser included offense of aggravated sexual assault, the military judge improperly instructed the members on a theory indecency on which appellant was neither charged nor on notice, where he instructed the members that engaging in a sexual act in the presence of others is considered “open and notorious” behavior which could constitute an indecent act; “open and notorious” is not a basis or theory for the offense of aggravated sexual assault, and that instruction was the first mention in the trial of the “open and notorious” theory; the military judge went on to instruct the members that the greater offense of indecent acts differed from the offense of aggravated sexual assault as it did not require them to find that the victim was substantially incapable of declining participation, but only that the act itself was indecent; in providing these instructions, the military judge 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; this error resulted in material prejudice because the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; because appellant 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

Trial Stages: Appeals: Harmless / Prejudicial Error

1. appellant did not meet his burden to demonstrate material prejudice to a substantial right by the failure of an adultery specification to state the terminal element, where evidence in the trial record indicates that the defense introduced evidence on the merits for the specific purpose of negating both theories of the terminal element, the military judge instructed on the terminal element of the offense without defense objection, and, during its closing argument, the defense argued that the government had not proven either theory of the terminal element

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where there was no objection to an instruction at trial, an appellate court reviews for plain error; 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
2. where appellant failed to object to an adultery specification at trial for its failure to state an offense because it did not allege the terminal element, an appellate court reviews the claim on appeal for plain error
3. plain error review in the CAAF is governed by Article 59(a), UCMJ, and not by Fed R Crim P 52(b); the key difference between these two sources of law is that Fed R Crim P 52(b) is an enabling rule conferring discretion upon the reviewing court (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”), whereas Article 59(a) is a restricting rule (“A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”); the CAAF has consistently rejected application of the fourth prong (if the three other prongs are satisfied, an appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings) of Olano (507 US 725 (1993)), when addressing questions under Article 59(a), UCMJ, and does not intend to revisit that practice here
4. failure to allege the terminal element in an Article 134 adultery specification constitutes plain and obvious error, and resolution of the case will depend upon whether the error has prejudiced the substantial rights of the accused; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted; in making this inquiry, the court is limited to considering evidence contained in the trial record

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

1. whether an offense is a lesser included offense is a question of law that is reviewed de novo
2. where there was no objection to an instruction at trial, an appellate court reviews for plain error; 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
3. an appellate court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements
4. failure to allege the terminal element in an Article 134 adultery specification constitutes plain and obvious error, and resolution of the case will depend upon whether the error has prejudiced the substantial rights of the accused; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted; in making this inquiry, the court is limited to considering evidence contained in the trial record

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

1. a military judge can only instruct on a lesser included offense where the greater offense requires members to find a disputed factual element which is not required for conviction of the lesser violation
2. as charged in this case, indecent acts (committing a sexual act in an open and notorious manner) is not a lesser included offense of aggravated sexual assault (engaging in a sexual act with an incapacitated person)
3. an appellate court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements
4. a factfinder must be able to rationally acquit on the greater offense but still convict on the lesser offense; the 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 factfinder to find a disputed factual element which is not required for conviction of the lesser-included offense