U.S. v. Riggins, 75 M.J. 78

First Principles: Constitutional Matters: Generally

1. where a conviction violated appellant’s constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, such a constitutional error does not require automatic reversal, but instead is tested for prejudice

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 tried and convicted
2. where a conviction violated appellant’s constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, such a constitutional error does not require automatic reversal, but instead is tested for prejudice

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

1. under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged
2. Article 79, UCMJ, permits an accused to be found guilty of an offense necessarily included in the offense charged; this Article provides the statutory authority for a military judge to convict on, and an appellate court to affirm on, a lesser included offense

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Pre-2019 offenses › (b) Sexual Assault

1. under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged
2. as charged in this case, the elements of sexual assault were: (1) the accused committed a sexual act with another person; and (2) the sexual act was accomplished by placing the other person in fear; unlike assault consummated by a battery, lack of consent was not an element of sexual assault as charged here; although a lack of verbal or physical resistance or submission resulting from placing another person in fear does not constitute consent, the fact that the government was required to prove a set of facts that resulted in the alleged victim’s legal inability to consent was not the equivalent of the government bearing the affirmative responsibility to prove that the alleged victim did not, in fact, consent
3. the Article 120, UCMJ, definition of “consent” indicates as a matter of law that placing the victim in fear prevents consent; therefore, evidence regarding whether the alleged victim knowingly, willingly, and lawfully consented could certainly be relevant to the factfinder’s determination of whether the government proved the placed-in-fear element beyond a reasonable doubt; however, the introduction of such evidence is not required under the provisions of theUCMJ
4. by charging appellant with Article 120, UCMJ, offenses of sexual assault and abusive sexual contact and by solely alleging that appellant had placed the alleged victim in fear of her military career, the government had effectively removed from the equation at trial any issue of consent; accordingly, appellant was not on notice that he needed to, or even could, defend against the charges by contesting the issue of lack of consent; this lack of notice was exacerbated in the instant case by the fact that the military judge developed and applied what was, in essence, a new legal theory — one that was never charged or argued by the government — in the middle of his own deliberations in this case; this legal theory, which posited that the alleged victim was not placed in fear of her military career but instead gave in to a higher-ranking servicemember’s unrelenting pressure to have sex, ran counter to what the government had alleged in its charging documents; thus, appellant was deprived of his right to know what offense and under what legal theory he was going to be tried and convicted
5. the “placing in fear” element of the sexual assault and abusive sexual contact offenses is different from the “unlawful force or violence” element of the assault consummated by a battery offense; specifically, the “placing in fear” element requires “a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action; thus, under the original charges in the instant case, it was sufficient for the government to merely prove that the alleged victim was fearful that appellant would negatively affect her military career; however, “unlawful force or violence” under Article 128, UCMJ, requires the government to prove an application of physical force; this distinction between physical contact (for assault consummated by a battery) and a mental state of fear concerning the potential effect on the victim’s military career (for sexual assault and abusive sexual contact) further demonstrates that assault consummated by a battery contains an element that is not included in the sexual assault and abusive sexual contact offenses charged here
6. it may be possible for the government to charge an accused with sexual assault and/or abusive sexual contact in such a manner that assault consummated by a battery may be a lesser included offense if the specification placed the accused on notice of fear of bodily harm and raised the issue of consent

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Sexual Assault Generally Pre-2019 offenses › (d) Abusive Sexual Contact

1. under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged
2. as charged in this case, the elements of abusive sexual contact were: (1) the accused engaged in sexual contact with another person; and (2) the sexual contact was accomplished by placing the other person in fear; unlike assault consummated by a battery, lack of consent was not an element of abusive sexual contact as charged here; although a lack of verbal or physical resistance or submission resulting from placing another person in fear does not constitute consent, the fact that the government was required to prove a set of facts that resulted in the alleged victim’s legal inability to consent was not the equivalent of the government bearing the affirmative responsibility to prove that the alleged victim did not, in fact, consent
3. the Article 120, UCMJ, definition of “consent” indicates as a matter of law that placing the victim in fear prevents consent; therefore, evidence regarding whether the alleged victim knowingly, willingly, and lawfully consented could certainly be relevant to the factfinder’s determination of whether the government proved the placed-in-fear element beyond a reasonable doubt; however, the introduction of such evidence is not required under the provisions of theUCMJ
4. by charging appellant with Article 120, UCMJ, offenses of sexual assault and abusive sexual contact and by solely alleging that appellant had placed the alleged victim in fear of her military career, the government had effectively removed from the equation at trial any issue of consent; accordingly, appellant was not on notice that he needed to, or even could, defend against the charges by contesting the issue of lack of consent; this lack of notice was exacerbated in the instant case by the fact that the military judge developed and applied what was, in essence, a new legal theory — one that was never charged or argued by the government — in the middle of his own deliberations in this case; this legal theory, which posited that the alleged victim was not placed in fear of her military career but instead gave in to a higher-ranking servicemember’s unrelenting pressure to have sex, ran counter to what the government had alleged in its charging documents; thus, appellant was deprived of his right to know what offense and under what legal theory he was going to be tried and convicted
5. the “placing in fear” element of the sexual assault and abusive sexual contact offenses is different from the “unlawful force or violence” element of the assault consummated by a battery offense; specifically, the “placing in fear” element requires “a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action; thus, under the original charges in the instant case, it was sufficient for the government to merely prove that the alleged victim was fearful that appellant would negatively affect her military career; however, “unlawful force or violence” under Article 128, UCMJ, requires the government to prove an application of physical force; this distinction between physical contact (for assault consummated by a battery) and a mental state of fear concerning the potential effect on the victim’s military career (for sexual assault and abusive sexual contact) further demonstrates that assault consummated by a battery contains an element that is not included in the sexual assault and abusive sexual contact offenses charged here
6. it may be possible for the government to charge an accused with sexual assault and/or abusive sexual contact in such a manner that assault consummated by a battery may be a lesser included offense if the specification placed the accused on notice of fear of bodily harm and raised the issue of consent

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

1. under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged
2. the elements of 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; assault consummated by a battery must be done without legal justification or excuse and without the lawful consent of the person affected; as such, lack of consent is an element of the offense of assault consummated by a battery
3. the “placing in fear” element of the sexual assault and abusive sexual contact offenses is different from the “unlawful force or violence” element of the assault consummated by a battery offense; specifically, the “placing in fear” element requires “a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action; thus, under the original charges in the instant case, it was sufficient for the government to merely prove that the alleged victim was fearful that appellant would negatively affect her military career; however, “unlawful force or violence” under Article 128, UCMJ, requires the government to prove an application of physical force; this distinction between physical contact (for assault consummated by a battery) and a mental state of fear concerning the potential effect on the victim’s military career (for sexual assault and abusive sexual contact) further demonstrates that assault consummated by a battery contains an element that is not included in the sexual assault and abusive sexual contact offenses charged here
4. it may be possible for the government to charge an accused with sexual assault and/or abusive sexual contact in such a manner that assault consummated by a battery may be a lesser included offense if the specification placed the accused on notice of fear of bodily harm and raised the issue of consent

Trial Stages: Merits: Findings

1. under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. CAAF Rule 36A permits a party to advise the court by letter of citations to pertinent and significant supplemental authorities after the party has filed a pleading or after oral argument but before a final decision; Rule 36A is not intended to provide a party with the opportunity to present entirely new arguments; if a party believes that the court should consider a new argument, it must seek permission to file a supplemental brief under CAAF Rule 30

Trial Stages: Appeals: Harmless / Prejudicial Error

1. where a conviction violated appellant’s constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, such a constitutional error does not require automatic reversal, but instead is tested for prejudice
2. a constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; for preserved constitutional errors, the government bears the burden of establishing that the error is harmless beyond a reasonable doubt
3. in this case, where appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, the government failed to meet its burden of establishing that the error was harmless beyond a reasonable doubt; the specifications at issue charging sexual assault and abusive sexual contact did not mention lack of consent, the government did not raise the issue of lack of consent in the course of the trial but instead relied on the theory that the sexual activity resulted from the alleged victim being in fear of appellant affecting her military career, appellant tailored his defense to rebut that theory, and the military judge found appellant guilty based on a specific rationale neither advanced by the government nor defended by appellant - that the alleged victim was pressured in an unrelenting manner by a servicemember of superior rank into having sex

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

1. an appellate court conducts a de novo review to determine whether one offense is a lesser included of another
2. where a conviction violated appellant’s constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, such a constitutional error does not require automatic reversal, but instead is tested for prejudice
3. a constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; for preserved constitutional errors, the government bears the burden of establishing that the error is harmless beyond a reasonable doubt

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

1. under the particular circumstances of this case, where appellant was charged with two specifications of sexual assault and three specifications of abusive sexual contact under Article 120, UCMJ, by placing the alleged victim in fear that, through the use or abuse of military position, rank, or authority, he would affect her military career, and where the military judge convicted appellant of assault consummated by a battery under Article 128, UCMJ, as a lesser included offense of the sexual assault and abusive sexual contact offenses and found that although the alleged victim was not placed in fear of appellant affecting her military career, as charged, she instead was pressured in an unrelenting manner by a servicemember of superior rank into having sex, assault consummated by a battery was not a lesser included offense of the charged offenses; first, the Article 120, UCMJ, offenses with which appellant was originally charged did not require the government to prove a lack of consent, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; second, the original specifications did not include an element requiring that the bodily harm be done with unlawful force or violence, but the Article 128, UCMJ, offense of which appellant ultimately was convicted did; and third, appellant did not receive fair notice of what offense and under what legal theory he was tried and ultimately convicted; as such, appellant’s conviction for assault consummated by a battery violated his constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged
2. Article 79, UCMJ, permits an accused to be found guilty of an offense necessarily included in the offense charged; this Article provides the statutory authority for a military judge to convict on, and an appellate court to affirm on, a lesser included offense
3. the elements test determines whether one offense is a lesser included offense of another; this test compares the elements of each offense as follows: if all of the elements of offense X are also elements of offense Y, then X is a lesser included offense 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. there is no requirement that the greater and lesser included offenses at issue employ identical statutory language; courts instead apply normal rules of statutory interpretation and construction to determine whether the elements of the lesser included offense would necessarily be proven by proving the elements of the greater offense; in making this lesser included offense determination, courts examine the offense in the context of the charge at issue
5. the elements test for determining whether an offense is a lesser included offense of another provides notice to an accused that he may be convicted of the greater offense or the lesser included offense; a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged; this notice is critical 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 tried and convicted