U.S. v. Gonzales, 78 M.J. 480

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

1. whether one offense is a lesser included offense of another offense is a question of law
2. in this case, at the time of trial, Article 79, UCMJ, authorized a court-martial to find the accused guilty of an offense necessarily included in the offense charged; Article 79, UCMJ, now authorizes a court-martial to find the accused guilty not only of an offense that is necessarily included in the offense charged but also any lesser included offense so designated by regulation prescribed by the President
3. the elements test determines whether an offense is necessarily included in the offense charged; the elements test is applied in in two ways; the first way is by comparing the statutory definitions of the two offenses; an offense is a lesser included offense of the charged offense if each of its elements is necessarily also an element of the charged offense; the second way is by examining the specification of the charged offense; an offense can also be a lesser included offense of the charged offense if the specification of the charged offense is drafted in such a manner that it alleges facts that necessarily satisfy all the elements of each offense; the elements test requires a textual comparison of criminal statutes, not an alternative inherent relationship test, which would ask whether proof of the greater offense can generally be expected to require proof of the lesser offense
4. although the MCM’s listing of lesser included offenses is not controlling, an error in the MCM is a factor in determining whether an issue was subject to reasonable doubt

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (b) Rape of a Child

1. as the two offenses are defined in the version of Article 120, UCMJ, in force from October 1, 2007, through June 27, 2012, aggravated sexual contact of a child is not a lesser included offense of rape of a child; the elements test is not satisfied because the offense of aggravated sexual contact with a child includes a specific intent that the offense of rape does not, namely, the specific intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; the mens rea for rape is a general intent to commit the sexual act

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

1. as the two offenses are defined in the version of Article 120, UCMJ, in force from October 1, 2007, through June 27, 2012, aggravated sexual contact of a child is not a lesser included offense of rape of a child; the elements test is not satisfied because the offense of aggravated sexual contact with a child includes a specific intent that the offense of rape does not, namely, the specific intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person; the mens rea for rape is a general intent to commit the sexual act
2. in this case, although the military judge erred in finding appellant guilty of aggravated sexual contact with a child as a lesser included offense of rape of a child as those two offenses were defined in the version of Article 120, UCMJ, in force from October 1, 2007, through June 27, 2012, the error was not clear and obvious where other federal courts had reached conflicting conclusions at the time of trial and on appeal on the question of whether a person who commits a rape will necessarily act with the specific intent required for a sexual contact; in addition, at the time of trial, the 2008 edition of the MCM incorrectly identified aggravated sexual contact with a child as a lesser included offense of rape of a child; although the MCM’s listing of lesser included offenses is not controlling, an error in the MCM is a factor in determining whether an issue was subject to reasonable doubt; accordingly, because appellant failed to object to the military judge’s finding at trial and forfeited the issue and because the military judge’s error was not clear and obvious, the military judge’s finding could not be overturned on plain error review

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an appellant has preserved an objection to a finding of guilty to a lesser included offense, an appellate court reviews the objection de novo; but when an appellant has forfeited such an objection, and raises it for the first time on appeal, an appellate court reviews the issue only for plain error
2. under plain error review, appellant has the burden of demonstrating that: (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused; for an appellate court to grant relief under this test, all three prongs must be satisfied
3. in this case, although the military judge erred in finding appellant guilty of aggravated sexual contact with a child as a lesser included offense of rape of a child as those two offenses were defined in the version of Article 120, UCMJ, in force from October 1, 2007, through June 27, 2012, the error was not clear and obvious where other federal courts had reached conflicting conclusions at the time of trial and on appeal on the question of whether a person who commits a rape will necessarily act with the specific intent required for a sexual contact; in addition, at the time of trial, the 2008 edition of the MCM incorrectly identified aggravated sexual contact with a child as a lesser included offense of rape of a child; although the MCM’s listing of lesser included offenses is not controlling, an error in the MCM is a factor in determining whether an issue was subject to reasonable doubt; accordingly, because appellant failed to object to the military judge’s finding at trial and forfeited the issue and because the military judge’s error was not clear and obvious, the military judge’s finding could not be overturned on plain error review

Trial Stages: Appeals: Scope of Review

1. when an appellant has preserved an objection to a finding of guilty to a lesser included offense, an appellate court reviews the objection de novo; but when an appellant has forfeited such an objection, and raises it for the first time on appeal, an appellate court reviews the issue only for plain error

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

1. whether one offense is a lesser included offense of another offense is a question of law
2. when an appellant has preserved an objection to a finding of guilty to a lesser included offense, an appellate court reviews the objection de novo; but when an appellant has forfeited such an objection, and raises it for the first time on appeal, an appellate court reviews the issue only for plain error
3. under plain error review, appellant has the burden of demonstrating that: (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused; for an appellate court to grant relief under this test, all three prongs must be satisfied