       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
             Joseph R. ARMSTRONG, Captain
               United States Army, Appellant
                          No. 17-0556
                    Crim. App. No. 20150424
        Argued March 22, 2018—Decided June 28, 2018
                Military Judge: Samuel Schubert
   For Appellant: Captain Joshua B. Fix (argued); Lieutenant
   Colonel Tiffany M. Chapman, Captain Zachary A. Gray
   and Captain Bryan A. Osterhage (on brief); Major Todd W.
   Simpson.
   For Appellee: Captain Cassandra M. Resposo (argued);
   Lieutenant Colonel Eric K. Stafford and Major Cormac M.
   Smith (on brief).
   Judge MAGGS delivered the opinion of the Court, in
   which Chief Judge STUCKY and Judge RYAN joined.
   Judge OHLSON filed a separate concurring opinion, in
   which Judge SPARKS joined.
                     _______________

   Judge MAGGS delivered the opinion of the Court.
    A general court-martial composed of officer members
found Appellant not guilty of the offense of abusive sexual
contact by causing bodily harm in violation of Article 120(d),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(d)
(2012), but guilty, as a lesser included offense, of assault
consummated by a battery in violation of Article 128(a),
UCMJ, 10 U.S.C. § 928(a) (2012). The court-martial also
found Appellant guilty of conduct unbecoming an officer and
a gentleman in violation of Article 133, UCMJ, 10 U.S.C.
§ 933 (2012). The military judge dismissed the Article 133,
UCMJ, charge before sentencing. The court-martial sen-
tenced Appellant to dismissal. The convening authority ap-
proved the adjudged finding and sentence. The United
States Army Court of Criminal Appeals (ACCA) summarily
affirmed.
           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

    We granted review on the issue of whether assault con-
summated by a battery, as described in Manual for Courts-
Martial, United States pt. IV, para. 54.b.(2) (2012 ed.)
(MCM), is a lesser included offense of abusive sexual contact
by causing bodily harm, as described in MCM pt. IV, para.
45.b.(7)(b) (2016 ed.).1 We hold that it is not. The elements of
the former offense are not necessarily included in the latter
offense. In addition, the Specification at issue in this case
did not allege facts sufficient to state all of the elements of
both offenses. Despite this conclusion, we affirm the decision
of the ACCA because, under the applicable standard of re-
view, Appellant has not shown material prejudice.
                        I. Background
    In 2014, Appellant and his wife hosted a Halloween par-
ty in their home. One of their guests, Mrs. G., consumed
numerous alcoholic beverages, lay down on a couch in the
living room, and fell asleep. She later awoke to find Appel-
lant sitting next to her. Mrs. G. testified that Appellant was
rubbing her genital area and that she immediately got up,
found her husband, and left the party. Appellant did not tes-
tify at trial but told investigators that he may have placed
his hands between Mrs. G.’s legs for warmth.
   Appellant was charged with one specification of abusive
sexual contact in violation of Article 120(d), UCMJ. The
Specification averred that Appellant “did . . . commit sexual
contact upon [Mrs. G.]., to wit: touching through the clothing
the genitalia of the said [Mrs. G.], by causing bodily harm to
the said [Mrs. G.], to wit: wedging his hands between her
thighs.”
    Before presentation of the evidence on the merits, de-
fense counsel requested findings instructions that would be
relevant if the court-martial considered assault consummat-
ed by a battery to be a lesser included offense of abusive
sexual contact by causing bodily harm. One request was for

   1  At the time of the offense in 2014, the President had not yet
addressed the elements of sexual offenses under Article 120,
UCMJ, in pt. IV of the MCM. See MCM pt. IV, para. 54 Note (2012
ed.). The President issued the description of elements in 2016. We
conclude that the 2016 description is the proper interpretation of
Article 120(d), UCMJ, at the time of the offense.



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          United States v. Armstrong, No. 17-0556/AR
                     Opinion of the Court

a “[m]istake of fact instruction with regard to battery, the
lesser included offense.” Another request was for a definition
of “[u]nlawful touching,” which, as discussed below, is an el-
ement of assault consummated by a battery. Further, de-
fense counsel requested the instruction that, “With regard to
the lesser included offense of battery[,] the actor need not
actually intend or foresee [consequences to others]; it is only
necessary that a reasonable person in such circumstances
would have realized substantial and unjustified danger cre-
ated by his act.”
    Defense counsel, however, never expressly agreed that
assault consummated by a battery was a lesser included of-
fense of abusive sexual contact by causing bodily harm. At
an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), session
after presentation of the evidence, the military judge asked:
“Counsel, do you see any lesser included offenses that are in
issue in this case?” Defense counsel answered, “No, Your
Honor.” Trial counsel answered, “Yes, sir, the lesser includ-
ed offense of Article 128, assault, as the Article 120 Charge.”
The military judge then asked: “Defense, what say you?” De-
fense counsel responded: “Taking no position on it, judge.”
The military judge then said: “Very well. I think I agree with
the government on this one, that assault consummated by a
battery would be a lesser included offense of The Specifica-
tion of Charge I. If counsel for either side finds case law or
some other contrary law on the subject, please provide it to
me during th[e] break.” Neither side showed the military
judge any contrary authority. The military judge subse-
quently instructed the members that assault consummated
by a battery is a lesser included offense of abusive sexual
contact.
   The members found Appellant not guilty of abusive sex-
ual contact by causing bodily harm in violation of Article
120(d), UCMJ, but after modifying the Specification with
exceptions and substitutions, see Rule for Courts-Martial
(R.C.M.) 918(a)(1), the members found Appellant guilty of
the offense of assault consummated by a battery in violation
of Article 128(a), UCMJ.2 See Article 79, UCMJ, 10 U.S.C.


   2The members returned a finding of “Guilty, except the words,
‘commit sexual contact upon,’ and ‘to wit: touching through the


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           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

§ 879 (2012). As noted previously, the members also found
Appellant guilty of conduct unbecoming an officer and a gen-
tleman in violation of Article 133, UCMJ, but the military
judge dismissed this charge.
   Appellant now argues that assault consummated by a
battery is not a lesser included offense of abusive sexual con-
tact by causing bodily harm. Appellant asks this Court to set
aside and dismiss the findings and the sentence.
                   II. Standard of Review
    The standard of review in this case depends on whether
Appellant preserved, waived, or forfeited the granted issue.
Appellant argues that defense counsel preserved the issue at
trial by answering “[n]o” when the military judge asked if
defense counsel saw any lesser included offense. We
disagree.
    We have held that “[w]hile there are no ‘magic words’
dictating when a party has sufficiently raised an error to
preserve it for appeal, of critical importance is the specificity
with which counsel makes the basis for his position known
to the military judge.” United States v. Killion, 75 M.J. 209,
214 (C.A.A.F. 2016) (quoting United States v. Smith, 50 M.J.
451, 456 (C.A.A.F. 1999)). Considering the entire exchange
between the military judge and defense counsel, we conclude
that defense counsel failed to make known both the de-
fense’s position and the basis for it, on whether assault con-
summated by a battery is a lesser included offense. Defense
counsel’s initial answer of “[n]o” may have meant that de-
fense counsel believed, at the start of the colloquy, that there
was no lesser included offense at issue in this case. But de-
fense counsel’s subsequent statement that counsel was
“[t]aking no position” on the Government’s assertion that
assault consummated by a battery was a lesser included of-
fense and the lack of response when the military judge
asked for contrary authority indicate that defense counsel,
in the end, was leaving the task of determining what was or


clothing the genitalia of the said Mrs. G., by causing bodily harm
to the said Mrs. G.’ substituting therefor the words ‘unlawfully
touch.’ Of the excepted: Not Guilty; Of the substituted words:
Guilty.”



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          United States v. Armstrong, No. 17-0556/AR
                     Opinion of the Court

was not a lesser included offense to the military judge. Ap-
pellant thus did not preserve the issue.
    This leads us to the question of whether Appellant
waived or forfeited the issue. The Government does not ar-
gue Appellant’s statements amounted to a waiver, and we
see no reason to disagree. Accordingly, we conclude that Ap-
pellant forfeited the issue by not properly preserving it at
trial. See United States v. Oliver, 76 M.J. 271, 273 (C.A.A.F.
2017) (similarly concluding that an accused had not waived
but instead merely forfeited the issue of whether one offense
was a lesser included offense of another).
   In cases of forfeiture, we review for “plain error.” Id. at
274–75. Under plain error review, the appellant has the
burden of demonstrating “(1) error that is (2) clear or obvi-
ous and (3) results in material prejudice to his substantial
rights.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F.
2014) (citation omitted). Under this standard, even if there
was an error, no relief is warranted unless the appellant can
show the second and third requirements. United States v.
Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018).
                      III. Discussion
    In accordance with the plain error standard of review, we
now consider three questions: (1) Did the military judge err
in instructing the members that assault consummated by a
battery was a lesser included offense of abusive sexual con-
tact by causing bodily harm?; (2) If there was an error, was
the error clear or obvious?; and (3) Has Appellant shown
that the error caused him to suffer material prejudice?
A. Lesser Included Offense Analysis
    To prepare a defense, the accused must have notice of
what the government is required to prove for a finding of
guilty. See United States v. Miller, 67 M.J. 385, 388
(C.A.A.F. 2009). The charge sheet provides the accused no-
tice that he or she will have to defend against any charged
offense and specification. In addition, Article 79, UCMJ, au-
thorizes a court-martial to find the accused “guilty of an of-
fense necessarily included in the offense charged.” The theo-
ry of Article 79, UCMJ, is that the accused will have notice
of an offense necessarily included in the charged offense be-



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           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

cause “the elements of the lesser offense are a subset of the
elements of the greater offense alleged,” thereby “put[ting]
the accused on notice to be prepared to defend against [the
lesser offense] in addition to the offense specifically
charged.” MCM pt. IV, para. 3.b.(1) & Discussion (2012 ed.).
No article of the UCMJ, however, currently authorizes a
court-martial to find the accused guilty of an offense that is
not necessarily included in a charged offense.3 Accordingly,
it is error for the military judge to instruct the members that
they may find the accused guilty of an offense that is not
necessarily included of the offense charged. See United
States v. Miergrimado, 66 M.J. 34, 36 (C.A.A.F. 2008).
    The “elements test” determines whether an offense is
“necessarily included in the offense charged” under Article
79, UCMJ. United States v. Jones, 68 M.J. 465, 472
(C.A.A.F. 2010). We have applied the elements test 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. See, e.g., United States v.
Gaskins, 72 M.J. 225, 235 (C.A.A.F. 2013) (holding that as-
sault consummated by a battery is a lesser included offense
of indecent assault based solely on a comparison of statutory
elements of the two offenses); MCM pt. IV, para. 3.b.(1)
(2012 ed.). The second way is by examining the specification
of the charged offense. An offense can also be a lesser in-
cluded offense of the charged offense if the specification of
the charged offense is drafted in such a manner that it al-
leges facts that necessarily satisfy all the elements of each
offense. See, e.g., United States v. Arriaga, 70 M.J. 51, 55
(C.A.A.F. 2011) (holding that housebreaking is a lesser in-
cluded offense of burglary because the specification of the
burglary offense “allege[d] the elements of both offenses”);
United States v. Riggins, 75 M.J. 78, 85 n.7 (C.A.A.F. 2016)

   3  The Military Justice Act of 2016, when it becomes effective,
will authorize 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 pre-
scribed by the President.” National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, § 5402, 130 Stat. 2000,
2937 (2016).



                                 6
           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

(holding that assault consummated by a battery contains an
element that is not included in the sexual assault and abu-
sive sexual contact by placing the other person in fear of-
fenses but leaving open “the possibility that in other cases
the Government may 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 of-
fense”).4 If the elements test is satisfied in either way, the
accused will have the notice necessary to prepare a defense.
   1. Statutory Definitions of the Two Offenses
   Article 120(d), UCMJ,5 defines the offense of abusive
sexual contact as follows:
       Any person subject to this chapter who commits or
       causes sexual contact upon or by another person, if
       to do so would violate subsection (b) (sexual as-
       sault) had the sexual contact been a sexual act, is
       guilty of abusive sexual contact and shall be pun-
       ished as a court-martial may direct.
Understanding this provision requires reference to defini-
tions in four other sections of Article 120, UCMJ. Section
(b)(1)(B) defines the offense of “[s]exual assault” to include
“commit[ting] a sexual act upon another person by . . . (B)
causing bodily harm to that other person.” Section (g)(1)(A)–
(B) defines a “[s]exual act” to include “contact between the
penis and the vulva or anus or mouth” or “penetration, how-
ever slight, of the vulva or anus or mouth of another by any
part of the body 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.” Section (g)(2)(A)–(B)
defines “[s]exual contact” to include “touching . . . either di-
rectly or through the clothing, the genitalia . . . with an in-
tent to abuse, humiliate, or degrade any person; or . . . to
arouse or gratify the sexual desire of any person.” Finally,
section (g)(3) defines “[b]odily harm” to mean “any offensive


    4 The fact that an act might have been charged as an offense

other than the charged offense is irrelevant to the elements test if
the charging language does not cover both offenses.
   5  The 2012 version of Article 120, UCMJ, applies to this of-
fense because the offense occurred in 2014.



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           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

touching of another, however slight, including any noncon-
sensual sexual act or nonconsensual sexual contact.”
    Working through the text of Article 120(d), UCMJ, and
these four definitions quoted above, the President has iden-
tified several ways that “[a]busive sexual contact” might be
committed. MCM pt. IV, para. 45.b.(7)(a)−(f) (2016 ed.). At
issue here is “Abusive sexual contact involving the touching
of the genitalia, anus, groin, breast, inner thigh, or buttocks
of any person . . . [b]y causing bodily harm.” Id. at pt. IV, pa-
ra. 45.b.(7)(b). The President has determined that this of-
fense has three elements:
       (i) That the accused committed sexual contact upon
       another person by touching, or causing another
       person to touch, either directly or through the
       clothing, the genitalia, anus, groin, breast, inner
       thigh, or buttocks of any person;
       (ii) That the accused did so by causing bodily harm
       to that other person; and
       (iii) That the accused did so with intent to abuse,
       humiliate, harass, or degrade any person or to
       arouse or gratify the sexual desire of any person.
Id. at pt. IV, para. 45.b.(7)(b)(i)−(iii). We agree with this
statement of the elements as a correct interpretation of Arti-
cle 120(d), UCMJ.
      We turn now to the offense of assault consummated by a
battery. Under Article 128(a), UCMJ, “[a]ny person subject
to this chapter who attempts or offers with unlawful force
. . . to do bodily harm to another person, whether or not the
attempt or offer is consummated, is guilty of assault and
shall be punished as a court-martial may direct.” Based on
this text, the President has identified the two elements of
the offense of assault consummated by a battery as follows:
       (a) That the accused did bodily harm to a certain
       person.
        (b) That the bodily harm was done with unlawful
       force or violence.
MCM pt. IV, para. 54.b(2)(a), (b) (2012 ed.). We previously
have agreed with this statement of the elements. See United
States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000).




                               8
           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

    In comparing the elements of the offense of abusive sex-
ual contact by causing bodily harm to the elements of the
offense of assault consummated by a battery, we begin by
noting that they both require proof of “bodily harm.” Bodily
harm is defined as an “offensive touching.”6 Assault con-
summated by a battery requires the accused to commit the
offensive touching “with unlawful force or violence.” Abusive
sexual contact by causing bodily harm requires the accused
to commit the offensive touching with “an intent to abuse,
humiliate, harass, or degrade any person or to arouse or
gratify the sexual desire of any person.”
    Despite this difference in the required manners of caus-
ing an offensive touching, the Government argues that as-
sault consummated by a battery is a lesser included offense
of abusive sexual contact by causing bodily harm because it
is impossible to identify any conduct that would constitute
the latter offense that did not also constitute the former. We
agree that the elements test does not require the elements of
the lesser and greater offense to be defined with identical
statutory language. See United States v. Bonner, 70 M.J. 1, 2
(C.A.A.F. 2011). We also agree that in many (and perhaps
most) cases, an offensive touching done with intent to
“abuse, humiliate, harass, or degrade” will also be an offen-
sive touching done with “unlawful force.” The offensive
touching could not be accidental because then it would not
be done with intent to “abuse, humiliate, harass, or de-
grade.” And as the Government explains in its brief, an of-
fensive touching cannot be consensual because then it would
not be offensive.


   6 The definition of “bodily harm” for each offense is slightly dif-
ferent. In Article 120, UCMJ, “bodily harm” means “any offensive
touching of another, however slight, including any nonconsensual
sexual act or nonconsensual sexual contact.” Article 120(g)(3),
UCMJ; MCM pt. IV, paras. 45.c.(2), 45.a.(g)(3) (2016 ed.). In Arti-
cle 128, UCMJ, “[b]odily harm” means “any offensive touching of
another, however slight.” MCM pt. IV, para. 54.c.(1)(a) (2012 ed.).
The variation in wording, however, does not appear to make a dif-
ference in this case. The additional phrase “including any noncon-
sensual sexual act or nonconsensual sexual contact” appears to
serve the purpose of providing examples for clarity, rather than of
making the definition of “bodily harm” broader or narrower.



                                  9
           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

    But the Government is not correct in arguing that it is
impossible to commit abusive sexual contact by causing
bodily harm without also committing assault consummated
by a battery. Consider, for example, the facts of United
States v. Claxton, No. ACM 38188 (rem), 2016 CCA LEXIS
649, 2016 WL 6575036 (A.F. Ct. Crim. App. Oct. 31, 2016)
aff’d 76 M.J. 356 (C.A.A.F. 2017). In that case, the appellant
admitted that he pulled down his pants and positioned him-
self next to an intoxicated woman so that the woman would
touch his penis when she moved her hand. Id. at *26−27,
2016 WL 6575036, at *8−9. On these facts, the appellant’s
action could constitute abusive sexual contact by causing
bodily harm because the appellant (i) caused another person
to touch his penis,7 (ii) caused bodily harm (i.e., an offensive
touching), and (iii) did so to gratify his sexual desire. The
touching, however, would not constitute an assault con-
summated by a battery because the appellant did not use
“unlawful force or violence” when he positioned himself so
that the woman would touch him. Although examples like
this may be unusual,8 the question under the elements test
is whether the elements of one offense are necessarily in-
cluded in the elements of another. Looking at just the ele-
ments of the two offenses, assault consummated by a battery
is not necessarily included in abusive sexual contact by caus-
ing bodily harm.


    7 In many “causing another person to touch” cases, the allega-

tion is that the accused grabbed the victim’s hand and forced the
victim to touch him. In Claxton, the victim testified that appellant
did just that. 2016 CCA LEXIS 649, at *26−27, 2016 WL 6575036,
at *8. But the court concluded that the dispute over what hap-
pened did not matter. The court reasoned: “Although [the victim]
testified Appellant grabbed her hand and placed it on his penis,
Appellant’s admission to moving his body so that her hand
touched his penis would be sufficient to convict Appellant.” Id. at
*28, 2016 WL 6575036, at *9. The court-martial found the appel-
lant in Claxton guilty of wrongful sexual contact in violation of
Article 120(m), 10 U.S.C. § 920(m) (2006) (as amended by the Na-
tional Defense Authorization Act for Fiscal Year 2006, Pub. L. No.
109-163, § 552, 119 Stat. 3136, 3258 (effective Oct. 1, 2007)).
   8 At oral argument, Appellant suggested a similar hypothetical
case. Oral Argument at 1:59:45−2:00:40, United States v. Arm-
strong, 17-0556 (Mar. 22, 2018).



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           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

   2. Language of the Specification
    As explained above, even if the elements of an offense are
not necessarily a subset of the elements of the charged of-
fense, the charging language may ensure that the offense is
“necessarily included in the offense charged” within the
meaning of Article 79, UCMJ. See, e.g., Arriaga, 70 M.J. at
55; Riggins, 75 M.J. at 85 n.7. A specification of abusive sex-
ual contact by causing bodily harm, for example, might al-
lege that the offensive touching was done both with an in-
tent to “abuse, humiliate, harass, or degrade any person or
to arouse or gratify the sexual desire of any person” as re-
quired by Article 120(g), UCMJ, and with “unlawful force” as
required by Article 128(a), UCMJ. In such a case, instruct-
ing the members that they may find the accused guilty of
assault consummated by a battery would not be error.
    In this case, however, the charging language did not suf-
fice to state both offenses. The Specification of abusive sexu-
al contact by causing bodily harm contained two particulars,
one identifying the “sexual contact” (i.e., “touching through
the clothing the genitalia”) and the other identifying the
“bodily harm” (i.e., “wedging his hands between her thighs”).
The definition of “sexual contact” provided notice that the
Government would attempt to prove that Appellant touched
Mrs. G.’s genitalia with intent to “abuse, humiliate, or de-
grade.” But the definition of “bodily harm” provided notice
only that the Government would attempt to prove that the
wedging of his hands between her thighs was an offensive
touching. Neither the definition of bodily harm nor any fac-
tual averment in the Specification provided notice that the
Government would have to prove that the wedging of his
hands was done “with unlawful force or violence.”9 The Spec-
ification therefore did not state the elements of both abusive
sexual contact by causing bodily harm and assault consum-
mated by a battery.



   9 The analysis would be different if the Specification originally
had contained words such as “unlawfully touch,” as added by the
members in their finding in this case, see supra note 2, and as rec-
ommended in the MCM’s sample specification, see MCM pt. IV,
para. 54.f.(2) (2012 ed.).



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           United States v. Armstrong, No. 17-0556/AR
                      Opinion of the Court

   3. Conclusion
    We thus conclude that the military judge erred in in-
structing the members that assault consummated by a bat-
tery was a lesser included offense of abusive sexual contact
by causing bodily harm. We leave open the possibility that in
a future case a specification could be drafted in such a man-
ner that it alleges the elements of both assault consummat-
ed by a battery and abusive sexual contact. We also leave
open the possibility that assault consummated by a battery
could be a lesser included offense of other Article 120,
UCMJ, offenses. See, e.g., Article 120(c), UCMJ (stating the
offense of “[a]ggravated sexual contact” by using force).
B. Plain Error Analysis
    The error in instructing the members that assault con-
summated by a battery was a lesser included offense was
“clear” or “obvious” under the elements test. As explained
above, assault consummated by a battery requires bodily
harm that “was done with unlawful force or violence” while
abusive sexual contact by bodily harm does not. We have de-
termined that other similar errors regarding what is a lesser
included offense to be plain errors. See, e.g., United States v.
Tunstall, 72 M.J. 191, 195 (C.A.A.F. 2013).10
    We must now consider whether Appellant suffered mate-
rial prejudice. In cases involving incorrect instructions re-
garding lesser included offenses, prejudice can be caused by
not having “notice as to the offense that must be defended
against.” Miller, 67 M.J. at 388 (citation omitted). Appellant
argues that he suffered prejudice because he only learned


   10  Despite our conclusion that the error was clear or obvious,
we recognize that the military judge and counsel had limited
guidance in addressing this issue. The 2012 MCM, in effect at the
time of trial, did not identify the lesser included offenses for abu-
sive sexual contact. See MCM, Analysis of Punitive Articles, app.
23 at A23−16 (2012 ed.) (noting that the lesser included offenses
would “be published in subsequent Executive Order”). We also
note that Appendix 12A to the 2016 MCM identifies assault con-
summated by a battery as a possible lesser included offense of
abusive sexual contact “[d]epending on the factual circumstances
in each case.” MCM, Lesser Included Offenses, app. 12A at A12A-
1, A12A−4 (2016 ed.).



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                     Opinion of the Court

that he needed to defend himself against the charge of as-
sault consummated by a battery after the close of evidence.
He asserts that, if he had known earlier, he could have pre-
sented a defense addressing the requirement that the bodily
harm must be caused by “unlawful force.” For example, he
might have chosen to testify and, in testifying, might have
provided evidence that the touching in this case was not un-
lawful.
    We disagree. The manner in which a case was contested
may reveal whether an accused was prejudiced by an erro-
neous consideration of an offense that is not actually a lesser
included offense. See Oliver, 76 M.J. at 275. For example, in
United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012), we
held that abusive sexual contact was not a lesser included
offense of aggravated sexual assault as charged. But we con-
cluded that the appellant in that case was not prejudiced be-
cause his defense strategy focused, inter alia, on mistake of
fact as to consent, demonstrating that he was on notice of
the elements he needed to defend against. Id. at 414. In this
case, although Appellant later said that he did not see any
lesser included offenses, the record shows that Appellant re-
quested instructions before the presentation of evidence re-
garding defenses to assault consummated by a battery. One
of these instructions concerned “unlawful touching,” and
thus addressed the requirement of unlawful force. We there-
fore agree with the Government that Appellant had notice of
how he needed to defend himself at the start of the case.
Therefore, he suffered no material prejudice resulting from
error in this case.
    Appellant argues in the alternative that he does not have
to show prejudice based on the reasoning of our recent deci-
sion in United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017).
In that case, interpreting the language of R.C.M. 603(d), we
held that if a court-martial improperly allows a major
change to a referred charge or specification over the ac-
cused’s objection, the accused need not show prejudice be-
cause the court-martial lacks jurisdiction to consider the
new charge. Id. at 301–02. Appellant seeks to extend Reese
by analogizing the court-martial’s consideration of assault
consummated by a battery to a major change to the Specifi-
cation of abusive sexual contact by causing bodily harm.


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          United States v. Armstrong, No. 17-0556/AR
                     Opinion of the Court

    We have not previously considered Appellant’s proposed
analogy. Looking at the issue now, we conclude that a cor-
rect instruction regarding a lesser included offense is not
analogous to a major change to a specification. Under
R.C.M. 603(a), major changes are those which “add a . . .
substantial matter not fairly included in those previously
preferred.” Under the elements test, a proper lesser included
offense is wholly included in the greater charged offense.
    In contrast, we agree that an incorrect instruction on a
lesser included offense might have some similarities to a ma-
jor change in a specification. In this case, the court-martial
could not have found Appellant guilty of assault consum-
mated by a battery based on the Specification as written.
But we need not decide whether the proposed analogy is val-
id. Even if we were to equate the erroneous instruction in
this case to a major change to the Specification, the reason-
ing in Reese would not apply. R.C.M. 603(d) requires
preferral anew only when a major change is “made over the
objection of the accused.” In this case, as explained above,
Appellant did not object to the lesser included offense in-
struction. He, therefore, had to show material prejudice to
obtain relief.
                       IV. Judgment
   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




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           United States v. Armstrong, No. 17-0556/AR


   Judge OHLSON, with whom Judge SPARKS joins,
concurring.
    In cases where an appellant was convicted of a putative
lesser included offense, the key issue is “notice.” Specifically,
“[t]he Constitution requires that an accused be on notice as
to the offense that must be defended against, and … only
lesser included offenses that meet these notice requirements
may be affirmed by an appellate court.” United States v.
Wilkins, 71 M.J. 410, 413–14 (C.A.A.F. 2012) (citation omit-
ted) (internal quotation marks omitted).
    The primary tool we use to determine whether an ac-
cused was on notice about the offense he needed to defend
against is the elements test. Id. at 412. In conducting this
test, we check to see whether all of the elements in the of-
fense of which the appellant was convicted were also in the
offense with which the appellant was originally charged. Id.
   We first look at the plain language of the applicable
statutes. With regard to the instant case, Article 128(a),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928(a)
(2012), explicitly states that one of the elements the
government must prove in order to secure a conviction for
assault consummated by a battery is that the bodily harm
was done “with unlawful force or violence.” However, the
charged offense of abusive sexual contact contains no such
requirement. Article 120(b)(1)(B), (d), UCMJ, 10 U.S.C.
§ 920(b)(1)(B), (d) (2012). Thus, the plain language of the
UCMJ did not put Appellant on notice that he needed to
defend against this uncharged element at trial.
    We next engage in statutory construction to determine
whether a close analysis of the relevant statute(s) reveals
that the elements of the putative lesser offense were implic-
itly subsumed by the elements of the charged offense. See
Wilkins, 71 M.J. at 412 (noting that “after applying normal
rules of statutory interpretation and construction, this
Court” looks to whether “the elements of the [lesser included
offense] would necessarily be proven by proving the ele-
ments of the greater offense”); Manual for Courts-Martial,
United States pt. IV, para. 3.b.(1)(c) Discussion (2016 ed.)
(MCM) (“The elements test does not require identical statu-
tory language, and use of normal principles of statutory in-
           United States v. Armstrong, No. 17-0556/AR
                  Judge OHLSON, concurring

terpretation is permitted.”). As demonstrated below, that
was not the case here.
    Article 120, UCMJ, lists the following four offenses: rape;
sexual assault; aggravated sexual contact; and abusive sex-
ual contact. Article 120(a)–(d), UCMJ. Aggravated sexual
contact explicitly requires proof of “unlawful force,” but abu-
sive sexual contact does not. Compare Article 120(a)(1), (c),
UCMJ, and MCM pt. IV, para. 45.b.(5)(a), with Article
120(b)(1)(B), (d), UCMJ, and MCM pt. IV, para. 45.b.(7)(b).1
If we were to graft onto abusive sexual contact the require-
ment that the Government prove “unlawful force,” we would
be vitiating the statutory distinction between aggravated
sexual contact and abusive sexual contact. Stated different-
ly, by finding that abusive sexual contact implicitly contains
an “unlawful force” element, we would be making the “un-
lawful force” element of aggravated sexual contact, and the
offense itself, superfluous. This we must not do. See TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal
principle of statutory construction that a statute ought, upon
the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous ….” (citation
omitted) (internal quotation marks omitted)).
    I write separately because I believe that this application
of the elements test to the relevant statutory provisions in
the instant case—standing alone—is sufficient to demon-
strate that assault consummated by a battery is not a lesser
included offense of abusive sexual contact by causing bodily
harm.
   That does not end our analysis, however. As noted by the
majority, in such circumstances we also must look to the
language that the government actually used in the charged
specification to determine whether that language adequately
placed the appellant on notice of the need to defend against
the missing element. See Riggins, 75 M.J. at 83 (noting that

   1 I recognize that “unlawful force” under Article 120, UCMJ, is
defined differently than “unlawful force or violence” for assault
consummated by a battery. Compare Article 120(g)(5)–(6), UCMJ,
with United States v. Riggins, 75 M.J. 78, 83 n.5, 84 (C.A.A.F.
2016), and MCM pt. IV, para. 54.c.(1). However, this difference is
not material for purposes of this analysis.




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          United States v. Armstrong, No. 17-0556/AR
                 Judge OHLSON, concurring

courts should “examine the offense ‘in the context of the
charge at issue’ ” (citation omitted)); United States v.
Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011) (holding that “[t]he
offense as charged” was a lesser included offense). Here, the
specification did not use language that references in any
manner “unlawful force or violence.” Therefore, the Govern-
ment violated Appellant’s right to receive notice about the
offense which he needed to defend against at trial.
    As the majority ably demonstrates, however, this viola-
tion constituted harmless error in this particular case. Unit-
ed States v. Armstrong, __ M.J. __, __ (12–14) (C.A.A.F.
2018). Accordingly, I agree with the majority and concur in
affirming the decision of the lower court.




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