       This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
           Christopher L. Oliver, Senior Airman
              United States Air Force, Appellant
                          No. 16-0484
                      Crim. App. No. 38481
            Argued February 7, 2017—May 23, 2017
               Military Judge: Donald R. Eller Jr.
   For Appellant: Major Johnathan D. Legg (argued); Major
   Christopher D. James and Captain Jarett F. Merk (on
   brief); Colonel Jeffrey G. Palomino.
   For Appellee: Major Meredith L. Steer (argued); Colonel
   Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges RYAN and
   OHLSON joined. Judge STUCKY filed a separate
   opinion concurring in the result.
                       _______________

   Judge SPARKS delivered the opinion of the Court.

    A general court-martial composed of a military judge
sitting alone convicted Appellant, pursuant to his pleas, of
two specifications of violating a general regulation, one
specification of dereliction of duty, and three specifications
of adultery, in violation of Articles 92 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934.
Contrary to his pleas, Appellant was convicted of five
specifications of violating a general regulation, one
specification of wrongful sexual contact as a lesser included
offense of abusive sexual contact, and consensual sodomy, in
violation of Articles 92, 120, and 125, UCMJ, 10 U.S.C.
§§ 892, 920, 925. The adjudged and approved sentence
provided for a reduction to E-1, twenty-four months of
confinement, and a dishonorable discharge. The United
States Air Force Court of Criminal Appeals affirmed the
findings and sentence as approved by the convening
authority. United States v. Oliver, No. ACM 38481 (f rev),
            United States v. Oliver, No. 16-0484/AF
                     Opinion of the Court

2016 CCA LEXIS 101, at *26, 2016 WL 791485, at *10 (A.F.
Ct. Crim. App. Feb. 24, 2016) (unpublished).

   We granted review in this case to determine whether
wrongful sexual contact was a lesser included offense of
abusive sexual contact under the 2007 amendments to
Article 120, UCMJ. United States v. Oliver, 75 M.J. 445,
445-46 (C.A.A.F. 2016). Compare Article 120(m), UCMJ, 10
U.S.C. § 920(m), with Article 120(h), UCMJ, 10 U.S.C. §
920(h) (2006) (as amended by the National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,
§ 552, 119 Stat. 3136, 3258 (effective Oct. 1, 2007)). We hold
that Appellant has failed to meet his burden under the plain
error standard because he has not demonstrated material
prejudice. Accordingly, the decision of the United States Air
Force Court of Criminal Appeals is affirmed.

                       I. Background
    The charges and specifications arose largely from
Appellant’s status as a training instructor and his relations
with female basic trainees. Pertinent to this appeal,
Appellant was charged with abusive sexual contact, in
violation of the version of Article 120(h) in place in 2007,
UCMJ. This specification alleged:

      In that SENIOR AIRMAN CHRISTOPHER L.
      OLIVER, (then known as Staff Sergeant
      Christopher L. Oliver), United States Air Force,
      324th Training Squadron, JBSA-Lackland, Texas,
      did at or near JBSA-Lackland, Texas, on divers
      occasions, between on or about 15 May 2011 and on
      or about 15 July 2011, engage in sexual contact, to
      wit: groping the groin of Airman First Class [LMS]
      (then known as Trainee [LMS]) by placing her in
      fear of an impact on her military career through
      the use and abuse of then Staff Sergeant
      Christopher L. Oliver’s military rank, position, and
      authority.
Prior to the court-martial, trial defense counsel advised the
trial court of his intent to raise the affirmative defense of
consent to the touching.

   Appellant’s court-martial was held in June 2013. At the
court-martial, Airman First Class (A1C) LMS testified that
during her basic training Appellant touched her groin



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            United States v. Oliver, No. 16-0484/AF
                     Opinion of the Court

without her consent on two occasions. A1C LMS explained
that the first touching occurred when Appellant called her
into his office, told her to stand at attention, and then
reached over his desk and touched her groin. A1C LMS
replied in the negative when asked by the Government
whether she had consented to this touching. The second
touching occurred when Appellant knocked on the basic
trainee female dorm door and when A1C LMS answered he
touched her groin while pretending to give her orders. A1C
LMS did not tell Appellant “no” because she was afraid of
getting in trouble.

    Before closing arguments, the Government asked the
military judge to consider wrongful sexual contact as a
lesser included offense of abusive sexual contact. The
following exchange occurred between the military judge and
trial defense counsel:

       MJ: … Defense, you don’t object to the [lesser
      included offenses] of wrongful sexual contact and
      assault consummated by battery as to Charge II
      and the Additional Charge?
      SDC: No, Your Honor.
                         II. Waiver
    The Government contends that Appellant affirmatively
waived whether wrongful sexual contact is a lesser included
offense of abusive sexual contact by failing to object to the
military judge’s consideration of this issue.

    The rights at issue when determining whether one
offense is a lesser included offense of another are
constitutional in nature, as “[t]he due process principal of
fair notice mandates that ‘an accused has a right to know
what offense and under what legal theory’ he will be
convicted.” United States v. Jones, 68 M.J. 465, 468
(C.A.A.F. 2010) (quoting United States v. Medina, 66 M.J.
21, 26-27 (C.A.A.F. 2008)). While there is a “presumption
against the waiver of constitutional rights,” United States v.
Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (internal
quotation marks omitted) (citation omitted), the appellant
may waive the right to raise such issue on appeal provided it
is “clearly established that there was ‘an intentional
relinquishment or abandonment of a known right.’ ” Id.
(quoting Brookhart v. Janis, 384 U.S. 1, 4 (1966)).



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            United States v. Oliver, No. 16-0484/AF
                     Opinion of the Court

    Here, trial defense counsel affirmatively asserted he had
no objection to the military judge’s consideration of wrongful
sexual contact as a lesser included offense of abusive sexual
contact. Now, on appeal, Appellant contends that wrongful
sexual contact is not a lesser included offense because lack of
consent is an element of wrongful sexual contact, whereas
lack of consent, is not an element of abusive sexual contact.
See United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010)
(noting that an offense is not a lesser included offense when
it requires an element that is not an element of the greater
offense); Jones, 68 M.J. at 473 (concluding that offense was
not a lesser included offense where it did not include the
elements of the greater offense). Typically, trial defense
counsel’s affirmative assertion at the court-martial would
constitute waiver of this issue. See United States v. Mundy,
2 C.M.A. 500, 503-04, 9 C.M.R. 130, 133-34 (1953) (counsel’s
deferential statements about the defense’s position on lesser
included offense instructions constituted affirmative
waiver); United States v. Smith, 50 M.J. 451, 455-56
(C.A.A.F. 1999) (counsel’s statement in response to the
military judge’s proposed instructions, “[t]hat’s not exactly
what I wanted, but it’s close,” amounted to a conscious
choice to omit lesser included offenses that defense counsel
previously discussed with the military judge and was
therefore an affirmative waiver).

    However, at the time of Appellant’s court-marital, courts
were grappling with whether, and to what extent, lack of
consent was an element for Article 120, UCMJ, violations.
The 2007 amendment to Article 120, UCMJ, omitted “lack of
consent” as an element of virtually all sexual misconduct
offenses, except the offense of wrongful sexual contact.
Specifically, the statute stated:

      Lack of permission is an element of the offense in
      subsection (m) (wrongful sexual contact). Consent
      and mistake of fact as to consent are not an issue,
      or an affirmative defense, in a prosecution under
      any other subsection, except that they are an
      affirmative defense for the sexual conduct in issue
      in a prosecution under subsection (a) (rape),
      subsection (c) (aggravated sexual assault),
      subsection (e) (aggravated sexual contact), and
      subsection (h) (abusive sexual contact).




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                     Opinion of the Court

Manual for Courts-Martial (MCM) pt. IV, para. 45.a.(r)
(2008 ed.).

    Following the 2007 amendment, some courts of criminal
appeals continued to struggle with the issue of lack of
consent. Notwithstanding our decision in United States v.
Neal, 68 M.J. 289, 303 (C.A.A.F. 2010) (holding “without
consent” was not an “implicit element” of aggravated sexual
assault), at least two service courts still seemed to suggest
that lack of consent was nonetheless an element inherent in
certain offenses under Article 120, UCMJ. See United States
v. Pitman, No. ACM 37453, 2011 CCA LEXIS 93, at *11,
2011 WL 6010897, at *4 (A.F. Ct. Crim. App. May 19, 2011)
(unpublished) (finding that wrongful sexual contact was a
lesser included offense of aggravated sexual contact, because
“[a]pplying the common and ordinary understanding of these
words, an allegation that a victim is compelled to submit to
sexual acts by force clearly includes as a subset that the
victim is not consenting”); United States v. Johanson, 71
M.J. 688, 693 (C.G. Ct. Crim. App. 2012) (concluding
wrongful sexual contact is a lesser included offense of
abusive sexual contact of a person substantially incapable of
declining participation because “[s]urely a lack of consent is
inherent in        substantial incapability     of    declining
participation”); But see United States v. Prothro, No.
2011031, 2013 CCA LEXIS 293, at *5, 2013 WL 1457740, at
*2 (A. Ct. Crim. App. Mar. 29, 2013 (“[I]n this case, wrongful
sexual contact is not necessarily included within the offense
of abusive sexual contact …. [Because] consent, permission,
or lack thereof is not an element of abusive sexual contact.”).

    This point is underscored by the fact that: (a) both trial
counsel and the military judge in this case believed that
wrongful sexual contact was a lesser included offense of
abusive sexual contact; and (b) in the course of their legal
sufficiency review, the panel of judges on the Air Force
Court of Criminal Appeals that adjudicated this case did not
correctly identify the fact that wrongful sexual contact is not
a lesser included offense of abusive sexual contact.

   The question of consent, as applied to abusive sexual
contact, was definitively resolved after Appellant’s
court-martial, where in United States v. Riggins, 75 M.J. 78,
83-84 (C.A.A.F. 2016), we held, applying the 2012 version of
the MCM, that lack of consent is not an implied element of



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             United States v. Oliver, No. 16-0484/AF
                      Opinion of the Court

abusive sexual contact by placing in fear. However, given
the seemingly unsettled nature of the law at the time of
Appellant’s court-martial and its clear resolution in his favor
by Riggins at the time of appeal, we conclude that forfeiture
rather than waiver applies in this case. Cf. United States v.
Vazquez, 72 M.J. 13, 16-17 (C.A.A.F. 2013) (holding an
exception to the waiver of constitutional rights where
appellant challenged “the application [of] procedures in [a]
context [that] has not previously been addressed by this
Court); Henderson v. United States, 133 S. Ct. 1121, 1130
(2013) (“[W]hen there is a new rule of law, when the law was
previously unsettled, and when the [trial court] reached a
decision contrary to [a] subsequent rule.... ‘it is enough that
an error be plain at the time of appellate consideration.’ ”
(citation omitted)).

                  III. Plain Error Review
    When “an appellant has forfeited a right by failing to
raise it at trial, we review for plain error.” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Appellant thus
“has the burden of establishing (1) error that is (2) clear or
obvious and (3) results in material prejudice to his
substantial rights.” United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014); see also United States v. Dominguez Benitez,
542 U.S. 74, 82 (2004) (“the burden of establishing
entitlement to relief for plain error is on the defendant
claiming it”). “[F]ailure to establish any one of the prongs is
fatal to a plain error claim.” United States v. Bungert, 62
M.J. 346, 348 (C.A.A.F. 2006).

    Here, in the wake of Riggins, there was error and it was
plain or obvious at the time of appellate review. United
States v. Warner, 73 M.J. 1, 4 (C.A.A.F. 2013); see also
Henderson 133 S. Ct. at 1130. However, Appellant has failed
to establish any material prejudice to his substantial rights.
“An error in charging an offense is not subject to automatic
dismissal, even though it affects constitutional rights.”
United States v. Wilkins, 71 M.J. 410, 413 (C.A.A.F. 2012).
“Appellant 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.’ ” Id. (alterations in original)
(internal citation omitted) (quoting United States v.
Humphries, 71 M.J. 209, 215 (C.A.A.F. 2012)).



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            United States v. Oliver, No. 16-0484/AF
                     Opinion of the Court

   In Riggins, a preserved constitutional error case, we
found prejudice where the appellant was not on notice that
he needed to defend against the issue of lack of consent. 75
M.J. at 85. Here, we are not faced with a similar situation.
When this incident occurred, the statute required the
accused to prove the affirmative defense of consent by a
preponderance of the evidence, at which time the
Government would have the burden of proving beyond a
reasonable doubt that the defense did not exist. Article
120(t)(16), UCMJ (as amended by the National Defense
Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,
§ 552, 119 Stat. at 3263). Therefore, when Appellant raised
the affirmative defense of consent, the Government had to
prove consent beyond a reasonable doubt if they were to
obtain a conviction on the specification.

    Furthermore, the issue of A1C LMS’s consent was
litigated throughout the court-martial. While the
Government’s primary theory was constructive force and not
lack of consent, the Government addressed the issue of
consent in trial and during closing arguments. As important,
the trial defense counsel’s trial strategy focused on A1C
LMS’s consent. In this vein, trial defense counsel elicited
cross-examination testimony from: (1) Senior Airman DG
that she observed A1C LMS and Appellant joking and
laughing together during A1C LMS’s basic training; and
(2) A1C MK that A1C LMS often smiled when she was with
Appellant. During Appellant’s case-in-chief, A1C KK
testified that A1C LMS told her that she found Appellant
attractive and A1C LMS regularly seemed happy and
“giddish” after leaving Appellant’s office.

    Ultimately, the manner in which the case was contested
diminishes any argument that Appellant was not on notice
as to what he had to defend against. Whether abusive sexual
contact or wrongful sexual contact, Appellant knew which
part of the body he was alleged to have wrongfully touched,
and his theory throughout the court-martial was that A1C
LMS consented to the sexual activity. Accordingly, under the
facts of this case, there is nothing to indicate material
prejudice to Appellant’s substantial rights. See United States
v. Goings, 72 M.J. 202, 208-09 (C.A.A.F. 2013) (no prejudice
where the government identified the missing Article 134,
UCMJ, element in its opening statement, case-in-chief,
cross-examination, and redirect examination of its own



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           United States v. Oliver, No. 16-0484/AF
                    Opinion of the Court

witness); United States v. Tunstall, 72 M.J. 191, 197
(C.A.A.F. 2013) (no prejudice where accused actually
defended against both theories in the terminal element of
Article 134, UCMJ).

                     IV. Conclusion
   The decision of the United States Air Force Court of
Criminal Appeals is affirmed.




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             United States v. Oliver, No. 16-0484/AF


   Judge STUCKY, concurring in the result.

   At trial, prior to closing arguments on findings, the mili-
tary judge asked both counsel if there were any lesser in-
cluded offenses that should be included in his member in-
structions. In relevant part, trial counsel proposed that
wrongful sexual contact was a lesser included offense of
abusive sexual contact under Article 120, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 920 (2012). When
asked by the military judge if he objected, defense counsel
responded, “No, Your Honor.” 1 Subsequently, before an-
nouncing his findings, the military judge stated:
       [T]he court considered the request of trial counsel,
       and with the consent of the defense, the lesser in-
       cluded offenses of wrongful sexual contact ….
           In conducting analysis of the elements of the
       charged offenses and the requested lesser included
       offenses, the court was satisfied that the elements,
       while not precisely aligned by language, were
       aligned sufficiently that it was appropriate to con-
       sider them as lesser included offenses.
Defense counsel did not object.
    The foregoing shows that the issue at bar was manifestly
raised and outlined at trial by the military judge, and de-
fense counsel clearly, knowingly, and intelligently relin-
quished or abandoned Appellant’s right to challenge this
lesser included offense. The majority cites “the seemingly
unsettled nature of the law at the time of Appellant’s court-
martial” as militating against recognizing defense counsel’s
affirmative, knowing, and intelligent waiver of the issue in
question. United States v. Oliver, __ M.J. __, __ (6) (C.A.A.F.
2017). We have, however, previously indicated the exact op-
posite: if it is settled that one offense is a lesser included of-
fense of another, this weighs against finding the issue
waived by an affirmative response at trial, United States v.
Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011), which makes sense.
Reasonable counsel are unlikely to object to, and are in fact
likely to affirm, such instructions because objection would be

    1 This stands in stark contrast to the spirited opposition that
defense counsel voiced immediately prior to that answer with re-
gard to a different proffered lesser included offense.
             United States v. Oliver, No. 16-0484/AF
            Judge STUCKY, concurring in the result

a plainly unproductive endeavor. In contrast, we should ex-
pect counsel to object when the law is unsettled and a cer-
tain interpretation is favorable to their client.
    Appellant’s situation is close to the paragon of waiver.
See United States v. Ahern, 76 M.J. 194, __ (8–9) (C.A.A.F.
2017) (holding that a “no objection” statement at trial consti-
tutes affirmative waiver of the issue in question). I therefore
disagree with the majority’s reaching the merits of the issue
before us, because it was “extinguished,” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009), “‘leav[ing] no error
for us to correct.’” United States v. Campos, 67 M.J. 330, 332
(C.A.A.F. 2009) (quoting United States v. Pappas, 409 F.3d
828, 830 (7th Cir. 2005)).




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