                       UNITED STATES, Appellee

                                    v.

                     Michael S. TUNSTALL, Airman
                      U.S. Air Force, Appellant

                              No. 12-0516

                         Crim. App. No. 37592

       United States Court of Appeals for the Armed Forces

                       Argued December 3, 2012

                         Decided May 23, 2013

ERDMANN, J., delivered the opinion of the court, in which RYAN,
J., and EFFRON, S.J., joined. STUCKY, J., filed a separate
opinion concurring in part and in the result. BAKER, C.J.,
filed a separate dissenting opinion.

                                 Counsel

For Appellant:    Major Scott Medlyn (argued); Major Daniel E.
Schoeni.

For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen, Lieutenant Colonel C. Taylor Smith, and Gerald R.
Bruce, Esq. (on brief).

Military Judge:   Michael J. O’Sullivan


       This opinion is subject to revision before final publication.
United States v. Tunstall, No. 12-0516/AF


     Judge ERDMANN delivered the opinion of the court.

     Airman First Class (A1C) Michael Tunstall was charged with

two specifications of aggravated sexual assault and one

specification each of adultery and false official statement, in

violation of Articles 120, 134, and 107, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 920, 934, 907 (2006).       He

pled not guilty to all charges and at a general court-martial

with members was convicted of one specification of aggravated

sexual assault and the adultery specification.   He was found not

guilty of the false official statement specification and the

remaining specification of aggravated sexual assault, but as to

the latter, was found guilty of the lesser included offense of

indecent acts.   He was sentenced to a bad-conduct discharge,

confinement for six months, a reprimand, and reduction to E-1.

The convening authority approved the adjudged sentence.     The

United States Air Force Court of Criminal Appeals (CCA) affirmed

the findings and the sentence.   United States v. Tunstall, No.

ACM 37592, slip op. at 12 (A.F. Ct. Crim. App. Mar. 28, 2012).

     “[A] military judge can only instruct on a lesser included

offense where the greater offense requires members to find a

disputed factual element which is not required for conviction of

the lesser violation.”    United States v. Miergrimado, 66 M.J.

34, 36 (C.A.A.F. 2008).   In addition, “[t]he due process

principle of fair notice mandates that ‘an accused has a right


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United States v. Tunstall, No. 12-0516/AF


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) (citing United States v. Medina, 66 M.J. 21, 26-27

(C.A.A.F. 2008)).     “[T]he Due Process Clause of the Fifth

Amendment also does not permit convicting an accused of an

offense with which he has not been charged.”     United States v.

Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011).

       We granted review to determine whether the offense of

indecent acts was a lesser included offense of aggravated sexual

assault.     We conclude that, as charged in this case, indecent

acts (committing a sexual act in an open and notorious manner)

is not a lesser included offense of aggravated sexual assault

(engaging in a sexual act with an incapacitated person).       It was

therefore error for the military judge to instruct on indecent

acts.

       We also granted an issue as to whether the adultery

specification charged under Article 134 failed to state an

offense because it did not expressly allege the terminal

element. 1   We conclude that the record of trial demonstrates that




1
    We granted review of two issues:

         I. Whether Appellant’s conviction for indecent acts must
            be set aside because the military judge erred in
            instructing the jury that indecent acts is a lesser
            included offense of aggravated sexual assault.

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United States v. Tunstall, No. 12-0516/AF


Tunstall was on actual notice of the terminal element and

therefore that he was not prejudiced by its omission.     See

United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).

                             Background

     In April of 2009, Tunstall and Airman KAS, who were

assigned to Hurlburt Field, Florida, were with a group of airmen

who spent the day drinking at the beach and in an Air Force

dormitory.   The two were flirting throughout the afternoon and

later were involved in a drinking game with two other airmen in

the dorm.    The airmen became drunk and during the drinking game

KAS removed her clothes and straddled Tunstall, who began to

digitally penetrate her vagina in the presence of the two other

airmen.   The Government considered this episode of sexual

activity to be consensual.   Shortly thereafter, however, KAS

fell to the floor and began to vomit.     At this point KAS was

described as conscious but not vocal or making any actions.

Tunstall and another airman helped KAS to a sink where she

continued to have the dry heaves.     While KAS was leaning over

the sink Tunstall digitally penetrated her vagina until the

other airman said, “[i]t’s not time for that.     I mean she’s


     II. Whether the finding of guilty for adultery must be
         dismissed in accordance with Rule for Courts-Martial
         907(b)(1) because it fails to state an offense.

United States v. Tunstall, 71 M.J. 379 (C.A.A.F. 2012) (order
granting review).



                                  4
United States v. Tunstall, No. 12-0516/AF


sick.    We need to take care of her.”   Tunstall and another

airman then helped KAS to the bathroom.     During this period KAS

was described as definitely intoxicated and rolling in and out

of consciousness.    Tunstall then locked himself in the bathroom

with KAS and had sexual intercourse with her in the shower. 2

        Specification 2 of Charge I charged Tunstall with

aggravated sexual assault under Article 120 for the digital

penetration of KAS’s vagina while she was leaning over the sink

and while she was substantially incapable of declining

participation.     During his instructions on findings, the

military judge sua sponte instructed the members that the

offense of indecent acts was a lesser included offense of the

charged offense of aggravated sexual assault.     Tunstall was

acquitted of aggravated sexual assault under Specification 2 of

Charge I, but was found guilty of the lesser included offense of

indecent acts.

     Tunstall did not object to the instruction at trial, but on

appeal to the CCA he argued that the military judge erred in

giving a lesser included offense instruction for the offense of

indecent acts.    Tunstall, No. ACM 37592, slip op. at 7-11.     The

CCA held that the offense of indecent acts was a lesser included


2
  Specification 1 of Charge I charged Tunstall with aggravated
sexual assault under Article 120 by having intercourse with KAS
in the bathroom while she was substantially incapable of
declining participation.

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United States v. Tunstall, No. 12-0516/AF


offense of aggravated sexual assault.     Id. at 11.   Although the

lower court did not conduct an element-by-element comparison of

the charges, it concluded that “one cannot engage in a ‘sexual

act’ with someone who was vomiting in a sink in the presence of

a third party without also engaging in an indecent act.”     Id. at

10.

                                Issue I

                      Lesser Included Offense

      Whether an offense is a lesser included offense is a

question of law that is reviewed de novo.    United States v.

Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011).    While the granted issue

frames our analysis in terms of a lesser included offense, we

believe that this case raises important instructional and notice

issues as well.

      Because there was no objection to the instruction at trial,

we review for plain error.   United States v. Wilkins, 71 M.J.

410, 412 (C.A.A.F. 2012) (citing United States v. Arriaga, 70

M.J. 51, 54 (C.A.A.F. 2011)).    Under a plain error analysis, the

accused “has the burden of demonstrating that:    (1) there was

error; (2) the error was plain or obvious; and (3) the error

materially prejudiced a substantial right of the accused.”

Girouard, 70 M.J. at 11.




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United States v. Tunstall, No. 12-0516/AF


     This court applies the elements test to determine whether

one offense is a lesser included offense of another.    United

States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010).

     Under the elements test, one compares the elements of
     each offense. If all of the elements of offense X are
     also elements of offense Y, then X is an LIO of Y.
     Offense Y is called the greater offense because it
     contains all of the elements of offense X along with
     one or more additional elements.

Id. at 470.

     The elements of aggravated sexual assault under Article

120, as charged in this case, are:    (1) that the accused engaged

in a sexual act with another person; and (2) the other person

was substantially incapable of declining participation in the

sexual act.   Manual for Courts-Martial, United States pt. IV,

para. 45.b.(3)(c) (2008 ed.) (MCM).    Specification 2 of Charge I

alleged that Tunstall:

     did . . . engage in a sexual act, to wit: digital
     penetration by [Tunstall] of the vagina, with [A1C
     KAS], who was substantially incapable of declining
     participation in the sexual act.

     During his instructions on findings the military judge

instructed the members on the offense of indecent acts as a

lesser included offense of aggravated sexual assault:

     Indecent act under Article 120. You are advised a
     lesser included offense of the offense alleged in
     Specification 2 of Charge I is the offense of indecent
     acts, also a violation of Article 120. In order to
     find the accused guilty of this lesser included
     offense, you must be convinced by legal and competent
     evidence beyond reasonable doubt:


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United States v. Tunstall, No. 12-0516/AF



     One, that on or about 17 April 2009, at or near
     Hurlburt Field, Florida, the accused engaged in
     certain wrongful conduct, to wit: digital penetration
     of the vagina of Airman [KAS]; and

     Two, that the conduct was indecent.

After providing the members with definitions of relevant terms,

the military judge went on to instruct the members:

     Article 120, UCMJ, is not intended to regulate the
     wholly private consensual activities of individuals.
     In the absence of aggravating circumstances, private
     consensual sexual activity[,] including sexual
     intercourse[,] is not punishable as an indecent act.
     Among possible aggravating circumstances is that the
     sexual activity was open and notorious. Sexual
     activity may be open and notorious when the
     participants know that someone else is present. This
     presence of someone else may include a person who is
     present and witnesses the sexual activity, or is
     present and aware of the sexual activity through
     senses other than vision. On the other hand, sexual
     activity that is not performed in the close proximity
     of someone else, and which passes unnoticed, may not
     be considered open and notorious. Sexual activity may
     also be considered open and notorious when the act
     occurs under circumstances in which there is a
     substantial risk that the acts could be witnessed by
     someone else, despite the fact that no such discovery
     occurred.

     This lesser included offense differs primarily from
     the charged offense in Specification 2 of Charge I in
     that this offense does not require as an essential
     element that the accused digitally penetrated Airman
     First Class [KAS] when she was substantially incapable
     of declining participation in the sexual act. This
     lesser included offense, however, does require you to
     determine whether the act itself was indecent.

     The elements of the lesser included offense of “indecent

acts” are:   (1) the accused engaged in certain conduct; and (2)



                                 8
United States v. Tunstall, No. 12-0516/AF


the conduct was indecent.   MCM pt. IV, para. 45.b.(11) (2008

ed.).

     The Government notes that the offense of indecent acts

occurs when any person engages in “indecent conduct,” which is

defined as “that form of immorality relating to sexual impurity

that is grossly vulgar, obscene, and repugnant to common

propriety, and tends to excite sexual desire or deprave morals

with respect to sexual relations.”    Article 120(t)(12), UCMJ.

The Government goes on to argue that the aggravated sexual

assault specification at issue could, without alteration,

constitute a legally sufficient indecent acts specification.

The crux of the Government’s argument is that the act alleged in

Specification 2 of Charge I constituted indecent conduct under

the above definition because KAS was “substantially incapable of

declining the participation in the sexual act.”

     Rather than reflecting a greater/lesser relationship,

however, the Government’s theory results in alternative offenses

which criminalize the same conduct.    It has long been recognized

that a jury must be able to rationally acquit on the greater

offense but still convict on the lesser offense.    Sansone v.

United States, 380 U.S. 343, 350 (1965) (“[T]he lesser offense

must be included within but not, on the facts of the case, be

completely encompassed by the greater.    A lesser-included

offense instruction is only proper where the charged greater


                                 9
United States v. Tunstall, No. 12-0516/AF


offense requires the jury to find a disputed factual element

which is not required for conviction of the lesser-included

offense.”). 3

     As charged in this case and under the Government’s lesser

included theory, there is no additional fact that the members

would need to find in order to convict for the offense of

aggravated sexual assault which would be unnecessary to convict

for the offense of indecent acts.    Neither requires a factual

finding which the other does not.    The first element of both

offenses is established by the same set of facts:    the “sexual

act” (aggravated sexual assault) and “certain conduct” (indecent

acts) refer to the digital penetration of KAS’s vagina.    The

second element of each offense is also established by the same

alleged fact:   KAS was substantially incapable of declining

participation (aggravated sexual assault); and the conduct was

3
  See also Schmuck v. United States, 489 U.S. 705, 716 n.8 (1989)
(“Our decision in no way alters the independent prerequisite for
a lesser included offense instruction that the evidence at trial
must be such that a jury could rationally find the defendant
guilty of the lesser offense, yet acquit him of the greater.”)
(citing Keeble v. United States, 412 U.S. 205, 208 (1973));
United States v. Miergrimado, 66 M.J. 34, 36 (C.A.A.F. 2008);
United States v. McCullough, 348 F.3d 620, 626 (7th Cir. 2003)
(“[A] greater offense will always have at least one additional
element not found in the lesser-included offense. Otherwise,
the two crimes would be the same.”); United States v. Griffin,
50 M.J. 480, 482 (C.A.A.F. 1999); United States v. Flores, 968
F.2d 1366, 1369 (1st Cir. 1992) (“To pass the [elements test],
all the elements of the lesser included offense must be elements
of the charged offense -- but the charged offense must include
at least one additional element.”); United States v. Jackson, 12
M.J. 163, 167 (C.A.A.F. 1981).

                                10
United States v. Tunstall, No. 12-0516/AF


indecent because KAS was substantially incapable of declining

participation (indecent acts).    The MCM in effect at the time

recognized that treating indecent acts as a lesser included

offense of aggravated sexual assault is appropriate “[d]epending

on the factual circumstances in each case,” MCM pt. IV, para.

45.e. (2008 ed.).    Under the facts of this case, where there is

no additional fact that the members would need to find in order

to establish the offense of aggravated sexual assault which

would be unnecessary to establish the offense of indecent acts,

the two offenses do not stand in a relationship of

greater/lesser offense, because a rational trier of fact could

not acquit on the greater offense and convict on the lesser

offense. 4   It was therefore plain and obvious error for the

military judge to sua sponte give the lesser included offense

instruction.

     The military judge compounded the error with his further

instructions on indecent acts.    The military judge instructed

the members that engaging in a sexual act in the presence of

others is considered “open and notorious” behavior which could

constitute an indecent act.    “Open and notorious” is not a basis


4
  Although there are some kinds of indecent conduct, discussed
infra, under which a rational trier of fact could have acquitted
of aggravated sexual assault but convicted of indecent acts,
those theories would be per se outside the scope of the conduct
for which Tunstall was charged, because Tunstall was charged
with aggravated sexual assault, not indecent acts.

                                 11
United States v. Tunstall, No. 12-0516/AF


or theory for the offense of aggravated sexual assault, and that

instruction was the first mention in the trial of the “open and

notorious” theory.   The military judge went on to instruct the

members that the greater offense of indecent acts differed from

the offense of aggravated sexual assault as it did not require

them to find that KAS was substantially incapable of declining

participation, but only that the act itself was indecent.

     In providing these instructions, the military judge

essentially took the “substantially incapable of declining

participation” theory for the offense of indecent acts off the

table and instead provided the members with detailed

instructions as to the “open and notorious” theory for the

offense.   This error resulted in material prejudice to Tunstall.

We agree with the CCA that under the circumstances of this case,

the members convicted Tunstall of indecent acts under an “open

and notorious” theory.   Tunstall, No. ACM 37592, slip op. at 10

(“Under the facts of this case, we conclude that one cannot

engage in a ‘sexual act’ with someone who was vomiting in a sink

in the presence of a third party without also engaging in an

indecent act.” (emphasis added)).    However, the due process

principle of fair notice mandates that “an accused has a right

to know what offense and under what legal theory” he will be

convicted.   Jones, 68 M.J. at 468 (quoting Medina, 66 M.J. at

26-27) (emphasis added).   As Tunstall was neither charged with


                                12
United States v. Tunstall, No. 12-0516/AF


nor on notice of the offense of indecent acts under the “open

and notorious” theory until the military judge’s instruction, he

was not on fair notice to defend against that offense and his

due process rights were violated. 5

     Because the military judge instructed on an offense which

was not a “lesser included” offense and because the military

judge instructed on a theory of indecency of which Tunstall was

not on notice, the findings with regard to Specification 2 of

Charge I are set aside and the case is remanded to the CCA to

reassess the sentence or return the case to the convening

authority for a rehearing on sentence. 6


5
  The Government’s argument that the “open and notorious” theory
of an indecent act offense does not constitute an element of the
offense is not on point. We need not address the issue as to
whether the “open and notorious” theory of the offense is or is
not an element, as the military judge instructed on that theory
and Tunstall had no notice of that theory prior to the military
judge’s instructions. See Jones, 68 M.J. at 468.
6
  The dissent implies that Tunstall was on notice of the
purported lesser included offense because he was on notice that
his conduct violated the law. United States v. Tunstall, __
M.J. __ (1-2) (C.A.A.F. 2013) (Baker, C.J., dissenting) (opining
that because this court has found “open and notorious” sexual
conduct to warrant an indecent acts instruction, Tunstall was on
notice of that basis under which his conduct might be found
indecent); id. at __ (6) (“If one is charged with an aggravated
sexual assault, which occurs in front of others, one is
necessarily on notice that the lesser included offense of
indecent acts can be demonstrated by open and notorious
conduct.”). Although we agree that the “requirement of notice
to an accused may be met if the charge sheet ‘makes the accused
aware of any alternative theory of guilt,’” United States v.
Miller, 67 M.J. 385, 389 n.6 (C.A.A.F. 2009) (quoting United
States v. Medina, 66 M.J. 21, 27 (C.A.A.F. 2008)), the charge
sheet in this case does not in any way allege a theory of guilt

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United States v. Tunstall, No. 12-0516/AF


                             Issue II

                    The Fosler/Humphries Issue

     Tunstall argues that the Article 134 adultery specification

in Charge II failed to state an offense because it did not

expressly allege the terminal element.    In the context of an

adultery specification, the government may prove the terminal

element in one of two ways -– either that, under the

circumstances, the adulterous conduct was to the prejudice of

good order and discipline or that it was of a nature to bring

discredit upon the armed forces.     MCM pt. IV, para. 62.c.(2).

As Tunstall failed to object to the adultery specification at

trial, we review for plain error.    To establish plain error, an

appellant has the burden to demonstrate:    (1) there was error;

(2) the error was plain or obvious; and (3) the error materially

prejudiced a substantial right of the accused. 7   Humphries, 71



based on the presence of others. Therefore, an instruction
allowing Tunstall to be convicted on that basis deprives him of
his due process rights.
7
  The Government urges us to apply the four-prong plain error
test from United States v. Olano, 507 U.S. 725 (1993). Olano,
however, interprets Federal Rule of Criminal Procedure 52(b) --
a rule which does not govern the scope of this court’s appellate
review. 507 U.S. at 731. Plain error review in this court is
governed by Article 59(a), UCMJ, 10 U.S.C. § 859(a). The key
difference between these two sources of law is that Fed. R.
Crim. P. 52(b) is an enabling rule conferring discretion upon
the reviewing court (“A plain error that affects substantial
rights may be considered even though it was not brought to the
court’s attention.” (emphasis added)), whereas Article 59(a) is
a restricting rule (“A finding or sentence of a court-martial

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United States v. Tunstall, No. 12-0516/AF


M.J. at 214.   We have held that failure to allege the terminal

element constitutes plain and obvious error and resolution of

the case will depend upon whether “the error has prejudiced the

substantial rights of the accused.”    United States v. Ballan, 71

M.J. 28, 30 (C.A.A.F. 2012).

     In Humphries, we stated that “we look to the record to

determine whether notice of the missing element is somewhere

extant in the trial record, or whether the element is

‘essentially uncontroverted.’”   71 M.J. at 215-16.   In making

this inquiry, courts are limited to considering evidence

contained in the trial record.   Id.

     While the terminal element of Article 134 was not discussed

during voir dire, the opening statements, or the Government’s

case-in-chief, it was raised by the defense during trial.    At

the start of the defense case, the senior defense counsel sought



may not be held incorrect on the ground of an error of law
unless the error materially prejudices the substantial rights of
the accused.” (emphasis added)). See also Unites States v.
Powell, 49 M.J. 460, 464 (C.A.A.F. 1998) (“[T]he Olano
definition has limited applicability . . . because . . . [among
other factors] it interprets the federal rules, which are
somewhat different from the military rules.”).
     We have consistently rejected application of the fourth
prong of Olano when addressing questions under Article 59(a),
UCMJ, and do not intend to revisit that practice here. Instead,
we adhere to our own longstanding precedent on Article 59(a)
questions. See, e.g., Humphries, 71 M.J. at 214; United States
v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011); United States v.
Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008); United States v.
Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).



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United States v. Tunstall, No. 12-0516/AF


the admission of a petition for simplified dissolution of

marriage.   The dissolution of marriage is relevant to marital

status, which is one factor to be considered as to whether the

terminal element is met.   MCM pt. IV, para. 62.c.(2)(a).      When

the senior trial counsel objected to its admission, the senior

defense counsel explained that the document was relevant to the

third element of the offense of adultery -- that “under the

circumstances that conduct, the adultery, was prejudicial to

good order and discipline, or service discrediting.”    The

military judge admitted the document.

     Before closing arguments, the military judge provided the

parties with copies of his instructions.    The instructions

listed the third element of the adultery offense as “that under

the circumstances, the conduct of the accused was to the

prejudice of good order and discipline in the armed forces or

was of a nature to bring discredit upon the armed forces.”      He

then defined the terms “conduct prejudicial to good order and

discipline” and “service discrediting conduct,” and explained

how the evidence needed to establish one but not both of those

terms.   The military judge asked if there were any objections.

Other than to the definition of “substantially incapable,” the

defense counsel stated, “No, sir.”

     In closing argument on the adultery specification, the

defense counsel focused on the third element.    He asked the


                                16
United States v. Tunstall, No. 12-0516/AF


members to read the military judge’s instructions explaining

conduct prejudicial to good order and discipline and conduct of

a nature to bring discredit upon the armed forces.   He asserted

that, because the Government had not called any witnesses to

prove the third element, it failed to prove that Tunstall was

guilty of adultery.   Here, where evidence in the trial record

indicates that the defense introduced evidence for the specific

purpose of negating both theories of the terminal element of

Article 134, UCMJ, and further argued that the Government had

not proven either terminal element during its closing argument,

we conclude that Appellant has not met his burden to demonstrate

material prejudice to a substantial right, as he did defend

himself, despite the Government’s error. 8

                              Decision

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Charge I, Specification 2,

the finding as to that specification is set aside, and that

specification is dismissed.   The remaining findings are


8
  Although in Humphries we rejected the theory that notice could
be shown either by a defendant’s “assertion during closing
arguments that the Government had failed to present evidence [on
the terminal element]” or by the military judge’s panel
instructions coming “after the close of evidence,” 71 M.J. at
216-17, we view these factors as relevant in this case due to
their combination with the admission of the simplified petition
for dissolution of marriage.




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United States v. Tunstall, No. 12-0516/AF


affirmed.   The decision as to the sentence is set aside and the

record is returned to the Judge Advocate General of the Air

Force for remand to that court for further proceedings

consistent with this opinion.




                                18
United States v. Tunstall, No. 12-0516/AF


     STUCKY, Judge (concurring in part and in the result):

     I concur in the majority’s judgment setting aside

Appellant’s conviction for indecent acts.   The specification did

not place Appellant on notice that he would have to defend

against committing a sexual act in an open and notorious manner,

and there was no mention of this theory of the case until the

findings instructions and arguments.   See United States v.

Wilkins, 71 M.J. 410, 414 n.4 (C.A.A.F. 2012); United States v.

Rauscher, 71 M.J. 225, 226 (C.A.A.F. 2012) (per curiam).    I also

concur in the majority’s judgment that Appellant was not

prejudiced by the failure of the adultery specification to state

a terminal element.   I disagree, however, with the majority’s

prejudice analysis.

     As Appellant failed to object to the defective adultery

specification at trial, we review for plain error.   United

States v. Humphries, 71 M.J. 209, 213 (C.A.A.F. 2012).     To

establish plain error, an appellant has the burden to

demonstrate, inter alia, that any error materially prejudiced

his substantial rights.   United States v. Tunstall, __ M.J. __,

__ (14) (C.A.A.F. 2013); Wilkins, 71 M.J. at 413; Article 59(a),

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 859(a)

(2006).

     Appellant alleges prejudice only in that neither the

specification nor the trial proceedings gave him sufficient
United States v. Tunstall, No. 12-0516/AF


notice of the missing element against which he had to defend.

“But that is simply an ipse dixit recasting the conceded error --

[failure of the specification to give notice] -- as the [material

prejudice to] substantial rights.”   Puckett v. United States, 556

U.S. 129, 142 (2009).   Appellant did not allege that his counsel

was unaware of the missing element, what he would have been done

differently at trial had the specification contained the missing

element, or how the failure of the specification to state the

missing element affected the outcome of his trial.   Under these

circumstances, Appellant failed to bear his burden of

demonstrating prejudice.

     I have set out the reasons for my differing with the

majority’s prejudice analysis in my dissent in Humphries.     71

M.J. at 219 (Stucky, J., dissenting).   There is no need to

repeat them here.   Because I would adhere to the Supreme Court’s

four-prong plain error test as set out in United States v.

Olano, 507 U.S. 725, 734 (1993), and because I believe that the

majority’s approach conflates the error with the prejudice, I

respectfully concur in the result.




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United States v. Tunstall, No. 12-0516/AF


     BAKER, Chief Judge (dissenting):

     The first question presented is whether indecent acts is a

lesser included offense of aggravated assault.    It is, under any

lesser included offense doctrine adopted by this Court during

the last sixty years.   An accused would be on fair notice that

the offense of indecent acts is a lesser included offense of the

offense of aggravated sexual assault.

     The next question presented is whether indecent acts is a

lesser included offense, as charged in this case.    Appellant was

charged with aggravated sexual assault, to wit, the digital

penetration of the vagina of a person who was substantially

incapable of declining participation in the sexual act.    This

charge and specification were based on Appellant’s conduct while

the victim was bent over vomiting into a bathroom sink while

another servicemember sought to help her.   In addition to

instructing on this offense, the military judge instructed on

the lesser included offense of indecent acts.    The offense of

indecent acts requires proof of two elements:    (1) that the

accused engaged in certain conduct and (2) that the conduct was

indecent.   Manual for Courts-Martial, United States pt. IV,

para. 45.b.(11) (2008 ed.) (MCM).   Indecent, in conduct cases,

is defined as “that form of immorality relating to sexual

impurity that is not only grossly vulgar, obscene, and repugnant

to common propriety, but also tends to excite lust and deprave
United States v. Tunstall, No. 12-0516/AF


the morals with respect to sexual relations.”   MCM pt. IV, para.

45.c.(3).

     Digitally penetrating a woman’s vagina is certain conduct.

Doing so while she is bent over a sink vomiting and intoxicated

is some evidence that the conduct was grossly vulgar (1) in the

absence of consent, or (2) when done with consent when third

parties are present.    This Court has found that the “open and

notorious” nature of sexual conduct, including between

consenting adults with third parties present, can be considered

a factual circumstance warranting an instruction on the offense

of indecent acts.   United States v. Izquierdo, 51 M.J. 421, 422-

23 (C.A.A.F. 1999) (citations and internal quotation marks

omitted).   Thus, Appellant was on notice of at least two bases

upon which his conduct might be found indecent, distinct from

the possibility that KAS was substantially incapable of

declining participation in the act. 1

     Attention to the military judge’s instructions is central

to these conclusions.   The military judge instructed the members

on the elements of aggravated sexual assault as follows:



1
  Having adopted a strict elements approach to lesser included
offenses, the majority determines that aggravated sexual assault
and indecent acts have the same elements, but that indecent acts
is not a lesser included offense in this case because the
factual theory of open and notorious conduct in the case was not
charged. United States v. Tunstall, __ M.J. __ (6-7, 11-13)
(C.A.A.F. 2013).
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United States v. Tunstall, No. 12-0516/AF


     In order to find the accused guilty of [aggravated
     assault], you must be convinced by legal and competent
     evidence beyond a reasonable doubt:
          One, that . . . the accused engaged in a sexual act,
     to wit: digital penetration of the vagina, with [the
     victim]; and
          Two, that the accused did so when [the victim] was
     substantially incapable of declining participation in the
     sexual act.
The military judge defined “[s]exual act” as “penetration,

however slight . . . of the genital opening of another by a hand

or finger or by any object, with an intent to abuse. . . or

degrade any person or to arouse or gratify the sexual desire of

any person.”    The military judge also defined the term consent

and advised the members that it was a defense to the offense of

aggravated sexual assault.

     After instructing on several other relevant terms, the

military judge advised the members that indecent acts was a

lesser included offense to the aggravated sexual assault offense

at issue here.    He instructed them that the elements of this

offense were:

     One, that . . . the accused engaged in certain wrongful
     conduct, to wit: digital penetration of the vagina of [the
     victim]; and

     Two, that the conduct was indecent.
Emphasis added.    The military judge defined “[i]ndecent conduct”

as “that form of immorality relating to sexual impurity which is

grossly vulgar, obscene, and repugnant to common propriety, and


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United States v. Tunstall, No. 12-0516/AF


tends to excite sexual desire or deprave morals with respect to

sexual relations.”   The military judge also instructed the

members on the term “[w]rongful,” stating that it means,

“without legal justification or lawful excuse.”   Finally, the

military judge advised the members, “This lesser included

offense differs primarily from the charged offense [aggravated

sexual assault] in that this offense does not require as an

essential element that the accused digitally penetrated [the

victim] when she was substantially incapable of declining

participation in the sexual act.”

     The military judge’s instruction recognized the

relationship between the term “[w]rongful,” as it related to his

instruction on indecent acts, and the concept of consent as that

term related to the offense of aggravated sexual assault.     Thus,

the instruction contemplated a situation where the members might

not have found beyond a reasonable doubt that the victim was

substantially incapable of declining participation, and were

then left to decide whether or not the victim consented.    In

other words, notwithstanding insufficient proof on the second

element of aggravated sexual assault, the members could have

found that although the victim might have been capable of

declining participation, she nonetheless did not consent.     Under

the military judge’s instruction to the members on the first

element of indecent acts, the accused’s conduct would still be

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United States v. Tunstall, No. 12-0516/AF


wrongful because obviously he would have had no justification or

excuse for acting as he did.   Digitally penetrating someone who

is intoxicated and does not consent is grossly vulgar conduct.

     Conversely, if the members found that the victim consented,

then they would be required to acquit on the greater offense,

but still be required to consider the lesser included offense

given the presence of the third party.    The military judge

appropriately discerned the need to address this contingency of

proof by instructing with respect to the lesser offense that,

“In the absence of aggravating circumstances, private consensual

sexual activity . . . is not punishable as an indecent act.

Among possible aggravating circumstances is that the sexual

activity was open and notorious.”    Emphasis added.   This was

simply a recognition that under certain circumstances even

consensual activity could be punishable.    Furthermore, it

addressed the factual circumstance that had arisen in the case

about what had occurred in the bathroom and who was present.

Moreover, if the members had found that the alleged victim

consented, Appellant still would have had no legal justification

or excuse for committing the alleged sexual act in the bathroom

with a third party present and his act would have thus been

wrongful.

     In its consideration of the concept of open and notorious

conduct, the majority appears to make the same mistake as the

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United States v. Tunstall, No. 12-0516/AF


Government in its brief, concluding that the only way Appellant

could have committed the offense of indecent acts was through

open and notorious conduct and since the charge did not specify

such conduct he was not on notice of the lesser included

offense.   First, the term “open and notorious” is not an element

of the offense.    Second, open and notorious conduct is not a

separate theory of prosecution like those contained in the three

clauses of Article 134, UCMJ, 10 U.S.C. § 934 (2006).    “Open and

notorious” conduct is one way in which someone can commit an

indecent act.    If one is charged with an aggravated sexual

assault, which occurs in front of others, one is necessarily on

notice that the lesser included offense of indecent acts can be

demonstrated by open and notorious conduct.    The government is

not required to charge every possible factual pattern under

which the offense might be proved.

     Moreover, with regard to the digital penetration in the

bathroom, there is no evidence that the intoxicated victim

vomiting into the sink consented.     Thus, it is not clear how the

majority now concludes the Appellant was convicted on the basis

of his open and notorious conduct.    There was more than one way

in which Appellant could have committed the lesser offense of

indecent acts.    Clearly, Appellant was on notice that his

actions presented some evidence of grossly vulgar conduct and

was clearly repugnant to common propriety.

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United States v. Tunstall, No. 12-0516/AF


     The military judge’s instruction on what constituted a

sexual act under aggravated sexual assault also included the

intent to abuse or degrade any person or to arouse or gratify

sexual desires.   His instruction on indecent conduct described

conduct which was “grossly vulgar, obscene, and repugnant” and

tended to “excite sexual desire.”      It is difficult to conclude,

in my view, how this latter description is not also included

within the former “intent to abuse . . . or degrade any person

or to arouse or gratify the sexual desire of any person.”

Likewise, it is difficult to conclude how the evidence emerging

from the record of what occurred in the bathroom does not fit

these legal definitions as well.

     Thus, given the relationship between the definitions given

the members on wrongfulness and consent and the relationship

between the definitions of a sexual act and indecent conduct in

this case, I conclude quite easily that indecent acts as

instructed upon in this case was included within the first

element of the greater charged offense of aggravated sexual

assault.

     Finally, I respectfully disagree with the majority’s

conclusion that “[A] greater offense will always have at least

one additional element not found in the lesser-included offense.

Otherwise, the two crimes would be the same.”     Tunstall, __ M.J.

at __ (10 n.3) (brackets and emphasis in original) (citation and

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United States v. Tunstall, No. 12-0516/AF


internal quotation marks omitted).     Although this is indeed one

way in which a greater and lesser included offense situation

might arise, it is not the only way.    For example, reliance on

this proposition ignores the rather classic greater and lesser

offense relationship between larceny and wrongful appropriation.

Under the MCM, each of these offenses has four elements.     MCM

pt. IV, para. 46.b.(1)-(2).    The last element in larceny

requires the intent to permanently deprive while the last

element of wrongful appropriation requires only the intent to

temporarily deprive.   Id.    Obviously, rather than containing an

additional element, the greater offense merely contains an

element that requires a different degree of deprivation.

     In sum, because the offense of indecent acts is a lesser

included offense of aggravated sexual assault in general and as

charged in this case, and because it was properly instructed

upon, I respectfully dissent.




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