              UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                               UNITED STATES

                                                           v.

                                    Staff Sergeant TODD J. BARLOW
                                          United States Air Force

                                                    ACM 37981

                                                  13 March 2014

            Sentence adjudged 24 June 2011 by GCM convened at Beale Air Force
            Base, California. Military Judge: Jeffrey A. Ferguson (sitting alone).

            Approved Sentence: Dishonorable discharge, confinement for 36 months,
            and reduction to E-1.

            Appellate Counsel for the Appellant: Major Matthew T. King; Captain
            Luke D. Wilson; and James D. Culp, Esquire.

            Appellate Counsel for the United States: Colonel Don M. Christensen;
            Lieutenant Colonel C. Taylor Smith; Major Brian C. Mason; Major John M.
            Simms; Major Charles G. Warren; and Gerald R. Bruce, Esquire.

                                                        Before

                                  ROAN, MARKSTEINER, and WIEDIE
                                      Appellate Military Judges

                          This opinion is subject to editorial correction before final release.



WIEDIE, Judge, with whom MARKSTEINER, SJ., joins:

       A general court-martial composed of a military judge sitting alone convicted the
appellant, contrary to his pleas, of two specifications of maltreatment; two specifications
of wrongful sexual contact1; one specification of indecent exposure; one specification of
forcible sodomy; and one specification of indecent acts, in violation of Articles 93, 120,
125, and 134, UCMJ, 10 U.S.C. §§ 893, 920, 925, 934. The adjudged sentence consisted
of a dishonorable discharge, confinement for 36 months, and reduction to E-1. With the

1
 The appellant was found not guilty of two specifications of abusive sexual contact, but guilty of the lesser included
offense (LIO) of wrongful sexual contact for each specification.
exception of the automatic forfeitures, the convening authority approved the sentence as
adjudged.

       On appeal, the appellant argues: (1) His convictions for wrongful sexual contact
must be set aside because wrongful sexual contact is not a lesser included offense (LIO)
of abusive sexual contact; (2) The evidence is factually and legally insufficient to prove
his guilt of wrongful sexual contact, forcible sodomy, and maltreatment; (3) The military
judge erred by improperly excluding Mil. R. Evid. 412 evidence concerning Airman First
Class (A1C) GG’s adulterous relationship with another airman; and (4) He received
ineffective assistance of counsel.

                                       Background

        In February 2007, A1C KT arrived at her first duty station, Beale Air Force Base
(AFB), California, and was assigned to the 9th Security Forces Squadron (SFS). Upon
arrival at Beale AFB, she was assigned to the same flight as the appellant.

       A1C KT and the appellant were frequently assigned to patrol together, as often as
four times a week. As a Staff Sergeant, the appellant was the senior patrolman when they
teamed up and he was in charge of the vehicle. A typical patrol lasted 12 hours and
consisted of driving a SFS vehicle around a sector of the base.

       During their shifts, the appellant and A1C KT would discuss a number of topics
both duty-related and personal. Eventually, the appellant began making comments of a
sexual nature to A1C KT. He would comment on the size of A1C KT’s breasts and ask
her to show them to him. A1C KT did not report his comments; she did not believe
anything would be done because she was just an airman and he was a noncommissioned
officer (NCO) and also because of the “atmosphere” in the 9th SFS. In the presence of
other squadron members, a squadron Captain had referred to A1C KT as “Tits McGee,”
and another Airman told her, “I just want to f[***] you.” According to A1C KT, these
comments elicited laughter from other squadron members.

       The appellant continued to make comments about A1C KT’s breasts and ask to
see them. In an attempt to get him to stop “bugging” her, A1C KT decided to show him
her breasts. While in their patrol car, she lifted her shirt and bra, exposing her breasts.
She immediately attempted to pull down her shirt and bra again, but the appellant pushed
her hands back up. He then grabbed her nipples and sucked on her breasts despite the
fact she told him “no.”

       Soon after this incident, A1C KT was tasked to deploy. She attended deployment
training in July 2007 and proceeded to Camp Bucca, Iraq. The appellant was also tasked
to deploy to Camp Bucca during the same time period.



                                             2                                   ACM 37981
       While deployed, A1C KT had various duties, one of which was to man a guard
tower. Guard tower duty consisted of a four-hour shift and was performed alone. When
she was alone in the tower, the appellant would often visit and rub her legs and make
comments about her body and her chest in particular. The appellant’s conduct progressed
to the point where he grabbed her hand and placed it on his penis, over his pants, and
touched her between the legs over her clothing. On one occasion, he exposed his penis
and put her hand on it. He also put his hand down her pants inside her underwear and
touched her vulva.

       As at Beale AFB, A1C KT did not report the appellant’s conduct because of
concern about negative consequences if she did. She did, however, ask people to switch
tower shifts with her and asked roving patrols to remain at the tower with her in order to
avoid being alone with him.

        While A1C KT was manning a tower one evening, the appellant arrived and
became even more persistent than he had been other times, repeatedly asking A1C KT to
perform oral sex on him. She told him “no” multiple times. The appellant remained at
the tower for approximately two hours. Throughout the evening, he kept asking A1C KT
to perform oral sex on him. At one point he told her that if she gave him a “blow job” he
would “leave her alone forever.” Thinking she could get him to leave her alone, A1C KT
initially agreed to perform oral sex. The appellant exposed his penis and A1C KT put her
mouth on it. As soon as she took the appellant’s penis in her mouth, she changed her
mind and attempted to pull her head back. To prevent her from pulling away, the
appellant put his hands on the back of A1C KT’s head and pushed her down on his penis.
She continued to try to pull away, and he continued to prevent her from doing so until he
ejaculated. When he finally released his grip on A1C KT’s head, she fell over backwards
because she had been attempting to pull away. After the incident, A1C KT vomited over
the side of the tower and the appellant left.

       A1C GG arrived at Beale AFB in 2010. She was 17 years old and, like A1C KT,
fresh out of technical school when she was assigned to the 9th SFS. A1C GG’s
impression of the appellant was that he was an NCO who could have an impact on the
career of a young Airman. A1C GG first met the appellant at a squadron booster club
meeting. At his request, she got pizza for him during the meeting. Following the
meeting, the appellant obtained A1C GG’s cell phone number from the unit recall roster
or unit board and called her. She did not answer the call. He left a message thanking her
for getting him pizza, but also asked why she had not answered her phone.

       On 26 August 2010, following their initial meeting, the appellant and A1C GG
began exchanging numerous e-mails as well as text messages. On that first day they
exchanged 100 e-mails and the appellant steered the dialogue in a direction of a sexual
nature, asking A1C GG what type of underwear she was wearing. They also discussed
going to lunch or dinner together at some point.


                                            3                                   ACM 37981
       On 27 August 2010, the appellant picked A1C GG up on base and drove to an off-
base Burger King. The pair went through the drive-thru and A1C GG paid for both
lunches. On the drive back to base, the appellant pulled into the parking lot of a vacant
store. After they parked, he placed a sunscreen in the window of the vehicle. They
talked for a little while before the appellant attempted to kiss A1C GG. When she pulled
away from him, he pulled her face to his and they kissed for a brief period of time. He
then moved his hand to her belt, but she told him, “No, I don’t work like that.” The
appellant responded by undoing his pants and exposing his penis. He asked A1C GG if
she liked it and wanted to touch it. She shook her head “no.”

       The appellant put his penis back in his pants and climbed into the back seat of his
vehicle. From the backseat, he reached around A1C GG and touched her breasts over her
uniform. She attempted to shift her feet, and when she did so, he pulled her into the back
seat. The appellant pulled A1C GG’s ABU top down so that it rested at her elbows and
fondled her breasts. After the appellant withdrew his hand from her shirt and while A1C
GG was attempting to put her ABU top back on, he put his hand down the front of her
pants, under her underwear, and touched her vulva.

       Following this incident, the appellant drove back to base and dropped A1C GG off
near the squadron. They exchanged numerous e-mails during the rest of the afternoon, in
which A1C GG gave the impression that she liked what had happened and wanted more
to occur. She later explained she did so because she was afraid of what the appellant
would do if she indicated she had a problem with what had happened. An additional 78
e-mails were exchanged between them on Monday, 30 August 2010.

       After returning to the squadron following the 27 August 2010 lunch incident,
A1C GG encountered her friend and fellow squadron member, Airman (Amn) JC.
Amn JC noticed that A1C GG was shaking and was “wide eyed like she was holding a
secret.” A1C GG told Amn JC what had transpired in the parking lot on the way back
from lunch.

       On 28 August 2010, A1C GG also told her fiancé at the time, A1C AK, what had
happened. A1C GG and A1C AK had met just before starting tech school. At the time of
the conversation, A1C AK was stationed at Incirlik Air Base, Turkey.

       On 27 August 2010, A1C GG told Senior Airman (SrA) BM that the appellant
sexually assaulted her. SrA BM reported the assault to his chain of command
approximately three weeks later. Eventually, the Air Force Office of Special
Investigations (AFOSI) was notified and an investigation was initiated. SrA BM was
A1C GG’s sponsor when she arrived at Beale AFB. Although there was disagreement as
to the exact start date, at some point on or after 29 August 2010, SrA BM and A1C GG
became romantically involved despite the fact SrA BM was married to another woman at


                                            4                                   ACM 37981
the time. The affair was discovered during the investigation of the appellant’s assault of
A1C GG. Both A1C GG and SrA BM were disciplined for the improper relationship. At
the time of trial, A1C GG was pregnant with SrA BM’s child.

       The appellant was brought in for questioning by agents from AFOSI on
22 October 2010. At the outset of the interview, an AFOSI agent read the appellant his
Article 31, UCMJ, 10 U.S.C. § 831, rights. After the rights advisement, the appellant
was asked if he wanted a lawyer. He stated he wanted a lawyer but that he was willing to
answer questions because he did not understand what was going on. The AFOSI agent
sought to clarify with the appellant whether he wanted to stop the questioning and speak
with a lawyer or whether he wanted to answer questions. The appellant asked if he
would be able to stop the questioning at any point if he later decided he wanted to consult
with an attorney. The AFOSI agent responded that the appellant had the right to stop the
questioning at any point. Following this clarification, the appellant stated he did not want
a lawyer at that time and was willing to answer questions.

       Prior to trial, trial defense counsel requested the Government produce A1C AK as
a witness at the appellant’s court-martial. Trial defense counsel proffered that
A1C AK would testify about inconsistent statements made by A1C GG concerning the
sexual assault and his opinion that A1C GG had a bad character for truthfulness. Trial
defense counsel did not pursue a motion to compel production of A1C AK when the
Government failed to produce him as a witness. Because of issues with A1C AK’s travel
arrangements, the defense would have had to request a delay of a day or two to have him
produced as a witness.

       During the preliminary Article 39a, UCMJ, 10 U.S.C. § 839a, session, the
Government sought to add the terminal element to both Article 134, UCMJ,
specifications (Specifications 1 and 2 of Additional Charge III).2 Trial defense counsel
believed the changes to be major changes, but did not object to the addition of the
language to the two relevant specifications. The appellant was ultimately convicted of
Specification 2 of Additional Charge III.

        The appellant was initially charged with allegedly committing an indecent act with
a third individual, Ms. JI. In an attempt to accommodate the personal schedule of Ms. JI,
the Government arranged her travel so she would arrive at a time the Government
believed they would be near the end of their case-in-chief. The court-martial started on
22 June 2011 and proceeded more quickly than the Government had anticipated. The
Government’s last witness finished testifying at approximately 0915 on 23 June 2011.
Ms. JI was not scheduled to arrive in the local area until late in the evening on
23 June 2011. The Government asked for a continuance until the next day to await the
2
  The Government added the following language to both Specifications of Additional Charge III: “and 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.”


                                                        5                                             ACM 37981
arrival of Ms. JI, which trial defense counsel opposed. The military judge denied the
continuance request and the Government was forced to rest their case-in-chief. Trial
defense counsel immediately made a motion for a finding of not guilty pursuant to Rule
for Courts-Martial (R.C.M.) 917 with respect to the specification related to Ms. JI. The
military judge granted the defense motion.

             Wrongful Sexual Contact as an LIO of Abusive Sexual Contact

       The appellant was charged with two specifications of abusive sexual contact for
fondling the breasts and touching the vulva of A1C GG by placing her in fear of reprisal
by using his rank and military position. He was found not guilty of these Article 120,
UCMJ, offenses but, with respect to both, was found guilty of the LIO of wrongful sexual
contact, also under Article 120, UCMJ. The appellant asserts the military judge erred in
concluding wrongful sexual contact is an LIO of abusive sexual contact.

       “An accused may be found guilty of an offense necessarily included in the offense
charged.” Article 79, UCMJ, 10 U.S.C. § 879. Article 79, UCMJ, requires application of
the elements test to determine whether one offense is an LIO of a charged offense.
United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010). Under the elements test, “the
elements of the lesser offense [must be] a subset of the elements of the charged offense.
Where the lesser offense requires an element not required for the greater offense, no
instruction [regarding a lesser included offense] is to be given.” United States v. Alston,
69 M.J. 214, 216 (C.A.A.F. 2010) (alteration in original) (quoting Schmuck v. United
States, 489 U.S. 705, 716 (1989)). “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; an LIO meets this notice requirement if ‘it is a subset of the greater offense
alleged.’” Jones, 68 M.J. at 468 (quoting United States v. Medina, 66 M.J. 21, 26-27
(C.A.A.F. 2008)).

        However, “the elements test does not require that the two offenses at issue employ
identical statutory language.” Alston, 69 M.J. at 216. Instead, after applying the “normal
principles of statutory construction,” the question is whether the elements of the alleged
LIO are a subset of the elements for the charged offense. Id. (quoting Carter v. United
States, 530 U.S. 255, 263 (2000)).

       Thus, the first step is to determine the elements of the charged offense and the
alleged LIO by applying the principles of statutory construction. The second step is to
compare the elements of the two offenses to see if the latter is a subset of the former.

        The first specification at issue alleged, under Article 120, UCMJ, that the
appellant touched the breasts of A1C GG by placing her in fear of reprisal. The second
specification at issue alleged the appellant touched the vulva of A1C GG by placing her
in fear of reprisal. The elements of abusive sexual contact by placing in fear are:


                                             6                                   ACM 37981
       (1) That the accused engaged in sexual contact with another person; and
       (2) That the accused did so by placing that other person in fear of reprisal.

The elements of wrongful sexual contact are:

       (1) That the accused had sexual contact with another person;
       (2) That the accused did so without that other person’s permission; and
       (3) That the accused had no legal justification or lawful authorization for
       that sexual contact.

        Applying the elements test in this case, the first element of both offenses is the
same. The question then turns to whether “without permission” is included within the
second element of abusive sexual contact. As a preliminary matter, we note that
Congress clearly intended “permission” to be synonymous with “consent,” and thus we
will treat the terms as such in our analysis. See United States v. Thompson, ACM 37443
(A.F. Ct. Crim. App. 6 May 2010) (unpub. op.).
        Applying the common and ordinary understanding of these words, it would appear
that an allegation that a victim is compelled to submit to sexual acts out of fear of reprisal
includes as a subset that the victim is not consenting. A strong argument can be made
that, if an individual only submits to an act out of fear, then it cannot be said that he
consented or gave permission to the act in question. In fact, this logic would appear to
apply to all three ways in which abusive sexual contact can occur: (1) by use of threat or
placing in fear; (2) by causing bodily harm; or (3) upon a person who is substantially
incapacitated or substantially incapable of appraising the act, declining participation, or
communicating unwillingness.
        Notwithstanding the “common sense” appeal of such an argument, it is undercut
by the Manual for Courts-Martial’s treatment of the issue of whether wrongful sexual
contact is an LIO of abusive sexual contact. As noted above, the first element of these
two offenses essentially mirror each other. If every case that satisfies the second element
of abusive sexual contact ipso facto results in a conclusion of lack of permission or
consent, then one would assume that in all cases wrongful sexual contact would be an
LIO of abusive sexual contact. However, paragraph 45(d)(8) of the Manual (the “lesser
included offenses” section) does not list wrongful sexual contact as an LIO of abusive
sexual contact. Manual for Courts-Martial, United States (MCM), Part IV, ¶ 45.d.(8)
(2008 ed.). Instead, paragraph 45(e), which is titled “additional lesser included offenses,”
states “[d]epending on the factual circumstances in [the] case,” wrongful sexual contact
“may” be considered an LIO of abusive sexual contact. MCM, ¶ 45.e.(8). This treatment
of the LIO issue suggests that in some, but not all situations, depending on the facts, the
second element of abusive sexual contact can be proven even in the absence of evidence
that would satisfy the second element of wrongful sexual contact.



                                              7                                    ACM 37981
        Even more troubling for the “common sense” approach forwarded above is
Congress’ specific treatment of the issue within the statutory language of Article 120,
UCMJ. We must consider what Congress has said on the matter because Congress has
broad authority to define the elements of offenses under the constitutional power to make
rules for the Government and regulation of the armed forces. U.S. CONST. art. I, § 8,
cl. 14; see Parker v. Levy, 417 U.S. 733, 756 (1974); see also Weiss v. United States,
510 U.S. 163, 177 (1994). Furthermore, the Supreme Court has “observed that ‘[t]he
definition of the elements of a criminal offense is entrusted to the legislature, particularly
in the case of federal crimes, which are solely creatures of statute.’” Dixon v. United
States, 548 U.S. 1, 7 (2006) (alteration in original) (quoting Liparota v. United States,
471 U.S. 419, 424 (1985)).

       In analyzing the issue at hand, we must first give all terms used their plain and
ordinary meaning. If an ambiguity exists, we must examine the legislative history to
resolve the ambiguity. If, after applying the first two steps, doubt still exists as to the
provision’s intent, we must apply the rule of lenity and resolve the ambiguity in favor of
the appellant. See Moskal v. United States, 498 U.S. 103 (1990); see also United States v.
Thomas, 65 M.J. 132, 135 n.2 (C.A.A.F. 2007) (noting rule of statutory strict construction
and resolving any ambiguity in favor of accused); United States v. Hunter, 65 M.J. 399,
401 (C.A.A.F. 2008) (“Ordinary rules of statutory construction apply in interpreting the
R.C.M.”); United States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007) (recognizing that
normal rules of statutory construction apply to the Manual in general and Military Rules
of Evidence in particular); United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007) (The
courts “use well-established rules of statutory construction to construe the Manual for
Courts-Martial.”). If the statute’s language is plain, then “[i]t is well established that . . .
the sole function of the courts—at least where the disposition required by the text is not
absurd—is to enforce it according to its terms.” Lamie v. United States Trustee, 540 U.S.
526, 534 (2004) (internal quotation marks omitted); see also Lewis, 65 M.J. at 88.

       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. This change from the previous version of Article 120, UCMJ, brought the
UCMJ sexual misconduct provisions into alignment with similar provisions applicable in
the United States District Courts. See Analysis of Punitive Articles, MCM, A23-15.
Specifically, Article 120(r), UCMJ, provides:

       Lack of permission is an element of the offense . . . [of 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
       they are an affirmative defense for the sexual conduct in issue in a
       prosecution . . . [for abusive sexual contact].

(emphasis added).


                                               8                                     ACM 37981
       The limited legislative history suggests this revision was intended to focus the
finder of fact on the accused’s conduct, instead of the victim’s conduct or state of mind.3
The text of Article 120(r), UCMJ, reflects this change in focus very clearly.

       We must assume Congress intended and understood the effect of omitting “lack of
consent” as an element of the offense. See United States v. Wilson, 66 M.J. 39, 45-46
(C.A.A.F. 2008). According to the plain language of Congress, wrongful sexual contact
requires proof of an element, i.e. without permission, that abusive sexual contact does
not. This additional proof requirement mandates a conclusion that wrongful sexual
contact cannot be considered an LIO of abusive sexual contact under the test articulated
in Blockburger v. United States, 284 U.S. 299, 304 (1932). Without permission or
consent cannot be necessarily included in the elements of abusive sexual contact when
Congress has unambiguously stated that consent is “not an issue” in abusive sexual
contact cases, regardless of the common sense appeal of an argument to the contrary.
While the scope of the meaning of “not an issue” can be open to some interpretation,
even the narrowest reading of the language requires a conclusion that “without consent”
or “permission” is not an element of abusive sexual contact.

       In a prosecution for abusive sexual contact, the Government does not have to
prove the absence of consent in order to secure a conviction. See United States v. Neal,
68 M.J. 289 (C.A.A.F. 2010). Under the structure of the version of Article 120, UCMJ,
in effect at the time of the alleged offenses in this case, the absence of consent or
permission was not a fact necessary to prove the offense of abusive sexual contact.
Evidence that the alleged victim consented would be relevant to the factfinder’s
determination of whether the Government proved the element of “by fear” beyond a
reasonable doubt, but it was not necessary under the law. Article 120(r), UCMJ, does not
preclude introduction of evidence of consent as a “subsidiary fact” pertinent to the
prosecution’s burden to prove an element of abusive sexual contact beyond a reasonable
doubt, but it also does not require the Government to introduce any evidence of lack of
consent or permission to prove the elements of the offense beyond a reasonable doubt.
See Neal, 68 M.J. at 302. In short, under the plain language articulated by Congress, the
Government can prove each element of abusive sexual contact beyond a reasonable doubt
without introducing any evidence related to lack of permission or consent.

       In analyzing whether wrongful sexual contact is an LIO of any other offense in
Article 120, UCMJ, our sister courts have reached conflicting decisions. See United
States v. Honeycutt, Army 20080589, unpub. op. at 2 (Army Ct. Crim. App.
3
  See Analysis of Punitive Articles, Manual for Courts-Martial, United States, A23-15 (2008 ed.) (noting
amendments based on 18 U.S.C. §§ 2241-45); 151 CONG. REC. H12210 (December 18, 2005) (statement of
Rep. Loretta Sanchez); Markup of the Defense Authorization Bill: Hearing before the Military Personnel
Subcommittee of the House Armed Services Committee (May 11, 2005) (statement of Rep. John McHugh).



                                                   9                                        ACM 37981
1 September 2010) (finding wrongful sexual contact was not an LIO of rape by force
because “[t]he elements of rape by force do not include any, let alone all, of the elements
of wrongful sexual contact”); United States v. Wagner, Army 20111064, unpub. op. at 7
(Army Ct. Crim. App. 29 July 2013) (holding wrongful sexual contact is an LIO of the
offense of aggravated sexual assault but not under the particular facts of that case);
United States v. Prothro, Army 20110331, unpub. op. at 2 (Army Ct. Crim. App.
29 March 2013) (“In this case, wrongful sexual contact does not qualify as a lesser-
included offense because that offense requires an element [without the other person’s
permission] not required for the greater offense of abusive sexual contact caused solely
by fear.”); United States v. Johanson, 71 M.J. 688, 693 (C.G. Ct. Crim. App. 2012)
(concluding wrongful sexual contact is an LIO 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”); and United States v.
Medina, 68 M.J. 587 (N.M. Ct. Crim. App. 2009) (Beal, J., dissenting in part and
concurring in part) (observing that wrongful sexual contact was an LIO of aggravated
sexual assault because “the Manual for Courts-Martial itself validates the notion that
‘lack of consent’ is an implicit element to aggravated sexual assault” in recognizing
wrongful sexual contact as a potential lesser included offense in paragraph 45(e)(8)).

       This Court has previously found wrongful sexual contact to be an LIO of a
different Article 120, UCMJ, charge (aggravated sexual assault). See United States v.
Pitman, ACM 37453, unpub. op. at 5 (A.F. Ct. Crim. App. 19 May 2011) (“[A]n
allegation that a victim is compelled to submit to sexual acts by force clearly includes as
a subset that the victim is not consenting.”). The Court of Appeals for the Armed Forces
has not squarely answered whether wrongful sexual contact can ever be an LIO of any
other Article 120, UCMJ, charge. Based on our reading of the plain language of
Congress that lack of consent or permission is not an element of any offense under
Article 120, UCMJ, except wrongful sexual contact, we conclude today that wrongful
sexual contact can never be an LIO of any other offense under Article 120, UCMJ.4

                                      Factual and Legal Sufficiency

       The appellant further argues the evidence was factually and legally insufficient to
support his conviction of both specifications of wrongful sexual contact with A1C GG5 as
well as forcible sodomy of A1C KT and maltreatment of A1C KT. We review issues of



4
  Our holding applies, of course, to the law in effect at the time of the charged offenses. Since then, Article 120,
UCMJ, 10 U.S.C. § 920, has been revised again. See Analysis of Punitive Articles, Manual for Courts-Martial,
United States, A23-15 (2012 ed.) (“The 2012 amendments . . . simplified the structure of the definition and deleted
restrictions regarding the use of consent evidence.”).
5
  Because of our determination that wrongful sexual contact is not an LIO of abusive sexual contact, we do not need
to consider the issue of whether the evidence was factually and legally sufficient to support the wrongful sexual
contact convictions.


                                                        10                                             ACM 37981
factual and legal sufficiency de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002).

       The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the witnesses,
[we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed, 54 M.J. 37,
41 (C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, impartial
look at the evidence,” applying “neither a presumption of innocence nor a presumption of
guilt” to “make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.” Washington,
57 M.J. at 399.

        The test for legal sufficiency of the evidence is “whether, considering the evidence
in the light most favorable to the prosecution, a reasonable factfinder could have found
all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324, quoted in
United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). “[I]n resolving questions
of legal sufficiency, we are bound to draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001) (citing United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2006);
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). Our assessment is limited to
the evidence produced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).

                             I. Forcible Sodomy of A1C KT

       Although she initially agreed to perform oral sex on the appellant in an attempt to
get him to leave her alone, A1C KT almost immediately decided she did not want to
continue. She manifested her desire to stop by attempting to pull her head away from the
appellant’s groin area. The appellant would not allow her to do so and forcibly held her
head until he ejaculated. The evidence factually and legally supports a finding of guilty
with respect to this offense.

       The defense argues the evidence related to the wrongful sexual contact charges
involving A1C GG essentially propped up the allegation of forcible sodomy with
A1C KT and without that evidence the appellant would not have been convicted of
forcible sodomy.

       We disagree with the appellant’s suggestion that a military judge would have
difficulty evaluating the charges separately. A military judge is presumed to know and
follow the law. See United States v. Kinman, 25 M.J. 99, 100-01 (C.M.A. 1987).
Through training and experience, a military judge sitting as a factfinder is less susceptible
to the dangers of “impermissible spillover” than an inexperienced lay court member.
Also, the evidence supporting the forcible sodomy charge in this case was strong. We are


                                             11                                    ACM 37981
confident the military judge based his findings on that evidence and not general notions
that the appellant was a bad actor, as demonstrated by other misdeeds. In fact, the
military judge acquitted the appellant of abusive sexual contact. We are not persuaded
that this is the rare case where the evidence and the nature of the charges have overcome
the military judge’s ability to avoid the prejudicial use of evidence. Id.

       As he did at trial, the appellant argues the evidence is insufficient to find him
guilty of forcible sodomy because it reveals A1C KT consented to the oral sex that
occurred between on or about 1 September 2007 and on or about 30 November 2007.
Having weighed the evidence in the record of trial, with allowances for not having
personally observed the witnesses, including A1C KT, we are personally convinced of
the appellant’s guilt beyond a reasonable doubt. Similarly, we find a reasonable
factfinder could have found all the essential elements beyond a reasonable doubt.

                               II. Maltreatment of A1C KT

        The court-martial convicted the appellant of two specifications of maltreatment of
a subordinate, in violation of Article 93, UCMJ. Both specifications involved A1C KT;
one with an alleged situs of Beale AFB and the other with a situs of Iraq. The elements
of maltreatment are: (1) that a certain person was subject to the orders of the accused; and
(2) the accused was cruel toward, or oppressed, or maltreated that person. MCM, Part IV,
¶ 17.b. “The essence of the offense [of maltreatment] is abuse of authority.” United
States v. Carson, 57 M.J. 410, 415 (C.A.A.F. 2002). Measured from an objective
viewpoint in light of the totality of the circumstances, the charged acts must be such that
they “reasonably could have caused physical or mental harm or suffering” but the offense
does not require proof of “actual physical and mental pain or suffering.” Id. The
appellant argues the evidence is insufficient to show an abuse of authority.

       We find the evidence legally and factually sufficient to support the conviction of
maltreatment. Under the totality of the circumstances in this case, the appellant abused
his authority by making repeated comments about A1C KT’s breasts, repeatedly asking
to see her breasts, and touching her breasts without her permission while on patrol at
Beale AFB, and by making comments about A1C KT’s body, touching her body, and
repeatedly requesting oral sex from A1C KT while deployed to Iraq. The appellant’s
actions reasonably could have caused mental harm or suffering in that A1C KT was
clearly concerned by the appellant’s actions. After weighing the evidence and making
allowances for not having observed the witnesses, we are convinced of the appellant's
guilt beyond a reasonable doubt. Likewise, we find a reasonable factfinder could have
found all the essential elements beyond a reasonable doubt.

                         Exclusion of Mil. R. Evid. 412 Evidence




                                             12                                   ACM 37981
      We review the military judge’s ruling on whether to exclude evidence pursuant to
Mil. R. Evid. 412 for an abuse of discretion. United States v. Roberts, 69 M.J. 23, 26
(C.A.A.F. 2010). Findings of fact are reviewed under a clearly erroneous standard and
conclusions of law are reviewed de novo. Id.

       Mil. R. Evid. 412 states that evidence offered by the accused to prove the alleged
victim’s sexual predispositions, or that she engaged in other sexual behavior, is
inadmissible except in limited contexts. Mil. R. Evid. 412(a)-(b). The rule “is intended
to ‘shield victims of sexual assaults from the often embarrassing and degrading cross-
examination and evidence presentations common to [sexual offense prosecutions].’”
United States v. Gaddis, 70 M.J. 248, 252 (C.A.A.F. 2011) (alteration in original)
(quoting Analysis of the Military Rules of Evidence, MCM, A22-35). While there are
three exceptions set out in the rule, we are concerned only with the third, which states
that the evidence is admissible if “the exclusion of [it] would violate the constitutional
rights of the accused.” Mil. R. Evid. 412(b)(1)(C).

        The exception for constitutionally required evidence in Mil. R. Evid. 412(b)(1)(C)
includes the accused’s Sixth Amendment6 right to confrontation. United States v.
Banker, 60 M.J. 216, 221 (C.A.A.F. 2004) (citing Weinstein’s Federal Evidence § 412.03
[4][a] (2d ed. 2003)), abrogated by Gaddis, 70 M.J. 248. An accused has a constitutional
right “to be confronted by the witnesses against him.” U.S. CONST. amend. VI. That
right necessarily includes the right to cross-examine those witnesses. Davis v. Alaska,
415 U.S. 308, 315 (1974) (citing Douglas v. Alabama, 380 U.S. 415, 418 (1965)). In
particular, the right to cross-examination has traditionally included the right “to impeach,
i.e., discredit, the witness.” Davis, 415 U.S. at 316, quoted in Olden v. Kentucky,
488 U.S. 227, 231 (1988).

       However, an accused is not simply allowed “cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,
474 U.S. 15, 20 (1985), quoted in Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Indeed, “‘trial judges retain wide latitude’ to limit reasonably a criminal defendant’s right
to cross-examine a witness ‘based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.’” Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quoting Van
Arsdall, 475 U.S. at 679). But no evidentiary rule can deny an accused a fair trial or all
opportunities for effective cross-examination. See Van Arsdall, 475 U.S. at 679.

      Generally,     evidence   must     be    admitted     within    the    ambit    of
Mil. R. Evid. 412(b)(1)(C) when the evidence is relevant and material, and the probative
value of the evidence outweighs the dangers of unfair prejudice. See Gaddis,
70 M.J. at 255 (“[T]he best reading of the rule is that . . . the probative value of the

6
    U.S. CONST. amend. VI.


                                              13                                    ACM 37981
evidence must be balanced against and outweigh the ordinary countervailing interests
reviewed in making a determination as to whether evidence is constitutionally
required.”). Relevant evidence is any evidence that has “any tendency to make the
existence of any fact . . . more probable or less probable than it would be without the
evidence.” Mil. R. Evid. 401. The evidence must also be material, which is a multi-
factored test looking at “the importance of the issue for which the evidence was offered
in relation to the other issues in th[e] case; the extent to which this issue is in dispute; and
the nature of other evidence in the case pertaining to this issue.” United States v. Colon-
Angueira, 16 M.J. 20, 26 (C.M.A. 1983) (quoting United States v. Dorsey, 16 M.J. 1, 6
(C.M.A. 1983)). Finally, if evidence is material and relevant, then it must be admitted
when the accused can show its probative value outweighs the dangers of any potential
unfair prejudice. See Mil. R. Evid. 412(c)(3). Those dangers include concerns about
“harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that
is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679.

        In this case, the defense failed to articulate any reasonable theory tending to show
that A1C GG had a motive to fabricate about whether the sexual conduct with the
appellant was consensual. It is undisputed that at some point A1C GG had a relationship
with SrA BM while he was married to another woman. However, the appellant’s
assertion that that “a sexual relationship between A1C GG and SrA BM existed before
she reported to SrA BM” that she had been sexually assaulted is not supported by the
evidence. The earliest possible start date of a sexual relationship supported by the
evidence was 29 August 2010,7 two days after A1C GG told SrA BM the appellant
sexually assaulted her. Even taking the facts as argued by the defense, the earliest date
such a relationship began was two days after A1C GG told SrA BM about the appellant’s
conduct. The appellant’s argument is that because A1C GG had sex with another person,
she had a motive to lie about what occurred with the appellant. If we accepted this
rationale, then any sexual intercourse engaged in by an alleged victim either before or
after an alleged sexual assault would be admissible. Such an approach would make
Mil. R. Evid. 412 a nullity. There must be some other rational connection between the
other sexual activity and a motivation to fabricate a sexual assault. The military judge
correctly noted the appellant failed to provide any theory showing the questioned
evidence was relevant or how the evidence supported any defense theory. This situation
is clearly distinguishable from cases where an extramarital affair was deemed admissible
when the defense articulated a plausible theory that the alleged victim fabricated a sexual
assault allegation to prevent the disintegration of his or her marriage. Personal
experience, general knowledge, and an understanding of human conduct and motivation
fail to support how the proffered evidence in this case sufficiently supports the
appellant’s theory.

7
  Senior Airman BM’s nonjudicial punishment action for the relationship alleged that it started “on or about
29 August 2009.” The appellant’s reliance on the “on or about 29 August 2010” language as proof that the
relationship began before Airman First Class GG disclosed the appellant’s conduct incorrectly assumes the
relationship had to have begun on the earliest date within the charged timeframe.


                                                    14                                          ACM 37981
        Evidence of A1C GG’s relationship with SrA BM has no direct and substantial
link to her credibility. Under the given facts, the existence of the relationship, especially
given its timing, did not establish a greater motive for A1C GG to lie about whether her
sexual encounter with the appellant was consensual. Because the evidence has no
tendency to make a fact that is of consequence to the determination of the case more or
less probable than it would be without the evidence, it is neither relevant nor material.

       In this case, we conclude the military judge did not abuse his discretion when he
excluded this evidence. The record reveals nothing more than speculative assertions and
conjecture in this regard, and we conclude the appellant failed to meet his burden in
demonstrating relevance. Mil. R. Evid. 412(c)(3); see also Roberts, 69 M.J. at 27-28.

                                   Assistance of Counsel

        The appellant argues his trial defense counsel’s performance amounted to
ineffective assistance. Specifically, the appellant claims his counsel were ineffective for
failing to: (1) Object to a major change to the charge sheet (the addition of the terminal
elements on Specification 2 of Additional Charge III); (2) File a motion to compel the
appearance of a favorable witness after “9 RW/JA failed to have him produced in order to
testify live”; (3) Seek the suppression of the appellant’s videotaped statements to AFOSI
after the appellant told AFOSI he wanted legal counsel and did not want to answer
questions; and (4) Request and present evidence at the Mil. R. Evid. 412 hearing that
established A1C GG’s adulterous relationship with SrA BM began on 29 August 2010.
After reviewing the record of trial, we find no merit to this argument.

        We review claims of ineffective assistance of counsel de novo, applying the two-
pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). See United
States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). Under Strickland, an appellant must
demonstrate: (1) a deficiency in counsel’s performance that is so serious that counsel
was not functioning as the counsel guaranteed the defendant by the Sixth Amendment;
and (2) that the deficient performance prejudiced the defense through errors so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable. Tippit, 65 M.J. at
76 (quoting United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997)) (internal
quotation marks omitted). The deficiency prong requires that an appellant show the
performance of counsel fell below an objective standard of reasonableness, according to
the prevailing standards of the profession. Strickland, 466 U.S. at 688. The prejudice
prong requires a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. Evidentiary hearings are
required if there is any dispute regarding material facts in competing declarations
submitted on appeal which cannot be resolved by the record of trial and appellate filings.
United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).



                                             15                                    ACM 37981
        Applying these standards, we find that any material conflict in the respective
declarations regarding this issue may be resolved by reference to the record and appellate
filings without the need for an evidentiary hearing. The comprehensive declarations by
trial defense counsel address the alleged deficiencies and provide sound reasons for the
decisions now questioned by the appellant.

       The trial defense counsel strategy was to keep the case moving in hopes the
Government would be unable to secure the presence of a third alleged victim. This
strategy proved successful when the military judge refused a Government request for a
one-day continuance to allow for the arrival of Ms. JI and granted the subsequent defense
R.C.M. 917 motion. Objecting to the major change proposed by the Government would
not have prevented this case from going to trial; it merely would have delayed the case
and increased the likelihood that Ms. JI’s presence at trial would be secured. Likewise, a
successful motion to compel production of A1C AK would have delayed the trial and
increased the likelihood Ms. JI testified. Trial defense counsel did a cost-benefit analysis
and made a rational decision to forgo the testimony of A1C AK in favor of avoiding the
possibility of having to defend against allegations levied by a third alleged victim who,
unlike the first two victims, had not discussed her situation with any other alleged victim
in the case. Trial defense counsel had a legitimate desire to avoid having the testimony
of Ms. JI presented at the appellant’s court-martial.

        The evidence from A1C AK, on the other hand, was mixed for the defense. Based
on the proffered evidence, he would have offered an opinion that A1C GG had a bad
character for truthfulness, but this was clearly offset by the fact that he was the jilted ex-
fiancé of A1C GG. It was proffered that A1C AK would have testified that, in his Skype
conversation/chat with A1C GG, she provided a description of the events that was
inconsistent with her testimony at trial. However, the actual transcripts of the chats he
had with A1C GG about the incident were consistent in some significant aspects with her
testimony, and their admission through his testimony would have bolstered the testimony
of A1C GG. Based on the clearly mixed value of his testimony, the defense made a
strategically sound decision not to file a motion to compel production of A1C AK and
delay the trial in order to prevent Ms. JI from arriving before the Government was forced
to rest their case-in-chief. Trial defense counsels’ affidavit provides information about
the strategic and tactical decisions the defense made regarding these issues. These
decisions were not unreasonable. The fact this plan did not result in a complete acquittal
does not invalidate the defense strategy, and we give great deference to trial defense
counsels’ judgments in this area. United States v. Morgan, 37 M.J. 407, 409 (C.M.A.
1993); United States v. Mazza, 67 M.J. 470, 474-75 (C.A.A.F. 2009).

       The appellant also complains about his trial defense counsels’ decision to refrain
from challenging the admissibility of his statements to AFOSI. Trial defense counsels’
affidavit also provides information about the strategic and tactical decisions the defense
made regarding this issue. Trial defense counsel knew in advance of trial they would


                                             16                                    ACM 37981
want to call the appellant as a witness. Once they called the appellant to the stand, many
of the statements he made to AFOSI would have been admissible on cross-examination
even if they had been suppressed initially by the military judge. Furthermore, and more
importantly, the appellant’s summary of the actual conversation with the AFOSI about
whether he wanted a lawyer misstates what was actually said during the conversation. A
review of the facts and the applicable law in this area make it abundantly obvious that
any such motion to suppress would have failed. Trial defense counsel recognized the
motion would not prevail and they certainly were not ineffective in failing to raise a
motion that would have been denied.

       Lastly, trial defense counsel were not ineffective for failing to request and present
evidence that the sexual relationship between A1C GG and SrA BM began on
29 August 2010. Assuming the appellant could have established the sexual relationship
in question began on 29 August 2010, such evidence, as noted above, was not relevant
and would not have been admissible during the trial on the merits. As such, the appellant
suffered no prejudice.

                                  Sentence Reassessment

       Having set aside the appellant’s conviction of an offense, we must consider
whether we can reassess the sentence or whether we must return the case for a rehearing
on sentence. To validly reassess a sentence to purge the effect of error, we must be able
to (1) discern the extent of the error’s effect on the sentence and (2) conclude with
confidence that, absent the error, the panel would have imposed a sentence of at least of a
certain magnitude. United States v. Buber, 62 M.J. 476, 479 (C.A.A.F. 2006) (citing
United States v. Hawes, 51 M.J. 258, 260 (C.A.A.F. 1999); United States v. Doss,
57 M.J. 182, 185 (C.A.A.F. 2002); United States v. Taylor, 51 M.J. 390, 391
(C.A.A.F. 1999)). We must also determine the sentence we propose to affirm is
“appropriate,” as required by Article 66(c), UCMJ, 10 U.S.C. § 866(c). “In short, a
reassessed sentence must be purged of prejudicial error and also must be ‘appropriate’ for
the offense involved.” United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). See also
United States v. Winckelmann, 73 M.J. 11, 14-15 (C.A.A.F. 2013).

       In this case, our action does not reduce the maximum permissible sentence the
appellant faced because, based on the conviction for forcible sodomy alone, the appellant
faced confinement for life. All other aspects of the maximum permissible sentence
remain the same.

       On the basis of the error noted, considering the evidence of record, and applying
the principles set forth above, we determine that we can discern the effect of the errors
and will reassess the sentence. Under the circumstances of this case, we are confident the
military judge would have imposed the same sentence even if the appellant was not
convicted of the wrongful sexual contact offenses. We also find, after considering the


                                             17                                   ACM 37981
appellant’s character, the nature and seriousness of the offenses, and the entire record,
that this reassessed sentence is appropriate.

                                                  Conclusion

       The findings of guilty to Specification 1 of Charge II and the Specification of
Additional Charge II are set aside and dismissed. The remaining findings and the
sentence, as reassessed, are correct in law and fact, and no error materially prejudicial to
the substantial rights of the appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c).8,9 Accordingly, the findings as modified, and the sentence
as reassessed, are
                                        AFFIRMED.


ROAN, Chief Judge (concurring in part and dissenting in part):

       The appellant was charged with abusive sexual contact by placing A1C GG in fear
of reprisal. Under these circumstances, I believe the issue of lack of consent is fairly
encompassed within the charged specification and therefore, wrongful sexual contact,
with its discrete elements of lack of permission and wrongfulness, is a lesser included
offense (LIO). As a result, I dissent from my colleagues’ rationale with respect to this
issue and would affirm the findings of guilty to Specification 1 of
Charge II and the Specification of Additional Charge II. I concur in the remainder of the
majority’s opinion.

       An accused may be found guilty of an offense charged as well as “an offense
necessarily included in the offense charged.” Article 79, UCMJ, 10 U.S.C. § 879.
“Whether an offense is a lesser included offense is a question of law we review de novo.”
United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012) (quoting United States v.
Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011)). When considering this question, our superior
court has looked to the Supreme Court for guidance and adopted an “elements” test to
determine whether one offense is a lesser included offense of another. United States v.
Alston, 69 M.J. 214 (C.A.A.F. 2010). “[O]ne offense is not ‘necessarily included’ in
another unless the elements of the lesser offense are a subset of the elements of the
charged offense. Where the lesser offense requires an element not required for the

8
  Though not raised as an issue on appeal, we note that the overall delay of more than 540 days between the time of
docketing and review by this Court is facially unreasonable. United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006). Having considered the totality of the circumstances and the entire record, we find the appellate
delay in this case was harmless beyond a reasonable doubt. Id. at 135-36 (reviewing claims of post-trial and
appellate delay using the four-factor analysis found in Barker v. Wingo, 407 U.S. 514, 530 (1972)). See also United
States v. Harvey, 64 M.J. 13, 24 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).
9
  The court-martial order (CMO) incorrectly states the appellant pled guilty to Charge III but not guilty to its
Specification, when the appellant pled not guilty to all charges and specifications. Accordingly, we order
promulgation of a corrected CMO.


                                                        18                                            ACM 37981
greater offense, no instruction regarding a lesser included offense is to be given.”
Id. at 216 (quoting Schmuck v. United States, 489 U.S. 705, 716 (1989)) (internal
alteration and quotation marks omitted). Stated another way, “‘[T]o be necessarily
included in the greater offense the lesser must be such that it is impossible to commit the
greater offense without first having committed the lesser.’” Schmuck, 489 U.S. at 719
(quoting Giles v. United States, 144 F.2d 860, 861 (9th Cir. 1944)).

       Accordingly, an accused may be convicted of an LIO only “in those cases where
the indictment contains the elements of both offenses, and as a result gives notice to the
defendant that he may be convicted on either charge.” Alston, 69 M.J. at 216 (quoting
Schmuck, 489 U.S. at 718) (quotation marks omitted). The charged and lesser offenses
do not need to “employ identical statutory language”; rather, “the meaning of the offenses
is ascertained by applying the ‘normal principles of statutory construction.’” Id. (citing
Carter v. United States, 530 U.S. 255, 263 (2000)). See also United States v. Bonner,
70 M.J. 1, 2 (C.A.A.F. 2011) (holding assault consummated by a battery is an LIO of
wrongful sexual contact).

      The appellant was charged with abusive sexual contact in violation of Article
120(h), UCMJ. The elements of that offense, as applied to this case, are:

      (1) That the accused engaged in sexual contact with another person; and
      (2) That the accused did so by placing that other person in fear of reprisal.

Manual for Courts-Martial, United States (MCM), Part IV, ¶ 45.b.(8) (2008 ed.).

The elements of wrongful sexual contact, in violation of Article 120(m), UCMJ, are:

      (1) That the accused had sexual contact with another person;
      (2) That the accused did so without that other person’s permission; and
      (3) That the accused had no legal justification or lawful authorization for
      that sexual contact.

MCM, Part IV, ¶ 45.b.(13).

        The first element of “sexual contact” is the same in both offenses. Therefore, the
question is whether the element of engaging in sexual contact “by placing that other
person in fear of reprisal” necessarily means committing the act “without that . . .
person’s permission” and without “legal justification or lawful authorization.” I believe
it does.

      When evaluating whether one offense is included within another, we do not
conduct a word-for-word comparison of the elements, as the statutory language does not



                                            19                                    ACM 37981
have to be identical. See Alston, 69 M.J. at 216. Rather, we apply the normal principles
of statutory construction to ascertain the meaning of the offenses. Id.

        Turning to the second element of abusive sexual contact listed above, that element
requires that the accused engaged in sexual contact “by placing that other person in fear.”
A victim who submits to sexual conduct out of fear has not, by definition, consented to it.
As provided by Article 120(t)(14), UCMJ, “The term ‘consent’ means words or acts
indicating a freely given agreement to the sexual conduct at issue by a competent person.
. . . Lack of verbal or physical resistance or submission resulting from the accused’s . . .
placing another person in fear does not constitute consent.” The second element of the
charged offense (fear of reprisal), therefore, will always consist of a nonconsensual
sexual contact because it is accomplished in a manner that per se excludes consent as a
possibility. Accordingly, I would conclude the offense of wrongful sexual contact, which
requires only the sexual contact be wrongful and “without that other person’s
permission,” is entirely encompassed by the offense of abusive sexual contact when that
contact occurs through fear of reprisal.10

       I would follow this court’s holding in United States v. Pitman, ACM 37453 (A.F.
Ct. Crim. App. 19 May 2011) (unpub. op.), where we concluded wrongful sexual contact
is an LIO of aggravated sexual contact. As we stated in Pitman, “[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.” Pitman, unpub. op. at 4. We also observed that “[t]he elements test . . .
affirms this interpretation since it would be impossible to prove the force required for the
greater offense . . . without also proving the wrongfulness and lack of permission
required for the lesser offense.” Id. The same analysis holds true here. It would be
impossible to prove the offense of abusive sexual contact by fear of reprisal without also
proving the wrongfulness and lack of permission for the lesser offense. The converse is
also not necessarily true; a victim may not consent to sexual contact despite the absence
of any imposition of fear.

       The appellant relies heavily on his interpretation of United States v. Jones,
 68 M.J. 465 (C.A.A.F. 2010), but that case it distinguishable. In Jones, our superior
court ruled an indecent act under Article 134, UCMJ, is not an LIO of rape under Article
120, UCMJ, because the two offenses shared “no common ground” and there was

10
   An act of sexual conduct accomplished by imposing fear is akin to constructive force or parental compulsion,
concepts that military courts previously recognized in the context of the offense of rape, prior to the 1 October 2007
amendment to Article 120, UCMJ, which contained both force and lack of consent as an element. See, e.g., United
States v. Palmer, 33 M.J. 7 (C.M.A. 1991) (upholding instructions in prosecution for rape that equated consent
induced by fear, fright, or coercion to physical force); United States v. Dejonge, 16 M.J. 974 (A.F.C.M.R. 1983)
(constructive force exists where sexual intercourse is accomplished under compulsion of parental command); United
States v. Edens, 29 M.J. 755 (A.C.M.R. 1989) (child’s acquiescence to sexual acts not consent, but submission to
constructive force).



                                                         20                                              ACM 37981
“nothing in that charge [that] put Appellant on notice that he also needed to defend
against indecent acts.” Id. at 473. The due process concerns discussed by the Court in
Jones in relation to the identification of LIOs are not present in this case. The accused in
Jones was charged with rape under Article 120, UCMJ, yet was convicted of the LIO of
indecent acts under Article 134, UCMJ, with its unique terminal elements. Id. at 466-67.
Unlike in Jones, the offenses of which this appellant was charged and convicted are part
and parcel of the same Article 120, UCMJ, which criminalizes various degrees of sexual
misconduct. Moreover, as discussed above, the elements of wrongful sexual contact are
entirely encompassed by the elements of abusive sexual contact. The appellant’s
argument that wrongful sexual contact is not an LIO of abusive sexual contact relies on
the inherently contradictory notion that it is possible to “give permission” to being
compelled to submit to sexual contact out of fear.

       The appellant also claims he “did not receive fair notice” that wrongful sexual
contact is an LIO of abusive sexual contact. But notice was provided by a plain reading
of the elements of both offenses, which reveals that abusive sexual contact by placing
another in fear is necessarily wrongful and without the victim’s consent. Moreover,
although not dispositive of the issue, wrongful sexual contact is listed in the Manual as a
possible LIO of abusive sexual contact. MCM, Part IV, ¶ 45.e.(8); see generally United
States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). Thus, the appellant was certainly on notice
he had to defend himself against the Government’s correct assertions his actions were
done without legal justification and without his victim’s permission.

       Finally, the record reveals trial defense counsel was aware of this fact and
defended against the lesser as well as the greater offense by arguing the sexual conduct
was consensual. In opening statement, trial defense counsel began by telling the military
judge that he would see “an NCO who engaged in some consensual conduct with Airmen
from within the squadron.” Trial defense counsel stated that while the appellant’s actions
might be “distasteful” because he was married, “that is not what [the appellant] is charged
with here. . . . He is charged with a variety of non-consensual acts.” Referring
specifically to the victim of the abusive sexual contact specifications, Airman First Class
(A1C) GG, trial defense counsel stated, “[the appellant] gave [A1C GG] the opportunity
to back out of this consensual relationship and she chose not to.”

       Finding no error, I would approve the findings and sentence.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court


                                             21                                   ACM 37981
