                        UNITED STATES, Appellee

                                        v.

                      John C. ALSTON, Specialist
                         U.S. Army, Appellant

                                 No. 10-0172
                        Crim. App. No. 20080504

       United States Court of Appeals for the Armed Forces

                         Argued October 4, 2010

                      Decided November 19, 2010

EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.


                                    Counsel


For Appellant: Lieutenant Colonel Jonathan F. Potter (argued);
Colonel Mark Tellitocci, Lieutenant Colonel Matthew Miller, and
Major Grace M. Gallagher (on brief), Major Timothy W. Thomas and
Major Peter Kageliery Jr.

For Appellee: Captain Madeline F. Yanford (argued); Colonel
Norman F. J. Allen III, Lieutenant Colonel Martha L. Foss, and
Major Christopher B. Burgess (on brief); Major LaJohnne A.
White.


Military Judge:   John Saunders


              THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Alston, No.10-0172/AR


    Chief Judge EFFRON delivered the opinion of the Court.

    A general court-martial composed of officer and enlisted

members found Appellant not guilty of rape but guilty of

aggravated sexual assault, in violation of Article 120, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2006).   The

sentence adjudged by the court-martial and approved by the

convening authority included a bad-conduct discharge,

confinement for 181 days, forfeiture of all pay and allowances,

and reduction to the grade of Private E-1.   The United States

Army Court of Criminal Appeals affirmed.   United States v.

Alston, NO. ARMY 20080504, 2009 CCA LEXIS 439, 2009 WL 6832586

(A. Ct. Crim. App. Nov. 19, 2009) (unpublished).

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER THE MILITARY JUDGE, OVER APPELLANT’S
     OBJECTION, ERRONEOUSLY INSTRUCTED THE PANEL THAT
     AGGRAVATED SEXUAL ASSAULT WAS A LESSER INCLUDED
     OFFENSE OF RAPE BY FORCE.

For the reasons set forth below, we hold that the military judge

properly instructed the panel with respect to the lesser

included offense.




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                           I.   BACKGROUND

     At Appellant’s court-martial, the charge at issue alleged

that he caused Private E-2 (PV2) T, a fellow soldier, to “engage

in a sexual act, to wit:   penetration of her vagina with his

fingers by using power or strength or restraint applied to her

person sufficient that she could not avoid or escape the sexual

conduct.”   The charge alleged the offense of rape by force under

Article 120(a), UCMJ.   See 10 U.S.C. § 120(a) (setting forth

various acts constituting the offense of rape, including under

paragraph (1), “caus[ing] another person of any age to engage in

a sexual act by . . . using force against that other person”);

id. Article 120(t)(1) (defining the term “sexual act” as

including, under subparagraph (B), “the penetration, however

slight, of the genital opening of another by a hand or finger or

by an object, with an intent to abuse, humiliate, harass, or

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

any person”); id. Article 120(t)(5) (defining the term “force”

as including, under subparagraph (C), “action to compel

submission of another or to overcome or prevent another’s

resistance by . . . physical violence, strength, power, or

restraint applied to another person, sufficient that the other

person could not avoid or escape the sexual conduct”).

     The primary prosecution witness, PV2 T, testified that she

invited Appellant to her room to watch a movie.   She had been


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United States v. Alston, No.10-0172/AR


involved in a social and romantic relationship with Appellant

for the past few weeks, and during the evening they engaged in

consensual kissing.   After some time Appellant attempted to

remove PV2 T’s pants, and in response she stated that she did

not want her pants removed and attempted to resist.   Eventually,

Appellant removed PV2 T’s pants and began to digitally penetrate

her vagina with his fingers.   PV2 T tried to cover her vaginal

area, but testified that she was unable to block Appellant’s

movements.   Appellant then asked if he could engage in sexual

intercourse with her, whereupon PV2 T made a “noise like a

crying, whimpering noise.”   At this point Appellant removed his

fingers from her vagina and asked if she was going to cry.     When

PV2 T responded that she was not, Appellant hugged her and left

the room.    Two days later, PV2 T reported the incident to her

chain of command.

     The defense, at trial, disputed the prosecution’s view of

the evidence.   The defense contended that Appellant and PV2 T

had engaged in consensual romantic activity, and that Appellant

ceased his advances as soon as he sensed PV2 T’s desire to stop.

     The military judge instructed the members on the elements

of rape prior to deliberation by the panel on findings.   He

further instructed the members, over defense objection, that

they could consider whether Appellant was guilty of a lesser

included offense, aggravated sexual assault.   See Article 120(c)


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(setting forth various acts constituting the offense of

aggravated sexual assault, including, under subparagraph (1)(B),

“caus[ing] another person of any age to engage in a sexual act

by . . . causing bodily harm”); id. Article 120(t)(8) (defining

the term “bodily harm” as meaning “any offensive touching,

however slight”).   The members found Appellant not guilty of

rape by force but guilty of aggravated sexual assault.



                          II.   DISCUSSION

     On appeal, Appellant contends that his conviction for the

offense of aggravated sexual assault should be set aside because

he did not have adequate notice that he would be required to

defend against that offense at trial.    In support of this

contention, Appellant takes the position that aggravated sexual

assault is not a lesser included offense within the charged

offense, rape by force.

     The test for determining lesser included offenses under the

UCMJ provides in pertinent part that “[a]n accused may be found

guilty of an offense necessarily included in the offense

charged.”   Article 79, UCMJ, 10 U.S.C. § 879 (2006).   A similar

provision applies in federal civilian criminal trials.    See Fed.

R. Crim. P. 31(c)(1).   The Supreme Court has articulated an

“elements” test with regard to interpreting the federal civilian

rule, stating that “one offense is not ‘necessarily included’ in


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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 greater

offense, no instruction [regarding a lesser included offense] is

to be given.”   United States v. Schmuck, 489 U.S. 705, 716

(1989).   This approach “permits lesser offense instructions 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.”    Id. at 718.    The

elements test does not require that the two offenses at issue

employ identical statutory language.   Instead, the meaning of

the offenses is ascertained by applying the “normal principles

of statutory construction.”   See Carter v. United States, 530

U.S. 255, 263 (2000).

     We have applied the elements test in the course of

determining whether an offense is “necessarily included” within

another offense for purposes of Article 79, UCMJ.    See United

States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010).    Appellant

suggests that we should treat as significant the fact that the

Manual for Courts-Martial (MCM), in providing guidance regarding

the offense of rape, does not list aggravated sexual assault as

a lesser included offense with respect to rape by force.     See

MCM pt. IV, para. 45.e.(1)(a) (2008 ed.).     The MCM, however,

expressly notes that the listing of lesser included offenses in


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the MCM is “not all-inclusive.”   Id. pt. IV, para. 3.b.(4).

Under these circumstances, we resolve the question before us by

applying the elements test to compare the two offenses.

     The offense of aggravated sexual assault, in the context of

the charge at issue in the present case, has two elements:     (1)

causing another to engage in a sexual act, and (2) causing

bodily harm.   See Article 120(c)(1)(B).   The first element --

causing another person “to engage in a sexual act” -- is the

same for both the charged offense, rape by force, and the

offense of which Appellant was convicted, aggravated sexual

assault.   Compare Article 120(a), with Article 120(c)(1).

     The second element of aggravated sexual assault -- “causing

bodily harm” under Article 120(c)(1)(B) -- means “any offensive

touching of another, however slight.”    Article 120(t)(8).   The

parallel element in the offense of rape as charged in the

present case -- using “force” under Article 120(a)(1) -- means

“action to compel submission of another or to overcome or

prevent another’s resistance by . . . physical violence,

strength, power, or restraint applied to another person,

sufficient that the other person could not avoid or escape the

sexual conduct.”   Article 120(t)(5)(C).

     The bodily harm element of aggravated sexual assault under

Article 120(c) -- defined in Article 120(t)(8) to include an

offensive touching, however slight -- is a subset of the force


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element in the offense of rape under Article 120(a), as defined

in Article 120(t)(5)(C).    We note that the definitions of force

in Article 120(t)(5)(A) and Article 120(t)(5)(B), which do not

require an offensive touching, are not at issue in the present

case.

        Each circumstance set forth in Article 120(t)(5)(C)

describes an act of force applied by one person against another

person involving sufficient power to compel submission or

overcome or prevent resistance.    Applying the common and

ordinary understanding of the words in the statute, each act of

force described in Article 120(t)(5)(C), at a minimum, includes

an offensive touching that satisfies the bodily harm element of

Article 120(t)(8).    See Carter, 530 U.S. at 263; 2A Norman J.

Singer & J. D. S. Singer, Statutes and Statutory Construction

149-50 (7th ed. 2007) (explaining that “words used in [a]

statute will be given their common, ordinary and accepted

meaning, and the plain language of the statute should be

afforded its plain meaning”).    Under these circumstances the

military judge appropriately concluded that the lesser included

offense instruction should be given in this case,

notwithstanding the defense objection.    See Rule for Courts-

Martial 920(e)(2) (requiring the military judge to instruct the

members on lesser included offenses).




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                         III.   DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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