           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                            Staff Sergeant WILLIAM L. WAREHAM
                                      United States Air Force

                                               ACM 38820

                                             20 October 2016

          Sentence adjudged 25 March 2015 by GCM convened at Hill Air Force Base,
          Utah. Military Judge: Shelly W. Schools (sitting alone).

          Approved Sentence: Bad-conduct discharge, confinement for 45 days, and
          reduction to E-1.

          Appellate Counsel for Appellant: Major Isaac C. Kennen.

          Appellate Counsel for the United States: Captain Tyler B. Musselman and
          Gerald R. Bruce, Esquire.

                                                  Before

                             DUBRISKE, HARDING, and C. BROWN
                                   Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.


 C. BROWN, Judge:

       In accordance with his pleas, Appellant was convicted by a military judge sitting
alone of assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. §
928, and obstruction of justice in violation of Article 134, UCMJ, 10 U.S.C. § 934.
Relevant to this appeal, Appellant was originally charged with two specifications of
aggravated sexual assault and one specification of indecent acts, all in violation of Article
120, UCMJ, 10 U.S.C. § 920. 1 Pursuant to a pretrial agreement (PTA), Appellant pleaded
not guilty to one specification each of aggravated sexual assault and indecent acts.
Regarding the second sexual assault specification, Appellant pleaded not guilty to the
greater offense of aggravated sexual assault but guilty to the lesser included offense (LIO)
of assault consummated by a battery by exceptions and substitutions as to the date of the
offense and the physical act committed on the body of the victim. After a providence
inquiry, the military judge found Appellant not guilty of the greater offense including the
excepted language, but guilty of the LIO including the substituted language. Although the
PTA required the government to withdraw and dismiss the remaining specifications to
which Appellant pleaded not guilty, the military judge instead announced a not guilty
finding to these additional specifications of aggravated sexual assault and indecent acts.

       Appellant was sentenced to a bad-conduct discharge, 45 days’ confinement, and
reduction to E-1. The convening authority approved the adjudged sentence, but deferred
the adjudged reduction until action and waived mandatory forfeitures for the benefit of
Appellant’s dependents.

       Appellant now asserts that his plea was improvident because assault consummated
by a battery is not an LIO of aggravated sexual assault and that his right to due process of
law was violated when the military judge considered, over defense objection, an oral
unsworn statement from the victim in sentencing. Finding no error that materially
prejudices a substantial right of Appellant, we affirm the findings and sentence.

                                               Background

       The genesis of the offenses, as originally alleged, was an incident where Appellant
had sexual intercourse and digitally penetrated his estranged wife (now ex-wife), SS, and
then took pictures of her in a partially undressed state, all without her consent. The victim
claimed she was unable to consent to the penetration offenses due to her consumption of
prescription medication, and she was unable to consent to the photos because she was
asleep when they were taken.
        After arraignment and a continuance, an additional charge of obstruction of justice
was referred. The obstruction offense stemmed from Appellant buying a disposable
cellular phone and creating an account profile using the victim’s personal information to
make it appear to be the victim’s phone. Appellant then sent an exculpatory text message
to himself from the phone. Appellant hoped to create false exculpatory evidence in order
to escape the consequences of his court-martial. He showed this message to his assistant
first sergeant, his Area Defense Counsel, an Air Force Office of Special Investigation
agent, and he hired a private investigative firm to find out who sent the message.
Ultimately, Appellant’s ruse was uncovered when the government found video footage of

1
 These specifications were based on the 2008 Manual for Courts-Martial version of Article 120, UCMJ, 10 U.S.C.
§ 920.


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Appellant purchasing the phone used to send the false text message.
       As the case progressed through motions practice, Appellant and the convening
authority entered into a PTA. In accordance with the PTA, Appellant pleaded not guilty to
the penetration offenses and the specification alleging he took photos of the victim without
her consent. Appellant pleaded guilty to one specification of assault consummated by a
battery as an LIO of aggravated sexual assault.
       To effectuate his plea to the LIO, Appellant excepted the following words from the
specification: “cause [SS] to engage in a sexual act, to wit: penetrating [SS]’s vulva with
his fingers by causing bodily harm to her, to wit: penetrating [SS]’s vulva with his fingers
without her consent.” Appellant then pleaded guilty to the substituted words: “unlawfully
touch and move the body of [SS] with his hands.”
       The charge sheet was not changed to reflect the substituted language of the LIO.
The facts underlying the LIO were Appellant moving and positioning the sleeping victim
so he could take pictures of her and save them as a memento of their relationship. Appellant
also agreed to plead guilty to the obstruction of justice offense and to be tried by a military
judge sitting alone. In return, the convening authority agreed to forgo presenting evidence
on the aggravated sexual assault offense as originally charged.

                      Appellant’s Plea to the Lesser Included Offense

        Appellant’s first assignment of error alleges assault consummated by a battery is not
an LIO of the charged offense, aggravated sexual assault, and thus asserts the court must
set aside the finding and dismiss the specification.

        Whether an offense is an LIO is a question of law that is reviewed de novo. United
States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013) (citing United States v. Girouard, 70
M.J. 5, 9 (C.A.A.F. 2001)). Under Article 79, UCMJ, 10 U.S.C. § 879, “[a]n accused may
be found guilty of an offense necessarily included in the offense charged.” The Court of
Appeals for the Armed Forces (CAAF) has found that interpreting Article 79, UCMJ, “to
require the elements test for LIOs has the constitutionally sound consequence of ensuring
that one can determine ex ante—solely from what one is charged with—all that one may
need to defend against.” United States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010). The
United States Supreme Court has articulated an elements test for interpreting the rule in
federal civilian criminal trials stating that “one 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 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)). CAAF has held that “[t]he 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


                                              3                                    ACM 38820
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)).

        Notably, “[t]he 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. (citing Carter v. United
States, 530 U.S. 255, 263 (2000)).

       Thus, we must determine the elements of both the charged offense and the alleged
LIO by applying the principles of statutory construction and comparing the elements of the
two offenses to see if the latter is a subset of the former.

        The elements of aggravated sexual assault as charged in this case are: (1) that
Appellant caused SS to engage in a sexual act, to wit: penetrating SS’s vulva with his
fingers; and (2) that Appellant did so by causing bodily harm to SS, to wit: penetrating
SS’s vulva with his fingers without her consent. Bodily harm means “any offensive
touching of another, however slight.” Manual for Courts-Martial, United States (MCM),
pt. IV, ¶ 45.a.(t)(8) (2008 ed.). A “sexual act” is defined as “the penetration however slight
of the genital opening of another by a hand or finger or by any object, with an intent to
abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of
any person.” MCM, pt. IV, ¶ 45.a.(t)(1).

        The elements of assault consummated by a battery, the LIO, are: (1) that Appellant
did bodily harm to SS; (2) that Appellant did so by touching and moving the body of SS
with his hands; and (3) that the bodily harm was done with unlawful force or violence. An
assault is “an attempt or offer with unlawful force or violence to do bodily harm to another,
whether or not the attempt or offer is consummated. It must be done without legal
justification or excuse and without the lawful consent of the person affected.” MCM, pt.
IV, ¶ 54.c.(1)(a).

      Appellant cites the elements test in United States v. Riggins, 75 M.J. 78 (C.A.A.F.
2016), and argues that the greater offense does not contain all of the elements of the LIO
because consent was not an element of aggravated sexual assault under Article 120, UCMJ,
as the statute existed on 22 April 2012.

      Appellant’s contention that consent was not a part of the applicable statute during the
relevant time period appears valid as the offense occurred prior to the statute changing on
28 June 2012. However, it is critical to note that the government charged the offense as
causing bodily harm to the victim by “penetrating SS’s vulva with his fingers without her
consent” (emphasis added). By charging the offense in this manner, the government
undertook having to prove consent beyond a reasonable doubt if they were to obtain a
conviction on the specification. As charged, Appellant cannot claim he was not on notice


                                              4                                   ACM 38820
that consent was at issue in the offense. When comparing the elements of aggravated
sexual assault as charged in this case and assault consummated by a battery as pleaded
guilty to by Appellant, the government necessarily had to prove all of the elements of the
LIO in order to prove the elements of the greater offense. For example, in order to prove
Appellant committed the sexual act of penetrating the victim’s vulva with his fingers
without her consent, the government necessarily had to prove Appellant in some way
touched SS’s body without her consent. Despite the difference in language of the bodily
harm, we find the elements of the LIO are a subset of the greater offense based on the facts
of this case.

      In claiming error, Appellant appears to misread CAAF’s holding in Riggins by
contending that assault consummated by a battery may never be an LIO of sexual assault
as the statute existed at the time. On the contrary, CAAF noted in Riggins that their
decision “does not foreclose the possibility that in other cases the government may charge
an accused with sexual assault and/or abusive sexual contact in such a manner that assault
consummated by a battery may be a lesser included offense.” Riggins, 75 M.J. at 85 n.7.
As CAAF stated, “[a] specification placing the accused on notice of fear of bodily harm
and raising the issue of consent may well lead to a different result than the one here.” Id.

        Even aside from our LIO analysis, Appellant’s provident plea leads to the same
result. Our superior court held in United States v. Wilkins, 29 M.J. 424 (C.M.A. 1990) and
United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) that when a convening authority
referred one offense to court-martial but entered into a PTA to accept a guilty plea to a
different charge that is not an LIO of the original charge, the PTA was a “functional
equivalent” of a referral.

        The change in the charge sheet from a violation of Article 120, UCMJ, to a violation
of Article 128, UCMJ, would qualify as a major change. See Rule for Courts-Martial
(R.C.M.) 603(a). In this case, the original charge sheet was not amended to reflect the LIO
or the excepted and substituted language. As CAAF noted in Ballan, “R.C.M. 603(d)
provides that major ‘[c]hanges or amendments to charges or specifications . . . may not be
made over the objection of the accused unless the charge or specification affected is
preferred anew.” Ballan, 71 M.J. at 32. In Ballan, the accused not only did not object to
the proposed the change in his PTA, he explained to the military judge why he was guilty
before the plea was accepted, and he benefited from the change. Id. Presented with similar
facts here, we view Appellant’s actions as agreeing to an amendment to the charge and
specification even though the charge sheet itself was not physically amended. Id.; Jones,
68 M.J. at 473; see also Wilkins, 29 M.J. at 424 (noting that an appellant can waive both
the staff judge advocate’s opinion required by Article 34, UCMJ, 10 U.S.C. § 834, and the
“swearing to the charges against him, as long as it was clear what charges were to be
considered by the court-martial.”) (citing R.C.M. 603(d)). The facts of this case are
analogous to those in Ballan and Wilkins, and we accordingly find Appellant agreed to the
amended charge and specification even though the charge sheet was never amended at trial.


                                             5                                   ACM 38820
        Appellant’s contention the court may not affirm the findings on an LIO that was not
part of the greater offense raises the question of whether Appellant’s constitutional right to
notice was violated. “The Constitution requires that an accused be on notice as to the
offense that must be defended against, and that only lesser included offenses that meet
these notice requirements may be affirmed by an appellate court.” United States v. Miller,
67 M.J. 385, 388 (C.A.A.F. 2009) (citing Jackson v. Virginia, 443 U.S. 307, 314 (1979)).

        Here, Appellant was clearly on notice of what he needed to defend against during
his court-martial. As our superior court held in Jones, “an accused may be convicted of
uncharged LIOs precisely because they are deemed to have notice.” Jones, 68 M.J. at 468
(citing United States v. Medina, 66 M.J. 21, 27 (C.A.A.F. 2008)). Appellant proposed the
language to be substituted for the assault consummated by a battery specification, pleaded
guilty to the language, and derived a benefit from his plea in that more serious charges
were dismissed. For all of these reasons, we find Appellant is not entitled to relief.

                                Victim’s Oral Unsworn Statement

       Appellant asserts his right to due process of law was violated when, over defense
objection, the military judge considered an unsworn statement from the victim. We
disagree.

       Prior to hearing the unsworn statement, the military judge allowed the victim’s
special victim’s counsel to present argument as to why the statement should be allowed
under Article 6b, UCMJ, 10 U.S.C. § 806b. The government concurred the evidence was
admissible and, after defense counsel objected, the military judge put on the record that she
was persuaded that the intent of the Crime Victims’ Rights Act (CVRA), 18 U.S.C § 3771,
was to allow such evidence. 2 The military judge also stated that had the trial been a
member’s case, she would have given a tailored instruction for the unsworn statement;
however, as a military judge sitting alone, she understood the limits of an unsworn
statement and the weight given them. She did not conduct a Mil. R. Evid. 403 balancing
test.

       We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion. United States v. Stephens, 67 MJ 233, 235
(C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)). The
admission of evidence in aggravation during sentencing is controlled by R.C.M.
1001(b)(4), which states the following:


2
  The National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 11333, § 1701(b)(2)(A) (2013),
incorporated the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (CVRA), into Article 6b, UCMJ, with immediate
implementation taking place on 26 December 2013. The CVRA includes the right of all crime victims to be
“reasonably heard” at sentencing.


                                                    6                                        ACM 38820
                 The trial counsel may present evidence as to any aggravating
                 circumstances directly relating to or resulting from the offenses
                 of which the accused has been found guilty. Evidence in
                 aggravation includes, but is not limited to, evidence of
                 financial, social, psychological, and medical impact on or cost
                 to any person . . . who was the victim of an offense committed
                 by the accused . . . .

      Furthermore, sentencing evidence is subject to the requirements of Mil. R. Evid. 403.
United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001) (citing United States v. Rust, 41
M.J. 472, 478 (C.A.A.F. 1995)). When the military judge conducts a proper balancing test
under Mil. R. Evid. 403 on the record, her ruling will not be overturned absent a clear abuse
of discretion; the ruling of a military judge who fails to do so will receive correspondingly
less deference. Hursey, 55 M.J. at 36; Manns, 54 M.J. at 166.

      Appellant was sentenced on 25 March 2015. On 17 June 2015, the President signed
Executive Order 13696 enacting R.C.M. 1001A. R.C.M. 1001A(b)(4)(B) defines the right
to be reasonably heard as including the right for a victim to make an unsworn statement
during sentencing in a non-capital case.

       While at the time Appellant was sentenced, R.C.M. 1001A had not been promulgated
to reflect the 2014 National Defense Authorization Act changes, it was clear based on case
law that a victim had a right to be “reasonably heard.” In LRM v. Kastenberg, 72 M.J. 364,
370 (C.A.A.F. 2013), CAAF found the victim’s right to be “reasonably heard” included
the reasonable opportunity to be heard on factual and legal grounds, which may include
the right of a victim who is represented by counsel to be heard through counsel. LRM did
not address the question of whether a victim was required to be sworn to provide
aggravation evidence during a sentencing proceeding. However, Article 6b, UCMJ,
mirrors the victims’ rights afforded under the CVRA, and federal courts have interpreted
these rights to include giving statements at sentencing hearings without being placed under
oath. 3
      The content of the victim’s unsworn statement in this case was proper aggravation
evidence under R.C.M. 1001(b)(4). Though the military judge did not conduct a Mil. R.
Evid. 403 balancing test, our review of the record reveals that the probative value of the
evidence was not substantially outweighed by the danger of unfair prejudice to Appellant.
The military judge noted she understood the limits of an unsworn statement and the proper
weight to assign it and she is presumed to know the law and apply it correctly absent clear
evidence to the contrary. United States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008);
3
 Some of the federal cases addressing this issue include: United States v. Grigg, 434 F.App’x 530, 533 (6th Cir.
2011) (unpub. op.) (citing United States v. Myers, 402 F. App’x 844, 845 (4th Cir. 2010)); United States v. Swenson,
No. 1:13-cr-00091-BLW, 2014 U.S. Dist. LEXIS 115402, at *3-4 (D. Idaho Aug. 18, 2014); United States v. Shrader,
No. 1:09-0270, 2010 U.S. Dist. LEXIS 121766, at *7–8 (S.D. W. Va. Nov. 16, 2010); and United States v. Marcello,
370 F. Supp. 2d 745, 750 (N.D. Ill. 2005).


                                                         7                                            ACM 38820
United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007); United States v. Mason, 45
M.J. 483, 484 (C.A.A.F. 1997)). We find no such evidence.

      Even though R.C.M. 1001 did not specifically give the victim the right to be heard in
such a manner at the time of Appellant’s trial, the military judge assessed that was the
intent of the applicable federal statute. We find that this ruling and the admission of
relevant victim impact evidence under R.C.M. 1001(b)(4) was not an abuse of her
discretion.

      Even were we to consider the military judge’s admission of the victim’s unsworn
statement an abuse of discretion, Appellant has failed to show prejudice. The test for
prejudice is whether the error substantially influenced the adjudged sentence. United States
v. Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009); United States v. Griggs, 61 M.J. 402, 410;
United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001). It is not evident to us that hearing
the victim’s unsworn statement substantially influenced the sentence imposed by the
military judge. Appellant was given an opportunity to rebut matters contained in the
unsworn statement, and he did so by admitting text messages between himself and the
victim, as well as photos of him and the victim that were sent to him by the victim, and
portions of the victim’s mental health and medical records. In light of the agreed-upon
facts of the case, particularly those underlying the obstruction of justice charge, the military
judge’s imposed sentence of reduction to E-1, confinement for 45 days, and a bad-conduct
discharge appears reasonable irrespective of the victim impact statement.

                               Corrected Promulgating Order

       Although not alleged as an assignment of error, Appellant noted the initial court-
martial order incorrectly states he was found guilty of Specification 2 of the Charge and
the Charge, in violation of Article 120, UCMJ, when pleas and findings were entered under
Article 128, UCMJ. We agree with Appellant that the court-martial order should have
reflected he was found not guilty of aggravated sexual assault but guilty of the LIO, assault
consummated by a battery. Similarly, in Specifications 1 and 3 of the Charge, the military
judge entered a finding of not guilty on the record, instead of allowing the government to
withdraw and dismiss these specifications with prejudice as directed by the PTA. We direct
the publication of a new court-martial order to remedy these oversights.

                       Sealing of Photographs and Medical Records

       The government has requested the photographs of the victim taken by Appellant
during the assault consummated by a battery be sealed or destroyed along with the victim’s
medical records found in Appellant’s sentencing package. Accordingly, the Clerk of the
Court is directed to seal Investigating Officer (IO) Exhibit 1, pages 62–70; IO Exhibit 2;
Appellate Exhibit XXIX, pages 28–36 and page 62; IO Exhibit 1, pages 137–146; and
Defense Exhibit AI. The government is also directed to remove these pages from all other


                                               8                                    ACM 38820
copies of the record of trial, as required by Air Force Manual 51-203, Records of Trial, ¶
6.3.4 (3 August 2016).

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are
AFFIRMED.



             FOR THE COURT



             KURT J. BRUBAKER
             Clerk of the Court




                                            9                                  ACM 38820
