       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                 v.
              Michael J. GONZALES, Specialist
                United States Army, Appellant
                           No. 18-0347
                     Crim. App. No. 20130849
          Argued April 23, 2019—Decided June 7, 2019
           Military Judge: Jacob Bashore (on rehearing)
   For Appellant: Captain Steven J. Dray (argued); Colonel
   Elizabeth G. Marotta, Lieutenant Colonel Christopher D.
   Carrier, Lieutenant Colonel Tiffany D. Pond, and Major
   Julie L. Borchers (on brief); Captain Zachary A. Szilagyi.
   For Appellee: Major Jeremy S. Watford (argued); Colonel
   Steven P. Haight and Lieutenant Colonel Eric K. Stafford
   (on brief); Lieutenant Colonel Wayne H. Williams and Ma-
   jor Virginia H. Tinsley.
   Judge MAGGS delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   OHLSON, and SPARKS, joined.
                   _______________

   Judge MAGGS delivered the opinion of the Court.

    We granted review in this case to decide the assigned is-
sue of “[w]hether aggravated sexual contact of a child is a
lesser included offense of rape of a child,” as the two offenses
are defined in the version of Article 120, Uniform Code of
Military Justice (UCMJ), in force from October 1, 2007,
through June 27, 2012. 1 Applying the elements test de-

   1  See Article 120(b), UCMJ, 10 U.S.C. § 920(b) (2006 & Supp.
IV) (rape of child); id. Article 120(g), UCMJ, § 920(g) (defining ag-
gravated sexual contact with a child). These statutory provisions
are reprinted in the Manual for Courts-Martial, United States,
Punitive Articles Applicable to Sexual Offenses Committed During
the Period 1 October 2007 Through 27 June 2012 app. 21 at A21-
1, A21-2 (2019 ed.) (MCM). Article 120, UCMJ, has since been
amended.
            United States v. Gonzales, No. 18-0347/AR
                      Opinion of the Court

scribed in United States v. Jones, 68 M.J. 465 (C.A.A.F.
2010), we conclude that the former offense is not a lesser in-
cluded offense of the latter. We nonetheless affirm the find-
ings and sentence in this case under a plain error standard
of review because we conclude that the error was not clear
and obvious.
                         I. Background
    A military judge sitting as a general court-martial con-
victed Appellant, contrary to his pleas, of one specification of
aggravated sexual contact with a child, one specification of
aggravated sexual abuse of a child, one specification of inde-
cent liberty with a child, and one specification of child en-
dangerment in violation of Articles 120 and 134, UCMJ, 10
U.S.C. §§ 920, 934 (2006 & Supp. IV). 2 The military judge
sentenced Appellant to be reduced to the grade of E-1, to for-
feit all pay and allowances, to be confined for twenty-two
years, and to be discharged from the service with a dishon-
orable discharge. The convening authority approved the
findings and the sentence. Appellant received 1,274 days of
credit against the sentence to confinement.
    The specification at issue in this case alleged that Appel-
lant committed rape when he “did, at or near Fort Hood,
Texas, between on or about 22 April 2010, and on or about
12 April 2011, engage in a sexual act, to wit: penetrating,
with his penis, the vulva of Miss [AP], a child who had not
attained the age of 12 years.” Appellant and AP had former-
ly lived in the same household. AP testified that when she
was three years old, Appellant had inappropriately touched
her when she was taking a shower by placing his penis on
her “front private part,” a term which meant her vagina.

   2  A general court-martial previously had convicted Appellant,
contrary to his pleas, of two specifications of rape of a child, two
specifications of aggravated sexual abuse of a child, and two speci-
fications of child endangerment, in violation of Articles 120 and
134, UCMJ, 10 U.S.C. §§ 920, 934 (2006 & Supp. IV). But the
United States Army Court of Criminal Appeals (ACCA) set aside
the findings and sentence and authorized a rehearing in light of
United States v. Hills, 75 M.J. 350 (C.A.A.F. 2015). United States
v. Gonzales, No. ARMY 20130849, 2017 CCA LEXIS 128, 2017 WL
825279 (A. Ct. Crim. App. Feb. 22, 2017). This appeal concerns the
rehearing.



                                 2
           United States v. Gonzales, No. 18-0347/AR
                     Opinion of the Court

Trial counsel asked AP: “Did his penis go inside of your front
private, even if just a little bit.” AP answered, “No.”
    The military judge found Appellant not guilty of rape of a
child but guilty of what the military judge deemed to be the
lesser included offense of aggravated sexual contact with a
child. The Government and Appellant had not previously
asked the military judge to consider lesser included offenses,
nor had the military judge discussed lesser included offenses
with counsel. Following the military judge’s announcement
of his findings, Appellant did not object to the finding or ask
the military judge to reconsider the finding. The convening
authority approved the findings and sentence, and the
ACCA summarily affirmed. United States v. Gonzales, No.
ARMY 20130849, slip op. at 1 (A. Ct. Crim. App. June 25,
2018) (unpublished). On appeal to this Court, Appellant asks
us to vacate the military judge’s finding that he is guilty of
aggravated sexual contact with a child on grounds that this
offense is not a lesser included offense of rape of a child.
                   II. Standard of Review
    Whether one offense is a lesser included offense of
another offense is a question of law. United States v.
Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011). When an appellant
has preserved an objection to a finding of guilty to a lesser
included offense, we review the objection de novo. See id.
But when an appellant has forfeited such an objection, and
raises it for the first time on appeal, we review the issue
only for plain error. United States v. Armstrong, 77 M.J. 465,
469 (C.A.A.F. 2018).
   In this case, Appellant argues that the Court should re-
view his objection de novo because the military judge did not
give him an opportunity to preserve his objection. As ex-
plained above, the military judge found Appellant guilty of
aggravated sexual contact with a child without first asking
counsel whether that offense was a lesser included offense of
rape of a child. The Government responds that Appellant
could have asked the military judge to reconsider his finding
and argues that, by failing to do so, Appellant forfeited his
objection. We agree with the Government.
   Because the military judge did not ask the parties for
their views on lesser included offenses before deliberating,


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            United States v. Gonzales, No. 18-0347/AR
                      Opinion of the Court

Appellant could have objected immediately after the military
judge announced his finding that Appellant was guilty of
aggravated sexual contact with a child. Such an objection
would not have been futile because Rule for Courts-Martial
(R.C.M.) 924(c) provides that: “[i]n trial by military judge
alone, the military judge may reconsider any finding of
guilty at any time before announcement of sentence.” 3 Anal-
ogous precedent establishes that Appellant forfeited the is-
sue by not objecting. In United States v. Treat, 73 M.J. 331,
335 (C.A.A.F. 2014), a military judge found the accused
guilty of an offense by exceptions and substitutions without
first discussing that possibility with the parties. The accused
did not object at the time, but on appeal argued that the ex-
ceptions and substitutions created a fatal variance. Id. We
reviewed the military judge’s finding for plain error because
the accused failed to object at trial. Id. The same principle
applies in this case and requires us to apply the plain error
standard of review.
                    III. Plain Error Review
    Under plain error review, Appellant has the burden of
demonstrating that: “(1) there was error, (2) the error was
[clear] and obvious, and (3) the error materially prejudiced a
substantial right of the accused.” United States v. Jones, 78
M.J. 37, 44 (C.A.A.F. 2018) (citation omitted). For this Court
to grant relief under this test, “all three prongs must be sat-
isfied.” United States v. Gomez, 76 M.J. 76, 79 (C.A.A.F.
2017) (internal quotation marks omitted) (quoting United
States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006)). In this
case, we determine that there was an error but that the er-
ror was not clear and obvious. Appellant therefore cannot
prevail.
                 A. Whether There Was an Error
   At the time of trial, Article 79, UCMJ, 10 U.S.C. § 879
(2012), authorized a court-martial to find the accused “guilty



   3  The trial occurred in June, July, and August 2017. We note
that the President has slightly revised the text of R.C.M. 924(c) in
the MCM (2019 ed.). See Exec. Order No. 13,825, 83 Fed. Reg.
9889 (Mar. 1, 2018) (effective Jan. 1, 2019).



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            United States v. Gonzales, No. 18-0347/AR
                      Opinion of the Court

of an offense necessarily included in the offense charged.” 4
The “elements test” determines whether an offense is neces-
sarily included in the offense charged. Jones, 68 M.J. at 472.
In Armstrong, we explained that we had applied the ele-
ments test in two ways:
       The first way is by comparing the statutory defini-
       tions of the two offenses. An offense is a lesser in-
       cluded offense of the charged offense if each of its
       elements is necessarily also an element of the
       charged offense. See, e.g., United States v. Gaskins,
       72 M.J. 225, 235 (C.A.A.F. 2013) . . .; MCM pt. IV,
       para. 3.b.(1) (2012 ed.). The second way is by exam-
       ining the specification of the charged offense. An of-
       fense can also be a lesser included offense of the
       charged offense if the specification of the charged
       offense is drafted in such a manner that it alleges
       facts that necessarily satisfy all the elements of
       each offense. See, e.g., United States v. Arriaga, 70
       M.J. 51, 55 (C.A.A.F. 2011) . . .; United States v.
       Riggins, 75 M.J. 78, 85 n.7 (C.A.A.F. 2016).
77 M.J. at 469–70.
    As in Armstrong, we begin with the statutory definitions.
The applicable version of Article 120, UCMJ, defines rape of
a child as follows: “Any person subject to this chapter who—
(1) engages in a sexual act with a child who has not attained
the age of 12 years; . . . is guilty of rape of a child and shall
be punished as a court-martial may direct.” 10 U.S.C.
§ 920(b) (2006 & Supp. IV). “Sexual act” means, in relevant
part, “contact between the penis and the vulva, and for pur-
poses of this subparagraph contact involving the penis oc-
curs upon penetration, however slight.” Id. § 920(t)(1)(A).
Article 120, UCMJ, does not expressly identify the mens rea
for rape, but we have held that the mens rea for rape is a



   4 Article 79(b), UCMJ, now authorizes a court-martial to find
the accused guilty not only of “an offense that is necessarily in-
cluded in the offense charged” but also “any lesser included of-
fense so designated by regulation prescribed by the President.”
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, § 5402, 130 Stat. 2000, 2939 (2016) (codified at 10
U.S.C. § 879(b)); cf. Jones, 68 M.J. at 471. We have not yet had
occasion to interpret this amended provision.



                                 5
            United States v. Gonzales, No. 18-0347/AR
                      Opinion of the Court

general intent to commit the sexual act. United States v.
McDonald, __ M.J. __ (6) (C.A.A.F. 2019).
    In contrast, at the time of the offense, Article 120,
UCMJ, defined aggravated sexual contact with a child as
follows: “Any person subject to this chapter who engages in
or causes sexual contact with or by another person, if to do
so would violate subsection (b) (rape of a child) had the sex-
ual contact been a sexual act, is guilty of aggravated sexual
contact with a child and shall be punished as a court-martial
may direct.” 10 U.S.C. § 120(g) (2006 & Supp. IV). “Sexual
contact” means, in relevant part, “the intentional touching . .
. of the genitalia . . . of another person . . . with an intent to
abuse, humiliate, or degrade any person or to arouse or grat-
ify the sexual desire of any person.” Id. § 920(t)(2).
    Citing these definitions, Appellant argues that the ele-
ments test is not satisfied because the offense of aggravated
sexual contact with a child includes a specific intent that the
offense of rape does not, namely, the specific intent “to
abuse, humiliate, or degrade any person or to arouse or grat-
ify the sexual desire of any person.” The Government
acknowledges that the definition of rape does not expressly
include this specific intent but argues that this difference
should not matter. The Government reasons that as a prac-
tical matter, anyone who commits a rape of a child would
have the specific intent required for committing aggravated
sexual contact with a child. In the Government’s words, “a
sexual intent is inherent in the very act of penile penetra-
tion of the vulva.”
    The Courts of Criminal Appeals have disagreed about
whether the general intent offenses of rape and sexual as-
sault are inherently committed with the same specific intent
necessary for sexual contact offenses. The ACCA concluded
in United States v. Wagner, No. ARMY 20111064, 2013 CCA
LEXIS 573, at *30, 2013 WL 3946239, at *10 (A. Ct. Crim.
App. July 29, 2013), that wrongful sexual contact is a lesser
included offense of aggravated sexual assault. The court rec-
ognized that the former offense requires a specific “intent to
abuse, humiliate, or degrade any person or to arouse or grat-
ify the sexual desire of any person” while the latter offense
requires only a general intent. Id. at *7, 2013 WL 3946239,
at *7. But the court reasoned that this difference did not


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           United States v. Gonzales, No. 18-0347/AR
                     Opinion of the Court

matter because “it is beyond cavil that every penile-vaginal
penetration includes a corresponding sexual intent.” Id. at
*30, 2013 WL 3946239, at *8. In contrast, the United States
Air Force Court of Criminal Appeals (AFCCA) concluded in
United States v. Lyson, No. ACM 38067, 2013 CCA LEXIS
816, *37−38, 2013 WL 5436639, at *10−11 (A.F. Ct. Crim.
App. Sept. 16, 2013), that the specific intent required for
abusive sexual contact prevents that offense from being a
lesser included offense of aggravated sexual assault.
    The issue also has divided the United States Courts of
Appeals in cases concerning federal statutes similar to Arti-
cle 120, UCMJ. In United States v. Demarrias, 876 F.2d 674,
676−77 (8th Cir. 1989), the United States Court of Appeals
for the Eighth Circuit held that abusive sexual contact in
violation of 18 U.S.C. § 2244(a)(1) and (3) is a lesser included
offense of aggravated sexual abuse and sexual abuse of a
minor in violation of 18 U.S.C. § 2241(a) and § 2243(a). The
court recognized that abusive sexual contact requires a spe-
cific intent “to abuse, humiliate, harass, degrade, or arouse
or gratify the sexual desire of any person,” while aggravated
sexual abuse and sexual abuse of a minor are general intent
crimes. Id. at 676 & n.3. But the court held that “one who
engages in [the acts described by those latter offenses] in-
herently intends to do so for sexual purposes.” Id. at 676. In
contrast, in United States v. Hourihan, 66 F.3d 458, 465 (2d
Cir. 1995), the United States Court of Appeals for the Se-
cond Circuit held that abusive sexual contact is not a lesser
included offense of aggravated sexual abuse because the lat-
ter does not require a specific intent “to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any
person.” See United States v. Castillo, 140 F.3d 874, 886−87
(10th Cir. 1998) (“Because section 2244 contains a specific
intent element that section 2242 and 2243 do not have, the
crime of abusive sexual contact is not a lesser included of-
fense of the crime of sexual abuse.”); see also United States v.
Sneezer, 900 F.2d 177, 178−79 (9th Cir. 1990).
   We recognize that, in most instances, a person who com-
mits conduct that would constitute rape of a child would act
with a specific intent “to abuse, humiliate, or degrade any
person or to arouse or gratify the sexual desire of any per-
son.” But in our view, this likelihood is not enough to make


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            United States v. Gonzales, No. 18-0347/AR
                      Opinion of the Court

aggravated sexual contact a lesser included offense of rape of
a child. We reach this conclusion for two reasons.
    First, the United States Supreme Court held in Schmuck
v. United States, 489 U.S. 705, 720 (1989), that the elements
test requires “a textual comparison of criminal statutes,” ex-
plaining that such an approach leads to “certain and pre-
dictable” outcomes. The Supreme Court rejected an alterna-
tive “inherent relationship” test, which would ask whether
“proof of the greater offense can generally be expected to re-
quire proof of the lesser offense.” Id. at 709. In this case, we
think the Government’s approach relies more on generalities
with respect to likely proof than on a limited textual compar-
ison of statutory definitions.
    In Carter v. United States, 530 U.S. 255, 260−62 (2000),
the Supreme Court applied Schmuck in deciding whether a
specific intent offense could be a lesser included offense of a
general intent offense. In that case, one provision of a stat-
ute created an offense of taking property or money from a
bank by force or violence, without expressly addressing the
required mens rea. 18 U.S.C. § 2113(a). Another provision of
the same statute created an offense of taking property or
money from a bank with a specific intent “to steal or pur-
loin.” Id. § 2113(b). The Supreme Court read the former pro-
vision to require proof of a general intent, much as we have
done with the crime of rape. Carter, 530 U.S. at 268. The
Supreme Court then concluded that the latter offense was
not a lesser included offense because it required a specific
intent rather than a general intent. 5 Id. at 274. Carter is in-
distinguishable from this case.
   Second, at least one counter example disproves the Gov-
ernment’s argument that every rape of a child necessarily

   5  The Supreme Court in Carter considered but rejected several
arguments for interpreting § 2113(a) as implicitly requiring the
same specific intent that § 2113(b) requires. The rejected argu-
ments relied on the canon against interpreting statutes to have an
absurd meaning, 530 U.S. at 263, the canon on imputing common
law meaning to statutory terms, id. at 264, the presumption in
favor of scienter in criminal statutes, id. at 267−68, and the legis-
lative history of the provisions, id. at 270−71. The Government
has not contended that any of similar arguments would require a
different result in this case.



                                 8
           United States v. Gonzales, No. 18-0347/AR
                     Opinion of the Court

must be done with the specific intent required for aggravat-
ed sexual contact with a child. Id. at 271 (using an example
to illustrate how § 2113(a) could be violated without violat-
ing § 2113(b)). Specifically, a voluntarily intoxicated person
could commit the offense of rape of a child without necessari-
ly committing the offense of aggravated sexual contact with
a child. We have held that voluntary intoxication cannot
prevent the formation of the general intent to commit rape.
United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995).
But voluntary intoxication might prevent a person from
forming the specific intent required for a sexual contact of-
fense under Article 120, UCMJ. See, e.g., United States v.
Claxton, No. ACM 38188, 2013 CCA LEXIS 1045, at *10−11,
2013 WL 6913102, at *3 (A.F. Ct. Crim. App. Dec. 17, 2013)
(holding that the military judge erred in not providing a vol-
untary intoxication instruction because “wrongful sexual
contact is a specific-intent crime and evidence of the appel-
lant’s voluntary intoxication could theoretically raise a rea-
sonable doubt as to whether the appellant had this specific
intent when he placed [the victim’s] hand on his penis”); see
also R.C.M. 916(l)(2) (“voluntary intoxication may be intro-
duced for the purpose of raising a reasonable doubt as to the
existence of . . . specific intent”). For these reasons, we con-
clude that aggravated sexual contact with a child is not “an
offense necessarily included in the offense” of rape of a child
under Article 79, UCMJ.
    Finally, as in Armstrong, we must consider whether the
specification of the charged offense in this case was drafted
in such a manner that it alleges facts that necessarily satisfy
all the elements of the purported lesser offense. 77 M.J. at
472. The specification at issue, as quoted above, alleged that
Appellant did “engage in a sexual act, to wit: penetrating,
with his penis, the vulva of Miss [AP], a child who had not
attained the age of 12 years.” The Government argues that
the wording of this specification encompasses the elements
of aggravated sexual contact of a child because “it would
have been impossible for appellant to penetrate AP’s vulva
with his penis, without first touching her genitalia with his
penis, possessing the same sexual intent which would ac-
company the act of penetration.” The problem with this ar-
gument, however, is that it again assumes that every act of



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           United States v. Gonzales, No. 18-0347/AR
                     Opinion of the Court

penile penetration of the vulva is accompanied by a specific
sexual intent. As we have explained above, this assumption
is not necessarily correct. We thus disagree with the Gov-
ernment’s argument.
         B. Whether the Error Was Clear and Obvious
     Having determined that the military judge erred in find-
ing Appellant guilty of aggravated sexual contact with a
child, we now must determine whether the error was clear
and obvious. While the terms clear or obvious do not have
any special definition, the Supreme Court has distinguished
clear and obvious errors from errors that are “subject to rea-
sonable dispute.” United States v. Marcus, 560 U.S. 258, 262
(2010) (internal quotation marks omitted) (quoting Puckett
v. United States, 556 U.S. 129, 135 (2009)); see United States
v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007) (“Because this
circuit’s law remains unsettled and the other federal circuits
have reached divergent conclusions on this [relevant] issue
. . . [appellant] cannot satisfy the second prong of the plain
error test—that the error be clear under existing law.”); see
also United States v. Thompson, 82 F.3d 849, 856 (9th Cir.
1996). We think that the foregoing analysis has shown that
the assigned issue in this case was subject to reasonable
doubt both at the time of trial and on appeal.
    As described above, the AFCCA and the ACCA had
reached conflicting conclusions on the question whether a
person who commits a rape will necessarily act with the spe-
cific intent required for a sexual contact. The United States
Courts of Appeals have reached a similar disagreement over
an analogous federal statute. In addition, at the time of tri-
al, the 2008 edition of the MCM incorrectly identified aggra-
vated sexual contact with a child as a lesser included offense
of rape of a child. MCM pt. IV, para. 45.d.(1)(a) & 45.d.(2)(a)
(2008 ed.). Although we have held that the MCM’s listing of
lesser included offenses is not controlling, see Jones, 68 M.J.
at 471, an error in the MCM is a factor in determining
whether an issue is subject to reasonable doubt. These con-
siderations prevent us from characterizing the military
judge’s error as clear and obvious.
  This case is distinguishable from our recent decision in
Armstrong. In Armstrong, we held it was a clear and obvious



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           United States v. Gonzales, No. 18-0347/AR
                     Opinion of the Court

error to conclude that assault consummated by a battery
was a lesser included offense of abusive sexual contact by
bodily harm. 77 M.J. at 472−73. We reasoned that the issue
involved a straightforward application of the elements test
and that the case was similar to other cases in which we had
applied the elements test in a similar way. Id. In contrast to
the present case, we did not identify any conflicting prece-
dent on the issue. Finally, the applicable version of the
MCM in Armstrong did not identify the lesser included of-
fenses for abusive sexual contact. Id. at 473 n.10. Thus in
Armstrong, unlike in this case, the MCM did not contribute
to doubt about the issue.
            C. Whether the Error Caused Prejudice
   Under the plain error standard of review, as noted above,
we can address a forfeited issue only if we determine that
there was an error, the error was clear and obvious, and that
the error prejudiced the appellant. Because we conclude that
any error in this case was not clear and obvious, we need not
reach the question of prejudice.

                        IV. Judgment

   The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed.




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