                         UNITED STATES, Appellee

                                         v.

          Akeem A. WILKINS, Master-at-Arms Third Class
                      U.S. Navy, Appellant

                                  No. 11-0486
                        Crim. App. No. 201000289

       United States Court of Appeals for the Armed Forces

                          Argued October 9, 2012

                       Decided November 16, 2012

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., and COX, S.J., joined. BAKER, C.J., filed a
separate opinion concurring in the result.


                                     Counsel


For Appellant: Captain Michael D. Berry, USMC (argued); Major
Kirk Sripinyo, USMC (on brief).


For Appellee: Major Paul M. Ervasti, USMC (argued); Colonel
Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on brief);
Colonel Stephen C. Newman, USMC, and Major William C. Kirby,
USMC.


Military Judges: Christian Bareford (arraignment); Ross L.
Leuning and E. H. Robinson (trial)


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wilkins, No. 11-0486/NA


     Judge STUCKY delivered the opinion of the Court.

     We granted review in this case to determine whether

Appellant’s right to due process of law was violated when he was

convicted for abusive sexual contact as a lesser included

offense (LIO) of aggravated sexual assault.   We hold that

abusive sexual contact is not an LIO of aggravated sexual

assault in this case, but Appellant was not prejudiced by the

error.   We therefore affirm the judgment of the United States

Navy-Marine Corps Court of Criminal Appeals (CCA).

                                I.

     Contrary to Appellant’s pleas, members found him guilty in

a general court-martial of abusive sexual contact and sodomy by

force in violation of Articles 120 and 125, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 920, 925 (2006).   He was

sentenced to a dishonorable discharge and eighteen months of

confinement.   The convening authority approved the sentence and

the CCA affirmed the findings and sentence.   United States v.

Wilkins, No. 201000289, slip op. (N-M. Ct. Crim. App. Mar. 24,

2011) (unpublished).   This Court remanded the present issue for

consideration in light of United States v. McMurrin, 70 M.J. 15

(C.A.A.F. 2011); United States v. Girouard, 70 M.J. 5 (C.A.A.F.

2011); United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011); and

United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010).    United


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States v. Wilkins, 70 M.J. 274 (C.A.A.F. 2011) (summary

disposition).    The CCA affirmed in a per curiam opinion.     United

States v. Wilkins, No. 201000289, slip op. (N-M. Ct. Crim. App.

Nov. 29, 2011) (per curiam) (unpublished).

                                  II.

                                  A.

        In June 2009, Appellant, the victim, Master-at-Arms Third

Class (MA3) L, and several other sailors from their unit took a

trip to Malia, Greece.    The first night of the trip, the group

drank heavily.    MA3 L had approximately nineteen drinks, vomited

several times, and had to be escorted to bed by another member

from his unit at approximately 5:00 a.m.    Soon thereafter, MA3 L

awoke to a sensation in his groin area and pressure around his

anus.    He looked down and saw Appellant “coming up” from his

groin area.    MA3 L grunted and tried to push Appellant away.

                                  B.

        The charge and specification at issue state:

        CHARGE I: VIOLATION OF ARTICLE 120, UCMJ (aggravated
        sexual assault; abusive sexual contact)

        In that [Appellant], U.S. Navy, Naval Support Activity
        Souda Bay, on active duty, did, in Malia, Crete,
        Greece, on or about 26 June 2009, engage in a sexual
        act, to wit: placing his fingers or another object in
        the anus of [MA3 L], when [MA3 L] was substantially
        incapable of declining participation in the sexual act
        or communicating unwillingness to engage in the sexual
        act because he was asleep.



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United States v. Wilkins, No. 11-0486/NA


     Before closing arguments, the military judge sua sponte

found Appellant not guilty of the aggravated sexual assault

charge because the facts of the case did not fit the statutory

definition of a “sexual act.”   Article 120(t)(1), UCMJ.

However, the military judge allowed the members to consider

whether Appellant was guilty of abusive sexual contact as an LIO

of aggravated sexual assault.   Article 120(t)(2), UCMJ.   Defense

counsel did not object to the proposed LIO, but did object to

unrelated issues in the instructions directly after the military

judge stated he would allow the LIO to go to the members.

                                C.

     As Appellant did not object to the abusive sexual contact

instruction at trial, the CCA reviewed for plain error and

affirmed the findings and sentence on remand.   The CCA held that

the specification failed to state the charged offense of

aggravated sexual assault but alleged every element of abusive

sexual contact so as to put Appellant on notice and protect him

against double jeopardy.   The CCA compared the elements of the

two offenses, and concluded that the military judge properly

instructed the members that abusive sexual contact is an LIO of

aggravated sexual assault.   Because it found no error in the LIO

instruction, the CCA did not analyze prejudice under the plain

error standard.



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United States v. Wilkins, No. 11-0486/NA


                                 III.

                                  A.

        “Whether an offense is a lesser included offense is a

question of law we review de novo.”       United States v. Arriaga,

70 M.J. 51, 54 (C.A.A.F. 2011).    As there was no objection to

the instruction at trial, this Court reviews for plain error.

Id.     Under a plain error analysis, the “Appellant has the burden

of demonstrating that:    (1) there was error; (2) the error was

plain or obvious; and (3) the error materially prejudiced a

substantial right of the accused.”      Girouard, 70 M.J. at 11.

                                  B.

        This Court applies the elements test to determine whether

one offense is an LIO of another.       United States v. Jones, 68

M.J. 465, 468 (C.A.A.F. 2010).    The test does not require that

the “offenses at issue employ identical statutory language.”

Alston, 69 M.J. at 216.     Rather, after applying normal rules of

statutory interpretation and construction, this Court will

determine whether the elements of the LIO would necessarily be

proven by proving the elements of the greater offense.      Id.

        Aggravated sexual assault, the charged offense, requires

that the accused “engage in a sexual act.”      Article 120(c),

UCMJ.    Abusive sexual contact, the alleged LIO, piggybacks the

definition of aggravated sexual assault:      “Any person subject to

this chapter who engages in or causes sexual contact with or by

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United States v. Wilkins, No. 11-0486/NA


another person, if to do so would violate subsection (c)

(aggravated sexual assault) had the sexual contact been a sexual

act, is guilty of abusive sexual contact . . . .”   Article

120(h), UCMJ.   Because abusive sexual contact piggybacks the

definition of aggravated sexual assault, all of the elements of

the two offenses necessarily line up, except that aggravated

sexual assault requires a “sexual act” whereas abusive sexual

contact requires “sexual contact.”

     A “sexual act” is defined as:

          (A) contact between the penis and the
     vulva . . .; or

          (B) 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.

Article 120(t)(1), UCMJ.

     “Sexual contact” is defined as:

     the intentional touching, either directly or through
     the clothing, of the genitalia, anus, groin, breast,
     inner thigh, or buttocks of another person, or
     intentionally causing another person to touch, either
     directly or through the clothing, the genitalia, anus,
     groin, breast, inner thigh, or buttocks of any person,
     with an intent to abuse, humiliate, or degrade any
     person or to arouse or gratify the sexual desire of
     any person.

Article 120(t)(2), UCMJ.

     Abusive sexual contact is an LIO of aggravated sexual

assault in some instances.   For example, if an accused is


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United States v. Wilkins, No. 11-0486/NA


charged with aggravated sexual assault by penetrating the

genital opening of another, then any penetration of the genital

opening would also require a touching of the genital opening.

See Arriaga, 70 M.J. at 54-55 (holding that an offense may be an

LIO of a greater offense even if there are ways of committing

the lesser offense whereby it would not be an LIO of the

greater).   However, in this case, Appellant was charged with

aggravated sexual assault by digitally penetrating the anus of a

male victim.   A sexual act is statutorily limited to genital

openings,1 and the anus is not such an opening.   Article

120(t)(1), UCMJ.   This Court is confined to the definitions

formulated by Congress, and thus cannot construe “sexual act” to

include the digital penetration of another’s anus.   See Jones,

68 M.J. at 468; Liparota v. United States, 471 U.S. 419, 424

(1985) (“The 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.”)

(citation omitted).

     There is plain and obvious error in this case because

Appellant was charged with a legal impossibility.    The actions

alleged could never constitute the offense of aggravated sexual


1
  “Genital” is defined as “of, relating to, or being a sexual
organ.” Merriam-Webster’s Collegiate Dictionary 521 (11th ed.
2008). “Genitalia” is defined as “the organs of the
reproductive system.” Id.
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United States v. Wilkins, No. 11-0486/NA


assault.   Therefore, the specification was defective because it

failed to allege the elements of aggravated sexual assault, and

instructing on abusive sexual contact as an LIO was error.       See

Girouard, 70 M.J. at 11; McMurrin, 70 M.J. at 18; Jones, 68 M.J.

at 473; United States v. Miller, 67 M.J. 385, 388–89 (C.A.A.F.

2009).

                                  C.

     An error in charging an offense is not subject to automatic

dismissal, even though it affects constitutional rights.       United

States v. Humphries, 71 M.J. 209, 212 (C.A.A.F. 2012).       Rather,

this Court tests for prejudice.    See Article 59(a), UCMJ, 10

U.S.C. § 859(a) (2006) (stating that an error must materially

prejudice the substantial rights of the accused); Girouard, 70

M.J. at 11–12; McMurrin, 70 M.J. at 20 (testing for prejudice

where an individual was convicted of a properly alleged LIO that

was not an LIO as a matter of law).

     Appellant bears the burden of proving prejudice because he

did not object at trial.   Humphries, 71 M.J. at 217 n.10.

Appellant must show “that under the totality of the

circumstances in this case, the Government’s

error . . . resulted in material prejudice to [his] substantial,

constitutional right to notice.”       Id. at 215.   Appellant has not

met this burden because he cannot establish prejudice to his



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United States v. Wilkins, No. 11-0486/NA


ability to defend against the charge he was convicted of or his

right to notice.

                                D.

     The charging error in this case implicates Appellant’s

constitutional right to notice.2       U.S. Const. amends. V, VI.

“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.”       Miller, 67 M.J. at 388 (citing

Jackson v. Virginia, 443 U.S. 307, 314 (1979); In re Winship,

397 U.S. 358, 364 (1970); Cole v. Arkansas, 333 U.S. 196, 201

(1948); Dunn v. United States, 442 U.S. 100, 107 (1979)).

Appellant’s due process rights were not violated because he was

on notice of what he needed to defend against throughout his

court-martial.   See Jones, 68 M.J. at 468 (“an accused may be

convicted of uncharged LIOs precisely because they are deemed to




2
  The charging error in this case could have been rectified by
amending the specification pursuant to Rule for Courts-Martial
(R.C.M.) 603. The practical effect of allowing abusive sexual
contact to go to the members as an LIO was to effect a change to
the charge sheet. However, we do not need to decide whether the
change was major or minor because Appellant did not object to
the military judge’s actions, and the change does not alter the
fact that Appellant was not prejudiced. See R.C.M. 603(a)
Discussion (“Minor changes also include those which reduce the
seriousness of an offense.”), (d) (requiring the consent of the
accused to a major change unless the charge or specification is
preferred anew).
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United States v. Wilkins, No. 11-0486/NA


have notice” (citing United States v. Medina, 66 M.J. 21, 27

(C.A.A.F. 2008))).

     The substitution of the term “sexual act” for “sexual

contact” in the specification could be prejudicial in some

circumstances.3   However, in this case, Appellant was on notice

of all of the elements he had to defend against because the

specification expressly stated that Appellant placed “his

fingers or another object in [MA3 L’s] anus.”   See United States

v. Rauscher, 71 M.J. 225, 226–27 (C.A.A.F. 2012) (“The

specification clearly placed Appellant on notice of that against

which he had to defend. . . . Appellant defended against this

theory throughout the trial.”).

     Furthermore, the defense’s strategy demonstrated that

Appellant understood he was defending against all of the

elements of abusive sexual contact.    The defense’s strategy was

to (1) question whether the victim was substantially

incapacitated, and (2) raise the issue of mistake of fact as to

consent by Appellant.   To this end, defense counsel’s cross-

examination of MA3 L focused on Appellant and MA3 L’s previous

friendship and the events leading up to the sexual contact.


3
  For example, the failure to expressly allege a specific body
part in a specification may render such a mistake prejudicial.
Likewise, where the victim is female, there may be reasonable
confusion about whether a charge was intended to allege that the
accused committed a sexual act by penetrating a genital opening,
or committed sexual contact by touching the genital opening.
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United States v. Wilkins, No. 11-0486/NA


This strategy would not have changed had the specification

properly alleged “contact” instead of “act.”

        Defense counsel did not challenge any of the elements of

abusive sexual contact beyond MA3 L’s incapacitation or

Appellant’s alleged mistake of fact.    Instead, throughout the

trial and during closing arguments, defense counsel readily

conceded that Appellant penetrated or made contact with MA3 L’s

anus.    The manner in which the case was argued undercuts any

argument that Appellant was not on notice of what he had to

defend against or that his defense preparations were hampered.

Therefore, Appellant has not demonstrated prejudice to a

substantial right.4



4
  This case is distinguishable from cases in which we have
recently found prejudice like Humphries, Girouard, and McMurrin.
In Humphries, we held that the accused was prejudiced by the
failure to allege the terminal element in a contested Article
134, UCMJ, 10 U.S.C. § 934 (2006), specification. 71 M.J. at
217. The government failed to correct the error at any point
during the court-martial, and there was no mention of the
missing terminal element anywhere in the trial record. Id.
Unlike Humphries, the charge sheet in this case specifically
described the theory of the case, and the Government presented
specific evidence supporting the theory described. Furthermore,
as noted above, defense counsel explicitly conceded that sexual
conduct amounting to sexual contact occurred. In Girouard and
McMurrin, this Court found prejudice where the accused was not
charged with the offense of which he was convicted, the
specification was not amended in accordance with the Rules for
Courts-Martial, and the accused did not defend himself on the
theory of the alleged LIO. Girouard, 70 M.J. at 11; McMurrin,
70 M.J. at 20. Although the specification in this case
incorrectly charged “sexual act,” its factual specificity meant
that Appellant was able to defend himself on the theory of
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United States v. Wilkins, No. 11-0486/NA


                                IV.

     Abusive sexual contact is not an LIO of aggravated sexual

assault in this case, but Appellant was not prejudiced by the

error.   The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is affirmed.




abusive sexual contact throughout the court-martial.   Rauscher,
71 M.J. at 226–27.
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United States v. Wilkins, No. 11-0486/NA


     BAKER, Chief Judge (concurring in the result):

     I generally agree with the reasoning of the majority

opinion with the exception of footnote 4.   Abusive sexual

contact is a lesser included offense of aggravated sexual

assault where contact with the genitalia is involved.     The

problem in this case is that the specification did not state the

greater offense of aggravated sexual assault because it did not

allege contact with the genitalia.   Thus, based on the

specification in this case, there was no greater offense from

which to derive a lesser offense.    This resulted in a defective

specification with respect to the charge of aggravated sexual

assault.   However, the specification did state the offense of

abusive sexual contact; Appellant was fully on notice of this

charge and the factual theory upon which the Government was

proceeding.   He knew what he had to defend against.   Therefore,

any defect in the specification was harmless.
