UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           COOK, GALLAGHER, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                   Sergeant First Class JOHNNY F. PROTHRO
                         United States Army, Appellant

                                   ARMY 20110331

         Headquarters, United States Army Maneuver Center of Excellence
                        Stephen E. Castlen, Military Judge
                Colonel Mary M. Foreman, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain Jack D. Einhorn, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Catherine L. Brantley, JA;
Captain Edward J. Whitford, JA (on brief).

                                     29 March 2013

                             -------------------------------------
                               SUMMARY DISPOSITION
                             -------------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general regulation,
one specification of adultery, and three specifications of dishonorably failing to pay
a debt in violation of Articles 92 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 892, 934 (2006) [hereinafter UCMJ]. Contrary to his pleas, a panel of
officer and enlisted members sitting as a general-court martial, convicted appellant
of one specification of wrongful sexual contact and one specification of abusive
sexual contact each in violation of Article 120, UCMJ. The convening authority
approved the adjudged sentence of a bad-conduct discharge, confinement for nine
months, and a reprimand.

       This case is before us for review under Article 66, UCMJ. Appellant raises
four assignments of error to this court. Appellant’s first assignment of error merits
discussion but no relief. His remaining assignments of error, along with the matters
he personally raises pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), are without merit.
PROTHRO—ARMY 20110331

                                  BACKGROUND

       In July 2010, Officer Candidate (OC) SB reported for duty at the staff-duty
desk. Appellant was serving as the staff-duty noncommissioned officer (NCO) and
informed OC SB “he needed to show [her] another part of her duty.” Appellant led
OC SB down a hallway to a supply closet. Officer Candidate SB entered the closet,
followed by appellant who shut the door behind him. The closet was cramped and
OC SB was backed up against some wall lockers. After showing OC SB the mops,
appellant moved towards OC SB and without her consent put his hand inside her
uniform pants and touched her vagina through her underwear. After appellant
touched OC SB without her consent, appellant then asked OC SB if she wanted to
touch him to which she replied no. Appellant then stated he “needed to know that I
[OC SB] wasn’t going to tell anybody and that I [OC SB] should touch him.”
Appellant was between OC SB and the door. Out of fear that appellant would do
something worse than he already had or become violent, OC SB touched appellant’s
penis through his pants with a sweeping motion and immediately moved past
appellant out of the closet.

       As a result of this incident, appellant was charged with wrongful sexual
contact for touching OC SB’s vagina and abusive sexual contact caused by fear for
forcing her to touch his penis. Specification 2 of The Charge alleged appellant:

             [a]t or near Ft. Benning, GA, on 12 July 2010, caused
             sexual contact with or by [OC SB], to wit: forcing her to
             touch his penis over his clothing by placing her in fear of
             bodily harm.

       At trial, OC SB testified she touched appellant’s penis, but only did so out of
fear. Prior to the presentation of evidence, both the government and defense
informed the military judge that they did not believe any lesser-included offenses
would be raised by the evidence and requested that no instructions on any lesser-
included offenses be given. Following presentation of the evidence, both the
government and the defense informed the military judge that they believed no lesser-
included offenses had been raised by the evidence and they did not want instructions
on any lesser-included offenses. The military judge ultimately did not instruct on
any lesser-included offenses.

       For the first time on appeal, appellant now contends the military judge
committed prejudicial error by allowing the defense’s “all or nothing” strategy and
failing to instruct the panel on wrongful sexual contact as a lesser-included offense
of abusive sexual contact caused by fear because it was reasonably raised by the
evidence.




                                          2
PROTHRO—ARMY 20110331

                              LAW AND DISCUSSION

      “Whether an offense is a lesser included offense is a question of law we
review de novo.” United States v. Miller, 67 M.J. 385, 387 (C.A.A.F. 2009).

        Article 79, UCMJ, provides, “an accused may be found guilty of an offense
necessarily included in the offense charged or of an attempt to commit either the
offense charged or an offense necessarily included therein.” To determine whether
an offense is necessarily included requires a comparison of the elements of the two
offenses. Schmuck v. United States, 489 U.S. 705, 716 (1989). One offense is
“necessarily included” in another if the elements of the lesser offense are a subset of
the elements of the charged offense. Id. at 716. In other words, it “must be such
that it is impossible to commit the greater without first having committed the
lesser.” Id. at 719.

       Applying the elements test in this case, wrongful sexual contact is not
necessarily included within the offense of abusive sexual contact. “Without the
other person's permission” is an element of wrongful sexual contact, whereas
consent, permission, or lack thereof is not an element of abusive sexual contact. See
United States v. Neal, 68 M.J. 289, 300 (under the new Article 120, UCMJ, lack of
consent is no longer an element of rape and its related offenses); MCM, pt. IV, ¶
45.b.(8)(a); MCM, part IV, ¶ 45.b.(13). If causation by fear is not proven beyond a
reasonable doubt, it does not follow that a lack of permission has been necessarily
determined. Stated another way, without a finding that OC SB touched appellant
because of her fear, some other theory would have to support a separate
determination of the element of “without the other person’s permission.” In this
case, wrongful sexual contact does not qualify as a lesser-included offense because
that offense requires an element not required for the greater offense of abusive
sexual contact caused solely by fear. See Jones, 68 M.J. at 470. Accordingly, the
military judge did not err by failing to instruct on wrongful sexual contact as a
lesser-included offense of abusive sexual contact.

       Further, even assuming wrongful sexual contact could be considered a lesser-
included offense of abusive sexual contact caused by fear, it was not reasonably
raised by the evidence. “[T]he military judge has a duty to instruct sua sponte on all
lesser-included offenses reasonably raised by the evidence.” United States v.
Griffin, 50 M.J. 480, 481 (C.A.A.F. 1999). Our superior court has held that
“instructions on lesser included offenses are required unless affirmatively waived by
the defense.” United States v. Strachan, 35 M.J. 362, 364 (C.M.A. 1992). “An
instruction on a lesser included offense is [only] proper when an element from the
charged offense which distinguishes that offense from the lesser offense is in
dispute.” Griffin, 50 M.J. at 481 (citing Rule for Courts-Martial [hereinafter
R.C.M.] 920(e)(2) discussion); See also United States v. Miergrimado, 66 M.J. 34,
36 (C.A.A.F. 2008).



                                           3
PROTHRO—ARMY 20110331

        At trial, OC SB testified she intentionally reached out and touched appellant’s
clothed penis out of fear the situation would escalate and appellant would become
“violent or done something more sexually aggressive.” The evidence presented at
trial did not raise any other criminal theory as to how appellant caused OC SB to
reach out and touch his penis. While it is possible to have a situation where the
occurrence of a sexual act is caused without consent but not through fear, such a
scenario was not charged or raised through the evidence in this case. In this case,
the offense of abusive sexual contact did not require “the jury to find a disputed
factual element which [was] not required for conviction of the lesser included
offense” because both offenses would have been predicated on OC SB acting out of
fear. United States v. Jackson, 12 M.J. 163, 167 (C.M.A. 1981) (quoting Sansone v.
United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965)). As such,
the military did not err.

                                   CONCLUSION

       On consideration of the entire record, the assignments of error noted by the
parties, and the allegations raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), the findings of guilty are correct in law and
fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.


                                        FOR THE COURT:




                                        KENNETH J. TOZZI
                                        COL, JA
                                         KENNETH J. TOZZI
                                        Acting Clerk of Court
                                         COL, JA
                                         Acting Clerk of Court




                                           4
