UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                      Private First Class MICHAEL S. MILAY
                           United States Army, Appellant

                                     ARMY 20100621

                               Headquarters, I Corps
                           Kwasi Hawks, Military Judge
                 Colonel Mitchell R. Chitwood, Staff Judge Advocate


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

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Stephen E. Latino,
JA (on brief).


                                    17 September 2012

                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MARTIN, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of failure to obey a lawful general regulation, false
official statement (two specifications), and one specification of aggravated sexual
assault, in violation of Articles 92, 107, and 120, Uniform Code of Military Justice,
10 U.S.C. §§ 992, 907, 920 (2006 & Supp. II 2008) [hereinafter UCMJ]. Appellant
was also convicted, contrary to his plea, of wrongful sexual contact as a lesser
included offense of aggravated sexual assault, in violation of Article 120(m), UCMJ.
The convening authority approved the adjudged sentence to a bad-conduct discharge,
confinement for one year, forfeiture of all pay and allowances, and reduction to the
grade of Private E-1.

    Appellant’s case is now before this court for review pursuant to Article 66,
UCMJ. Appellant raises two assignments of error, both of which allege instructional
MILAY—ARMY 20100621

defects related to the two Article 120, UCMJ, offenses of which he was convicted.
First, appellant claims that the military judge erred by not instructing the panel on
the affirmative defenses of consent and mistake of fact as to consent. This
assignment of error is without merit as those defenses were not raised by the
evidence. Second, appellant argues that the military judge’s instruction on the lesser
included offense of wrongful sexual contact was erroneous. As to this claim, we
agree with appellant and will take action in our decretal paragraph.

                                  BACKGROUND

       On Saturday, 29 August 2009, appellant and Private First Class (PFC) JH
decided to “hang out” and drink alcohol together. After purchasing alcohol,
appellant and PFC JH, who was only nineteen years old, went to appellant’s barracks
room where they drank, played music, danced, and watched a movie. After a few
hours, PFC JH, who was tired and intoxicated, fell asleep on appellant’s roommate’s
bed. Appellant’s roommate was absent.

        On Monday, 31 August 2009, PFC JH’s roommate told her that there were
rumors that PFC JH may have been a victim of a “train” over the weekend and that
the appellant was bragging that he had sex with her. Private First Class JH also felt
soreness in her vaginal area, and reported to her supervisor and victim advocate on
Tuesday morning. At that point, she received a medical examination from a sexual
assault nurse examiner (SANE). The SANE found semen in PFC JH’s vagina which
later tested positive for appellant’s DNA.

       Appellant was later questioned by agents from U.S. Army Criminal
Investigation Command (CID) and made two written statements about his actions
with PFC JH. In appellant’s first statement, he claimed that PFC JH held his neck
and shoulders, and that they danced close together: “not hard core, but kind of
playing dancing.” He stated that he touched the small of her back while dancing.
According to his statement, appellant then tried to pull her pants down, PFC JH
slapped his hand away, and he then went to his bed and fell asleep. In appellant’s
second sworn statement, appellant added that he put his hand on PFC JH’s butt,
touched her breast, and was “grinding with her” while they danced. He also stated
that while dancing, PFC JH touched his back, neck, and shoulders. He further stated
that they played around while dancing and fell together onto the bed. As they lay
together on the bed in a “spooning” position, appellant stated that they talked for
about ten minutes. According to appellant, he then reached down PFC JH’s pants
and digitally penetrated her. Appellant admitted that PFC JH was asleep when he
digitally penetrated her and that, when he put his finger inside of her, PFC JH said,
“Stop,” and pushed his hand away. Furthermore, he admitted that he knew he was
wrong because he knew that when he touched her, she was asleep.



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        At appellant’s court-martial, Private First Class JH’s testimony matched
appellant’s written statements in many regards. She testified that they agreed to
hang out in his room, that they drank, listened to music, and watched a movie.
While she never testified that they danced together, she did state that after falling
asleep, she awoke when appellant was lying behind her on the bed in a spooning
position, with both of them lying on their left sides. Private First Class JH testified
that when appellant tried to pull down her shorts and her underwear, she slapped his
hand away and said, “No,” before passing out and going back to sleep. She testified
that when he pulled her pants down, she felt his genitals against her skin. Also, JH
testified that she had no recollection of digital penetration or sexual intercourse with
appellant.

                               LAW AND DISCUSION

                    The Issue of Affirmative Defense Instructions

       Appellant claims the panel should have been instructed on the affirmative
defenses of consent and mistake of fact as to consent as to both Article 120, UCMJ
offenses. “Whether a panel was properly instructed is a question of law reviewed de
novo.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). The issue of
consent and mistake of fact as to consent are affirmative defenses found in Article
120(r), UCMJ, and Rule for Courts-Martial [hereinafter R.C.M.] 916(j). “A military
judge is required to instruct members on any affirmative defense that is ‘in issue,’
and a matter is considered ‘in issue’ when ‘some evidence, without regard to its
source or credibility, has been admitted upon which members might rely if they
chose.’” United States v. Stanley, 71 M.J. 60, 61 (C.A.A.F. 2012) (quoting United
States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)). We hold that the military judge
did not err by excluding instructions on consent and mistake of fact as to consent in
his instructions to the panel because those defenses were not “in issue.”

        Initially, we note that the defense, after reviewing the military judge’s
proposed instructions and discussing them with the military judge on the record, did
not object to the exclusion of instructions on consent or mistake of fact. Mandatory
instructions, including those on affirmative defenses, can be waived, but the passive
failure to request an instruction or the failure to object to its omission does not, by
itself, equate to an affirmative waiver. United States v. Gutierrez, 64 M.J. 374, 376
(C.A.A.F. 2007). In this case, the record does not reflect a purposeful decision to
relinquish the opportunity to submit these defenses to the panel. Id. at 377 (noting
that “[i]n making waiver determinations, we look to the record to see if the
statements signify that there was a ‘purposeful decision’ at play” (quoting United
States v. Smith, 50 M.J. 451, 456 (C.A.A.F. 1999))).




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       While the instructions were not waived, they were not reasonably raised and
thereby not “in issue” under the facts of appellant’s case. Appellant argues that
drinking, watching a movie, and dancing together alone in the privacy of appellant’s
barracks room is some evidence of consent or at least mistake of fact as to consent
to the sexual acts. However, the uncontradicted evidence introduced was that PFC
JH resisted and rejected appellant’s advances, clearly indicating that she was not
interested in sexual activity when she slapped his hand and said “no,” or “stop.”
Furthermore, by all accounts, PFC JH was asleep when appellant initiated the sexual
advances. Looking at the evidence in the light most favorable to appellant, no
rational member could have found that PFC JH consented to the sexual activity or
that appellant mistakenly held an honest and reasonable belief as to her consent.
Accordingly, the military judge did not err by excluding instructions on the
affirmative defenses of consent and mistake of fact as to consent.

                       The Lesser Included Offense Instruction

       After receiving instructions on the lesser included offense from the military
judge, the panel found appellant not guilty of one specification of aggravated sexual
assault by digital penetration, but guilty of the lesser included offense of wrongful
sexual contact.  Appellant argues that wrongful sexual contact in violation of
Article 120(m), UCMJ, is not a lesser included offense of aggravated sexual assault
in violation of Article 120(c), UCMJ, and the military judge erred by instructing to
the contrary. Although we do not agree with appellant’s sweeping proposition that
wrongful sexual contact can never be a lesser included offense of aggravated sexual
assault, we hold that, under the facts of this case, the military judge incorrectly
instructed on the lesser included offense of wrongful sexual contact.

       “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) (quoting
United States v. Miller, 67 M.J. 385, 387 (C.A.A.F. 2009)). As appellant did not
object to the lesser included offense instruction at trial, we review his claim for
plain error. Id. “Plain error occurs when (1) there is error, (2) the error is plain or
obvious, and (3) the error results in material prejudice.” Id.


  Appellant was charged with two specifications of aggravated sexual assault. One
specification alleged appellant committed aggravated sexual assault by penetrating
PFC JH’s vagina with his penis; appellant was convicted of this specification. The
other specification alleged appellant committed aggravated sexual assault by
penetrating PFC JH’s vagina with his finger. It is this latter specification that is at
issue here, as appellant was found not guilty of the greater offense, but guilty of the
lesser included offense of wrongful sexual contact.



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        “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.
“Article 79, UCMJ . . . is consonant with these constitutional principles, and applies
at both the trial and appellate levels.” Id. Article 79, UCMJ, defines a lesser
included offense as an offense that is “necessarily included in the offense charged or
of an attempt to commit either the offense charged or an offense necessarily
included therein.” We apply the elements test to determine if one offense is
necessarily included in another. United States v. Jones¸ 68 M.J. 465, 468 (C.A.A.F.
2010). “Under the elements test, one compares the elements of each offense. If all
the elements of [wrongful sexual contact] are also elements of [aggravated sexual
assault], then [wrongful sexual contact] is an LIO of [aggravated sexual assault].”
Id. at 470. In making this comparison, “[t]he 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.’” United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (quoting
Carter v. United States, 530 U.S. 255, 263 (2000)).

       As charged in this case, the offense of aggravated sexual assault has two
elements: (1) engaging in a sexual act with another; and (2) doing so when that
person is substantially incapacitated or substantially incapable of appraising the
nature of the sexual act, declining participation in the sexual act, or communicating
unwillingness to engage in the sexual act. See UCMJ art. 120(c)(2). As instructed
by the military judge, the offense of wrongful sexual contact has three elements: (1)
engaging in a sexual contact with another; (2) doing so without the person’s
permission; and (3) doing so without legal justification or lawful authorization. See
UCMJ art. 120(m). “Sexual act” is defined as, inter alia, “the penetration of the
genital opening of another by a hand or finger.” UCMJ art. 120(t)(1)(B). “Sexual
contact” is defined as, inter alia, “the intentional touching, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another
person.” UCMJ art. 120(t)(2).

       In this case, the charged greater offense alleged that appellant engaged in a
sexual act by penetrating PFC JH’s vagina with his finger. This allegation of digital
penetration was correctly instructed to the panel as the act underlying the greater
offense of aggravated sexual assault. However, the military judge’s instructions to
the panel further provided that appellant could be convicted of the lesser included
offense of wrongful sexual contact by touching the inner thigh of PFC JH with his
hand or by touching PFC JH with his penis. In order to give the instruction on the
lesser included offense that was fairly supported by the evidence, the military judge
had to substantially modify the types of acts appellant was alleged to have
committed. While the elements test is the framework by which we must examine the
use of lesser included offenses, it is important to note that the test is only a means to


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the end of protecting the constitutional due process imperative of notice. Indeed,
“[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 . . . .” United
States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (citing United States v. Medina,
66 M.J. 21, 26–27 (C.A.A.F. 2008)). In this case, the military judge, in adapting the
charge to meet the evidence presented at trial, violated the notice requirement.

       We therefore hold that under the unique facts and circumstances of this case,
the military judge plainly erred, and materially prejudiced appellant’s substantial
rights, by instructing the panel members that they could find appellant guilty of the
lesser included offense of wrongful sexual contact. The elements of aggravated
sexual assault as charged, and the elements of wrongful sexual contact, as
instructed, are substantially different and change the nature or identity of the
offense. Therefore, in applying the elements test in this case, we find that the
elements of the wrongful sexual contact offense are not a subset of the greater
offense of aggravated sexual assault.

                                   CONCLUSION

       Accordingly, the findings of guilty of the Specification of Charge I, and
Charge I, are set aside and dismissed. The remaining findings of guilty are affirmed.
Reassessing the sentence on the basis of the error noted, the entire record, and in
accordance with the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986),
and United States v. Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors
identified by Judge Baker in his concurring opinion in Moffeit, the court affirms the
sentence as approved by the convening authority.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:



                                       JOANNE P. TETREAULT ELDRIDGE
                                       Deputy
                                       JOANNE Clerk P.
                                                    of Court
                                                       TETREAULT ELDR
                                        Delerk of Court




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