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

                              UNITED STATES, Appellee
                                           v.
                            Private E1 JASON C. WAGNER
                             United States Army, Appellant

                                      ARMY 20111064

                       Headquarters, 25th Infantry Division
                            Kurt Bohn, Military Judge
    Lieutenant Colonel Emily C. Schiffer, Acting Staff Judge Advocate (pretrial)
           Colonel George R. Smawley, Staff Judge Advocate (post-trial)


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

For Appellee: Major Robert A. Rodrigues, JA; Major Catherine L. Brantley, JA;
Captain Bradley M. Endicott, JA (on brief).


                                         29 July 2013
                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

ALDYKIEWICZ, Judge:

      A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his plea, of aggravated sexual assault in violation of Article
120(c)(2), Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.
§ 920(c)(2) (2006 & Supp. III 2009), amended by 10 U.S.C. § 920 (2012). The panel
sentenced appellant to a dishonorable discharge and confinement for six yea rs. The
convening authority approved the adjudged sentence.

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises three assignments of error and submits one matter pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We conclude that one of
appellant’s assigned errors, which alleges the military judge erred by not instructing
WAGNER—ARMY 20111064

the panel that wrongful sexual contact and assault consummated by a battery are
lesser-included offenses of aggravated sexual assault, warrants discussion but no
relief. Appellant’s remaining assignments of error, as well as the matter personally
raised pursuant to Grostefon, are without merit. 1

                                 I. BACKGROUND

       On 30 November 2010, after work, DL joined some co -workers at a local bar.
Among those present were DL, DL’s co-worker WM, appellant, and appellant’s
friend RM. After consuming several beers and several shots of alcohol from glasses
left behind at the table when DL went to the restroom, DL, WM, RM, and appellant
proceeded to another bar where they continued to drink. At the second bar, DL
drank another beer and shot. DL never met appellant prior to that evening and her
interaction with appellant was minimal. The two barely exchanged greetings with
one another, and their interaction did not involve anything of a physical or sexual
nature.

      Between 0330 hours and 0400 hours that morning, 1 December 2010, DL,
WM, RM, and appellant left the second bar for appellant’s apartment where they
planned to continue drinking. DL, driving her own vehicle, followed WM to
appellant’s apartment having never been there before that evening. Once at the
apartment complex, DL became separated from her friends, finding appellant’s
apartment with the help of an evening security guard wh o was en route to the
apartment to tell appellant and his guests to lower their voices as they were making
too much noise for that time of the morning. The security guard described DL as
smelling of alcohol, having blood shot eyes, and talking loudly.

     Present inside appellant’s apartment were appellant, appellant’s roommate
JW, RM, DL, and WM. Once inside the apartment, DL was given another beer . By

1
  In appellant’s two other assignments of error, he alleges that the evidence is legally
and factually insufficient and that he was denied an opportunity to request that the
convening authority defer and/or waive the automatic forfeitures in his case.
However, we have no doubt that appellant engaged in a sexual act with DL without
her consent and while she was substantially incapacitated. Therefore, in discharging
our duties pursuant to Article 66, UCMJ, we conclude the evidence is legally and
factually sufficient as to appellant’s guilt of the charged aggravated sexual assault.
See UCMJ art. 66(c); United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002).
Furthermore, appellant’s claim of a “lost opportunity” during the post -trial phase of
his court-martial, see United States v. Fordyce, 69 M.J. 501 (Army Ct. Crim. App.
2010) (en banc), fails for the same reason as that announced in United States v.
Axtell, __ M.J. ___ (Army Ct. Crim. App. 2013) (en banc).



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WAGNER—ARMY 20111064

this time, she was groggy, staggering, and “wanted to sleep so badly that she
couldn’t bear it anymore.” Shortly after her arrival, JW observed DL passed out on
the living room floor, her beer spilling onto the new rug JW recently purchased for
the apartment. After picking up the beer bottle and cleaning up the spilled beer, JW
picked up the passed-out, unconscious, five-foot and eighty-pound DL. JW carried
DL to appellant’s bedroom, placing her fully clothed on appellant’s bed where RM
covered her. JW chose appellant’s bed rather than his own because “if she was
going to throw up or piss on herself it [wa s] not going to be in [his] bed.”

        Appellant later entered his bedroom and proceeded to remove DL’s clothing,
first removing her pants and then her underwear. He then proceeded to engage in
sexual intercourse with DL as she lay there. As she regained consciousness, DL
recalled wondering if she was dreaming. As appellant was penetrating her, DL
thought, “I need to wake up. I need to wake up. I need to do something. I need to
prevent this from happening to me.” Notwithstanding these thoughts, she t estified
she “couldn’t function . . . couldn’t speak . . . couldn’t do anything.” She further
testified that when appellant’s penis first penetrated her vagina, she felt “[p]ain and
disgust and hate all at the same time.” Then DL’s cellular phone rang, affording DL
the opportunity to push appellant away from her. She answered the phone and spoke
with her stepfather, telling him she would be home soon. Scared and not sure of
what to do, DL called WM who was in the living room, approximately ten feet from
appellant’s bedroom. After her two phone calls went unanswered, DL sent WM a
text message that read, “[appellant] is raping me.” DL then ran out of appellant’s
bedroom, naked from the waist down, and collaps ed on the living room floor crying.
Seeing her partially naked co-worker, WM covered DL with a blanket and
accompanied DL back into appellant’s bedroom to locate her clothing.

       At approximately 0545 hours, after finding her clothing and getting dressed,
DL fled the apartment into the apartment compl ex parking area in search of her
vehicle. As she drove away, she came across a noncommissioned officer, Sergeant
MA who saw her in her vehicle crying. When asked if she was okay, DL told
Sergeant MA she had been raped. Sergeant MA took DL to the apartment complex’s
security office where the same security guard she met earlier that morning called the
Honolulu Police Department (HPD). Upon HPD’s arrival, DL identified appellant as
the man who raped her. After identifying appellant, DL was transported to the
hospital where she was treated and a rape/sexual assault kit gathered.

                          A. THE GOVERNMENT’S CASE

      In addition to eliciting eyewitness testimony from the victim and others who
observed DL on the evening and early morning hou rs of 30 November 2010,
1 December 2010, the government also offered DNA evidence and medical
testimony. Following the assault, Dr. WL performed a sexual assault examination
on DL. Doctor WL testified that he observed lacerations on DL’s vagina, an injury


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WAGNER—ARMY 20111064

that WL described as typically occurring when “something is forced through that
opening, very large, very suddenly, or very forcefully.” The exam also found semen
in DL’s vagina. A forensic expert testified that t he partial DNA profile from the
semen found in DL’s vagina was consistent with appellant’s DNA profile.

       The government also put on testimony that appellant admitted to drugging
several females on separate occasions and having sex with them while they were
unconscious. Appellant’s male friend testified that appellant bragged, “he could
have sex with any girl. No one could say no to him because he would just drug them
and have sex with them while they were asleep.” This same friend testified that he
caught appellant putting prescription medication, specifically Adderall, in his drink,
one of two drugs appellant confessed to placing in others’ drinks, the second being
Ambien. The government introduced appellant’s prescription drug history which
established appellant had access to both Adderall and Ambien. The panel also heard
from CW who testified she awoke to find appellant on top of her while another
individual stood nearby appearing to photograph or video the event with what
appeared to be a camera-phone. When she awoke appellant’s body straddled hers
with appellant’s pelvic area on her “private area.” According to CW, this occurred
during a night of drinking in appellant’s apartment in which she felt faint and her
limbs felt weak. Although supported by witness testimony, the appellant’s
admission to previously drugging women in order to have sex with them was
unsupported by any toxicology reports. Similarly, there was no toxicology report
associated with the assault of DL.

                            B. THE DEFENSE’S CASE

      The defense did not contest the fact that appellant engaged in a sexual act
with DL. Instead, the defense attempted to show that the sex with DL was
consensual because DL was not incapacitated, challenging her capacity that evening.
The entire defense case focused on showing that DL was not substantially
incapacitated. In its opening statement, the defense stated , in part: “[B]ottom line
up front, December 1, 2010, we believe will show via [sic] consensual sexual
encounter between Private Wagner and [DL] . . . .” The defense’s opening
concluded with: “When you hear all of the evidence, both from the government side
and our side, we believe the evidence will show that any sex between [DL] and Jason
Wagner on December 1, was consensual. . . .”

       After attempting to establish a motivation to lie by cross -examining DL on her
“exclusive” relationship with her boyfriend at the time, the defense challenged DL’s
alleged incapacitation the early morning hours of 1 December 2010. The defense
cross-examined DL on the amount of alcohol she consumed, establishing that: prio r
to midnight she consumed no alcohol; from midnight until approximately 0200 hours
she consumed two beers with two shots of alcohol; and from 0200 hours until
approximately 0400 hours she partially consumed one beer with a sho t. The defense


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WAGNER—ARMY 20111064

also established: around midnight DL drove herself from work to the first bar; DL
drove herself to appellant’s apartment around 0400 hours, about a fifteen-minute
drive; DL was able to push appellant off of her when her step-father called her
cellular phone; that DL knew what was happening when appellant removed her
underwear, testifying “I wasn’t fully aware, but I knew it was happening, becau se I
just woke up from my sleep”; and, that DL told her step-father that she was okay and
that she would be home before sunrise. The defense focused on DL’s actions during
the sexual act, establishing that she was moaning and not screaming as she had
earlier told law enforcement agents from both HPD and the Army’s Criminal
Investigation Command. In addition to highlighting that DL changed her account of
events from “screaming” during the sexual assault to “moaning” (moans described
by her for the first time at trial as moans of “pain”), the defense introduced limited
character evidence from one defense witness indicating she had a character for being
untruthful.

       After aggressively cross-examining DL on her actions before, during, and
after the sexual act, the defense focused on the moaning coming from the bedroom,
using one government merits and one defense merits witness to paint a picture of a
consensual sexual encounter. Government witness RM, on cross -examination,
described the sounds coming from the room as “moaning,” characterizing the sounds
as someone having sex. Defense witness and DL’s co -worker WM described the
moaning she heard “like a passionate moaning sound, pleasurable sexual sound.”
Neither RM nor WM, both of whom were approximately ten feet from the wall to
appellant’s bedroom, heard appellant say anything nor did they hear DL cry out or
“scream” for help.

       In closing argument, appellant’s trial defense counsel argued: “[S]he was
sleepy but she was awake, she was aware of this touch. She decided not to do
anything about it. She decided to ignore it and she decides to continue to lay [sic] in
the bed.” Counsel’s summation focused on DL’s lack of credibility, highlighting her
motivation to lie to protect her relationship with her boyfriend , concluding with: “In
light of the lack of evidence the completely unreliable testimony of [DL] . . . and
the numerous reasons to doubt this case, the defense asked [sic] that you find the
only verdict that is allowed under the law. And that is one of not guilty. . . .”

                  C. THE MILITARY JUDGE’S INSTRUCTIONS

      Any and all substantive discussions about instructions apparently occurred
during Rule for Courts-Martial [hereinafter R.C.M.] 802 sessions. For example,
during an Article 39(a), UCMJ session, the military judge noted: “I do want to see
counsel in chambers. I’m going to discuss some instruction issues at this time.”
The court then recessed. When the court reconvened, nothing regarding the
chambers discussion(s) on instructions was captured for the record. Later, during
another Article 39(a) session and prior to recessing for the evening, the military


                                          5
WAGNER—ARMY 20111064

judge noted: “[W]here we are going is I would like counsel here at 8:30 to prepare
to discuss instructions, at least preliminarily.” Then, immediately prior to recessing
the court, the military judge directed counsel “in chambers for an 802 right now.”
The following morning, during the Article 39(a), UCMJ session before recalling the
members, the military judge, talking to the appellant, stated:

             Yesterday we had a couple of those [802s], we talked
             about exhibits, and making sure everything was lined up
             right. We talked about scheduling and the flow of the
             trial, things like that. But there was no discussion until
             the end of the day. I started working on jury instructions
             that I am required to give to the members. And we
             discussed those with you yesterda y. Now to talk about the
             one we had this morning--let's start with the 802 we had
             from yesterday.

Neither the government nor defense counsel had any additions or corrections to the
military judge’s R.C.M. 802 session summary. Although the quoted langu age
references “jury instruction” discussions with appellant “yesterday,” the substance
of any such discussions appears nowhere in the record. The military judge then went
on to discuss that morning’s R.C.M. 802 session with appellant:

             You [appellant] might have noticed a lengthier session
             with counsel today off the record and that is why we are
             late, that is my fault. I am trying to keep up with
             everyone by getting my jury instructions ready and that
             involves trying to understand what theories may or ma y
             not be appropriate. During that time there was a
             discussion with your counsel as to what theory of defense -
             -what affirmative defenses that are being raised by you
             may be appropriate. In that, it was bought (sic) up that
             they may or may not at that time be raising that if such
             actions did occur at all they may have been by consent and
             that indicated to the trial counsel --trial counsel indicated
             they may want to revisit the ruling of the court regarding
             evidence I admitted under rule 412, regarding Mrs. [ L’s]
             prior conduct with you.

             ...

             This is just a lengthy process for me to start working on
             my jury instructions as we go through. I have these
             charging conferences we go through regularly so I can
             keep up with the evidence as it comes in.


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WAGNER—ARMY 20111064

Again, neither the government nor defense counsel had any additions or corrections
to the military judge’s R.C.M. 802 session summary.

       At the close of testimony from the defense’s last merits witness but prior to
the defense resting, the military judge, at yet a nother Article 39(a), UCMJ session,
advised counsel that at 1300 hours he would hold another “charging conference of
the jury instruction,” once again directing counsel to his chambers for another
R.C.M. 802 session before recessing the court. When the co urt reconvened, the
military judge again discussed the R.C.M. 802 session with appellant:

             And at the 802 out of your presence we had as your
             counsel may have told. I have been simply working
             through jury instructions and changes and corrections that
             the parties wanted to make and I will give them a chance
             to identify them on the record. Regarding jury
             instructions I have provided the parties a couple of drafts
             and have a couple of charging conferences with them
             regarding instructions I intend to offer.

Unfortunately, once again, neither the government counsel, defense counsel, nor the
military judge provided any substantive details regarding the instructional
discussions held. Additionally, the prior draft instructions referenced in the above
excerpt are not a part of the record.

       Finally, at the close of evidence, the military judge finalized the instructions
he intended on giving, provided copies to both government and defense counsel, and
sought objections or modifications thereto, stating in part:

         I have been simply working through jury instruction and changes
         and corrections that the parties wanted to make and I will give
         them a chance to identify them on the record.
         ....

         MJ: Defense . . . [h]ave you had the opportunity to review the
         jury instructions I have provided?

         DC: Yes, Your Honor.

         MJ: Do you have any objections?

         DC: No, Your Honor.

         MJ: Do you have any additions?

         DC: No, Your Honor.

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WAGNER—ARMY 20111064

         MJ: Do you have any instructions that you would like to offer
         that we have talked about that you are not offering or that you
         want to make a record of?

         DC: No, Your Honor.

Like the defense, the government had no objection or proposed additional
instructions.

       The military judge instructed the panel on the charged offense of aggravated
sexual assault by penile-vaginal penetration of a substantially incapacitat ed victim,
UCMJ art. 120(c)(2), as well as the defenses of consent and mistake of fact as to
consent. He further instructed that the government possessed the burden to
disprove, beyond a reasonable doubt, both of these defenses. The military judge did
not instruct the panel on any lesser-included offenses.

                                      II. LAW

       “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.” UCMJ art. 79. “A military judge has a sua sponte
duty to instruct the members on lesser-included offenses reasonably raised by the
evidence.” United States v. Upham, 66 M.J. 83, 87 (C.A.A.F. 2008);
R.C.M. 920(e)(2). “An instruction on a lesser included offense is proper when an
element from the charged offense which distinguishes that offense from the lesser
offense is in dispute.” R.C.M. 920(e) discussion. See United States v. Griffin, 50
M.J. 480 (C.A.A.F. 1999). “[A]ny doubt whether the evidence is sufficient to raise
the need to instruct on a lesser-included offense must be resolved in favor of the
accused.” United States v. Rodwell, 20 M.J. 264, 267 (C.M.A. 1985).

       In Schmuck v. United States, 489 U.S. 705, 715–16 (1989), the Supreme Court
provided the legal framework that must be applied to determine whether a proposed
lesser offense is necessarily included within a greater offense. Construing Federal
Rule of Criminal Procedure 31(c), 2 the Supreme Court adopted the elements test:
“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.” Id. at 716. The
elements test has since been adopted for use in the military. United States v. Jones,
68 M.J. 465 (C.A.A.F. 2010); United States v. Teters, 37 M.J. 370 (C.M.A. 1993).
2
  Rule 31(c) provides: “The defendant may be found guilt y of an offense necessarily
included in the offense charged.” Fed. R. Crim. P. 31(c). Rule 31(c) is “almost
identical” to Article 79, UCMJ. United States v. Jones, 68 M.J. 465, 469 (C.A.A.F.
2010).



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WAGNER—ARMY 20111064

In its simplest form, the elements test compares individual elements of the two
offenses at issue, the greater and the proposed lesser, to determine whether every
element of the lesser is also an element of the greater. Jones, 68 M.J. at 470 (“If all
of the elements of offense X are also elements of offense Y, then X is [a lesser -
included offense] of Y. Offense Y is called the greater offense because it contains
all of the elements of offense X along with one or more additional elements .”). This
approach “‘permits lesser offense instructions only in those cases where the
indictment contains the elements of both offenses,’ and as a result ‘gives notice to
the defendant that he may be convicted on either charge.’” United States v. Alston,
69 M.J. 214, 216 (C.A.A.F. 2010) (quoting Schmuck, 489 U.S. at 718).

                                 III. DISCUSSION

       The record does not sufficiently establish that appellant waived lesser-
included offense instructions by pursuing an all -or-nothing strategy. Therefore,
appellant was entitled to instructions upon any lesser -included offenses reasonably
raised by the evidence. Appellant argues that the military judge erred by failing to
instruct the panel on two lesser-included offenses in particular: wrongful sexual
contact in violation of Article 120(m), UCMJ, and assault consummated by a battery
in violation of Article 128, UCMJ. We agree with appellant that both wrongful
sexual contact and assault consummated by a battery are lesser -included offenses of
aggravated sexual assault. However, on the facts of this case, we conclude that the
evidence did not reasonably raise any lesser -included offenses, to include wrongful
sexual contact and assault consummated by a battery, and therefore, the military
judge did not err by failing to provide lesser-included offense instructions.
Assuming arguendo that wrongful sexual contact was raised by the evidence, we still
conclude that appellant was not prejudiced by the omission of instruction on this
offense.

                            A. STANDARD OF REVIEW

        Initially, we are faced with a question as to whether appellant purposefully
sought to prevent the panel from considering any lesser -included offenses. “An
accused may seek to waive an instruction on lesser included offenses and present an
‘all or nothing’ defense as a matter of trial tactics.” Upham, 66 M.J. at 87 (citing
United States v. Pasha, 24 M.J. 87, 91 (C.M.A. 1987)). A valid waiver leaves no
error to assess on appeal. United States v. Harcrow, 66 M.J. 154, 156 (C.A.A.F.
2008). However, waiving lesser-included-offense instructions is distinct from
merely forfeiting such instructions. “A forfeiture is basically an oversight; a waiver
is a deliberate decision not to present a ground for relief that might be available in
the law.” United States v. Campos, 67 M.J. 330, 331 (C.A.A.F. 2009) (quoting
United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005)). “[F]or a waiver to be
effective it must be clearly established that there was an intentional relinquishment



                                           9
WAGNER—ARMY 20111064

of a known right or privilege.” Harcrow, 66 M.J. at 157 (internal quotation
omitted).

       The record does not establish that the defense affirmatively waived lesser -
included-offense instructions. The record is silent with regard to any express
decision by the defense to pursue an all-or-nothing strategy in this case, although an
objective review of the record in its entirety supports the conclusion that such an
approach was in fact the defense’s strategy. The record is silent as to the substance
of any lesser-included offense discussions between the military judge and
government or defense counsel. The record also fails to reveal the specifics of any
such discussions that may have occurred off the record during any of the R.C.M. 802
sessions, or “charging sessions,” purportedly touching on ins tructions. Therefore,
we cannot find that appellant intentionally relinquished a known right simply
because the defense failed to object to the findings instructions. Stated another way,
we decline to find an affirmative waiver when a military judge chooses to apparently
handle substantive discussions on instructions during R.C.M. 802 sessions and then
does not thoroughly capture the substance of those discussions on the record.

       Having declined to apply waiver in this case, we turn to the merits of
appellant’s claim. This Court reviews de novo whether an offense is necessarily
included in a separate, greater offense. United States v. Arriaga, 70 M.J. 51, 54
(C.A.A.F. 2011). As appellant failed to object to the military judge’s instructions,
this court reviews for plain error. United States v. Wilkins, 71 M.J. 410, 412
(C.A.A.F. 2012). “Plain error occurs when (1) there is error; (2) th e error is plain or
obvious; and (3) the error results in material prejudice.” Arriaga, 70 M.J. at 54.

                        B. LESSER-INCLUDED OFFENSES

      Appellant was charged with aggravated sexual assault in violation of Article
120(c)(2), UCMJ. 3 We hold wrongful sexual contact, 4 and assault consummated by a

3
 The charged offense of aggravated sexual assault in violation of Article 120(c)(2)
was in effect between 1 October 2007 and 27 June 2012 and provides as follows:

      (c) A GGRAVATED S EXUAL A SSAULT .—Any person subject to this
      chapter who—
         (1) causes another person of any age to engage in a sexual act
         by—
             (A) threatening or placing that other person in fear (other
             than by threatening or placing that other person in fear
             that any person will be subjected to death, grievous bodily
             harm, or kidnapping); or

                                                                    (continued . . .)

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WAGNER—ARMY 20111064

battery are lesser-included offenses of the charged aggravated sexual assault.
However, as explained below, the evidence at trial did not raise factual disputes
requiring instructions on these lesser offenses. Therefore, the military judge did not
err in omitting these instructions. 5

(. . . continued)
              (B) causing bodily harm; or
          (2) engages in a sexual act with another person of any age if
          that other person is substantially incapacitated or substantially
          incapable of—
              (A) appraising the nature of the sexual act;
              (B) declining participation in the sexual act; or
              (C) communicating unwillingness to engage in the sexual
              act;
       is guilty of aggravated sexual assault and shall be punished as a
       court-martial may direct.
4
  The offense of wrongful sexual contact in violation of Article 120(m) was in effect
between 1 October 2007 and 27 June 2012 and provides as follows:

       (m) W RONGFUL S EXUAL C ONTACT .—Any person subject to this
       chapter who, without legal justification or lawful authorization,
       engages in sexual contact with another person without that other
       person’s permission is guilty of wrongful sexual contact and
       shall be punished as a court-martial may direct.
5
  Appellant does not argue that the military judge should have instructed upon
attempted aggravated sexual assault in violation of Article 80, UCMJ, abusive sexual
contact in violation of Article 120(h), UCMJ, or indecent acts in violation of Article
120(k), UCMJ, as lesser-included offenses of aggravated sexual assault in violation
of Article 120(c)(2). We conclude the military judge did not err in failing to provide
such instruction. The lesser-included offense of attempted aggravated sexual assault
was not raised by the evidence. Secondly, appellant did not contest the fact that he
engaged in a sexual act with DL. Therefore, assuming abusive sexual contact is a
lesser-included offense, see United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012),
there was no factual dispute warranting instruction on this offense. See United
States v. Miergrimado, 66 M.J. 34 (C.A.A.F. 2008). Finally, indecent acts is not a
lesser-included offense of the charged aggravated sexua l assault; it is an alternative
offense. United States v. Tunstall, 72 M.J. 191, 195 (C.A.A.F. 2013).




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WAGNER—ARMY 20111064

                             1. Wrongful Sexual Contact

       Applying the elements test, we conclude that wrongful sexual contact is a
lesser-included offense of the charged aggravated sexual assault. In performing our
analysis, we must compare an offender-focused greater offense with a victim -
focused lesser offense. See generally United States v. Neal, 68 M.J. 289, 301
(C.A.A.F. 2010) (noting that the removal of consent as an element from Article
120(a) “was intended . . . to change the focus of the criminal process away from an
inquiry into the state of mind or acts of the victim to an inquiry into the conduct of
the accused” (quoting Russell v. United States, 698 A.2d 1007, 1009 (D.C. 1997))).
This is a rare comparison. And while the differences in perspective reveal inevitable
differences in wording, it is still impossible to prove the greater offense without first
proving the lesser.

       Before employing the elements test, we must first decide what elements
comprise the offenses being compared. Article 120(c), UCMJ, prescribes several
alternative ways in which an accused can be convicted of the greater offense of
aggravated sexual assault, only one of which was charged in this case. In general, it
is unclear whether “one looks strictly to the statutory elements or to the elements as
charged.” Arriaga, 70 M.J. at 55. Cf. United States v. St. John, __ M.J. ___, ___
(3) (Army Ct. Crim. App. 2013) (holding that for the purposes of a multiplicity
analysis, the court must “look at the specification to determine if an offense is
necessarily included in another”). However, as to defining the elements of the
greater offense, United States v. Alston provides sufficient resolution. In Alston, our
superior court employed the elements test by examining the elements of Article
120(c)(1)(B), UCMJ, without referencing elements of any of the alternative ways in
which Article 120(c) could be violated. Alston, 69 M.J. at 216. In other words, the
court implicitly treated the alternative statutory elements of the greater offense as
components of separate crimes under the statute —crimes that were not charged and
did not require comparison. We will use that approach here.

      The aggravated sexual assault specification alleges appellant v iolated Article
120(c)(2), UCMJ:

         In that Private Jason C. Wagner, U.S. Army, did, at or near
         Schofield Barracks, Hawaii, on or about 1 December 2010, engage
         in a sexual act, to wit: penetration of [DL]’s vulva with his penis
         while [DL] was substantially incapacitated.

This particular offense under Article 120(c)(2) has two elements: (1) that the
appellant engaged in a sexual act with another person, and (2) that the other person
was substantially incapacitated. The lesser-included offense of wrongful sexual
contact has three elements: (1) engaging in a sexual contact with another; (2) doing



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WAGNER—ARMY 20111064

so without the person’s permission; and (3) doing so without legal justification or
lawful authorization. UCMJ art. 120(m).

       It is immediately apparent that the elements of these offenses differ in number
and wording. However, “[t]he elements test does not require that the two offenses at
issue employ identical statutory language. Instead, after applying the normal
principles of statutory construction, we ask wh ether the elements of the alleged
[lesser-included offense] are a subset of the elements for the charged offense.”
United States v. Bonner, 70 M.J. 1, 2 (C.A.A.F. 2011) (quoting Alston, 69 M.J. at
216 (quoting Carter v. United States, 530 U.S. 255, 263 (2000))) (internal quotation
marks omitted).

       We begin by defining then comparing the first two elements of the greater and
lesser offenses. The greater offense requires a sexual act and the lesser offense
requires a sexual contact. The sexual act charge d in this case is defined as “contact
between the penis and the vulva,” which “occurs upon penetration, however slight.”
UCMJ art. 120(t)(1)(A). “Sexual contact” is defined as, inter alia, “the intentional
touching, either directly or through the clothin g, of the genitalia, anus, groin, breast,
inner thigh, or buttocks of another person . . . with an intent to abuse, humiliate, or
degrade any person or to arouse or gratify the sexual desire of any person.” UCMJ
art. 120(t)(2). As defined, a sexual contact permits conviction for a broader array of
conduct. For example, a sexual contact can occur by touching the breasts, whereas a
sexual act, as charged in this case, can only occur upon penile penetration of the
vagina. It goes without saying that penile -vaginal penetration does not necessarily
result in a touching of the breasts.

       However, the fact that the lesser offense is broader than the greater offense
does not run afoul of the elements test. A lesser offense may be necessarily
included in the greater even though the lesser offense “encompasses a wider range”
of conduct than the greater offense (i.e., a broader lesser offense). Arriaga, 70 M.J.
at 55. See Rutledge v. United States, 517 U.S. 292 (1996) (finding that conspiracy
under 21 U.S.C. § 846 was a lesser-included offense of continuing criminal
enterprise under 21 U.S.C. § 848, even though it was possible to violate the lesser
without violating the greater); United States v. McCullogh, 348 F.3d 620 (7th Cir.
2004); United States v. Alfisi, 308 F.3d 144 (2d Cir. 2002). See also Wayne R.
LaFave, Criminal Procedure, § 24.8(b) at 1152–54 (4th ed. 2004), available on
Westlaw at 6 Crim. Proc. § 24.8(e) (3d ed.) (“W hen the lesser offense is one defined
by statute as committed in several different ways, it is a lesser-included offense if
the higher offense invariably includes at least one of these alternatives.”). The mere
fact that it is possible to prove an element of the lesser offense, without also proving
an element of the greater offense, does n ot prevent that lesser-offense element from
being a “subset” of the greater-offense element. For that reason, when comparing
the conduct proscribed by individual elements, the term “subset” is a misnomer —the



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WAGNER—ARMY 20111064

lesser-offense element need not be wholly subsu med within the greater-offense
element. 6

       Therefore, the elements test does not require that every sexual contact results
in a sexual act, only that every sexual act necessarily results in a sexual contact. We
find this to be the case. In any situation w here the penis penetrates the vagina, one
form of sexual contact will also occur, i.e., an intentional touching of the genitalia.
See Wilkins, 71 M.J. at 413. Additionally, the intent component of a sexual contact
is also necessarily included within a sexual act. Under the statute, a “sexual act” has
two definitions, one of which contains the same sexual intent language as that used
in the definition of a “sexual contact.” However, where the crime involves penile -
vaginal penetration, which is true of th is case, the definition of sexual act does not
include a corresponding sexual intent. In the case of penile -vaginal penetration,
there is no need to specify an explicit intent element —it is beyond cavil that every
penile-vaginal penetration includes a corresponding sexual intent. United States v.
Demarrias, 876 F.2d 674, 676–77 (8th Cir. 1989) (holding that the intent required
for a sexual contact is necessarily included in a sexual act when construing the
nearly identical definitions of sexual act and sexual contact in 18 U.S.C. § 2245
(1988) (current version at 18 U.S.C. § 2246 (2006))). Contra United States v.
Castillo, 140 F.3d 874, 886 (10th Cir. 1998) (holding that the intent required for a
sexual contact is not included in a sexual act when construing the nearly identical
definitions of sexual act and sexual contact in 18 U.S.C. §§ 2242, 2243 (1994)
(current version at § 2246 (2006))); United States v. Sneezer, 900 F.2d 177, 179 (9th
Cir. 1990) (holding that the intent required for a sexual contact is not included in a
sexual act when construing the nearly identical definitions of sexual act and sexual
contact in 18 U.S.C. § 2245 (1988) (current version at § 2246 (2006))). We
therefore conclude the first element of the lesser offense, engaging in a sexual
contact, is necessarily included in the first element of the greater offense, engaging
in a sexual act.




6
  In fact, when comparing the conduct proscribed by an individual element, it is the
conduct proscribed by the greater-offense element that must be wholly subsumed
within the lesser. Only where the element of the greater offense fits completely
within the broader lesser-offense element, is it true that the lesser offense is
necessarily proven in every prosecution of the greater. In other words, the con duct
proscribed by the greater offense must be a subset, as that term is commonly
understood, of the conduct proscribed by the lesser offense. Although the greater-
offense element punishes a more serious form of conduct, that conduct is
nevertheless a subset of the entire universe of conduct that the lesser -offense
element proscribes.



                                          14
WAGNER—ARMY 20111064

      We also conclude that the second element of the lesser offense, without
permission, is necessarily included within the second element of the g reater offense,
substantial incapacitation. At first glance, the relationship of necessary inclusion
between “substantial incapacitation” and “without permission” is not obvious;
however, upon reference to the statute, it is clear that such a relationship exists.

      First, we conclude “without permission” is synonymous with “lack of
consent.” We draw this conclusion because (1) permission is not separately defined
under Article 120, UCMJ, (2) the crime of wrongful sexual contact is victim -
focused, and (3) permission is equated with consent elsewhere in the statute:

         C ONSENT AND M ISTAKE OF F ACT AS TO C ONSENT .— Lack of
         permission is an element of the offense in subsection (m)
         (wrongful sexual contact). Consent and mistake of fact as to
         consent are not an issue, or an affirmative defense, in a
         prosecution under any other subsection, except they are an
         affirmative defense for the sexual conduct in issue in a
         prosecution under . . . subsection (c) (aggravated sexual
         assault). . . .

UCMJ art. 120(r) (emphasis added). This provision specifically references wrongful
sexual contact and then states that “consent” is not an issue in “any other
subsection.” Thus, the statute refers to permission and equates it with consent. In
our view, the difference between permiss ion and consent is one engendered by the
focus of the crime, i.e., a victim-focused offense versus an offender-focused offense,
and not one of substantive import: the offender is said to have acted without
consent, whereas the victim is said to have not g iven permission. In either case, the
issue is still whether consent, as defined in the UCMJ, has been disproven. 7

       Drawing upon the definition of consent, we conclude an incapacitated person
is unable to give permission to the sexual conduct alleged in th is case. In defining
consent, the UCMJ provides:

             A person cannot consent to sexual activity if —
                 ....
             (B) substantially incapable of—
7
  The military judge apparently reached this conclusion as well, as he instructed the
panel that “‘[w]ithout permission’ means without consent.” This comports with the
standard instructions contained in the Military Judge’s Benchbook. Dep’t of Army,
Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 3 -45-11 (1 Jan.
2010).



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WAGNER—ARMY 20111064

                    (i) appraising the nature of the sexual
                    conduct at issue due to—

                           (I) mental impairment or unconsciousness
                           resulting from consumption of alcohol, drugs, a
                           similar substance, or otherwise; or

                           (II) mental disease or defect which renders
                           the person unable to understand the
                           nature of the sexual conduct at issue;

                    (ii) physically declining participation in
                    the sexual conduct at issue; or

                    (iii) physically communicating unwillingness
                    to engage in the sexual conduct at issue.

UCMJ art. 120(t)(14). The greater-offense element of “substantially incapacitated”
is not separately defined, but we find the definition provided by the mili tary judge is
adequate for resolving the legal issues in this case. T he military judge instructed:

             “Substantially incapacitated” means that level of mental
             impairment due to consumption of alcohol, drugs, or
             similar substance; while asleep or unconscious ; or for
             other reasons; which rendered the alleged victim unable to
             appraise the nature of the sexual conduct at issue, unable
             to physically communicate unwillingness to engage in the
             sexual conduct at issue, or otherwise unable to make or
             communicate competent decisions.

Thus, the instructed-upon definition of “substantial incapacitation” is simply a
restatement of the circumstances in which a person is incapable of giving lawful
consent. See UCMJ art. 120(t)(14). Consequently, someone who is substantia lly
incapacitated cannot, as a matter of law, consent to a sexual act or a sexual contact.

       In light of the foregoing definitions, it is impossible to prove the greater -
offense element without also having proven the lesser -offense element. Every time
an accused is proven to have engaged in a sexual act with a substantially
incapacitated victim, the victim’s permission is necessarily disproven. To prove that
a person is substantially incapacitated is to prove that he or she is incapable of
granting permission. C.f. United States v. Gavin, 959 F.2d 788, 791–92 (9th Cir.
1992) (“It is evident that to prove that one caused another to engage in a sexual
contact by placing that other person in fear requires proving that the other person
has not given permission for the contact. Those in fear are incapable of granting
permission. To prove that a person acted in fear is to prove that the act was without

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WAGNER—ARMY 20111064

permission.”). Stated a different way, “[i]f an accused proves that the victim
consented, he has necessarily proven that the victim had the capacity to consent,
which logically results in the accused having disproven an element of the offense of
aggravated sexual assault—that the victim was substantially incapacitated.” United
States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011). Furthermore, as discussed in
detail above, it is unimportant that there may be numerous ways to prove that a
sexual contact was done without the victim’s permission. The converse need only be
true—permission must be necessarily excluded every time a victim is proven to be
substantially incapacitated. The statutory provisions provide exactly that.

       Similarly, we conclude the third and final element of wrongful sexual contact
(without legal justification or lawful authorization) is necess arily included within
the greater offense. Accordingly, we hold wrongful sexual contact in violation of
Article 120(m), UCMJ, is a lesser-included offense of aggravated sexual assault in
violation of Article 120(c)(2), UCMJ.

                        2. Assault Consummated by a Battery

       We further conclude that assault consummated by a battery is a lesser -
included offense of the charged aggravated sexual assault. As discussed above,
wrongful sexual contact is a lesser-included offense of aggravated sexual assault.
Moreover, assault consummated by a battery is a lesser -included offense of wrongful
sexual contact. Bonner, 70 M.J. at 3. Therefore, as a matter of law and logic,
assault consummated by a battery is also a lesser -included offense of the charged
aggravated sexual assault. See Jones, 68 M.J. at 472 (noting “the elements test for
[lesser-included offenses] 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”).

                C. “REASONABLY RAISED” BY THE EVIDENCE

       Appellant argues that the panel could have, on the evidence presented, found
DL had the capacity to consent, that is, was not substantially incapacitated, but still
found appellant’s sexual act was without DL’s permission, thus requiring the
military judge to instruct the panel on wrongful sexual contact and assault
consummated by a battery. On the evidence before the panel in appellant’s case, we
disagree.

       The evidence elicited by both the government and defense throughout the
entirety of the case focused on DL’s incapacitation or lack thereof. Although the
record, as previously noted, is silent on whether the defense elected to make this an
“all or nothing” case when discussing instructions with the military judge, the
evidence of record makes clear that this case was just that. If the panel accepted the
government’s theory of incapacitation, the offense at issue is aggravated sexual


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WAGNER—ARMY 20111064

assault. However, if the panel rejected the evidence of incapacitation , there was no
evidence upon which to find that the sexual act, an act conceded by appellant and
not in dispute, was nonetheless “without [DL’s] permission.” In other words, DL’s
lack of consent was inexorably linked, throughout the entire trial, to her
incapacitation. As our superior court noted:

         It is a well-established principle of military law that the military
         judge must properly instruct members on all lesser included
         offenses reasonably raised by the evidence. Indeed, so important
         is this duty that it arises sua sponte under appropriate
         circumstances, even without a defense request. It is not necessary
         that the evidence which raises an issue be compelling or
         convincing beyond a reasonable doubt. Instead, the inst ructional
         duty arises whenever “some evidence” is presented to which the
         fact finders might “attach credit” if they so desire.

United States v. Jackson, 12 M.J. 163, 166–67 (C.M.A. 1981) (quoting United States
v. Evans, 17 U.S.C.M.A. 238, 242, 38 C.M.R. 36, 40 (1967)) (internal citations
omitted). See also United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013). On the
facts of appellant’s case, the element of “without [ ] permission” was not reasonably
raised outside the context of DL’s incapacitation . Therefore wrongful sexual contact
was not reasonably raised by the evidence, and it was not plain error for the military
judge to omit instruction on this offense.

       For similar reasons, we conclude the military judge did not err by failing to
instruct upon assault consummated by a bat tery as a lesser-included offense. “[A]
lesser-offense charge is not proper where, on the evidence presented, the factual
issues to be resolved by the jury are the same as to both the lesser and greater
offenses.” Sansone v. United States, 380 U.S. 343, 349–50 (1965). This principle is
generally applied in assessing factual disputes between the greater offense and a
particular lesser offense. Id.; United States v. Miergrimado, 66 M.J. 34 (C.A.A.F.
2008). We hold this principle is also applicable as bet ween lesser offenses
themselves. Thus, an instruction upon a less -serious, lesser-included offense is not
required where the factual issues to be resolved by the panel are the same as to both
that lesser-included offense and a more-serious, lesser-included offense. See, e.g.,
United States v. Rivera-Alonzo, 584 F.3d 829, 835 (9th Cir. 2009) (holding failure to
instruct upon a less-serious, lesser-included offense was not error where there was
no dispute between that lesser offense and another instructed u pon lesser-included
offense).

       Applied to this case, it is clear that there was no factual dispute as to the
differing elements between wrongful sexual contact and assault consummated by a
battery. As defined, the two offenses differ only as to the natu re of the act
committed: wrongful sexual contact requires a sexual contact, UCMJ art. 120(m),


                                          18
WAGNER—ARMY 20111064

whereas battery requires a harmful or offensive touching, UCMJ art. 128. In this
case, there was no dispute as to the nature of the act performed —appellant conceded
at trial that he engaged in sexual intercourse with DL. Thus, not only was assault
consummated by a battery not raised by the evidence (for the same reasons wrongful
sexual contact was not raised), but even if it was raised by the evidence, it would
still have been improper to instruct upon it. Appellant has no right to a compromise
verdict or any instruction that is tantamount to a request for jury nullification. See,
e.g., United States v. Thomas, 116 F.3d 606, 615 (2nd Cir. 1997) (“[I]n language
originally employed by Judge Learned Hand, the power of juries to ‘nullify’ or
exercise a power of lenity is just that —a power; it is by no means a right or
something that a judge should encourage or permit if it is within his authority to
prevent.”). Accordingly, the military judge properly omitted instruction upon this
lesser-included offense.

                                    D. PREJUDICE

       Assuming arguendo the evidence reasonably raised wrongful sexual contact as
a lesser-included offense, we conclude that appellant was not prejudice d by the
military judge’s failure to instruct upon it . In a plain error analysis, it is appellant’s
burden to show that the “error materially prejudices the substantial rights of the
[appellant].” UCMJ art. 59(a). An appellant meets this burden by showi ng a
“reasonable probability that, but for [the error claimed], the result of the proceeding
would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)) (alteration in
original). Where an instruction on a lesser -included offense is omitted, “reversal is
required only when an appellate court is convinced that the evidence issues are such
that a rational jury could acquit on the charged crime but convict on the lesser
crime.” United States v. Wells, 52 M.J. 126, 130 (C.A.A.F. 1999) (quoting United
States v. Moore, 108 F.3d 270, 272–73 (10th Cir. 1997)) (internal quotation mark s
and alterations omitted). Stated another way, was there “ample evidence in [the]
case from which the members could reasonably find that appellant committed [the]
lesser offense . . . but not the greater charged offense [?].” Wells, 52 M.J. at 132.

       On the facts of this case and for the reasons previously noted, we find a
rational trier of fact could not acquit on the charged offense and yet convict on the
offense of wrongful sexual contact. Therefore, appellant suffered no prejudice, let
alone material prejudice, to a substantial right by any failure to instruct on wrongful
sexual contact as a lesser-included offense of the charged offense.

                                  III. CONCLUSION

      Upon consideration of the entire record, the submissions of the parties, and
the matters personally raised pursuant to Grostefon, we hold the findings of guilty



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WAGNER—ARMY 20111064

and the sentence as approved by the convening authority to be correct in law and
fact. Accordingly, the findings of guilty and the sentence are AFFIRMED.

      Senior Judge KERN and Judge MARTIN concur.


                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:




                                      MALCOLM H. SQUIRES, JR.
                                      MALCOLM H. SQUIRES, JR.
                                      Clerk of Court
                                      Clerk of Court




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