This opinion is subject to administrative correction before final disposition.




                               Before
                  TANG, LAWRENCE, and STEPHENS
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                        Cesar A. LOPEZ
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant

                             No. 201800334

                           Decided: 13 May 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                               Military Judge:
                              Jeffrey V. Munoz

 Sentence adjudged 7 June 2018 by a general court-martial convened
 at Marine Corps Air Station Miramar, California, consisting of officer
 and enlisted members. Sentence approved by the convening authority:
 confinement for 60 days and a bad-conduct discharge.

                              For Appellant:
              Lieutenant Clifton E. Morgan III, JAGC, USN

                              For Appellee:
                Lieutenant Joshua C. Fiveson, JAGC, USN
          Lieutenant Commander Timothy C. Ceder, JAGC, USN

 Judge LAWRENCE delivered the opinion of the Court, in which
 Senior Judge TANG and Judge STEPHENS joined.

                        _________________________
                United States v. Lopez, NMCCA No. 201800334
                             Opinion of the Court

            This opinion does not serve as binding precedent,
             but may be cited as persuasive authority under
              NMCCA Rule of Practice and Procedure 30.2.

                            _________________________

LAWRENCE, Judge:
    A panel of members with enlisted representation sitting as a general
court-martial acquitted Appellant of two specifications of abusive sexual
contact in violation of Article 120, Uniform Code of Military Justice [UCMJ],
but convicted him of two specifications of assault consummated by a battery
in violation of Article 128, UCMJ. 1 At trial, the Government, Defense, and
military judge all treated assault consummated by a battery as a lesser
included offense of abusive sexual contact.
    Appellant asserts three assignments of error [AOEs]: (1) the military
judge committed plain error in instructing the members that assault con-
summated by a battery is a lesser included offense of abusive sexual contact
by bodily harm; (2) the military judge deprived the court of jurisdiction and
made a major change to the Charge by denying trial defense counsel’s [TDC]
post-adjournment motion to dismiss because he erroneously instructed the
members that assault consummated by a battery was a lesser included
offense of abusive sexual contact, making a major change to the charged
specifications; and (3) TDC were ineffective for requesting a findings instruc-
tion on assault consummated by a battery and not objecting during trial to it
being added as a lesser included offense of abusive sexual contact by bodily
harm. We find no prejudicial error and affirm.

                                 I. BACKGROUND

   Several Marines gathered for dinner at a local off-base restaurant. This
group included Appellant, Lance Corporal [LCpl] S, and LCpl L. As he ate
dinner, Appellant drank three or four mixed drinks and some beer. When
they finished dinner, Appellant, LCpl S, and LCpl L decided to go back to the
barracks to drink and watch a movie.




   1 10 U.S.C. § 920 (2016) and 10 U.S.C. § 928 (2012). The members also acquitted
Appellant of one specification of unlawful entry in violation of Article 134, UCMJ, 10
U.S.C. § 934 (2016).




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               United States v. Lopez, NMCCA No. 201800334
                            Opinion of the Court

    On the drive back to base, they stopped at a liquor store and purchased
alcohol. Appellant bought a fifth of whiskey to share with LCpl L, and LCpl S
bought a can of malt liquor.
    Upon arriving at the barracks, the three Marines settled on LCpl L’s room
to continue the evening’s festivities. Whereas Appellant had a roommate and
LCpl S lived off base, LCpl L had a two-bedroom barracks suite to himself.
Because LCpl L did not have all the electronic media needed to stream the
movie, they picked up a television, a gaming system, and controllers from
Appellant’s room and brought them to LCpl L’s room, which was in the same
barracks—but some distance from Appellant’s room.
    Watching a movie with many dancing scenes, they decided to play a
drinking game. When a dancing scene would commence, Appellant and
LCpl L would take a shot of whiskey and LCpl S would take a sip from his
can. This game continued until LCpl S became tired and decided to go to
sleep, lying down in LCpl L’s bed. Shortly thereafter, LCpl L also went to bed,
using the spare bedroom. More than one-half of the fifth of whiskey had been
consumed, mostly by Appellant, who unsuccessfully cajoled the others to stay
up and continue drinking.
   In an attempt to motivate his friends to continue drinking, Appellant first
went to the room occupied by LCpl S. Appellant told LCpl S that he wanted
to continue drinking with him, slapped him, and asked whether he was
drunk and how many fingers he was displaying. Annoyed by this behavior,
LCpl S told Appellant to leave him alone, as he did not want to drink
anymore and just wanted to go to sleep.
   Appellant then entered the spare room occupied by LCpl L. As LCpl L lay
on the bare mattress, Appellant pulled down LCpl L’s outer sweatpants and
shorts. LCpl L tried to hold his shorts in place, but Appellant was able to
reach inside and grab LCpl L’s penis and testicles with his hand. Then
Appellant moved his head toward LCpl L’s genital area, but LCpl L forcefully
held his shorts in place and Appellant gave up and left the room.
    Appellant went back to find LCpl S and tried again to get him to drink.
Again he slapped him and asked him whether he was drunk and how many
fingers he had raised. But this time, he touched LCpl S on the inside of his
thigh. LCpl S told him to stop and pushed him away. Appellant then touched
his genitals over his shorts. Again, LCpl S told him to stop and pushed him
away. Nonetheless, Appellant continued. He grabbed the waistline of LCpl
S’s shorts and underwear with one hand and lifted them up while reaching
inside with his other hand, grabbing ahold of LCpl S’s penis and testicles.
LCpl S angrily pushed Appellant away and emphatically yelled at Appellant
to stay away from him. LCpl S got out of the bed, put on his shoes, and,


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                  United States v. Lopez, NMCCA No. 201800334
                               Opinion of the Court

despite Appellant grabbing his arm and trying to convince him to stay, left
the barracks room.
    Additional facts necessary for resolution of the AOEs are included in the
discussion below.

                                      II. DISCUSSION

A. Appellant Waived any Instructional Error
   Before trial, the Defense included the Article 128, UCMJ, assault con-
summated by battery instruction in their list of proposed instructions. With
the Defense’s express agreement, the military judge instructed the members
that assault consummated by battery was a lesser included offense of abusive
sexual contact by bodily harm, and the members convicted Appellant of these
two lesser included offenses. After adjournment, but before the convening
authority acted, the Court of Appeals for the Armed Forces [CAAF] decided
United States v. Armstrong. 2
    In Armstrong, the CAAF concluded that, under the elements test of Unit-
ed States v. Jones, 3 assault consummated by a battery is not a lesser included
offense of abusive sexual contact by bodily harm. Specifically, the “unlawful
force or violence” element is not present in abusive sexual contact by bodily
harm. The court held that a specification could be drafted to expressly include
this element and therefore “provide[ ] notice that the Government would have
to prove that the [offending act] was done ‘with unlawful force or violence.’ ” 4
But the specification in Armstrong did not include it. Nor did the specification
in Appellant’s case.
    In light of the ruling in Armstrong, both the Government and Appellant
agree it was error to instruct on assault consummated by a battery as a lesser
included offense of abusive sexual contact by bodily harm. Appellant argues
his substantial rights were materially prejudiced by this instruction and
prays this Court set aside his convictions. The Government asserts that no
relief is due because Appellant invited the instructional error. Alternatively,
it posits that even if the Defense did not invite error but merely forfeited the
issue, this Court should grant no relief as Appellant was not prejudiced




   2   77 M.J. 465 (C.A.A.F. 2018).
   3   68 M.J. 465 (C.A.A.F. 2010).
   4   77 M.J. at 472.




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                  United States v. Lopez, NMCCA No. 201800334
                               Opinion of the Court

because he was on notice to defend against assault consummated by a
battery.
    We need not address the issue of invited error because we find Appellant
waived, not forfeited, any objection to the instructions. In United States v.
Davis, our superior court held that when counsel “expressly and unequivocal-
ly acquiesce” to instructions from the military judge, they have “waived all
objections to the instructions, including in regards to the elements of the
offense.” 5 Davis further reminds us that “a valid waiver leaves no error for us
to correct on appeal.” 6
    Here, the Defense specifically requested the standard instruction on as-
sault consummated by a battery from the Military Judge’s Benchbook 7 in
their pretrial matters. Then the TDC engaged in an extended discussion with
the military judge about amending the findings worksheet to permit the
members to acquit Appellant of the greater offense but to convict him of the
lesser included offense. While discussing the proposed instructions, TDC
made two specific requests—related to other issues—which the military judge
denied. When the military judge asked whether there were any objections to
the final findings instructions, 8 TDC responded, “None other than have
previously been noted, sir,” 9 referring to the two unrelated requests that were
denied. Further, following instructions and argument, when the military
judge asked if there was any objection to the instructions or request for
additional instructions, the TDC replied, “No, Your Honor.” 10
   We find that Appellant affirmatively waived any error, and we decline to
provide further review. 11




   5 79 M.J. 329, 331 (C.A.A.F. 2020) (internal quotation marks omitted) (citations
omitted).
   6   Id. (citing United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).
   7  Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 3-54-2. (10
Sept. 2014) [Benchbook]. See App. Ex. XVIII at 10 (Defense Proposed Instructions of
25 May 2018).
   8   See App. Ex. XLIV.
   9   Record at 412.
   10   Record at 455.
   11   See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).




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                 United States v. Lopez, NMCCA No. 201800334
                              Opinion of the Court

B. Even if Conviction of Assault Consummated by a Battery Consti-
tuted a Major Change, Appellant Failed to Timely Object and Can
Show No Prejudice
    Pursuant to Rule for Court-Martial [R.C.M.] 603(d), a major change “may
not be made over the objection of the accused unless the charge or specifica-
tion affected is preferred anew.” Appellant contends the military judge
impermissibly constructively amended the abusive sexual contact specifica-
tions, effecting major changes over Defense objection without re-preferral of
the specifications, by instructing on assault consummated by a battery as a
lesser included offense. Appellant argues that his post-adjournment objection
to this major change, lodged in a post-trial Article 39(a) session after the
CAAF released Armstrong, was timely. As a result, citing United States v.
Reese, 12 he argues the court-martial lacked jurisdiction and the specifications
must be dismissed. We disagree.

   1. The legal standard of review
   We review de novo questions of statutory interpretation, namely whether
a change to a charge or specification is major or minor. 13 We also review de
novo the legal questions whether Appellant waived or forfeited an issue and
whether an objection was timely.

   2. Analysis
   Appellant’s argument here centers on both Reese and Armstrong.
    In Reese, the CAAF reviewed a change made to a charge because of a
conflict between the misconduct alleged in the specification and the victim’s
testimony at trial. The specification alleged Reese licked the victim’s penis
with his tongue, but the victim testified at trial that the appellant actually
touched the victim’s penis with his hand. The trial counsel moved to amend
the specification to allege that Reese touched the victim’s penis with his
hand. Reese’s counsel objected, arguing this would constitute a major change.
The military judge ruled the change was minor, permitted the amendment,
and convicted Reese of the amended specification. On appeal, the CAAF held
that the change was major and because it was not preferred anew and Reese
objected, pursuant to R.C.M. 603(d), the court-martial lacked jurisdiction to



   12United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017) (citing United States v.
Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016)).
   13   Id.




                                          6
                      United States v. Lopez, NMCCA No. 201800334
                                   Opinion of the Court

try him on the amended charge. Reese was entitled to have the charge
dismissed without having to show prejudice.
    In Armstrong, after holding that assault consummated by a battery was
not a lesser included offense of abusive sexual contact by bodily harm, the
CAAF addressed Armstrong’s jurisdictional argument. Armstrong sought to
extend the holding in Reese “by analogizing the court-martial’s consideration
of assault consummated by a battery to a major change to the Specification of
abusive sexual contact by causing bodily harm.” 14 Armstrong argued that his
conviction for assault consummated by a battery constituted an impermissi-
ble major change to the specification. As the charge was not preferred anew,
and because he objected, he claimed the court-martial lacked jurisdiction and
therefore the charge should be dismissed without a showing of prejudice. The
court also held that “an incorrect instruction on a lesser included offense
might have some similarities to a major change in a specification.” 15 Howev-
er, the court did not have to decide whether those “similarities” justified a
similar result as Reese because the court found that Armstrong “did not
object to the lesser included offense instruction.” 16
    In Armstrong, when first asked whether there were any lesser included
offenses of abusive sexual contact by bodily harm, the defense counsel said
no. But then the “defense counsel requested findings instructions that would
be relevant if the court-martial considered assault consummated by a battery
to be a lesser included offense of abusive sexual contact by causing bodily
harm,” 17 such as mistake of fact and the definition of unlawful force. Alt-
hough Armstrong’s counsel did not specifically request the Benchbook
instruction on assault consummated by a battery, they “[took] no position
on” 18 that issue when the military judge later asked whether it was a lesser
included offense of abusive sexual contact by bodily harm. On these facts, the
CAAF found Armstrong did not object.
   Appellant attempts to distinguish the facts of his case from Armstrong
because he did object—after adjournment—in a post-trial Article 39(a)
session after Armstrong was released. He also cites R.C.M. 905(e), which



   14   77 M.J. at 473.
   15   Id. (emphasis in original).
   16   Id. at 473-74.
   17   Id. at 468.
   18   Id.




                                          7
                  United States v. Lopez, NMCCA No. 201800334
                               Opinion of the Court

excepts jurisdictional objections from those which must be made before
adjournment. As such, he argues his post-adjournment objection was timely
and his case is distinguishable from Armstrong.
   Whether Appellant can prevail on this argument turns on the question of
whether his objection, technically made during “trial,” was timely for the
purposes of objecting to any resulting constructive major change.

   3. Timeliness of the objection
    The Government argues that the plain language of R.C.M. 603(d), provid-
ing that “[c]hanges . . . other than minor changes may not be made over the
objection of the accused unless the charge or specification is preferred anew,”
requires that the objection be made “before or at least contemporaneously
with” the proposed change. 19
    By contrast, Appellant cites our sister court’s opinion in United States v.
Stout 20 to argue that his objection was timely. 21 In Stout, the case had been
remanded following an opinion from the Army Court of Criminal Appeals
[ACCA]. The Government changed the date range in three specifications on 4
November 2014, and they were referred to a general court-martial by the
convening authority on 17 November 2014. Stout objected before trial, in the
course of motions practice, and neither the ACCA nor the CAAF reviewed the
timeliness of his objection. Rather, his case was resolved based on a plain
reading of Article 34, UCMJ, which permits amendments to charges before
referral.
    Citing Stout, Appellant argues that an objection need not be made before
the major change in order to preserve an appellant’s rights under R.C.M.
307(d). Appellant correctly notes that Stout did not object to the pre-referral
changes until 30 January 2015, a full 87 days after the specifications were
amended. Stout’s delay of 87 days is nearly twice as long as the 44-day delay
in this case between the announcement of findings and TDC’s post-trial
objection. However, we do not find that the number of days is the determina-
tive factor. Nor do we find that an objection must necessarily be lodged before
the change is made or contemporaneously with the change.




   19   Appellee’s Answer of 16 Jan 2020 at 26 (emphasis added).
   20  No. 20120592, 2018 CCA LEXIS 174 (A. Ct. Crim. App. Apr. 9, 2018) (unpub.
op.), aff’d, 2019 CAAF LEXIS 648 (C.A.A.F. 2019).
   21   See Appellant’s Reply Brief at 4-5.




                                              8
                   United States v. Lopez, NMCCA No. 201800334
                                Opinion of the Court

    Rather than fix a bright-line rule of a specific number of days within
which an objection may post-date a change to still be timely, we look to the
operative stage of the proceeding and the context. The objection in Stout was
made in a pretrial Article 39(a), UCMJ, hearing. While it is not clear whether
the objection was lodged at arraignment or a subsequent session, it was
certainly at the beginning stages of the process and long before the members
returned findings. The rehearing on its merits did not commence until seven
months after the objection was made.
   In this case, Appellant argues:
         If the Government’s quibble is with the fact that defense coun-
         sel’s preserved objection was made in a post-trial motion to
         dismiss, as discuss [sic] supra, trial defense counsel could not
         have objected until a change to the specification was made. As
         the Government acknowledges, “the Members’ announcement
         of their findings effected the ‘constructive changes’ at issue,”
         which did not occur until the very end of trial. 22
    This argument misses the point. Although the members’ findings effected
any resulting constructive major change, their findings were the direct result
of both the instructions given and the findings worksheet provided to guide
their announcement. As to both of those aspects of the trial, Appellant
specifically requested the military judge to treat assault consummated by a
battery as a lesser included offense. We analyze Appellant’s objection or
failure to object at this moment in time, not later. Looking at Appellant’s
actions, we find that he not only failed to object to the possibility of being
convicted of the offense of assault consummated by a battery, but that he was
an active participant in promoting that possible case outcome. His earlier
actions—inviting the exact result that was ultimately reached—are not
negated by his later post-adjournment attempt to object to the very course of
action he earlier sought.
    The Manual for Courts-Martial contains many requirements that objec-
tions be timely. 23 Rule for Court-Marital 920(f) requires objections concerning
instructions to be made “before the members close to deliberate.” This is for a
reason and must carry some consequence.




   22   Appellant’s Reply Brief at 4-5 (citing Appellee’s Br. at 27.).
   23 See Mil. R. Evid. 103(a)(1)(A) (requiring timely objection to admission of evi-
dence); see also R.C.M. 919(c) (requiring objection to improper argument before
findings instruction, or else waiver applies).




                                              9
                  United States v. Lopez, NMCCA No. 201800334
                               Opinion of the Court

    A timely objection is required to “prevent[ ] a defense counsel from re-
maining silent, making no objection, and then raising the issue on appeal for
the first time, well after the military judge could have cured the problem with
an instruction to disregard or a limiting instruction.” 24 Although the quoted
passage refers to waiver in the context of improper argument, the same
principle holds true here. While Appellant seeks to reframe this issue from
one of waiver of instructional error to one of objection to a major change
(which, as a jurisdictional error, can be made after adjournment), we find the
first issue controls the second. We further find Appellant’s response to the
first issue (affirmatively asking for the lesser included offense instruction) to
be controlling as to the second issue as acceptance of any resulting construc-
tive major change. To have any impact on the outcome, an objection must be
lodged before the resulting harm (from an appellant’s point of view) would
ensue.
    The very concept of waiver would be rendered meaningless and inconse-
quential if counsel were simply permitted to step in well after encountering
the operative fork in the road, “un-waive” previously waived matters, and
categorically undo all previous positions advanced before the court-martial to
allow later argument on appeal. As the CAAF made clear in Davis, waiver
reflects that counsel has made a knowing choice, potentially electing to
pursue a trial strategy—as was done by TDC throughout this trial—that may
offer significantly less punitive exposure for their client. Further, our
superior court has found that “[b]y ‘expressly and unequivocally acquiescing’
to the military judge’s instructions, [an] [a]ppellant waive[s] all objections to
the instructions, including in regards to the elements of the offense.” 25 This is
true even though Appellant did not specifically frame his request for the
lesser included offense instruction as a knowing waiver to any resulting
constructive major change that would result from conviction of that offense.
    While Appellant’s objection to the constructive major change was lodged
in a later session and that session was by definition part of the same trial, 26
that objection stood in stark contrast to every other statement and action of
TDC concerning the applicability of the putative lesser included offense. As




   24United States v. Walker, 50 M.J. 749, 752-53 (N-M. Ct. Crim. App. 1999) (citing
United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986)).
   25Davis, 79 M.J. at 331 (emphasis added) (quoting United States v. Smith, 2
C.M.A. 440, 442 (1953)).
   26   See R.C.M. 803.




                                        10
                   United States v. Lopez, NMCCA No. 201800334
                                Opinion of the Court

the objection was untimely, the issue is not jurisdictional, and therefore we
consider whether Appellant suffered material prejudice.

    4. Appellant suffered no material prejudice to his right to notice when his
trial strategy effectively conceded assault consummated by a battery
    When considering whether an appellant suffered material prejudice re-
sulting from “incorrect instructions regarding lesser included offenses,” we
consider the right to notice. 27 As our superior court has stated, “prejudice can
be caused by not having notice as to the offense that must be defended
against.” 28 Much like in Armstrong, “the manner in which a case was
contested may reveal whether an accused was prejudiced by an erroneous
consideration of an offense that is not actually a lesser included offense.” 29
Here, TDC not only affirmatively waived any objection on multiple occasions,
but their trial strategy effectively revolved around conceding the acts that
made up the putative lesser included offense. The Defense scarcely disputed
the allegation from two separate victims that Appellant had succeeded in
touching their genitals while they resisted his efforts. The only question for
the members was whether Appellant’s voluntary intoxication negated his
ability to form the requisite specific intent for abusive sexual contact.
    From the pretrial stage forward, Appellant understandably sought to
steer this proceeding away from the abusive sexual contact to the far less
serious offense of assault consummated by a battery. The Defense included
assault consummated by a battery on their own list of requested instruc-
tions. 30 In the last paragraph of their opening statement, Defense laid out
their theory of the case, saying:
             Now, at the end of all of this, you may find him guilty of as-
         sault consummated by a battery. But ultimately, once you hear
         all the evidence, you are going to see that because he was so
         drunk he did not know what he was doing. That means that he
         did not have the specific intent that would be necessary to




   27   Armstrong, 77 M.J. at 473.
   28 Id. (internal quotation marks omitted) (quoting United States v. Miller, 67 M.J.
385, 388 (C.A.A.F. 2009)).
   29   Id. (citing United States v. Oliver, 76 M.J. 271, 275 (C.A.A.F. 2017)).
   30   See App. Ex. XVIII at 10 (Defense Proposed Instructions of 25 May 2018).




                                             11
                  United States v. Lopez, NMCCA No. 201800334
                               Opinion of the Court

         make this a sexual crime. And the verdict, in that respect, is
         not guilty to abusive sexual contact. 31
   In an Article 39(a), UCMJ, hearing following the conclusion of the De-
fense case, the instructions were taking their final shape. Appellant’s counsel
again explicitly agreed the military judge should instruct the members that
assault consummated by a battery was a lesser included offense.
         MJ:     All right. Now, with regard to the LIO of abusive sexual
                 contact, that is to say assault consummated by a bat-
                 tery, we also discussed last night whether Instruction
                 5-11-2, ignorance or mistake when only general intent is
                 in issue, is a proper instruction, and we agree that is not
                 proper.
                 Defense, do you agree with that?
         DC:     Yes, sir. 32
Further, to the military judge’s question asking if Appellant’s counsel found
the findings worksheet objectionable, TDC replied:
         I do not. I do not believe it is objectionable. I would say our
         preference would be to add a (c) option for the Charge with as-
         sault consummated by battery on there. . . . I will state I do not
         find this findings worksheet in its current form objectionable,
         sir. 33
    The military judge gave his final findings instructions to the members
and both Government and Defense counsel responded that they were satis-
fied.
         MJ:     All right. Option D of the examples there. That speaks
                 to the lesser included offense. And that’s where—if you
                 remember earlier in the instructions as to Specifications
                 1 and 2 of Charge I, what the instructions say is, If you


   31   Record at 210.
   32   Record at 401-02.
   33 Record a 406. The TDC was referencing a “(c) option” the military judge pro-
posed in an email to the parties that would further address the potential for mixed
findings. The findings worksheet ultimately featured four options for the abusive
sexual contact specifications, including not guilty, guilty, guilty by exceptions, and
option (d), which stated “Not Guilty, but Guilty of Assault Consummated by a
Battery, in violation of Article 128.” App. Ex. XXI at 1.




                                         12
                   United States v. Lopez, NMCCA No. 201800334
                                Opinion of the Court

                 find that the accused is not guilty of the charged offense,
                 abusive sexual contact, then you must consider whether
                 he is guilty of the lesser included offense of assault con-
                 summated by a battery; and that’s what option D give[s]
                 you. It gives you the option, if you so find, not guilty of
                 the charged offense, abusive sexual contact, but guilty of
                 assault consummated by a battery, okay?
                 ....
         MJ:     Do counsel for either side object to the question—to the
                 instructions given or request additional instructions?
         TC:     No, Your Honor.
         DC:     No, Your Honor. 34
    The clear Defense strategy was to negate the “intent to gratify the sexual
desire of any person” element in Article 120, UCMJ, necessary to convict
Appellant of abusive sexual contact. While each of the victims had also been
drinking that night, their memory of being forcibly touched by Appellant was
clear and there was little room to attack their testimony. In both the oral
wire intercept and his interrogation, Appellant said that, due to his voluntary
intoxication, he had no memory of any of the pertinent events. In the oral
wire intercept, Appellant even appeared to accept the premise of LCpl L’s
accusation. Appellant made repeated statements acknowledging, rather than
disputing, the allegations, such as, “I know and I understand and I’m
accepting that,” and “I know where I f[***]ed up from you telling me. I
know.” 35
    In cross-examination of Government witnesses, TDC repeatedly sought
details to highlight Appellant’s extreme consumption of alcohol to the point of
vomiting and blacking out. The Defense had the same focus in its direct
examination of its sole witness in its case in chief. The Defense expert in
forensic psychiatry testified that it was probable that Appellant was in the
severe intoxication range which could lead to both short and long-term
memory loss. The Defense expert suggested Appellant may not have been
able to form the requisite intent when he touched his victims’ genitals.
   The Defense’s strategy was consistent. From their pre-trial request for the
assault consummated by a battery instruction, through their opening state-


   34   Record at 454-55.
   35   App. Ex. XVI at 14-15; see also Pros. Ex. 4 (audio recording).




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                      United States v. Lopez, NMCCA No. 201800334
                                   Opinion of the Court

ment, witness examinations, and persistent agreement with including the
instruction and amending the findings worksheet, the strategy was clear.
They concentrated all efforts on negating Appellant’s specific intent while
tacitly conceding the acts that constituted assault consummated by a battery.
We find that Appellant was on notice that he should defend against assault
consummated by a battery and that he was not materially prejudiced by the
erroneous instruction.

C. Ineffective Assistance of Counsel
    Appellant contends that by requesting the assault consummated by a
battery instruction and waiving objection to the instructions, his TDC were
deficient and that this deficiency resulted in his conviction of offenses with
which he was never charged.

   1. The legal standard of review
    We review ineffective assistance claims de novo. 36 In Strickland v. Wash-
ington, the Supreme Court held that, pursuant to the Sixth Amendment to
the United States Constitution, criminal defendants are entitled to represen-
tation that does not fall “below an objective standard of reasonableness” in
light of “prevailing professional norms.” 37 Our assessment of that representa-
tion calls for us to employ a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” 38 In this “highly
deferential” review, we must respect the “wide latitude counsel must have in
making tactical decisions.” 39 In order to rebut the presumption of competence,
there must be a “showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” 40 To prevail, Appellant must show that: (1) his TDC were
deficient in their performance; and (2) there is a reasonable probability that
their deficient performance caused him prejudice. 41 To establish prejudice,




   36   United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018).
   37   Strickland v. Washington, 466 U.S. 668, 688 (1984).
   38   Id. at 689.
   39   Id. at 689-90.
   40 United States v. Dewrell, 55 M.J. 131, 133 (2001) (quoting Strickland, 466 U.S.
at 687).
   41   Strickland, 466 U.S. at 687.




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                  United States v. Lopez, NMCCA No. 201800334
                               Opinion of the Court

Appellant must show “that counsel’s errors were so serious as to deprive
[him] of a fair trial, a trial whose result is reliable.” 42

   2. Discussion
    As our superior court observed in Armstrong, “[d]espite our conclusion
that the error was clear or obvious, we recognize that the military judge and
counsel had limited guidance in addressing this issue.” 43 Between the CAAF’s
decision in Jones and the court’s opinion in Armstrong, there had been
substantial litigation on lesser included offenses under Article 120, UCMJ.
But no case resolved the question whether assault consummated by a battery
was a lesser included offense of abusive sexual contact by bodily harm.
Additionally, even in Armstrong, the CAAF noted that the 2016 Manual for
Courts-Martial appendix of lesser included offenses noted that assault
consummated by a battery was possibly a lesser included offense of abusive
sexual contact “[d]epending on the factual circumstances in each case.” 44
Given this uncertainty in the law, and the fact that the trial counsel and an
experienced military judge agreed that assault consummated by a battery
was a lesser included offense, we do not find that TDC’s performance was
ineffective.
    Moreover, TDC had several tactical reasons for suggesting the lesser in-
cluded offense. First, assault consummated by a battery has a maximum
confinement of only six months. This makes it less likely to be considered a
felony offense in most civilian jurisdictions, where a felony—typically
carrying several repercussions in civic life—is often defined as a crime
punishable by more than one year of imprisonment. Second, assault con-
summated by a battery carries a substantially lower maximum punishment
to confinement—6 months rather than 7 years—meaning Appellant’s
exposure for both offenses was 1 year as opposed to 14 years. Third, convic-
tion of assault consummated by a battery only exposed Appellant to a bad-
conduct discharge, not the dishonorable discharge available had he been
convicted of abusive sexual contact. Fourth, the pertinent Department of




   42   Id.
   43   Armstrong, 77 M.J. at 473 n.10.
   44 Armstrong, 77 M.J. at 473 n.10. (alteration in original) (quoting MCM, Lesser
Included Offenses, app. 12A at A12A-1, A12A-4 (2016 ed.)).




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                   United States v. Lopez, NMCCA No. 201800334
                                Opinion of the Court

Defense Instruction 45 lists abusive sexual contact as an offense requiring sex
offender registration processing, but it does not require such processing for
assault consummated by a battery. 46 Our superior court has long recognized
the “lifelong” consequences of sex offender registration—though collateral—
are so “severe” that the providence of an accused’s guilty plea is questioned
and a military judge abuses his or her discretion by failing to ensure the
accused is on notice of sex offender requirements before pleading guilty to a
qualifying offense. 47 Fifth, a conviction for assault consummated by a battery
would on its face provide a less stigmatizing criminal record simply because
the sexual nature of his offense would not be apparent from the nature of the
UCMJ article.
    Finally, proof of Appellant’s guilt was strong. It was a wise tactical deci-
sion to give the members an alternative, less severe charge on which to
convict Appellant. There was no conceivable approach by which TDC could
contest the physical acts. LCpls L and S immediately reacted, told one
another of Appellant’s assaults, and maintained consistent statements
throughout the process. They had no apparent motive to fabricate. Their
allegations were not disputed by Appellant’s own statements, in which he did
not admit his actions but conceded that if LCpls L and S said he touched
them, he must have touched them.
    The TDC likely perceived that they would have a difficult time negating
Appellant’s specific intent. Although there was evidence Appellant was
highly intoxicated, there was also evidence that undercut Appellant’s claim
that he did not remember what happened. Whereas Appellant told the
victims he had been in his own room all night, the evidence shows he did
remember being in LCpl L’s room. He woke up the next day and went to LCpl
L’s room to gather the rest of his property—a game controller, shoes, and his
phone. He knew exactly where he had left his property, meaning he remem-
bered where he had been. He also admitted during the oral wire intercept
and his NCIS interrogation that he had been in LCpl L’s room. Members



    45 Dep’t of Defense Instruction 1325.07, Administration of Military Correctional
Facilities and Clemency and Parole Authority, Appendix 4 to Enclosure 2 (11 Mar
2013).
    46 Although sex offender registration is accomplished at the state level, and abu-
sive sexual contact may not require registration in a given state, the DoD Instruction
requires notification to the convict and notification to the convict’s state of release for
abusive sexual contact but not assault consummated by a battery.
    47   United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013).




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                  United States v. Lopez, NMCCA No. 201800334
                               Opinion of the Court

could find Appellant knowingly lied about not being in LCpl L’s room because
he was conscious of his own guilt and in fact remembered touching LCpls L
and S. That awareness and consciousness of guilt would undercut the entire
Defense strategy.
    In addition, we believe TDC faced an uphill battle convincing members
that Appellant did not know what he was doing (lacking specific intent) when
he touched the two victims’ genitals. Appellant touched LCpl S on the inside
of his thigh and his genitals over his shorts, not non-erogenous zones.
Appellant forcibly reached into both victims’ clothing to touch their genitals.
He was able to overcome their resistance. He didn’t fumble about but quickly
reached for the testicles and penis of each of his victims. LCpl L testified
Appellant moved his head toward his genitals; LCpl S testified that Appel-
lant wrapped his hand around his penis and stroked it with a “masturbating
motion.” 48 Given the convincing testimony from two victims, we believe that,
without a lesser included offense, the members would have been hard pressed
to fully acquit Appellant by finding he lacked specific intent. In all aspects,
the evidence against Appellant was very strong.
    Facing such strong evidence of guilt on serious sexual charges, it was a
reasonable course of action to request instruction on the purported lesser
included offense. A conviction was likely, and a conviction on less severe
offenses was preferable. While Appellant argues based on the findings that
he was prejudiced in that he was convicted of some offenses rather than no
offenses, the TDC could not have known with certainty before trial that the
members would ultimately find that Appellant lacked the requisite specific
intent. Although negating that intent was a wise strategy, it was by no
means certain to result in acquittal in the absence of lesser included offenses.
Pursuing a strategy to put a lesser offense on the charge sheet was not an
unwise tactical decision.
    In appreciation of the close call facing TDC, Appellant’s counsel chose to
employ a strategy that essentially conceded the assault consummated by a
battery and put that offense on the findings worksheet as an alternative to
likely conviction of a more serious offense.
    While all parties erred in approaching assault consummated by a battery
as a lesser included offense of abusive sexual contact, prior to the later
release of Armstrong, this was neither settled nor especially clear. Notwith-
standing this error, allowing the members a reasonable landing area for



   48   Record at 288.




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               United States v. Lopez, NMCCA No. 201800334
                            Opinion of the Court

uncontroverted offenses was an effective strategy that ultimately worked to
the benefit of the Appellant.
   We find that TDC were not ineffective.

                              III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and the sentence are correct
in law and fact and that there is no error materially prejudicial to Appellant’s
substantial rights. Arts. 59, 66, UCMJ. Accordingly, the findings and the
sentence as approved by the convening authority are AFFIRMED.
   Senior Judge TANG and Judge STEPHENS concur.


                                FOR THE COURT:




                                RODGER A. DREW, JR.
                                Clerk of Court




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