UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant RICARDO M. BLENMAN
United States Army, Appellant

ARMY 20180177

Headquarters, 8th Theater Sustainment Command
Kenneth W. Shahan, Military Judge
Lieutenant Colonel Ryan B. Dowdy, Staff Judge Advocate

For Appellant: Major Todd Simpson, JA; Captain Rachele A. Adkins, JA; Robert
Feldmeier, Esquire (on brief); Robert Feldmeier, Esquire (on supplemental brief and
reply brief)

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Hannah E. Kaufman, JA; Major Marc B. Sawyer, JA (on brief).

23 October 2019

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

Per Curiam:

In this appeal, we consider appellant’s assertion the military judge erred by
instructing the members that assault consummated battery was a lesser-included
offense (LIO) of aggravated sexual contact. Finding merit in this claim, we set aside
appellant’s conviction for assault consummated by battery, but affirm the remaining
findings of guilty and the sentence. !

 

1 Appellant raised this issue in a supplemental brief after first raising it pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Because we resolve this

(continued .. .)
BLENMAN—ARMY 20180177

A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of aggravated sexual
contact and two specifications of abusive sexual contact in violation of Article 120,
UCMJ, 10 U.S.C. § 920 (2012) [UCMJ]. The panel acquitted appellant of one
specification of aggravated sexual contact, but convicted him of assault
consummated by battery as a LIO under Article 128, UCMJ. The panel sentenced
appellant to a dishonorable discharge, confinement for thirty-six months, and
reduction to the grade of E-1, a sentence later approved by the convening authority.

BACKGROUND

Appellant’s daughter, RB, alleged that appellant touched her inappropriately
on four occasions from April 2014 to May 2017. She further alleged that the
incidents took place in a similar pattern wherein appellant first gave her a “remedy”
for the purpose of incapacitating her. The remedy consisted of a liquid administered
in a cup, which smelled like Malibu rum, paired with a light red and white oval
tablet that instantly dissolved. The “remedy” made the victim feel drowsy, causing
her to fall asleep. In the first three of these incidents, RB awoke to appellant
touching her buttocks and breasts. These occurrences formed the basis for two
specifications of abusive sexual contact and one specification of aggravated sexual
contact.

In the last of these incidents, Specification 1 of The Charge, the government
alleged appellant committed aggravated sexual contact against RB in May 2017. At
trial, RB testified appellant entered her room with a cup containing the “remedy.”
Appellant put the cup to RB’s lips and told her to drink. After twice refusing the
drink, RB opened her mouth, drank the liquid in the cup, and took pills, which
appellant described as “vitamins.” Soon after taking the “remedy,” RB left her
house with a friend and went to a party, where she experienced the effects of the
concoction appellant made her ingest. She returned home early the next morning
and went to bed. She awoke later that morning groggy, only to find appellant
touching her buttocks. Appellant took RB’s hand and placed it on his exposed penis.
RB claimed to perceive the feeling of a penis, based upon instruction she received in
sexual education classes, although she had never actually touched a penis; she
described the object she touched as a “wet cylinder”, “slimy” but “not moist,” and
couldn’t tell if it was erect.

 

(. .. continued)

issue in favor of appellant, we need not address his claim the military judge erred by
admitting a prior consistent statement by the victim, RB, under Military Rule of
Evidence 803(d)(1)(B)(ii), as this statement related to the battery conviction.

After due consideration, we find appellant’s remaining assignments of error —
factual insufficiency and dilatory post-trial processing — lack merit.
BLENMAN—ARMY 20180177

At the close of the evidence, trial counsel asked the military judge to provide
the members, for each of the specifications, instructions for the “lesser-included”
offense of assault consummated by battery. Defense counsel, without elaborating,
objected to this instruction. The military judge overruled defense counsel’s
objection and provided the members an instruction for assault consummated by
battery as a lesser-included offense of each of the charged offenses. The members
convicted appellant of Specifications 2 through 4 of The Charge as charged, but, as
to Specification 1 of The Charge, found appellant guilty of assault consummated by
battery.

LAW AND DISCUSSION

Appellant asserts assault consummated by battery, under the facts of this case,
is not a lesser-included offense of aggravated sexual contact. We agree.

“Whether an offense is a lesser included offense is a question of law that is
reviewed do novo.” United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013)
(citation omitted).

“The due process principle of fair notice mandates that ‘an accused has a right
to know what offense and under what legal theory’ he will be convicted.” United
States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (quoting United States v. Medina,
66 M.J. 21, 26-27 (C.A.A.F. 2008))). Article 79, UCMJ, provides “[a]n accused may
be found guilty of an offense necessarily included in the offense charged.” In
determining what is “necessarily included” in a charged offense, and thus whether an
appellant was on notice to defend against a lesser charge, we apply an “elements
test.” Jones, 68 M.J. at 472. This test is applied in two ways: by comparing the
statutory definitions of the greater and lesser offenses; and, by examining the
specification of the charged offense. United States v. Armstrong, 77 M.J. 465, 469-
70 (C.A.A.F. 2018).

A. Statutory Definitions of the Two Offenses

In comparing the statutory definitions to the charged offense, “[a]n offense is
a lesser included offense if each of its elements is necessarily also an element of the
charged offense.” Armstrong, 77 M.J. at 469. In conducting this analysis, we
“apply normal rules of statutory interpretation and construction to ‘determine
whether the [lesser included offense] would necessarily be proven by proving the
elements of the greater offense.’” United States v. Riggins, 75 M.J. 78, 83
(C.A.A.F. 2016) (quoting United States v. Gaskins, 72 M.J. 225, 235 (C.A.A.F.
2013)).

In Specification 1 of The Charge, the government alleged appellant committed
aggravated sexual contact under Article 120, UCMJ, as follows:
BLENMAN—ARMY 20180177

In that [appellant], did, on the island of Oahu, Hawaii, on
or about 31 May 2017, cause [RB] to touch, directly, the
genitalia of [appellant] by administering to her a drug,
intoxicant, or other similar substance by force or threat of
force, thereby substantially impairing her ability to
appraise or control her conduct, with an intent to arouse or
gratify the sexual desire of any person.

As alleged here, the elements of aggravated sexual contact, as defined by the
President, are:

(i) [appellant] committed sexual contact upon [RB] by ...
or causing [RB] to touch, ... directly... ., the genitalia .
.. of [appellant];

(ii) [appellant] did so by administering to [RB] by force or
threat of force .. . a drug, intoxicant, or other similar
substance and thereby substantially impair[ed] the ability
of [RB] to appraise or control conduct; and

(iii) [appellant] did so with the intent to... arouse or
gratify the sexual desire of any person.

See Manual for Courts-Martial, United States (2016 ed.) [MCM], pt. IV,
45.b.(5)(e). The word “force” means: “(A) the use of a weapon; (B) the use of such
physical strength or violence as is sufficient to overcome, restrain, or injure a
person; or (C) inflicting physical harm sufficient to coerce or compel submission by
the victim.” MCM, pt. IV, 945.a.(g)(5). As defined here, the force applies to the
administration of the intoxicant, or the “remedy,” which substantially impaired the
ability of RB to appraise or control the conduct, not to the touching of appellant’s
penis.

As instructed by the military judge, the elements of assault consummated by
battery, as presented to the members, were: (1) that appellant did bodily harm to RB,
by picking up her hand and placing it on his penis; and (2) that the bodily harm was
done with unlawful force or violence. See MCM, pt. IV, 954.b.(2). “Bodily harm”
means “any offensive touching of another, however slight.” MCM, pt. IV,
954.c.(1)(a). This offense requires the bodily harm be accomplished “without legal
justification or excuse and without the lawful consent of the person affected.” Jd.

While the elements test does not require the two offenses to use identical
statutory language, the elements of the lesser-offense must be a subset of the
charged offense. See United States v. Bonner, 70 M.J. 1, 2 (C.A.A.F. 2011) (citation
omitted). Here, we do not find all of the elements of assault consummated by
BLENMAN—ARMY 20180177

battery are a subset of the charged offense. Comparison of the statutory elements of
these two offenses, as charged, shows that there are elements in the battery offense
that are not contained in the aggravated sexual contact offense.

First, aggravated sexual contact, as alleged, does not require bodily harm, or
an offensive touching. Simply, as alleged, the offense of aggravated sexual contact
required proof the accused touched the victim for the purpose of gratifying the
sexual desires of any person. By contrast, assault consummated by battery required
bodily harm by unlawful force or violence, or an offensive touching.”

Second, assault consummated by battery requires the bodily harm be
accomplished without legal justification or excuse and without the lawful consent of
the person affected. Put another way, “lack of consent is an element of assault
consummated by battery.” Riggins, 75 M.J. at 83 (citing United States v. Johnson,
54 M.J. 67, 69 n.3 (C.A.A.F. 2000)). Consent, or lack of consent, is not an element
of aggravated sexual contact as alleged in this case.

Accordingly, looking at just the elements, assault consummated by battery is
not a lesser-included offense of aggravated sexual contact in this case.

 

2 The government asserts the force used in aggravated sexual contact is necessarily
“unlawful force,” relying upon United States v. Thomas, 74 M.J. 563, 567 (N.M. Ct.
Crim. App. 2014) (stating “unlawful force is not a separate, distinct, and lesser type
of force that can sustain a conviction for rape.”). By extension, this rationale would
apply to aggravated sexual contact.

We find this argument misplaced given the specific nature of the allegation in
Thomas, wherein the accused was charged with “rape committed by ‘unlawful
force,’” and the issue before that court involved an instruction, not a LIO. Jd. at
566-67. Rape, like aggravated sexual contact, can be committed in one of five ways.
See MCM, pt. IV, 945.a.(a)(1)-(5), 945.a.(c). One method is by the use of “unlawful
force” against the person. MCM, pt. IV, 945.a.(a)(1). “Unlawful force” means “an
act of force done without legal justification or excuse.” MCM, pt. IV, 945.a.(g)(6).
The military judge in Thomas, only instructed the members on the definition of
“unlawful force;” our sister court determined the offense of rape by unlawful force
required both the statutory definitions of “force” and “unlawful force.” Thomas, 74
M.J. at 567. Put in this context, Thomas is not helpful to the resolution of the
question before this court.
BLENMAN—ARMY 20180177
B. Language of the Specification

While the charging language may ensure an offense is “necessarily included”
in the charged offense, Armstrong, 77 M.J. at 472, such is not the case here. The
government argues the charging language in this case served to include assault
consummated by battery.

First, the government asserts that the government explicitly alleged appellant
used “unlawful force” “to effectuate his assaults of RB.” This argument, much like
the elements test, fails, as a plain reading of the specification only asserts appellant
administered an intoxicant by force. The government charged appellant with
aggravated sexual contact following the model specification provided in the MCM.
See MCM, pt. IV, 945.b.(5)(e). As noted above, “force” is a defined term which,
standing alone, is separate and distinct from “unlawful force,” as required for assault
consummated by battery.

Second, the government asserts the language of the charge sheet notified
appellant he would have to defend against assault consummated by battery because,
essentially, appellant’s administration of an intoxicant, by force, was a step ina
course of conduct that caused RB to touch his penis. This argument likewise fails.
The government cannot assert on one hand that assault consummated by battery,
presented to the members as appellant forcing RB to touch his penis, is a lesser
included offense of a different act, that of forcing RB to ingest an intoxicant.> Even
if there was language in the charged specification that would allow for this
interpretation (which there was not), this would not be a LIO, but a different theory
of criminality.

Accordingly, we do not find the language of aggravated sexual contact, as
alleged, necessarily included in the offense of assault consummated by battery.

C. Prejudice

We find appellant’s “conviction for assault consummated by battery violated
his ‘constitutional rights to notice and to not be convicted of a crime that is not [a
lesser included offense] of the offense[s] which [Appellant] was charged.’” Riggins,
75 M.J. at 85 (quoting United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011)).
“A constitutional error is harmless when it appears beyond a reasonable doubt that

 

3 The government correctly notes the military judge had one of two possibilities in
addressing assault consummated by battery as a lesser offense; that for forcing RB to
drink “the remedy;” and that for causing RB to touch his penis. Without deciding
whether the former approach would have constituted a LIO, we note it would still
suffer the problems associated with the first prong of the elements test.
BLENMAN—ARMY 20180177

the error complained of did not contribute to the verdict obtained.” Jd. (quoting
Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003)). Given that we conclude the
members should not have been given the option of assault consummated by battery
as a LIO, appellant’s conviction for that offense was clearly prejudicial.
Accordingly, we grant relief in our decretal paragraph.

CONCLUSION

The finding of guilty as to Specification 1 of The Charge is SET ASIDE and
DISMISSED. The remaining findings of guilty are AFFIRMED. In accordance with
the principles articulated by our superior court in United States v. Winckelmann, 73
M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A.
1986), we are able to reliably reassess the sentence on the basis of the error noted.
First, our action reduces the maximum punishment to confinement that could have
been imposed from thirty-four years and six months to thirty-four years. Second, the
remaining offenses capture the gravamen of the appellant’s offenses; sexually
abusing his daughter. Finally, although this was a members’ trial, we are familiar
with the nature of the offenses for which appellant stands convicted and are
confident that, notwithstanding the dismissed specification, the members would have
adjudged a sentence of at least a dishonorable discharge, confinement for thirty-six
months, and reduction to the grade of E-1. Accordingly, the sentence is
AFFIRMED.

FOR THE COURT:

N P. Mind

Chief Deputy Clerk of Court

 
UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before
BURTON, RODRIGUEZ, and FLEMING
Appellate Military Judges

UNITED STATES, Appellee
Vv.
Sergeant RICARDO M. BLENMAN
United States Army, Appellant

ARMY 20180177

IT IS ORDERED THAT, to reflect the true proceedings at the trial of the
above-captioned case,

GENERAL COURT-MARTIAL ORDER NUMBER 8, HEADQUARTERS,
8TH THEATER SUSTAINMENT COMMAND, FORT SHAFTER, HAWAII 96858,
dated 25 September 2018,

IS CORRECTED AS FOLLOWS:

BY reflecting the Plea to Charge I and its Specification as
“None.”

BY reflecting after the words “Charge II,” the following:
“renumbered as The Charge].”

DATE: 23 October 2019

FOR THE COURT:

  

Chief Deputy Clerk of Court
