Background

• Appellant Bonner pled guilty to several charges; he was found guilty of two specifications of wrongful sexual contact and one specification of assault consummated by a battery (Article 128, UCMJ).
• Appellant was sentenced to bad-conduct discharge, 18 months’ confinement, forfeiture of pay and allowances, and reduction to the lowest enlisted grade; the convening authority and CCA affirmed.
• The offending act involved tapping the victim on the forehead with Appellant's exposed penis while the victim slept on a couch during the Super Bowl gathering.
• The military judge instructed that assault consummated by a battery was a lesser included offense of wrongful sexual contact.
• The Air Force Court of Criminal Appeals affirmed Bonner’s conviction and sentence.
• The lead opinion holds that assault consummated by a battery is a lesser included offense of wrongful sexual contact.

Issues

Key Cases Cited

• United States v. Jones, 68 M.J. 465 (C.A.A.F.2010) (elements test governs LIO determination (subset of charged offense))
• United States v. Alston, 69 M.J. 214 (C.A.A.F.2010) (elements test does not require identical language; subset analysis)
• Schmuck v. United States, 489 U.S. 705 (Supreme Court, 1989) (elements test application in LIO context)
• Carter v. United States, 530 U.S. 255 (Supreme Court, 2000) (statutory construction used to compare element sets)
• United States v. Johnson, 54 M.J. 67 (C.A.A.F.2000) (definitions of assault and its elements; role of wrongful contact)
• United States v. Sever, 39 M.J. 1 (C.M.A.1994) (minimum force suffices for offensive touching under assault)