United States v. Tunstall
2013 CAAF LEXIS 570
| C.A.A.F. | 2013Background
- Tunstall was charged with aggravated sexual assault, adultery, and false official statement under UCMJ; convicted of one aggravated sexual assault specification and adultery.
- Judge instructed on indecent acts as a lesser included offense of aggravated sexual assault based on the open-and-notorious theory.
- Tunstall was acquitted of the charged aggravated sexual assault for Specification 2 but convicted of indecent acts.
- CCA affirmed findings and sentence; this court granted review to address lesser included offense and terminal element issues.
- Court held indecent acts, as charged, is not a lesser included offense of aggravated sexual assault; the instruction was plain error.
- Court also addressed whether the adultery specification failed to state a terminal element; found no prejudicial error given trial record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is indecent acts a lesser included offense of aggravated sexual assault? | Tunstall contends indecent acts not properly included. | Government argues indecent acts can be a lesser included offense under facts presented. | Plain error; indecent acts not proper LIO under charged theory. |
| Did the military judge's instruction on indecent acts prejudice due process? | Instruction misled without fair notice of theory. | Open-and-notorious theory justified by evidence and proper in context. | Held prejudicial; due process violated; findings on Specification 2 set aside. |
| Did the trial record provide notice supporting the terminal element of Article 134 adultery? | Record lacked explicit terminal element notice prior to trial. | Record contained sufficient notice via defense and documents admitted. | No plain error; record supported notice; conviction upheld on this issue. |
| Should the indecent acts finding be remanded given the improper instruction? | Remand appropriate to reassess sentence consistent with opinion. | Remand not necessary if error corrected by setting aside specification. | Specification 2 is dismissed and remanded for sentence reconsideration. |
| What is the appropriate remedy for the adultery terminal-element issue? | Adultery conviction stands if notice deemed adequate. | No prejudice shown; ruling aligns with Humphries standard. | Adultery finding affirmed; no reversible error found. |
Key Cases Cited
- United States v. Girouard, 70 M.J. 5 (C.A.A.F.2011) (elements test for lesser included offenses; plain error review linked to Article 59(a))
- Jones, 68 M.J. 465 (C.A.A.F.2010) (elements test for LIO; rational trier of fact prerequisites)
- Medina, 66 M.J. 21 (C.A.A.F.2008) (notice and theory of guilt; due process concerns)
- Sansone v. United States, 380 U.S. 343 (U.S. 1965) (lesser offense must be included but not encompassed by greater offense)
- Schmuck v. United States, 489 U.S. 705 (U.S. 1989) (lesser included offense instruction requirement and jury rationality)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (four-prong plain-error framework under Rule 52(b) limits for military review)
- Humphries, 71 M.J. 209 (C.A.A.F.2012) (terminal element notice and plain error standard in adultery claims)
- United States v. Meynard, 66 M.J. 242 (C.A.A.F.2008) (practice on notice and terminal elements in Article 134)