United States v. Wareham, ACM 38820

Appellant (SSgt. Wareham) originally charged with aggravated sexual assault (Article 120) and indecent acts; later pleaded guilty to an LIO—assault consummated by a battery (Article 128)—by excepting and substituting language regarding the act and date pursuant to a pretrial agreement (PTA).
Under the PTA government agreed to withdraw/dismiss the remaining sexual-assault specifications; the military judge instead announced not-guilty findings on those withdrawn specifications.
Factual basis: Appellant moved/positioned his sleeping estranged wife to take partially nude photographs (basis for LIO) and separately sent a false exculpatory text using a purchased disposable phone (obstruction of justice).
Appellant was sentenced by a military judge sitting alone to a bad-conduct discharge, 45 days confinement, and reduction to E‑1; convening authority approved sentence.
On appeal Appellant argued (1) assault consummated by a battery is not a lesser‑included offense (LIO) of the charged aggravated sexual assault and thus his plea was improvident, and (2) due process was violated when the military judge, over objection, considered an oral unsworn victim statement at sentencing.
Court ordered corrections to the court‑martial order and sealed certain photographs and medical records from the record.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether assault consummated by a battery is a lawful LIO of the charged aggravated sexual assault	Appellant: assault consummated by a battery is not an LIO because consent was not an element of Article 120 as written at the time	Government: the charged specification expressly alleged penetration “without her consent,” so consent was an element as charged and the LIO’s elements are a subset	Held: Affirmed. As charged, the greater offense included lack of consent; elements of the pleaded LIO were a subset, and Appellant was on notice and agreed to the amended specification under the PTA.
Whether admission of victim’s oral unsworn statement at sentencing violated due process	Appellant: unsworn victim impact statement (over defense objection) improperly admitted and prejudiced sentencing	Government: statement falls within victim’s right to be reasonably heard and is admissible aggravation evidence; military judge limited weight	Held: No due process violation. Admission was not an abuse of discretion; any error would be non‑prejudicial to the sentence.

United States v. Tunstall, 72 M.J. 191 (discusses standard of review for LIO determinations)
United States v. Girouard, 70 M.J. 5 (elements test for lesser‑included offenses)
United States v. Jones, 68 M.J. 465 (notice requirement and when uncharged LIOs may be affirmed)
United States v. Alston, 69 M.J. 214 (elements test and statutory construction for LIOs)
United States v. Riggins, 75 M.J. 78 (limits on LIOs under Article 120 but leaves open cases where charging language includes consent)
United States v. Ballan, 71 M.J. 28 (PTA can functionally amend charges; accused may agree to revised charges without formal amendment)
United States v. Wilkins, 29 M.J. 424 (defendant can waive formalities if clear what charges are considered)
United States v. Miller, 67 M.J. 385 (constitutional notice requirement for affirming LIOs)