United States v. Wilkins
71 M.J. 410
C.A.A.F.2012Background
- Appellant was convicted by general court-martial of abusive sexual contact and sodomy by force under Articles 120 and 125, UCMJ, with a dishonorable discharge and 18 months’ confinement.
- The charged aggravated sexual assault involved digital penetration of MA3 L’s anus, but the military judge sua sponte found no aggravated sexual assault since the act did not meet the statutory definition of a sexual act, yet allowed the jury to consider abusive sexual contact as a lesser included offense.
- The CCA affirmed after remand, holding the specifications alleged abusive sexual contact and that the LIO instruction was proper, with no plain-error analysis performed.
- Appellant did not object to the LIO instruction at trial, triggering plain-error review under Article 59(a), UCMJ.
- The Court applied the elements test to determine whether abusive sexual contact is an LIO of aggravated sexual assault, but concluded the charged act (digital anal penetration) did not constitute a sexual act, creating a legal impossibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is abusive sexual contact an LIO of aggravated sexual assault here? | Appellant | Wilkins | Not an LIO in this case; however no prejudice. |
| Did the charging error prejudice Appellant under plain-error review? | Appellant | Government | No material prejudice; defenses and notice preserved defense. |
| Did the notice/privacy rights require reversal or harm given the LIO instruction? | Appellant | Government | Due process-notice satisfied; no constitutional violation. |
| Could the error be cured by amendment of the specification under Rule for Courts-Martial 603? | Appellant | Government | Harmless error; amendment not required to obtain proper notice. |
Key Cases Cited
- United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (considered LIO issues alongside other cases)
- United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (prejudice and notice in LIO context analyzed)
- United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011) (LIO framework and notice considerations discussed)
- United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010) (LIO analysis and notice principles)
- United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (elements test for LIO; statutory interpretation framework)
- United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) ( prejudice analysis for charging errors; note on notice)
- United States v. Rauscher, 71 M.J. 225 (C.A.A.F. 2012) (specification clearly placed on notice; defense strategy)