United States v. Bonner
2011 WL 1459024
C.A.A.F.
2011
Check Treatment
Docket

*1 STATES, Appellee, UNITED Class, BONNER, Airman First H.

Steven Force, Appellant.

U.S.

No. 10-0567.

Crim.App. No. 37371. Appeals for Court of

U.S. Forces.

the Armed 12, 2011.

Argued Jan. April

Decided

STUCKY, J., opinion of the delivered C.J., EFFRON, and ERD- Court, in which BAKER, J., RYAN, JJ., joined. MANN and concurring opinion filed a separate result. Major K. Johns Darrin

For Appellant: and Lieu- Eric N. Eklund (argued); Colonel (on brief); E. Gail tenant Colonel Crawford Bryan A. Major Roan Colonel James Bonner. Kubler Joseph J. Captain Appellee: Major Coret- R. Bruce and

(argued); Gerald brief). (on Gray E. ta opinion of delivered the Judge STUCKY the Court. whether to determine granted review

We battery, Article assault consummated Military Justice Code Uniform (2006), a lesser (UCMJ), § (LIO) included offense 120(m), UCMJ, 10 U.S.C. contact, Article 920(m) (2006). it is. We hold that § *2 I. II. “An may be found guilty of

A. necessarily offense included in the offense charged....” 79, UCMJ, Appellant pled guilty to charges several (2006). § 879 We have held that Article 79 and not guilty to specifications three of requires application of the elements test to wrongful sexual contact in violation of Article determine whether one offense is an LIO of a A general court-martial charged offense. United States v. composed of officers and enlisted members 465, (C.A.A.F.2010). Under the Appellant found guilty specifications of two test, “‘the elements of the lesser of wrongful sexual specifica- contact and one offense are a subset of the of tion of assault by in charged offense. Where the lesser offense 128, violation Article UCMJ. The latter requires an element required for the subject conviction is appeal. of this offense, greater no instruction [regarding a lesser offense] included given.’” was sentenced to a bad-conduct United v. 214, States discharge, months, confinement eighteen (C.A.A.F.2010) (alteration original) in (quot pay forfeiture of all allowances, and re States, Schmuck v. United 705, 489 U.S. duction to the grade. lowest enlisted The 716, (1989)). S.Ct. 103 L.Ed.2d 734 convening authority approved findings sentence, and the United States However, the elements test “does not (CCA) Force Court of Criminal Appeals af require that the two offenses at employ issue Bonner, firmed. No. statutory identical language.” Instead, Id. *10, 2010 CCA LEXIS at 2010 WL after applying principles ‘“normal ” 2265643, at *3 (A.F.Ct.Crim.App. Apr. statutory construction,’ we ask whether the 2010). alleged LIO are a subset of

the elements for charged offense. Id. States, Carter v. United 530 U.S. 255, 263, 120 S.Ct. 147 L.Ed.2d 203 This case attempt involves an at humor (2000)). seriously which went wrong. specifica- The Thus, we first determine the elements of tion at alleged issue did, on charged offense and alleged by LIO 2008, “engage in sexual contact applying principles statutory construc- victim], [the to wit: tap [the victim] on Then, tion. compare the elements of the the head and such two offenses see if the latter is a subset of sexual contact was legal justification former. or lawful authorization and without the of [the mission victim].” The evidence estab- III. lished that the asleep victim had fallen watching couch while Super Bowl with A. some friends. Apparently trying to be fun- alleged, issue ny, Appellant penis took his pants out of his 120, UCMJ, that Appellant did “en- tapped it on the victim’s At forehead. gage in victim], trial, military judge instructed the court tap wit: [the victim] on the head with his members that assault a bat- exposed penis, and such sexual contact was tery was an of wrongful LIO legal justification or lawful Despite Appellant arguing at trial that tion and of [the vic- theory “the throughout has [Appel- been that tim].” The specification alleges the offense guilty lant was] of assault sexual contact. Article battery,” Appellant now argues that mili- UCMJ; Courts-Martial, see Manual tary judge in giving erred the LIO instruc- (2008 United States 45.g.(13) tion. ed.) (MCM) (sample specification). bodily harm means doing oc- offense “ another, touching of subject ‘any to this offensive mitting curs or law- (quoting MCM Id. slight.’ ... without chapter however authorization, engages ful 54.e.(l)(a)); see also *3 other that person another with (C.M.A.1994)(noting that Sever, 4 39 M.J. Article permission....” son’s use of “implies a minimum kissing although MCM, President, has in the UCMJ. consum [assault for force, is sufficient [it] wrongful sexual for the defined elements or force Unlawful battery]”). by a mated “(a) accused [t]hat the as follows: contact wrongfully accused that the means violence (b) person; with another had sexual contact cogniza contact, legally in that no caused other that did without so the accused [t]hat justi or that excuse would existed ble reason (c) the ac- [t]hat permission; and person’s Johnson, 69 M.J. at 54 See fy contact. or lawful legal had cused no justifica or excuses legal (recognizing that contact.” sexual for that authorization consent, may negate the offen tions, 45.b.(13). such as review- After pt. MCM Having delineated statute, with the agree touching). siveness text of in the listed discerned the elements President for each offense al- for the offense are the MCM prepared to are now meaning, we their sexual specification wrongful in the leged — them. pare what to task is determine next contact. Our actually means. each element IV. contact, in defines the UCMJ causing “intentionally an- as part, the of

relevant comparing the In ... of genitalia ... touch person other to fenses, that assault we find abuse, humili- an intent any person, with sexual con wrongful LIO of battery is or or arouse ate, any person degrade or wrongful require con Both offenses tact. person.” Ar- any the sexual desire gratify Furthermore, was because tact. Second, 120(t)(2), the statute UCMJ. ticle contact, he charged with permis- be the contact to requires having against had to defend that he knew requires that Third, final element sion. his with contact to make the victim caused no in that wrongful, was contact the sexual permission victim’s genitalia without that would existed cognizable reason legally humiliating, or abusing, the intent justify the contact. or excuse Articles See victim. degrading the would, at a mini (t)(2), Such UCMJ. under ordinary mum, given be offensive occurs assault The offense it standing of means what attempts chapter who this subject to 69; Johnson, 54 M.J. See offensive. cf. to do violence force or unlawful or offers Alston, M.J. at or person, whether bodily harm to another is consummat- offer attempt or the essential transplant fact, could one In ed_” pre haveWe speci- wrongful from the facts an assault elements for that the viously held alteration, legally suf- into a fication, without “(1) battery ‘[t]hat are: by a assault ficient a certain bodily harm to did 128, UCMJ— battery (2) ‘[tjhat bodily harm was and’ person; unlawful- did on violence.’ or force with unlawful done head victim] ly “tap [the Johnson, ... contact was and such IV, para. (C.A.A.F.2000) MCM lawful justification or ed.)). deter 54.b.(2) (1995 must Again we vie- and without tion each element. meaning of mine See 54.f.(2). tim].” MCM BAKER, Judge result): (concurring in the reasons, these we conclude that assault con- I concur in the result based on United summated is a lesser included States v. 69 M.J. 214 (C.A.A.F.2010), offense of my dissent in V. (C.A.A.F.2010) (Baker, J., dis- judgment of the United States Air senting). Force Court of Criminal Appeals is affirmed.

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