United States v. Bonner , 70 M.J. 1 ( 2011 )

UNITED STATES, Appellee
v.
Steven H. BONNER, Airman First Class
U.S. Air Force, Appellant
No. 10-0567
Crim. App. No. 37371
United States Court of Appeals for the Armed Forces
Argued January 12, 2011
Decided April 14, 2011
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and RYAN, JJ., joined. BAKER, J., filed a
separate opinion concurring in the result.
Counsel
For Appellant: Major Darrin K. Johns (argued); Colonel Eric N.
Eklund and Lieutenant Colonel Gail E. Crawford (on brief);
Colonel James B. Roan and Major Bryan A. Bonner.
For Appellee: Captain Joseph J. Kubler (argued); Gerald R.
Bruce, Esq., and Major Coretta E. Gray (on brief).
Military Judge: Don M. Christensen
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bonner, No. 10-0567/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether assault consummated
by a battery, Article 128, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 928 (2006), is a lesser included offense
(LIO) of wrongful sexual contact, Article 120(m), UCMJ, 10
U.S.C. § 920(m) (2006). We hold that it is.
I.
A.
Appellant pled guilty to several charges and not guilty to
three specifications of wrongful sexual contact in violation of
Article 120(m), UCMJ. A general court-martial composed of
officers and enlisted members found Appellant guilty of two
specifications of wrongful sexual contact and one specification
of assault consummated by a battery in violation of Article 128,
UCMJ. The latter conviction is the subject of this appeal.
Appellant was sentenced to a bad-conduct discharge,
confinement for eighteen months, forfeiture of all pay and
allowances, and reduction to the lowest enlisted grade. The
convening authority approved the findings and sentence, and the
United States Air Force Court of Criminal Appeals (CCA)
affirmed. United States v. Bonner, No. 37371, 2010 CCA LEXIS
121, at *10, 2010 WL 2265643, at *3 (A.F. Ct. Crim. App. Apr.
19, 2010).
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B.
This case involves an attempt at humor which went seriously
wrong. The specification at issue alleged that Appellant did,
on February 3, 2008, “engage in sexual contact with [the
victim], to wit: tap [the victim] on the head with his exposed
penis, and such sexual contact was without legal justification
or lawful authorization and without the permission of [the
victim].” The evidence established that the victim had fallen
asleep on the couch while watching the Super Bowl with some
friends. Apparently trying to be funny, Appellant took his
penis out of his pants and tapped it on the victim’s forehead.
At trial, the military judge instructed the court members that
assault consummated by a battery was an LIO of wrongful sexual
contact. Despite Appellant arguing at trial that the “the
theory throughout has been that [Appellant was] guilty of
assault consummated by a battery,” Appellant now argues that the
military judge erred in giving the LIO instruction.
II.
“An accused may be found guilty of an offense necessarily
included in the offense charged . . . .” Article 79, UCMJ, 10
U.S.C. § 879 (2006). We have held that Article 79 requires
application of the elements test to determine whether one
offense is an LIO of a charged offense. United States v. Jones,
68 M.J. 465, 472 (C.A.A.F. 2010). Under the elements test,
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United States v. Bonner, No. 10-0567/AF
“‘the elements of the lesser offense are a subset of the
elements of the charged offense. Where the lesser offense
requires an element not required for the greater offense, no
instruction [regarding a lesser included offense] is to be
given.’” United States v. Alston, 69 M.J. 214, 216 (C.A.A.F.
2010) (alteration in original) (quoting Schmuck v. United
States, 489 U.S. 705, 716 (1989)).
However, the elements test “does not require that the two
offenses at issue employ identical statutory language.” Id.Instead, after applying the “‘normal principles of statutory
construction,’” we ask whether the elements of the
alleged LIO are a subset of the elements for the charged
offense. Id. (quoting Carter v. United States, 530 U.S. 255,
263 (2000)).
Thus, we first determine the elements of the charged
offense and the alleged LIO by applying the principles of
statutory construction. Then, we compare the elements of the
two offenses to see if the latter is a subset of the former.
III.
A.
The specification at issue alleged, under Article 120,
UCMJ, that Appellant did “engage in sexual contact with [the
victim], to wit: tap [the victim] on the head with his exposed
penis, and such sexual contact was without legal justification
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or lawful authorization and without the permission of [the
victim].” The specification alleges the offense of wrongful
sexual contact. Article 120(m), UCMJ; see Manual for Courts-
Martial, United States pt. IV, para. 45.g.(13) (2008 ed.) (MCM)
(sample specification).
The offense of wrongful sexual contact occurs when “[a]ny
person subject to this chapter . . . without legal justification
or lawful authorization, engages in sexual contact with another
person without that other person’s permission . . . .” Article
120(m), UCMJ. The President, in the MCM, has defined the
elements for wrongful sexual contact as follows: “(a) [t]hat
the accused had sexual contact with another person; (b) [t]hat
the accused did so without that other person’s permission; and
(c) [t]hat the accused had no legal justification or lawful
authorization for that sexual contact.” MCM pt. IV, para.
45.b.(13). After reviewing the text of the statute, we agree
with the President that the elements listed in the MCM are the
elements for the offense alleged in the specification --
wrongful sexual contact. Our next task is to determine what
each element actually means.
First, the UCMJ defines sexual contact, in relevant part,
as “intentionally causing another person to touch . . . the
genitalia . . . of any person, with an intent to abuse,
humiliate, or degrade any person or to arouse or gratify the
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sexual desire of any person.” Article 120(t)(2), UCMJ. Second,
the statute requires the contact to be without permission.
Third, the final element requires that the sexual contact was
wrongful, in that no legally cognizable reason existed that
would excuse or justify the contact.
B.
The offense of assault occurs when “[a]ny person subject to
this chapter who attempts or offers with unlawful force or
violence to do bodily harm to another person, whether or not the
attempt or offer is consummated . . . .” Article 128, UCMJ. We
have previously held that the elements for an assault
consummated by a battery are: “(1) ‘[t]hat the accused did
bodily harm to a certain person; and’ (2) ‘[t]hat the bodily
harm was done with unlawful force or violence.’” United States
v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000) (quoting MCM pt. IV,
para. 54.b.(2) (1995 ed.)). Again we must determine the meaning
of each element.
First, doing bodily harm means committing “‘any offensive
touching of another, however slight.’” Id. (quoting MCM pt. IV,
para. 54.c.(1)(a)); see also United States v. Sever, 39 M.J. 1,
4 (C.M.A. 1994) (noting that although kissing “implies a minimum
use of force, [it] is sufficient for [assault consummated by a
battery]”). Unlawful force or violence means that the accused
wrongfully caused the contact, in that no legally cognizable
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reason existed that would excuse or justify the contact. See
Johnson, 54 M.J. at 69 (recognizing that legal excuses or
justifications, such as consent, may negate the offensiveness of
the touching). Having delineated the elements for each offense
and discerned their meaning, we are now prepared to compare
them.
IV.
In comparing the elements of the offenses, we find that
assault consummated by a battery is an LIO of wrongful sexual
contact. Both offenses require wrongful contact. Furthermore,
because Appellant was charged with wrongful sexual contact, he
knew that he had to defend against having caused the victim to
make contact with his genitalia without the victim’s permission
and with the intent of abusing, humiliating, or degrading the
victim. See Articles 120(m), (t)(2), UCMJ. Such contact would,
at a minimum, be offensive given the ordinary understanding of
what it means for contact to be offensive. See Johnson, 54 M.J.
at 69; cf. Alston, 69 M.J. at 216.
In fact, one could transplant the essential facts from the
wrongful sexual contact specification, without alteration, into
a legally sufficient specification for assault consummated by a
battery under Article 128, UCMJ -- Appellant did on February 3,
2008, unlawfully “tap [the victim] on the head with his exposed
penis, and such . . . contact was without legal justification or
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lawful authorization and without the permission of [the
victim].” See MCM pt. IV, para. 54.f.(2). For these reasons,
we conclude that assault consummated by a battery is a lesser
included offense of wrongful sexual contact.
V.
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.
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BAKER, Judge (concurring in the result):
I concur in the result based on United States v. Alston, 69
M.J. 214 (C.A.A.F. 2010), and my dissent in United States v.
Jones, 68 M.J. 465, 473 (C.A.A.F. 2010) (Baker, J., dissenting).