United States v. Tunstall

UNITED STATES, Appellee
v.
Michael S. TUNSTALL, Airman
U.S. Air Force, Appellant
No. 12-0516
Crim. App. No. 37592
United States Court of Appeals for the Armed Forces
Argued December 3, 2012
Decided May 23, 2013
ERDMANN, J., delivered the opinion of the court, in which RYAN,
J., and EFFRON, S.J., joined. STUCKY, J., filed a separate
opinion concurring in part and in the result. BAKER, C.J.,
filed a separate dissenting opinion.
Counsel
For Appellant: Major Scott Medlyn (argued); Major Daniel E.
Schoeni.
For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen, Lieutenant Colonel C. Taylor Smith, and Gerald R.
Bruce, Esq. (on brief).
Military Judge: Michael J. O’Sullivan
This opinion is subject to revision before final publication.
United States v. Tunstall, No. 12-0516/AF
Judge ERDMANN delivered the opinion of the court.
Airman First Class (A1C) Michael Tunstall was charged with
two specifications of aggravated sexual assault and one
specification each of adultery and false official statement, in
violation of Articles 120, 134, and 107, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 920, 934, 907 (2006). He
pled not guilty to all charges and at a general court-martial
with members was convicted of one specification of aggravated
sexual assault and the adultery specification. He was found not
guilty of the false official statement specification and the
remaining specification of aggravated sexual assault, but as to
the latter, was found guilty of the lesser included offense of
indecent acts. He was sentenced to a bad-conduct discharge,
confinement for six months, a reprimand, and reduction to E-1.
The convening authority approved the adjudged sentence. The
United States Air Force Court of Criminal Appeals (CCA) affirmed
the findings and the sentence. United States v. Tunstall, No.
ACM 37592, slip op. at 12 (A.F. Ct. Crim. App. Mar. 28, 2012).
“[A] military judge can only instruct on a lesser included
offense where the greater offense requires members to find a
disputed factual element which is not required for conviction of
the lesser violation.” United States v. Miergrimado, 66 M.J.
34, 36 (C.A.A.F. 2008). In addition, “[t]he due process
principle of fair notice mandates that ‘an accused has a right
2
United States v. Tunstall, No. 12-0516/AF
to know what offense and under what legal theory’ he will be
convicted.” United States v. Jones, 68 M.J. 465, 468 (C.A.A.F.
2010) (citing United States v. Medina, 66 M.J. 21, 26-27
(C.A.A.F. 2008)). “[T]he Due Process Clause of the Fifth
Amendment also does not permit convicting an accused of an
offense with which he has not been charged.” United States v.
Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011).
We granted review to determine whether the offense of
indecent acts was a lesser included offense of aggravated sexual
assault. We conclude that, as charged in this case, indecent
acts (committing a sexual act in an open and notorious manner)
is not a lesser included offense of aggravated sexual assault
(engaging in a sexual act with an incapacitated person). It was
therefore error for the military judge to instruct on indecent
acts.
We also granted an issue as to whether the adultery
specification charged under Article 134 failed to state an
offense because it did not expressly allege the terminal
element. 1 We conclude that the record of trial demonstrates that
1
We granted review of two issues:
I. Whether Appellant’s conviction for indecent acts must
be set aside because the military judge erred in
instructing the jury that indecent acts is a lesser
included offense of aggravated sexual assault.
3
United States v. Tunstall, No. 12-0516/AF
Tunstall was on actual notice of the terminal element and
therefore that he was not prejudiced by its omission. See
United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012).
Background
In April of 2009, Tunstall and Airman KAS, who were
assigned to Hurlburt Field, Florida, were with a group of airmen
who spent the day drinking at the beach and in an Air Force
dormitory. The two were flirting throughout the afternoon and
later were involved in a drinking game with two other airmen in
the dorm. The airmen became drunk and during the drinking game
KAS removed her clothes and straddled Tunstall, who began to
digitally penetrate her vagina in the presence of the two other
airmen. The Government considered this episode of sexual
activity to be consensual. Shortly thereafter, however, KAS
fell to the floor and began to vomit. At this point KAS was
described as conscious but not vocal or making any actions.
Tunstall and another airman helped KAS to a sink where she
continued to have the dry heaves. While KAS was leaning over
the sink Tunstall digitally penetrated her vagina until the
other airman said, “[i]t’s not time for that. I mean she’s
II. Whether the finding of guilty for adultery must be
dismissed in accordance with Rule for Courts-Martial
907(b)(1) because it fails to state an offense.
United States v. Tunstall, 71 M.J. 379 (C.A.A.F. 2012) (order
granting review).
4
United States v. Tunstall, No. 12-0516/AF
sick. We need to take care of her.” Tunstall and another
airman then helped KAS to the bathroom. During this period KAS
was described as definitely intoxicated and rolling in and out
of consciousness. Tunstall then locked himself in the bathroom
with KAS and had sexual intercourse with her in the shower. 2
Specification 2 of Charge I charged Tunstall with
aggravated sexual assault under Article 120 for the digital
penetration of KAS’s vagina while she was leaning over the sink
and while she was substantially incapable of declining
participation. During his instructions on findings, the
military judge sua sponte instructed the members that the
offense of indecent acts was a lesser included offense of the
charged offense of aggravated sexual assault. Tunstall was
acquitted of aggravated sexual assault under Specification 2 of
Charge I, but was found guilty of the lesser included offense of
indecent acts.
Tunstall did not object to the instruction at trial, but on
appeal to the CCA he argued that the military judge erred in
giving a lesser included offense instruction for the offense of
indecent acts. Tunstall, No. ACM 37592, slip op. at 7-11. The
CCA held that the offense of indecent acts was a lesser included
2
Specification 1 of Charge I charged Tunstall with aggravated
sexual assault under Article 120 by having intercourse with KAS
in the bathroom while she was substantially incapable of
declining participation.
5
United States v. Tunstall, No. 12-0516/AF
offense of aggravated sexual assault. Id. at 11. Although the
lower court did not conduct an element-by-element comparison of
the charges, it concluded that “one cannot engage in a ‘sexual
act’ with someone who was vomiting in a sink in the presence of
a third party without also engaging in an indecent act.” Id. at
10.
Issue I
Lesser Included Offense
Whether an offense is a lesser included offense is a
question of law that is reviewed de novo. United States v.
Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011). While the granted issue
frames our analysis in terms of a lesser included offense, we
believe that this case raises important instructional and notice
issues as well.
Because there was no objection to the instruction at trial,
we review for plain error. United States v. Wilkins, 71 M.J.
410, 412 (C.A.A.F. 2012) (citing United States v. Arriaga, 70
M.J. 51, 54 (C.A.A.F. 2011)). Under a plain error analysis, the
accused “has the burden of demonstrating that: (1) there was
error; (2) the error was plain or obvious; and (3) the error
materially prejudiced a substantial right of the accused.”
Girouard, 70 M.J. at 11.
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United States v. Tunstall, No. 12-0516/AF
This court applies the elements test to determine whether
one offense is a lesser included offense of another. United
States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010).
Under the elements test, one compares the elements of
each offense. If all of the elements of offense X are
also elements of offense Y, then X is an LIO of Y.
Offense Y is called the greater offense because it
contains all of the elements of offense X along with
one or more additional elements.
Id. at 470.
The elements of aggravated sexual assault under Article
120, as charged in this case, are: (1) that the accused engaged
in a sexual act with another person; and (2) the other person
was substantially incapable of declining participation in the
sexual act. Manual for Courts-Martial, United States pt. IV,
para. 45.b.(3)(c) (2008 ed.) (MCM). Specification 2 of Charge I
alleged that Tunstall:
did . . . engage in a sexual act, to wit: digital
penetration by [Tunstall] of the vagina, with [A1C
KAS], who was substantially incapable of declining
participation in the sexual act.
During his instructions on findings the military judge
instructed the members on the offense of indecent acts as a
lesser included offense of aggravated sexual assault:
Indecent act under Article 120. You are advised a
lesser included offense of the offense alleged in
Specification 2 of Charge I is the offense of indecent
acts, also a violation of Article 120. In order to
find the accused guilty of this lesser included
offense, you must be convinced by legal and competent
evidence beyond reasonable doubt:
7
United States v. Tunstall, No. 12-0516/AF
One, that on or about 17 April 2009, at or near
Hurlburt Field, Florida, the accused engaged in
certain wrongful conduct, to wit: digital penetration
of the vagina of Airman [KAS]; and
Two, that the conduct was indecent.
After providing the members with definitions of relevant terms,
the military judge went on to instruct the members:
Article 120, UCMJ, is not intended to regulate the
wholly private consensual activities of individuals.
In the absence of aggravating circumstances, private
consensual sexual activity[,] including sexual
intercourse[,] is not punishable as an indecent act.
Among possible aggravating circumstances is that the
sexual activity was open and notorious. Sexual
activity may be open and notorious when the
participants know that someone else is present. This
presence of someone else may include a person who is
present and witnesses the sexual activity, or is
present and aware of the sexual activity through
senses other than vision. On the other hand, sexual
activity that is not performed in the close proximity
of someone else, and which passes unnoticed, may not
be considered open and notorious. Sexual activity may
also be considered open and notorious when the act
occurs under circumstances in which there is a
substantial risk that the acts could be witnessed by
someone else, despite the fact that no such discovery
occurred.
This lesser included offense differs primarily from
the charged offense in Specification 2 of Charge I in
that this offense does not require as an essential
element that the accused digitally penetrated Airman
First Class [KAS] when she was substantially incapable
of declining participation in the sexual act. This
lesser included offense, however, does require you to
determine whether the act itself was indecent.
The elements of the lesser included offense of “indecent
acts” are: (1) the accused engaged in certain conduct; and (2)
8
United States v. Tunstall, No. 12-0516/AF
the conduct was indecent. MCM pt. IV, para. 45.b.(11) (2008
ed.).
The Government notes that the offense of indecent acts
occurs when any person engages in “indecent conduct,” which is
defined as “that form of immorality relating to sexual impurity
that is grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or deprave morals
with respect to sexual relations.” Article 120(t)(12), UCMJ.
The Government goes on to argue that the aggravated sexual
assault specification at issue could, without alteration,
constitute a legally sufficient indecent acts specification.
The crux of the Government’s argument is that the act alleged in
Specification 2 of Charge I constituted indecent conduct under
the above definition because KAS was “substantially incapable of
declining the participation in the sexual act.”
Rather than reflecting a greater/lesser relationship,
however, the Government’s theory results in alternative offenses
which criminalize the same conduct. It has long been recognized
that a jury must be able to rationally acquit on the greater
offense but still convict on the lesser offense. Sansone v.
United States, 380 U.S. 343, 350 (1965) (“[T]he lesser offense
must be included within but not, on the facts of the case, be
completely encompassed by the greater. A lesser-included
offense instruction is only proper where the charged greater
9
United States v. Tunstall, No. 12-0516/AF
offense requires the jury to find a disputed factual element
which is not required for conviction of the lesser-included
offense.”). 3
As charged in this case and under the Government’s lesser
included theory, there is no additional fact that the members
would need to find in order to convict for the offense of
aggravated sexual assault which would be unnecessary to convict
for the offense of indecent acts. Neither requires a factual
finding which the other does not. The first element of both
offenses is established by the same set of facts: the “sexual
act” (aggravated sexual assault) and “certain conduct” (indecent
acts) refer to the digital penetration of KAS’s vagina. The
second element of each offense is also established by the same
alleged fact: KAS was substantially incapable of declining
participation (aggravated sexual assault); and the conduct was
3
See also Schmuck v. United States, 489 U.S. 705, 716 n.8 (1989)
(“Our decision in no way alters the independent prerequisite for
a lesser included offense instruction that the evidence at trial
must be such that a jury could rationally find the defendant
guilty of the lesser offense, yet acquit him of the greater.”)
(citing Keeble v. United States, 412 U.S. 205, 208 (1973));
United States v. Miergrimado, 66 M.J. 34, 36 (C.A.A.F. 2008);
United States v. McCullough, 348 F.3d 620, 626 (7th Cir. 2003)
(“[A] greater offense will always have at least one additional
element not found in the lesser-included offense. Otherwise,
the two crimes would be the same.”); United States v. Griffin,
50 M.J. 480, 482 (C.A.A.F. 1999); United States v. Flores, 968
F.2d 1366, 1369 (1st Cir. 1992) (“To pass the [elements test],
all the elements of the lesser included offense must be elements
of the charged offense -- but the charged offense must include
at least one additional element.”); United States v. Jackson, 12
M.J. 163, 167 (C.A.A.F. 1981).
10
United States v. Tunstall, No. 12-0516/AF
indecent because KAS was substantially incapable of declining
participation (indecent acts). The MCM in effect at the time
recognized that treating indecent acts as a lesser included
offense of aggravated sexual assault is appropriate “[d]epending
on the factual circumstances in each case,” MCM pt. IV, para.
45.e. (2008 ed.). Under the facts of this case, where there is
no additional fact that the members would need to find in order
to establish the offense of aggravated sexual assault which
would be unnecessary to establish the offense of indecent acts,
the two offenses do not stand in a relationship of
greater/lesser offense, because a rational trier of fact could
not acquit on the greater offense and convict on the lesser
offense. 4 It was therefore plain and obvious error for the
military judge to sua sponte give the lesser included offense
instruction.
The military judge compounded the error with his further
instructions on indecent acts. The military judge instructed
the members that engaging in a sexual act in the presence of
others is considered “open and notorious” behavior which could
constitute an indecent act. “Open and notorious” is not a basis
4
Although there are some kinds of indecent conduct, discussed
infra, under which a rational trier of fact could have acquitted
of aggravated sexual assault but convicted of indecent acts,
those theories would be per se outside the scope of the conduct
for which Tunstall was charged, because Tunstall was charged
with aggravated sexual assault, not indecent acts.
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United States v. Tunstall, No. 12-0516/AF
or theory for the offense of aggravated sexual assault, and that
instruction was the first mention in the trial of the “open and
notorious” theory. The military judge went on to instruct the
members that the greater offense of indecent acts differed from
the offense of aggravated sexual assault as it did not require
them to find that KAS was substantially incapable of declining
participation, but only that the act itself was indecent.
In providing these instructions, the military judge
essentially took the “substantially incapable of declining
participation” theory for the offense of indecent acts off the
table and instead provided the members with detailed
instructions as to the “open and notorious” theory for the
offense. This error resulted in material prejudice to Tunstall.
We agree with the CCA that under the circumstances of this case,
the members convicted Tunstall of indecent acts under an “open
and notorious” theory. Tunstall, No. ACM 37592, slip op. at 10
(“Under the facts of this case, we conclude that one cannot
engage in a ‘sexual act’ with someone who was vomiting in a sink
in the presence of a third party without also engaging in an
indecent act.” (emphasis added)). However, the due process
principle of fair notice mandates that “an accused has a right
to know what offense and under what legal theory” he will be
convicted. Jones, 68 M.J. at 468 (quoting Medina, 66 M.J. at
26-27) (emphasis added). As Tunstall was neither charged with
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United States v. Tunstall, No. 12-0516/AF
nor on notice of the offense of indecent acts under the “open
and notorious” theory until the military judge’s instruction, he
was not on fair notice to defend against that offense and his
due process rights were violated. 5
Because the military judge instructed on an offense which
was not a “lesser included” offense and because the military
judge instructed on a theory of indecency of which Tunstall was
not on notice, the findings with regard to Specification 2 of
Charge I are set aside and the case is remanded to the CCA to
reassess the sentence or return the case to the convening
authority for a rehearing on sentence. 6
5
The Government’s argument that the “open and notorious” theory
of an indecent act offense does not constitute an element of the
offense is not on point. We need not address the issue as to
whether the “open and notorious” theory of the offense is or is
not an element, as the military judge instructed on that theory
and Tunstall had no notice of that theory prior to the military
judge’s instructions. See Jones, 68 M.J. at 468.
6
The dissent implies that Tunstall was on notice of the
purported lesser included offense because he was on notice that
his conduct violated the law. United States v. Tunstall, __
M.J. __ (1-2) (C.A.A.F. 2013) (Baker, C.J., dissenting) (opining
that because this court has found “open and notorious” sexual
conduct to warrant an indecent acts instruction, Tunstall was on
notice of that basis under which his conduct might be found
indecent); id. at __ (6) (“If one is charged with an aggravated
sexual assault, which occurs in front of others, one is
necessarily on notice that the lesser included offense of
indecent acts can be demonstrated by open and notorious
conduct.”). Although we agree that the “requirement of notice
to an accused may be met if the charge sheet ‘makes the accused
aware of any alternative theory of guilt,’” United States v.
Miller, 67 M.J. 385, 389 n.6 (C.A.A.F. 2009) (quoting United
States v. Medina, 66 M.J. 21, 27 (C.A.A.F. 2008)), the charge
sheet in this case does not in any way allege a theory of guilt
13
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Issue II
The Fosler/Humphries Issue
Tunstall argues that the Article 134 adultery specification
in Charge II failed to state an offense because it did not
expressly allege the terminal element. In the context of an
adultery specification, the government may prove the terminal
element in one of two ways -– either that, under the
circumstances, the adulterous conduct was to the prejudice of
good order and discipline or that it was of a nature to bring
discredit upon the armed forces. MCM pt. IV, para. 62.c.(2).
As Tunstall failed to object to the adultery specification at
trial, we review for plain error. To establish plain error, an
appellant has the burden to demonstrate: (1) there was error;
(2) the error was plain or obvious; and (3) the error materially
prejudiced a substantial right of the accused. 7 Humphries, 71
based on the presence of others. Therefore, an instruction
allowing Tunstall to be convicted on that basis deprives him of
his due process rights.
7
The Government urges us to apply the four-prong plain error
test from United States v. Olano, 507 U.S. 725 (1993). Olano,
however, interprets Federal Rule of Criminal Procedure 52(b) --
a rule which does not govern the scope of this court’s appellate
review. 507 U.S. at 731. Plain error review in this court is
governed by Article 59(a), UCMJ, 10 U.S.C. § 859(a). The key
difference between these two sources of law is that Fed. R.
Crim. P. 52(b) is an enabling rule conferring discretion upon
the reviewing court (“A plain error that affects substantial
rights may be considered even though it was not brought to the
court’s attention.” (emphasis added)), whereas Article 59(a) is
a restricting rule (“A finding or sentence of a court-martial
14
United States v. Tunstall, No. 12-0516/AF
M.J. at 214. We have held that failure to allege the terminal
element constitutes plain and obvious error and resolution of
the case will depend upon whether “the error has prejudiced the
substantial rights of the accused.” United States v. Ballan, 71
M.J. 28, 30 (C.A.A.F. 2012).
In Humphries, we stated that “we look to the record to
determine whether notice of the missing element is somewhere
extant in the trial record, or whether the element is
‘essentially uncontroverted.’” 71 M.J. at 215-16. In making
this inquiry, courts are limited to considering evidence
contained in the trial record. Id.
While the terminal element of Article 134 was not discussed
during voir dire, the opening statements, or the Government’s
case-in-chief, it was raised by the defense during trial. At
the start of the defense case, the senior defense counsel sought
may not be held incorrect on the ground of an error of law
unless the error materially prejudices the substantial rights of
the accused.” (emphasis added)). See also Unites States v.
Powell, 49 M.J. 460, 464 (C.A.A.F. 1998) (“[T]he Olano
definition has limited applicability . . . because . . . [among
other factors] it interprets the federal rules, which are
somewhat different from the military rules.”).
We have consistently rejected application of the fourth
prong of Olano when addressing questions under Article 59(a),
UCMJ, and do not intend to revisit that practice here. Instead,
we adhere to our own longstanding precedent on Article 59(a)
questions. See, e.g., Humphries, 71 M.J. at 214; United States
v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011); United States v.
Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008); United States v.
Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007).
15
United States v. Tunstall, No. 12-0516/AF
the admission of a petition for simplified dissolution of
marriage. The dissolution of marriage is relevant to marital
status, which is one factor to be considered as to whether the
terminal element is met. MCM pt. IV, para. 62.c.(2)(a). When
the senior trial counsel objected to its admission, the senior
defense counsel explained that the document was relevant to the
third element of the offense of adultery -- that “under the
circumstances that conduct, the adultery, was prejudicial to
good order and discipline, or service discrediting.” The
military judge admitted the document.
Before closing arguments, the military judge provided the
parties with copies of his instructions. The instructions
listed the third element of the adultery offense as “that under
the circumstances, the conduct of the accused was to the
prejudice of good order and discipline in the armed forces or
was of a nature to bring discredit upon the armed forces.” He
then defined the terms “conduct prejudicial to good order and
discipline” and “service discrediting conduct,” and explained
how the evidence needed to establish one but not both of those
terms. The military judge asked if there were any objections.
Other than to the definition of “substantially incapable,” the
defense counsel stated, “No, sir.”
In closing argument on the adultery specification, the
defense counsel focused on the third element. He asked the
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United States v. Tunstall, No. 12-0516/AF
members to read the military judge’s instructions explaining
conduct prejudicial to good order and discipline and conduct of
a nature to bring discredit upon the armed forces. He asserted
that, because the Government had not called any witnesses to
prove the third element, it failed to prove that Tunstall was
guilty of adultery. Here, where evidence in the trial record
indicates that the defense introduced evidence for the specific
purpose of negating both theories of the terminal element of
Article 134, UCMJ, and further argued that the Government had
not proven either terminal element during its closing argument,
we conclude that Appellant has not met his burden to demonstrate
material prejudice to a substantial right, as he did defend
himself, despite the Government’s error. 8
Decision
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Charge I, Specification 2,
the finding as to that specification is set aside, and that
specification is dismissed. The remaining findings are
8
Although in Humphries we rejected the theory that notice could
be shown either by a defendant’s “assertion during closing
arguments that the Government had failed to present evidence [on
the terminal element]” or by the military judge’s panel
instructions coming “after the close of evidence,” 71 M.J. at
216-17, we view these factors as relevant in this case due to
their combination with the admission of the simplified petition
for dissolution of marriage.
17
United States v. Tunstall, No. 12-0516/AF
affirmed. The decision as to the sentence is set aside and the
record is returned to the Judge Advocate General of the Air
Force for remand to that court for further proceedings
consistent with this opinion.
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STUCKY, Judge (concurring in part and in the result):
I concur in the majority’s judgment setting aside
Appellant’s conviction for indecent acts. The specification did
not place Appellant on notice that he would have to defend
against committing a sexual act in an open and notorious manner,
and there was no mention of this theory of the case until the
findings instructions and arguments. See United States v.
Wilkins, 71 M.J. 410, 414 n.4 (C.A.A.F. 2012); United States v.
Rauscher, 71 M.J. 225, 226 (C.A.A.F. 2012) (per curiam). I also
concur in the majority’s judgment that Appellant was not
prejudiced by the failure of the adultery specification to state
a terminal element. I disagree, however, with the majority’s
prejudice analysis.
As Appellant failed to object to the defective adultery
specification at trial, we review for plain error. United
States v. Humphries, 71 M.J. 209, 213 (C.A.A.F. 2012). To
establish plain error, an appellant has the burden to
demonstrate, inter alia, that any error materially prejudiced
his substantial rights. United States v. Tunstall, __ M.J. __,
__ (14) (C.A.A.F. 2013); Wilkins, 71 M.J. at 413; Article 59(a),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 859(a)
(2006).
Appellant alleges prejudice only in that neither the
specification nor the trial proceedings gave him sufficient
United States v. Tunstall, No. 12-0516/AF
notice of the missing element against which he had to defend.
“But that is simply an ipse dixit recasting the conceded error --
[failure of the specification to give notice] -- as the [material
prejudice to] substantial rights.” Puckett v. United States, 556
U.S. 129, 142 (2009). Appellant did not allege that his counsel
was unaware of the missing element, what he would have been done
differently at trial had the specification contained the missing
element, or how the failure of the specification to state the
missing element affected the outcome of his trial. Under these
circumstances, Appellant failed to bear his burden of
demonstrating prejudice.
I have set out the reasons for my differing with the
majority’s prejudice analysis in my dissent in Humphries. 71
M.J. at 219 (Stucky, J., dissenting). There is no need to
repeat them here. Because I would adhere to the Supreme Court’s
four-prong plain error test as set out in United States v.
Olano, 507 U.S. 725, 734 (1993), and because I believe that the
majority’s approach conflates the error with the prejudice, I
respectfully concur in the result.
2
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BAKER, Chief Judge (dissenting):
The first question presented is whether indecent acts is a
lesser included offense of aggravated assault. It is, under any
lesser included offense doctrine adopted by this Court during
the last sixty years. An accused would be on fair notice that
the offense of indecent acts is a lesser included offense of the
offense of aggravated sexual assault.
The next question presented is whether indecent acts is a
lesser included offense, as charged in this case. Appellant was
charged with aggravated sexual assault, to wit, the digital
penetration of the vagina of a person who was substantially
incapable of declining participation in the sexual act. This
charge and specification were based on Appellant’s conduct while
the victim was bent over vomiting into a bathroom sink while
another servicemember sought to help her. In addition to
instructing on this offense, the military judge instructed on
the lesser included offense of indecent acts. The offense of
indecent acts requires proof of two elements: (1) that the
accused engaged in certain conduct and (2) that the conduct was
indecent. Manual for Courts-Martial, United States pt. IV,
para. 45.b.(11) (2008 ed.) (MCM). Indecent, in conduct cases,
is defined as “that form of immorality relating to sexual
impurity that is not only grossly vulgar, obscene, and repugnant
to common propriety, but also tends to excite lust and deprave
United States v. Tunstall, No. 12-0516/AF
the morals with respect to sexual relations.” MCM pt. IV, para.
45.c.(3).
Digitally penetrating a woman’s vagina is certain conduct.
Doing so while she is bent over a sink vomiting and intoxicated
is some evidence that the conduct was grossly vulgar (1) in the
absence of consent, or (2) when done with consent when third
parties are present. This Court has found that the “open and
notorious” nature of sexual conduct, including between
consenting adults with third parties present, can be considered
a factual circumstance warranting an instruction on the offense
of indecent acts. United States v. Izquierdo, 51 M.J. 421, 422-
23 (C.A.A.F. 1999) (citations and internal quotation marks
omitted). Thus, Appellant was on notice of at least two bases
upon which his conduct might be found indecent, distinct from
the possibility that KAS was substantially incapable of
declining participation in the act. 1
Attention to the military judge’s instructions is central
to these conclusions. The military judge instructed the members
on the elements of aggravated sexual assault as follows:
1
Having adopted a strict elements approach to lesser included
offenses, the majority determines that aggravated sexual assault
and indecent acts have the same elements, but that indecent acts
is not a lesser included offense in this case because the
factual theory of open and notorious conduct in the case was not
charged. United States v. Tunstall, __ M.J. __ (6-7, 11-13)
(C.A.A.F. 2013).
2
United States v. Tunstall, No. 12-0516/AF
In order to find the accused guilty of [aggravated
assault], you must be convinced by legal and competent
evidence beyond a reasonable doubt:
One, that . . . the accused engaged in a sexual act,
to wit: digital penetration of the vagina, with [the
victim]; and
Two, that the accused did so when [the victim] was
substantially incapable of declining participation in the
sexual act.
The military judge defined “[s]exual act” as “penetration,
however slight . . . of the genital opening of another by a hand
or finger or by any object, with an intent to abuse. . . or
degrade any person or to arouse or gratify the sexual desire of
any person.” The military judge also defined the term consent
and advised the members that it was a defense to the offense of
aggravated sexual assault.
After instructing on several other relevant terms, the
military judge advised the members that indecent acts was a
lesser included offense to the aggravated sexual assault offense
at issue here. He instructed them that the elements of this
offense were:
One, that . . . the accused engaged in certain wrongful
conduct, to wit: digital penetration of the vagina of [the
victim]; and
Two, that the conduct was indecent.
Emphasis added. The military judge defined “[i]ndecent conduct”
as “that form of immorality relating to sexual impurity which is
grossly vulgar, obscene, and repugnant to common propriety, and
3
United States v. Tunstall, No. 12-0516/AF
tends to excite sexual desire or deprave morals with respect to
sexual relations.” The military judge also instructed the
members on the term “[w]rongful,” stating that it means,
“without legal justification or lawful excuse.” Finally, the
military judge advised the members, “This lesser included
offense differs primarily from the charged offense [aggravated
sexual assault] in that this offense does not require as an
essential element that the accused digitally penetrated [the
victim] when she was substantially incapable of declining
participation in the sexual act.”
The military judge’s instruction recognized the
relationship between the term “[w]rongful,” as it related to his
instruction on indecent acts, and the concept of consent as that
term related to the offense of aggravated sexual assault. Thus,
the instruction contemplated a situation where the members might
not have found beyond a reasonable doubt that the victim was
substantially incapable of declining participation, and were
then left to decide whether or not the victim consented. In
other words, notwithstanding insufficient proof on the second
element of aggravated sexual assault, the members could have
found that although the victim might have been capable of
declining participation, she nonetheless did not consent. Under
the military judge’s instruction to the members on the first
element of indecent acts, the accused’s conduct would still be
4
United States v. Tunstall, No. 12-0516/AF
wrongful because obviously he would have had no justification or
excuse for acting as he did. Digitally penetrating someone who
is intoxicated and does not consent is grossly vulgar conduct.
Conversely, if the members found that the victim consented,
then they would be required to acquit on the greater offense,
but still be required to consider the lesser included offense
given the presence of the third party. The military judge
appropriately discerned the need to address this contingency of
proof by instructing with respect to the lesser offense that,
“In the absence of aggravating circumstances, private consensual
sexual activity . . . is not punishable as an indecent act.
Among possible aggravating circumstances is that the sexual
activity was open and notorious.” Emphasis added. This was
simply a recognition that under certain circumstances even
consensual activity could be punishable. Furthermore, it
addressed the factual circumstance that had arisen in the case
about what had occurred in the bathroom and who was present.
Moreover, if the members had found that the alleged victim
consented, Appellant still would have had no legal justification
or excuse for committing the alleged sexual act in the bathroom
with a third party present and his act would have thus been
wrongful.
In its consideration of the concept of open and notorious
conduct, the majority appears to make the same mistake as the
5
United States v. Tunstall, No. 12-0516/AF
Government in its brief, concluding that the only way Appellant
could have committed the offense of indecent acts was through
open and notorious conduct and since the charge did not specify
such conduct he was not on notice of the lesser included
offense. First, the term “open and notorious” is not an element
of the offense. Second, open and notorious conduct is not a
separate theory of prosecution like those contained in the three
clauses of Article 134, UCMJ, 10 U.S.C. § 934 (2006). “Open and
notorious” conduct is one way in which someone can commit an
indecent act. If one is charged with an aggravated sexual
assault, which occurs in front of others, one is necessarily on
notice that the lesser included offense of indecent acts can be
demonstrated by open and notorious conduct. The government is
not required to charge every possible factual pattern under
which the offense might be proved.
Moreover, with regard to the digital penetration in the
bathroom, there is no evidence that the intoxicated victim
vomiting into the sink consented. Thus, it is not clear how the
majority now concludes the Appellant was convicted on the basis
of his open and notorious conduct. There was more than one way
in which Appellant could have committed the lesser offense of
indecent acts. Clearly, Appellant was on notice that his
actions presented some evidence of grossly vulgar conduct and
was clearly repugnant to common propriety.
6
United States v. Tunstall, No. 12-0516/AF
The military judge’s instruction on what constituted a
sexual act under aggravated sexual assault also included the
intent to abuse or degrade any person or to arouse or gratify
sexual desires. His instruction on indecent conduct described
conduct which was “grossly vulgar, obscene, and repugnant” and
tended to “excite sexual desire.” It is difficult to conclude,
in my view, how this latter description is not also included
within the former “intent to abuse . . . or degrade any person
or to arouse or gratify the sexual desire of any person.”
Likewise, it is difficult to conclude how the evidence emerging
from the record of what occurred in the bathroom does not fit
these legal definitions as well.
Thus, given the relationship between the definitions given
the members on wrongfulness and consent and the relationship
between the definitions of a sexual act and indecent conduct in
this case, I conclude quite easily that indecent acts as
instructed upon in this case was included within the first
element of the greater charged offense of aggravated sexual
assault.
Finally, I respectfully disagree with the majority’s
conclusion that “[A] greater offense will always have at least
one additional element not found in the lesser-included offense.
Otherwise, the two crimes would be the same.” Tunstall, __ M.J.
at __ (10 n.3) (brackets and emphasis in original) (citation and
7
United States v. Tunstall, No. 12-0516/AF
internal quotation marks omitted). Although this is indeed one
way in which a greater and lesser included offense situation
might arise, it is not the only way. For example, reliance on
this proposition ignores the rather classic greater and lesser
offense relationship between larceny and wrongful appropriation.
Under the MCM, each of these offenses has four elements. MCM
pt. IV, para. 46.b.(1)-(2). The last element in larceny
requires the intent to permanently deprive while the last
element of wrongful appropriation requires only the intent to
temporarily deprive. Id. Obviously, rather than containing an
additional element, the greater offense merely contains an
element that requires a different degree of deprivation.
In sum, because the offense of indecent acts is a lesser
included offense of aggravated sexual assault in general and as
charged in this case, and because it was properly instructed
upon, I respectfully dissent.
8