This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Joseph R. ARMSTRONG, Captain 

United States Army, Appellant 

No. 17-0556 

Crim. App. No. 20150424 

Argued March 22, 2018—Decided June 28, 2018 

Military Judge: Samuel Schubert 

For Appellant: Captain Joshua B. Fix (argued); Lieutenant 

Colonel Tiffany M. Chapman, Captain Zachary A. Gray

and Captain Bryan A. Osterhage (on brief); Major Todd W. 

Simpson. 

For Appellee: Captain Cassandra M. Resposo (argued);

Lieutenant Colonel Eric K. Stafford and Major Cormac M. 

Smith (on brief). 

Judge MAGGS delivered the opinion of the Court, in 

which Chief Judge STUCKY and Judge RYAN joined. 

Judge OHLSON filed a separate concurring opinion, in 

which Judge SPARKS joined. 

_______________

Judge MAGGS delivered the opinion of the Court. 

A general court-martial composed of officer members 

found Appellant not guilty of the offense of abusive sexual 

contact by causing bodily harm in violation of Article 120(d), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(d) 

(2012), but guilty, as a lesser included offense, of assault 

consummated by a battery in violation of Article 128(a), 

UCMJ, 10 U.S.C. § 928(a) (2012). The court-martial also 

found Appellant guilty of conduct unbecoming an officer and 

a gentleman in violation of Article 133, UCMJ, 10 U.S.C. 

§ 933 (2012). The military judge dismissed the Article 133, 

UCMJ, charge before sentencing. The court-martial sentenced Appellant to dismissal. The convening authority approved the adjudged finding and sentence. The United 

States Army Court of Criminal Appeals (ACCA) summarily 

affirmed. 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

2 

We granted review on the issue of whether assault consummated by a battery, as described in Manual for CourtsMartial, United States pt. IV, para. 54.b.(2) (2012 ed.) 

(MCM), is a lesser included offense of abusive sexual contact 

by causing bodily harm, as described in MCM pt. IV, para. 

45.b.(7)(b) (2016 ed.).1 We hold that it is not. The elements of 

the former offense are not necessarily included in the latter 

offense. In addition, the Specification at issue in this case 

did not allege facts sufficient to state all of the elements of 

both offenses. Despite this conclusion, we affirm the decision 

of the ACCA because, under the applicable standard of review, Appellant has not shown material prejudice. 

I. Background 

In 2014, Appellant and his wife hosted a Halloween party in their home. One of their guests, Mrs. G., consumed 

numerous alcoholic beverages, lay down on a couch in the 

living room, and fell asleep. She later awoke to find Appellant sitting next to her. Mrs. G. testified that Appellant was 

rubbing her genital area and that she immediately got up, 

found her husband, and left the party. Appellant did not testify at trial but told investigators that he may have placed 

his hands between Mrs. G.’s legs for warmth. 

Appellant was charged with one specification of abusive 

sexual contact in violation of Article 120(d), UCMJ. The 

Specification averred that Appellant “did . . . commit sexual 

contact upon [Mrs. G.]., to wit: touching through the clothing 

the genitalia of the said [Mrs. G.], by causing bodily harm to 

the said [Mrs. G.], to wit: wedging his hands between her 

thighs.” 

Before presentation of the evidence on the merits, defense counsel requested findings instructions that would be 

relevant if the court-martial considered assault consummated by a battery to be a lesser included offense of abusive 

sexual contact by causing bodily harm. One request was for 

 1 At the time of the offense in 2014, the President had not yet 

addressed the elements of sexual offenses under Article 120, 

UCMJ, in pt. IV of the MCM. See MCM pt. IV, para. 54 Note (2012 

ed.). The President issued the description of elements in 2016. We 

conclude that the 2016 description is the proper interpretation of 

Article 120(d), UCMJ, at the time of the offense. 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

3 

a “[m]istake of fact instruction with regard to battery, the 

lesser included offense.” Another request was for a definition 

of “[u]nlawful touching,” which, as discussed below, is an element of assault consummated by a battery. Further, defense counsel requested the instruction that, “With regard to 

the lesser included offense of battery[,] the actor need not 

actually intend or foresee [consequences to others]; it is only 

necessary that a reasonable person in such circumstances 

would have realized substantial and unjustified danger created by his act.” 

Defense counsel, however, never expressly agreed that 

assault consummated by a battery was a lesser included offense of abusive sexual contact by causing bodily harm. At 

an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012), session 

after presentation of the evidence, the military judge asked: 

“Counsel, do you see any lesser included offenses that are in 

issue in this case?” Defense counsel answered, “No, Your 

Honor.” Trial counsel answered, “Yes, sir, the lesser included offense of Article 128, assault, as the Article 120 Charge.” 

The military judge then asked: “Defense, what say you?” Defense counsel responded: “Taking no position on it, judge.” 

The military judge then said: “Very well. I think I agree with 

the government on this one, that assault consummated by a 

battery would be a lesser included offense of The Specification of Charge I. If counsel for either side finds case law or 

some other contrary law on the subject, please provide it to 

me during th[e] break.” Neither side showed the military 

judge any contrary authority. The military judge subsequently instructed the members that assault consummated 

by a battery is a lesser included offense of abusive sexual 

contact. 

The members found Appellant not guilty of abusive sexual contact by causing bodily harm in violation of Article 

120(d), UCMJ, but after modifying the Specification with 

exceptions and substitutions, see Rule for Courts-Martial 

(R.C.M.) 918(a)(1), the members found Appellant guilty of 

the offense of assault consummated by a battery in violation 

of Article 128(a), UCMJ.2 See Article 79, UCMJ, 10 U.S.C. 

 2 The members returned a finding of “Guilty, except the words, 

‘commit sexual contact upon,’ and ‘to wit: touching through the 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

4 

§ 879 (2012). As noted previously, the members also found 

Appellant guilty of conduct unbecoming an officer and a gentleman in violation of Article 133, UCMJ, but the military 

judge dismissed this charge. 

Appellant now argues that assault consummated by a 

battery is not a lesser included offense of abusive sexual contact by causing bodily harm. Appellant asks this Court to set 

aside and dismiss the findings and the sentence. 

II. Standard of Review 

The standard of review in this case depends on whether 

Appellant preserved, waived, or forfeited the granted issue. 

Appellant argues that defense counsel preserved the issue at 

trial by answering “[n]o” when the military judge asked if 

defense counsel saw any lesser included offense. We 

disagree. 

We have held that “[w]hile there are no ‘magic words’ 

dictating when a party has sufficiently raised an error to 

preserve it for appeal, of critical importance is the specificity 

with which counsel makes the basis for his position known 

to the military judge.” United States v. Killion, 75 M.J. 209, 

214 (C.A.A.F. 2016) (quoting United States v. Smith, 50 M.J. 

451, 456 (C.A.A.F. 1999)). Considering the entire exchange 

between the military judge and defense counsel, we conclude 

that defense counsel failed to make known both the defense’s position and the basis for it, on whether assault consummated by a battery is a lesser included offense. Defense 

counsel’s initial answer of “[n]o” may have meant that defense counsel believed, at the start of the colloquy, that there 

was no lesser included offense at issue in this case. But defense counsel’s subsequent statement that counsel was 

“[t]aking no position” on the Government’s assertion that 

assault consummated by a battery was a lesser included offense and the lack of response when the military judge 

asked for contrary authority indicate that defense counsel, 

in the end, was leaving the task of determining what was or 

 

clothing the genitalia of the said Mrs. G., by causing bodily harm 

to the said Mrs. G.’ substituting therefor the words ‘unlawfully 

touch.’ Of the excepted: Not Guilty; Of the substituted words: 

Guilty.” 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

5 

was not a lesser included offense to the military judge. Appellant thus did not preserve the issue. 

This leads us to the question of whether Appellant 

waived or forfeited the issue. The Government does not argue Appellant’s statements amounted to a waiver, and we 

see no reason to disagree. Accordingly, we conclude that Appellant forfeited the issue by not properly preserving it at 

trial. See United States v. Oliver, 76 M.J. 271, 273 (C.A.A.F. 

2017) (similarly concluding that an accused had not waived 

but instead merely forfeited the issue of whether one offense 

was a lesser included offense of another). 

In cases of forfeiture, we review for “plain error.” Id. at 

274–75. Under plain error review, the appellant has the 

burden of demonstrating “(1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial 

rights.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 

2014) (citation omitted). Under this standard, even if there 

was an error, no relief is warranted unless the appellant can 

show the second and third requirements. United States v. 

Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018). 

III. Discussion 

In accordance with the plain error standard of review, we 

now consider three questions: (1) Did the military judge err 

in instructing the members that assault consummated by a 

battery was a lesser included offense of abusive sexual contact by causing bodily harm?; (2) If there was an error, was 

the error clear or obvious?; and (3) Has Appellant shown 

that the error caused him to suffer material prejudice? 

A. Lesser Included Offense Analysis 

To prepare a defense, the accused must have notice of 

what the government is required to prove for a finding of 

guilty. See United States v. Miller, 67 M.J. 385, 388 

(C.A.A.F. 2009). The charge sheet provides the accused notice that he or she will have to defend against any charged 

offense and specification. In addition, Article 79, UCMJ, authorizes a court-martial to find the accused “guilty of an offense necessarily included in the offense charged.” The theory of Article 79, UCMJ, is that the accused will have notice 

of an offense necessarily included in the charged offense be-
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

6 

cause “the elements of the lesser offense are a subset of the 

elements of the greater offense alleged,” thereby “put[ting] 

the accused on notice to be prepared to defend against [the 

lesser offense] in addition to the offense specifically 

charged.” MCM pt. IV, para. 3.b.(1) & Discussion (2012 ed.). 

No article of the UCMJ, however, currently authorizes a 

court-martial to find the accused guilty of an offense that is 

not necessarily included in a charged offense.3 Accordingly, 

it is error for the military judge to instruct the members that 

they may find the accused guilty of an offense that is not 

necessarily included of the offense charged. See United 

States v. Miergrimado, 66 M.J. 34, 36 (C.A.A.F. 2008). 

The “elements test” determines whether an offense is 

“necessarily included in the offense charged” under Article 

79, UCMJ. United States v. Jones, 68 M.J. 465, 472 

(C.A.A.F. 2010). We have applied the elements test in two 

ways. The first way is by comparing the statutory definitions 

of the two offenses. An offense is a lesser included offense of 

the charged offense if each of its elements is necessarily also 

an element of the charged offense. See, e.g., United States v. 

Gaskins, 72 M.J. 225, 235 (C.A.A.F. 2013) (holding that assault consummated by a battery is a lesser included offense 

of indecent assault based solely on a comparison of statutory 

elements of the two offenses); MCM pt. IV, para. 3.b.(1) 

(2012 ed.). The second way is by examining the specification 

of the charged offense. An offense can also be a lesser included offense of the charged offense if the specification of 

the charged offense is drafted in such a manner that it alleges facts that necessarily satisfy all the elements of each 

offense. See, e.g., United States v. Arriaga, 70 M.J. 51, 55 

(C.A.A.F. 2011) (holding that housebreaking is a lesser included offense of burglary because the specification of the 

burglary offense “allege[d] the elements of both offenses”); 

United States v. Riggins, 75 M.J. 78, 85 n.7 (C.A.A.F. 2016) 

 3 The Military Justice Act of 2016, when it becomes effective, 

will authorize a court-martial to find the accused guilty not only of 

“an offense that is necessarily included in the offense charged” but 

also “any lesser included offense so designated by regulation prescribed by the President.” National Defense Authorization Act for 

Fiscal Year 2017, Pub. L. No. 114-328, § 5402, 130 Stat. 2000, 

2937 (2016). 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

7 

(holding that assault consummated by a battery contains an 

element that is not included in the sexual assault and abusive sexual contact by placing the other person in fear offenses but leaving open “the possibility that in other cases 

the Government may charge an accused with sexual assault 

and/or abusive sexual contact in such a manner that assault 

consummated by a battery may be a lesser included offense”).4 If the elements test is satisfied in either way, the 

accused will have the notice necessary to prepare a defense. 

1. Statutory Definitions of the Two Offenses 

Article 120(d), UCMJ,5 defines the offense of abusive 

sexual contact as follows: 

Any person subject to this chapter who commits or 

causes sexual contact upon or by another person, if 

to do so would violate subsection (b) (sexual assault) had the sexual contact been a sexual act, is 

guilty of abusive sexual contact and shall be punished as a court-martial may direct. 

Understanding this provision requires reference to definitions in four other sections of Article 120, UCMJ. Section 

(b)(1)(B) defines the offense of “[s]exual assault” to include 

“commit[ting] a sexual act upon another person by . . . (B) 

causing bodily harm to that other person.” Section (g)(1)(A)–

(B) defines a “[s]exual act” to include “contact between the 

penis and the vulva or anus or mouth” or “penetration, however slight, of the vulva or anus or mouth of another by any 

part of the body or by any object, with an intent to abuse, 

humiliate, harass, or degrade any person or to arouse or 

gratify the sexual desire of any person.” Section (g)(2)(A)–(B) 

defines “[s]exual contact” to include “touching . . . either directly or through the clothing, the genitalia . . . with an intent to abuse, humiliate, or degrade any person; or . . . to 

arouse or gratify the sexual desire of any person.” Finally, 

section (g)(3) defines “[b]odily harm” to mean “any offensive 

 4 The fact that an act might have been charged as an offense 

other than the charged offense is irrelevant to the elements test if 

the charging language does not cover both offenses. 

5 The 2012 version of Article 120, UCMJ, applies to this offense because the offense occurred in 2014. 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

8 

touching of another, however slight, including any nonconsensual sexual act or nonconsensual sexual contact.” 

Working through the text of Article 120(d), UCMJ, and 

these four definitions quoted above, the President has identified several ways that “[a]busive sexual contact” might be 

committed. MCM pt. IV, para. 45.b.(7)(a)−(f) (2016 ed.). At 

issue here is “Abusive sexual contact involving the touching 

of the genitalia, anus, groin, breast, inner thigh, or buttocks 

of any person . . . [b]y causing bodily harm.” Id. at pt. IV, para. 45.b.(7)(b). The President has determined that this offense has three elements: 

(i) That the accused committed sexual contact upon 

another person by touching, or causing another 

person to touch, either directly or through the 

clothing, the genitalia, anus, groin, breast, inner 

thigh, or buttocks of any person; 

(ii) That the accused did so by causing bodily harm 

to that other person; and 

(iii) That the accused did so with intent to abuse, 

humiliate, harass, or degrade any person or to 

arouse or gratify the sexual desire of any person. 

Id. at pt. IV, para. 45.b.(7)(b)(i)−(iii). We agree with this 

statement of the elements as a correct interpretation of Article 120(d), UCMJ. 

We turn now to the offense of assault consummated by a 

battery. Under Article 128(a), UCMJ, “[a]ny person subject 

to this chapter who attempts or offers with unlawful force 

. . . to do bodily harm to another person, whether or not the 

attempt or offer is consummated, is guilty of assault and 

shall be punished as a court-martial may direct.” Based on 

this text, the President has identified the two elements of 

the offense of assault consummated by a battery as follows: 

 (a) That the accused did bodily harm to a certain 

person. 

 (b) That the bodily harm was done with unlawful 

force or violence. 

MCM pt. IV, para. 54.b(2)(a), (b) (2012 ed.). We previously 

have agreed with this statement of the elements. See United 

States v. Johnson, 54 M.J. 67, 69 (C.A.A.F. 2000). 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

9 

In comparing the elements of the offense of abusive sexual contact by causing bodily harm to the elements of the 

offense of assault consummated by a battery, we begin by 

noting that they both require proof of “bodily harm.” Bodily 

harm is defined as an “offensive touching.”6 Assault consummated by a battery requires the accused to commit the 

offensive touching “with unlawful force or violence.” Abusive 

sexual contact by causing bodily harm requires the accused 

to commit the offensive touching with “an intent to abuse, 

humiliate, harass, or degrade any person or to arouse or 

gratify the sexual desire of any person.” 

Despite this difference in the required manners of causing an offensive touching, the Government argues that assault consummated by a battery is a lesser included offense 

of abusive sexual contact by causing bodily harm because it 

is impossible to identify any conduct that would constitute 

the latter offense that did not also constitute the former. We 

agree that the elements test does not require the elements of 

the lesser and greater offense to be defined with identical 

statutory language. See United States v. Bonner, 70 M.J. 1, 2 

(C.A.A.F. 2011). We also agree that in many (and perhaps 

most) cases, an offensive touching done with intent to 

“abuse, humiliate, harass, or degrade” will also be an offensive touching done with “unlawful force.” The offensive 

touching could not be accidental because then it would not 

be done with intent to “abuse, humiliate, harass, or degrade.” And as the Government explains in its brief, an offensive touching cannot be consensual because then it would 

not be offensive. 

 6 The definition of “bodily harm” for each offense is slightly different. In Article 120, UCMJ, “bodily harm” means “any offensive 

touching of another, however slight, including any nonconsensual 

sexual act or nonconsensual sexual contact.” Article 120(g)(3), 

UCMJ; MCM pt. IV, paras. 45.c.(2), 45.a.(g)(3) (2016 ed.). In Article 128, UCMJ, “[b]odily harm” means “any offensive touching of 

another, however slight.” MCM pt. IV, para. 54.c.(1)(a) (2012 ed.). 

The variation in wording, however, does not appear to make a difference in this case. The additional phrase “including any nonconsensual sexual act or nonconsensual sexual contact” appears to 

serve the purpose of providing examples for clarity, rather than of 

making the definition of “bodily harm” broader or narrower. 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

10 

But the Government is not correct in arguing that it is 

impossible to commit abusive sexual contact by causing 

bodily harm without also committing assault consummated 

by a battery. Consider, for example, the facts of United 

States v. Claxton, No. ACM 38188 (rem), 2016 CCA LEXIS 

649, 2016 WL 6575036 (A.F. Ct. Crim. App. Oct. 31, 2016) 

aff’d 76 M.J. 356 (C.A.A.F. 2017). In that case, the appellant 

admitted that he pulled down his pants and positioned himself next to an intoxicated woman so that the woman would 

touch his penis when she moved her hand. Id. at *26−27, 

2016 WL 6575036, at *8−9. On these facts, the appellant’s 

action could constitute abusive sexual contact by causing 

bodily harm because the appellant (i) caused another person 

to touch his penis,7 (ii) caused bodily harm (i.e., an offensive 

touching), and (iii) did so to gratify his sexual desire. The 

touching, however, would not constitute an assault consummated by a battery because the appellant did not use 

“unlawful force or violence” when he positioned himself so 

that the woman would touch him. Although examples like 

this may be unusual,8 the question under the elements test 

is whether the elements of one offense are necessarily included in the elements of another. Looking at just the elements of the two offenses, assault consummated by a battery 

is not necessarily included in abusive sexual contact by causing bodily harm. 

 7 In many “causing another person to touch” cases, the allegation is that the accused grabbed the victim’s hand and forced the 

victim to touch him. In Claxton, the victim testified that appellant 

did just that. 2016 CCA LEXIS 649, at *26−27, 2016 WL 6575036, 

at *8. But the court concluded that the dispute over what happened did not matter. The court reasoned: “Although [the victim] 

testified Appellant grabbed her hand and placed it on his penis, 

Appellant’s admission to moving his body so that her hand 

touched his penis would be sufficient to convict Appellant.” Id. at 

*28, 2016 WL 6575036, at *9. The court-martial found the appellant in Claxton guilty of wrongful sexual contact in violation of 

Article 120(m), 10 U.S.C. § 920(m) (2006) (as amended by the National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 

109-163, § 552, 119 Stat. 3136, 3258 (effective Oct. 1, 2007)). 

8 At oral argument, Appellant suggested a similar hypothetical 

case. Oral Argument at 1:59:45−2:00:40, United States v. Armstrong, 17-0556 (Mar. 22, 2018). 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

11 

2. Language of the Specification 

As explained above, even if the elements of an offense are 

not necessarily a subset of the elements of the charged offense, the charging language may ensure that the offense is 

“necessarily included in the offense charged” within the 

meaning of Article 79, UCMJ. See, e.g., Arriaga, 70 M.J. at 

55; Riggins, 75 M.J. at 85 n.7. A specification of abusive sexual contact by causing bodily harm, for example, might allege that the offensive touching was done both with an intent to “abuse, humiliate, harass, or degrade any person or 

to arouse or gratify the sexual desire of any person” as required by Article 120(g), UCMJ, and with “unlawful force” as 

required by Article 128(a), UCMJ. In such a case, instructing the members that they may find the accused guilty of 

assault consummated by a battery would not be error. 

In this case, however, the charging language did not suffice to state both offenses. The Specification of abusive sexual contact by causing bodily harm contained two particulars, 

one identifying the “sexual contact” (i.e., “touching through 

the clothing the genitalia”) and the other identifying the 

“bodily harm” (i.e., “wedging his hands between her thighs”). 

The definition of “sexual contact” provided notice that the 

Government would attempt to prove that Appellant touched 

Mrs. G.’s genitalia with intent to “abuse, humiliate, or degrade.” But the definition of “bodily harm” provided notice 

only that the Government would attempt to prove that the 

wedging of his hands between her thighs was an offensive 

touching. Neither the definition of bodily harm nor any factual averment in the Specification provided notice that the 

Government would have to prove that the wedging of his 

hands was done “with unlawful force or violence.”9 The Specification therefore did not state the elements of both abusive 

sexual contact by causing bodily harm and assault consummated by a battery. 

 9 The analysis would be different if the Specification originally 

had contained words such as “unlawfully touch,” as added by the 

members in their finding in this case, see supra note 2, and as recommended in the MCM’s sample specification, see MCM pt. IV, 

para. 54.f.(2) (2012 ed.). 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

12 

3. Conclusion 

We thus conclude that the military judge erred in instructing the members that assault consummated by a battery was a lesser included offense of abusive sexual contact 

by causing bodily harm. We leave open the possibility that in 

a future case a specification could be drafted in such a manner that it alleges the elements of both assault consummated by a battery and abusive sexual contact. We also leave 

open the possibility that assault consummated by a battery 

could be a lesser included offense of other Article 120, 

UCMJ, offenses. See, e.g., Article 120(c), UCMJ (stating the 

offense of “[a]ggravated sexual contact” by using force). 

B. Plain Error Analysis 

The error in instructing the members that assault consummated by a battery was a lesser included offense was 

“clear” or “obvious” under the elements test. As explained 

above, assault consummated by a battery requires bodily 

harm that “was done with unlawful force or violence” while 

abusive sexual contact by bodily harm does not. We have determined that other similar errors regarding what is a lesser 

included offense to be plain errors. See, e.g., United States v. 

Tunstall, 72 M.J. 191, 195 (C.A.A.F. 2013).10

We must now consider whether Appellant suffered material prejudice. In cases involving incorrect instructions regarding lesser included offenses, prejudice can be caused by 

not having “notice as to the offense that must be defended 

against.” Miller, 67 M.J. at 388 (citation omitted). Appellant 

argues that he suffered prejudice because he only learned 

 10 Despite our conclusion that the error was clear or obvious, 

we recognize that the military judge and counsel had limited 

guidance in addressing this issue. The 2012 MCM, in effect at the 

time of trial, did not identify the lesser included offenses for abusive sexual contact. See MCM, Analysis of Punitive Articles, app. 

23 at A23−16 (2012 ed.) (noting that the lesser included offenses 

would “be published in subsequent Executive Order”). We also 

note that Appendix 12A to the 2016 MCM identifies assault consummated by a battery as a possible lesser included offense of 

abusive sexual contact “[d]epending on the factual circumstances 

in each case.” MCM, Lesser Included Offenses, app. 12A at A12A1, A12A−4 (2016 ed.). 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

13 

that he needed to defend himself against the charge of assault consummated by a battery after the close of evidence. 

He asserts that, if he had known earlier, he could have presented a defense addressing the requirement that the bodily 

harm must be caused by “unlawful force.” For example, he 

might have chosen to testify and, in testifying, might have 

provided evidence that the touching in this case was not unlawful. 

We disagree. The manner in which a case was contested 

may reveal whether an accused was prejudiced by an erroneous consideration of an offense that is not actually a lesser 

included offense. See Oliver, 76 M.J. at 275. For example, in 

United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012), we 

held that abusive sexual contact was not a lesser included 

offense of aggravated sexual assault as charged. But we concluded that the appellant in that case was not prejudiced because his defense strategy focused, inter alia, on mistake of 

fact as to consent, demonstrating that he was on notice of 

the elements he needed to defend against. Id. at 414. In this 

case, although Appellant later said that he did not see any 

lesser included offenses, the record shows that Appellant requested instructions before the presentation of evidence regarding defenses to assault consummated by a battery. One 

of these instructions concerned “unlawful touching,” and 

thus addressed the requirement of unlawful force. We therefore agree with the Government that Appellant had notice of 

how he needed to defend himself at the start of the case. 

Therefore, he suffered no material prejudice resulting from 

error in this case. 

Appellant argues in the alternative that he does not have 

to show prejudice based on the reasoning of our recent decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017). 

In that case, interpreting the language of R.C.M. 603(d), we 

held that if a court-martial improperly allows a major 

change to a referred charge or specification over the accused’s objection, the accused need not show prejudice because the court-martial lacks jurisdiction to consider the 

new charge. Id. at 301–02. Appellant seeks to extend Reese

by analogizing the court-martial’s consideration of assault 

consummated by a battery to a major change to the Specification of abusive sexual contact by causing bodily harm. 
United States v. Armstrong, No. 17-0556/AR 

Opinion of the Court 

14 

We have not previously considered Appellant’s proposed 

analogy. Looking at the issue now, we conclude that a correct instruction regarding a lesser included offense is not 

analogous to a major change to a specification. Under 

R.C.M. 603(a), major changes are those which “add a . . . 

substantial matter not fairly included in those previously 

preferred.” Under the elements test, a proper lesser included 

offense is wholly included in the greater charged offense. 

In contrast, we agree that an incorrect instruction on a 

lesser included offense might have some similarities to a major change in a specification. In this case, the court-martial 

could not have found Appellant guilty of assault consummated by a battery based on the Specification as written. 

But we need not decide whether the proposed analogy is valid. Even if we were to equate the erroneous instruction in 

this case to a major change to the Specification, the reasoning in Reese would not apply. R.C.M. 603(d) requires 

preferral anew only when a major change is “made over the 

objection of the accused.” In this case, as explained above, 

Appellant did not object to the lesser included offense instruction. He, therefore, had to show material prejudice to 

obtain relief. 

IV. Judgment 

The judgment of the United States Army Court of Criminal Appeals is affirmed. 
United States v. Armstrong, No. 17-0556/AR 

Judge OHLSON, with whom Judge SPARKS joins, 

concurring. 

In cases where an appellant was convicted of a putative 

lesser included offense, the key issue is “notice.” Specifically, 

“[t]he Constitution requires that an accused be on notice as 

to the offense that must be defended against, and ... only 

lesser included offenses that meet these notice requirements 

may be affirmed by an appellate court.” United States v. 

Wilkins, 71 M.J. 410, 413–14 (C.A.A.F. 2012) (citation omitted) (internal quotation marks omitted). 

The primary tool we use to determine whether an accused was on notice about the offense he needed to defend 

against is the elements test. Id. at 412. In conducting this 

test, we check to see whether all of the elements in the offense of which the appellant was convicted were also in the 

offense with which the appellant was originally charged. Id. 

We first look at the plain language of the applicable 

statutes. With regard to the instant case, Article 128(a), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 928(a) 

(2012), explicitly states that one of the elements the 

government must prove in order to secure a conviction for 

assault consummated by a battery is that the bodily harm 

was done “with unlawful force or violence.” However, the 

charged offense of abusive sexual contact contains no such 

requirement. Article 120(b)(1)(B), (d), UCMJ, 10 U.S.C. 

§ 920(b)(1)(B), (d) (2012). Thus, the plain language of the 

UCMJ did not put Appellant on notice that he needed to 

defend against this uncharged element at trial. 

We next engage in statutory construction to determine 

whether a close analysis of the relevant statute(s) reveals 

that the elements of the putative lesser offense were implicitly subsumed by the elements of the charged offense. See 

Wilkins, 71 M.J. at 412 (noting that “after applying normal 

rules of statutory interpretation and construction, this 

Court” looks to whether “the elements of the [lesser included 

offense] would necessarily be proven by proving the elements of the greater offense”); Manual for Courts-Martial, 

United States pt. IV, para. 3.b.(1)(c) Discussion (2016 ed.) 

(MCM) (“The elements test does not require identical statutory language, and use of normal principles of statutory in-
United States v. Armstrong, No. 17-0556/AR 

Judge OHLSON, concurring 

2 

terpretation is permitted.”). As demonstrated below, that 

was not the case here. 

Article 120, UCMJ, lists the following four offenses: rape; 

sexual assault; aggravated sexual contact; and abusive sexual contact. Article 120(a)–(d), UCMJ. Aggravated sexual 

contact explicitly requires proof of “unlawful force,” but abusive sexual contact does not. Compare Article 120(a)(1), (c), 

UCMJ, and MCM pt. IV, para. 45.b.(5)(a), with Article 

120(b)(1)(B), (d), UCMJ, and MCM pt. IV, para. 45.b.(7)(b).1

If we were to graft onto abusive sexual contact the requirement that the Government prove “unlawful force,” we would 

be vitiating the statutory distinction between aggravated 

sexual contact and abusive sexual contact. Stated differently, by finding that abusive sexual contact implicitly contains 

an “unlawful force” element, we would be making the “unlawful force” element of aggravated sexual contact, and the 

offense itself, superfluous. This we must not do. See TRW 

Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a cardinal 

principle of statutory construction that a statute ought, upon 

the whole, to be so construed that, if it can be prevented, no 

clause, sentence, or word shall be superfluous ....” (citation 

omitted) (internal quotation marks omitted)). 

I write separately because I believe that this application 

of the elements test to the relevant statutory provisions in 

the instant case—standing alone—is sufficient to demonstrate that assault consummated by a battery is not a lesser 

included offense of abusive sexual contact by causing bodily 

harm. 

That does not end our analysis, however. As noted by the 

majority, in such circumstances we also must look to the 

language that the government actually used in the charged 

specification to determine whether that language adequately 

placed the appellant on notice of the need to defend against 

the missing element. See Riggins, 75 M.J. at 83 (noting that 

 1 I recognize that “unlawful force” under Article 120, UCMJ, is 

defined differently than “unlawful force or violence” for assault 

consummated by a battery. Compare Article 120(g)(5)–(6), UCMJ, 

with United States v. Riggins, 75 M.J. 78, 83 n.5, 84 (C.A.A.F. 

2016), and MCM pt. IV, para. 54.c.(1). However, this difference is 

not material for purposes of this analysis. 
United States v. Armstrong, No. 17-0556/AR 

Judge OHLSON, concurring 

3 

courts should “examine the offense ‘in the context of the 

charge at issue’ ” (citation omitted)); United States v. 

Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011) (holding that “[t]he 

offense as charged” was a lesser included offense). Here, the 

specification did not use language that references in any 

manner “unlawful force or violence.” Therefore, the Government violated Appellant’s right to receive notice about the 

offense which he needed to defend against at trial. 

As the majority ably demonstrates, however, this violation constituted harmless error in this particular case. United States v. Armstrong, __ M.J. __, __ (12–14) (C.A.A.F. 

2018). Accordingly, I agree with the majority and concur in 

affirming the decision of the lower court.