This opinion is subject to administrative correction before final disposition.

Before 

TANG, LAWRENCE, and STEPHENS

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Cesar A. LOPEZ

Lance Corporal (E-3), U.S. Marine Corps

Appellant

No. 201800334

Decided: 13 May 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

Jeffrey V. Munoz

Sentence adjudged 7 June 2018 by a general court-martial convened 

at Marine Corps Air Station Miramar, California, consisting of officer 

and enlisted members. Sentence approved by the convening authority: 

confinement for 60 days and a bad-conduct discharge. 

For Appellant: 

Lieutenant Clifton E. Morgan III, JAGC, USN

For Appellee: 

Lieutenant Joshua C. Fiveson, JAGC, USN

Lieutenant Commander Timothy C. Ceder, JAGC, USN

Judge LAWRENCE delivered the opinion of the Court, in which 

Senior Judge TANG and Judge STEPHENS joined. 

_________________________
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

2

This opinion does not serve as binding precedent, 

but may be cited as persuasive authority under 

NMCCA Rule of Practice and Procedure 30.2.

_________________________

LAWRENCE, Judge:

A panel of members with enlisted representation sitting as a general 

court-martial acquitted Appellant of two specifications of abusive sexual 

contact in violation of Article 120, Uniform Code of Military Justice [UCMJ],

but convicted him of two specifications of assault consummated by a battery 

in violation of Article 128, UCMJ.1 At trial, the Government, Defense, and 

military judge all treated assault consummated by a battery as a lesser 

included offense of abusive sexual contact. 

Appellant asserts three assignments of error [AOEs]: (1) the military 

judge committed plain error in instructing the members that assault consummated by a battery is a lesser included offense of abusive sexual contact 

by bodily harm; (2) the military judge deprived the court of jurisdiction and 

made a major change to the Charge by denying trial defense counsel’s [TDC]

post-adjournment motion to dismiss because he erroneously instructed the 

members that assault consummated by a battery was a lesser included 

offense of abusive sexual contact, making a major change to the charged 

specifications; and (3) TDC were ineffective for requesting a findings instruction on assault consummated by a battery and not objecting during trial to it 

being added as a lesser included offense of abusive sexual contact by bodily 

harm. We find no prejudicial error and affirm.

I. BACKGROUND

Several Marines gathered for dinner at a local off-base restaurant. This 

group included Appellant, Lance Corporal [LCpl] S, and LCpl L. As he ate 

dinner, Appellant drank three or four mixed drinks and some beer. When 

they finished dinner, Appellant, LCpl S, and LCpl L decided to go back to the 

barracks to drink and watch a movie.

 

1 10 U.S.C. § 920 (2016) and 10 U.S.C. § 928 (2012). The members also acquitted 

Appellant of one specification of unlawful entry in violation of Article 134, UCMJ, 10 

U.S.C. § 934 (2016).
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Opinion of the Court

3

On the drive back to base, they stopped at a liquor store and purchased 

alcohol. Appellant bought a fifth of whiskey to share with LCpl L, and LCpl S 

bought a can of malt liquor.

Upon arriving at the barracks, the three Marines settled on LCpl L’s room

to continue the evening’s festivities. Whereas Appellant had a roommate and 

LCpl S lived off base, LCpl L had a two-bedroom barracks suite to himself. 

Because LCpl L did not have all the electronic media needed to stream the 

movie, they picked up a television, a gaming system, and controllers from 

Appellant’s room and brought them to LCpl L’s room, which was in the same 

barracks—but some distance from Appellant’s room. 

Watching a movie with many dancing scenes, they decided to play a

drinking game. When a dancing scene would commence, Appellant and 

LCpl L would take a shot of whiskey and LCpl S would take a sip from his 

can. This game continued until LCpl S became tired and decided to go to 

sleep, lying down in LCpl L’s bed. Shortly thereafter, LCpl L also went to bed, 

using the spare bedroom. More than one-half of the fifth of whiskey had been 

consumed, mostly by Appellant, who unsuccessfully cajoled the others to stay 

up and continue drinking.

In an attempt to motivate his friends to continue drinking, Appellant first 

went to the room occupied by LCpl S. Appellant told LCpl S that he wanted 

to continue drinking with him, slapped him, and asked whether he was 

drunk and how many fingers he was displaying. Annoyed by this behavior, 

LCpl S told Appellant to leave him alone, as he did not want to drink 

anymore and just wanted to go to sleep. 

Appellant then entered the spare room occupied by LCpl L. As LCpl L lay 

on the bare mattress, Appellant pulled down LCpl L’s outer sweatpants and 

shorts. LCpl L tried to hold his shorts in place, but Appellant was able to 

reach inside and grab LCpl L’s penis and testicles with his hand. Then 

Appellant moved his head toward LCpl L’s genital area, but LCpl L forcefully 

held his shorts in place and Appellant gave up and left the room. 

Appellant went back to find LCpl S and tried again to get him to drink. 

Again he slapped him and asked him whether he was drunk and how many 

fingers he had raised. But this time, he touched LCpl S on the inside of his 

thigh. LCpl S told him to stop and pushed him away. Appellant then touched 

his genitals over his shorts. Again, LCpl S told him to stop and pushed him 

away. Nonetheless, Appellant continued. He grabbed the waistline of LCpl 

S’s shorts and underwear with one hand and lifted them up while reaching 

inside with his other hand, grabbing ahold of LCpl S’s penis and testicles. 

LCpl S angrily pushed Appellant away and emphatically yelled at Appellant 

to stay away from him. LCpl S got out of the bed, put on his shoes, and,
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

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despite Appellant grabbing his arm and trying to convince him to stay, left 

the barracks room.

Additional facts necessary for resolution of the AOEs are included in the 

discussion below.

II. DISCUSSION

A. Appellant Waived any Instructional Error

Before trial, the Defense included the Article 128, UCMJ, assault consummated by battery instruction in their list of proposed instructions. With 

the Defense’s express agreement, the military judge instructed the members 

that assault consummated by battery was a lesser included offense of abusive 

sexual contact by bodily harm, and the members convicted Appellant of these 

two lesser included offenses. After adjournment, but before the convening 

authority acted, the Court of Appeals for the Armed Forces [CAAF] decided

United States v. Armstrong.2

In Armstrong, the CAAF concluded that, under the elements test of United States v. Jones,3 assault consummated by a battery is not a lesser included 

offense of abusive sexual contact by bodily harm. Specifically, the “unlawful 

force or violence” element is not present in abusive sexual contact by bodily 

harm. The court held that a specification could be drafted to expressly include 

this element and therefore “provide[ ] notice that the Government would have 

to prove that the [offending act] was done ‘with unlawful force or violence.’ ”4

But the specification in Armstrong did not include it. Nor did the specification 

in Appellant’s case. 

In light of the ruling in Armstrong, both the Government and Appellant 

agree it was error to instruct on assault consummated by a battery as a lesser 

included offense of abusive sexual contact by bodily harm. Appellant argues 

his substantial rights were materially prejudiced by this instruction and 

prays this Court set aside his convictions. The Government asserts that no 

relief is due because Appellant invited the instructional error. Alternatively, 

it posits that even if the Defense did not invite error but merely forfeited the 

issue, this Court should grant no relief as Appellant was not prejudiced

 

2 77 M.J. 465 (C.A.A.F. 2018).

3 68 M.J. 465 (C.A.A.F. 2010).

4 77 M.J. at 472.
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

5

because he was on notice to defend against assault consummated by a 

battery.

We need not address the issue of invited error because we find Appellant 

waived, not forfeited, any objection to the instructions. In United States v. 

Davis, our superior court held that when counsel “expressly and unequivocally acquiesce” to instructions from the military judge, they have “waived all 

objections to the instructions, including in regards to the elements of the 

offense.”5 Davis further reminds us that “a valid waiver leaves no error for us 

to correct on appeal.”6

Here, the Defense specifically requested the standard instruction on assault consummated by a battery from the Military Judge’s Benchbook7 in 

their pretrial matters. Then the TDC engaged in an extended discussion with 

the military judge about amending the findings worksheet to permit the 

members to acquit Appellant of the greater offense but to convict him of the 

lesser included offense. While discussing the proposed instructions, TDC 

made two specific requests—related to other issues—which the military judge 

denied. When the military judge asked whether there were any objections to 

the final findings instructions,8 TDC responded, “None other than have 

previously been noted, sir,”9 referring to the two unrelated requests that were 

denied. Further, following instructions and argument, when the military 

judge asked if there was any objection to the instructions or request for 

additional instructions, the TDC replied, “No, Your Honor.”10

We find that Appellant affirmatively waived any error, and we decline to 

provide further review.11

 

5 79 M.J. 329, 331 (C.A.A.F. 2020) (internal quotation marks omitted) (citations 

omitted).

6 Id. (citing United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).

7 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 3-54-2. (10 

Sept. 2014) [Benchbook]. See App. Ex. XVIII at 10 (Defense Proposed Instructions of 

25 May 2018).

8 See App. Ex. XLIV.

9 Record at 412. 

10 Record at 455.

11 See United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).
United States v. Lopez, NMCCA No. 201800334

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B. Even if Conviction of Assault Consummated by a Battery Constituted a Major Change, Appellant Failed to Timely Object and Can 

Show No Prejudice

Pursuant to Rule for Court-Martial [R.C.M.] 603(d), a major change “may 

not be made over the objection of the accused unless the charge or specification affected is preferred anew.” Appellant contends the military judge

impermissibly constructively amended the abusive sexual contact specifications, effecting major changes over Defense objection without re-preferral of 

the specifications, by instructing on assault consummated by a battery as a 

lesser included offense. Appellant argues that his post-adjournment objection 

to this major change, lodged in a post-trial Article 39(a) session after the 

CAAF released Armstrong, was timely. As a result, citing United States v. 

Reese,12 he argues the court-martial lacked jurisdiction and the specifications 

must be dismissed. We disagree. 

1. The legal standard of review

We review de novo questions of statutory interpretation, namely whether 

a change to a charge or specification is major or minor.13 We also review de 

novo the legal questions whether Appellant waived or forfeited an issue and 

whether an objection was timely.

2. Analysis

Appellant’s argument here centers on both Reese and Armstrong. 

In Reese, the CAAF reviewed a change made to a charge because of a 

conflict between the misconduct alleged in the specification and the victim’s 

testimony at trial. The specification alleged Reese licked the victim’s penis

with his tongue, but the victim testified at trial that the appellant actually 

touched the victim’s penis with his hand. The trial counsel moved to amend 

the specification to allege that Reese touched the victim’s penis with his 

hand. Reese’s counsel objected, arguing this would constitute a major change. 

The military judge ruled the change was minor, permitted the amendment, 

and convicted Reese of the amended specification. On appeal, the CAAF held 

that the change was major and because it was not preferred anew and Reese 

objected, pursuant to R.C.M. 603(d), the court-martial lacked jurisdiction to 

 

12 United States v. Reese, 76 M.J. 297, 300 (C.A.A.F. 2017) (citing United States v. 

Atchak, 75 M.J. 193, 195 (C.A.A.F. 2016)).

13 Id. 
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

7

try him on the amended charge. Reese was entitled to have the charge 

dismissed without having to show prejudice. 

In Armstrong, after holding that assault consummated by a battery was 

not a lesser included offense of abusive sexual contact by bodily harm, the 

CAAF addressed Armstrong’s jurisdictional argument. Armstrong sought to 

extend the holding in 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.”14 Armstrong argued that his 

conviction for assault consummated by a battery constituted an impermissible major change to the specification. As the charge was not preferred anew, 

and because he objected, he claimed the court-martial lacked jurisdiction and 

therefore the charge should be dismissed without a showing of prejudice. The 

court also held that “an incorrect instruction on a lesser included offense 

might have some similarities to a major change in a specification.”15 However, the court did not have to decide whether those “similarities” justified a 

similar result as Reese because the court found that Armstrong “did not 

object to the lesser included offense instruction.”16

In Armstrong, when first asked whether there were any lesser included 

offenses of abusive sexual contact by bodily harm, the defense counsel said 

no. But then the “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,”17 such as mistake of fact and the definition of unlawful force. Although Armstrong’s counsel did not specifically request the Benchbook 

instruction on assault consummated by a battery, they “[took] no position 

on”18 that issue when the military judge later asked whether it was a lesser 

included offense of abusive sexual contact by bodily harm. On these facts, the 

CAAF found Armstrong did not object. 

Appellant attempts to distinguish the facts of his case from Armstrong 

because he did object—after adjournment—in a post-trial Article 39(a) 

session after Armstrong was released. He also cites R.C.M. 905(e), which 

 

14 77 M.J. at 473. 

15 Id. (emphasis in original). 

16 Id. at 473-74. 

17 Id. at 468.

18 Id.
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

8

excepts jurisdictional objections from those which must be made before 

adjournment. As such, he argues his post-adjournment objection was timely 

and his case is distinguishable from Armstrong. 

Whether Appellant can prevail on this argument turns on the question of 

whether his objection, technically made during “trial,” was timely for the 

purposes of objecting to any resulting constructive major change. 

3. Timeliness of the objection

The Government argues that the plain language of R.C.M. 603(d), providing that “[c]hanges . . . other than minor changes may not be made over the 

objection of the accused unless the charge or specification is preferred anew,” 

requires that the objection be made “before or at least contemporaneously 

with” the proposed change.19

By contrast, Appellant cites our sister court’s opinion in United States v. 

Stout20 to argue that his objection was timely.21 In Stout, the case had been 

remanded following an opinion from the Army Court of Criminal Appeals 

[ACCA]. The Government changed the date range in three specifications on 4 

November 2014, and they were referred to a general court-martial by the 

convening authority on 17 November 2014. Stout objected before trial, in the 

course of motions practice, and neither the ACCA nor the CAAF reviewed the 

timeliness of his objection. Rather, his case was resolved based on a plain 

reading of Article 34, UCMJ, which permits amendments to charges before 

referral.

Citing Stout, Appellant argues that an objection need not be made before 

the major change in order to preserve an appellant’s rights under R.C.M. 

307(d). Appellant correctly notes that Stout did not object to the pre-referral 

changes until 30 January 2015, a full 87 days after the specifications were 

amended. Stout’s delay of 87 days is nearly twice as long as the 44-day delay 

in this case between the announcement of findings and TDC’s post-trial 

objection. However, we do not find that the number of days is the determinative factor. Nor do we find that an objection must necessarily be lodged before 

the change is made or contemporaneously with the change.

 

19 Appellee’s Answer of 16 Jan 2020 at 26 (emphasis added). 

20 No. 20120592, 2018 CCA LEXIS 174 (A. Ct. Crim. App. Apr. 9, 2018) (unpub.

op.), aff’d, 2019 CAAF LEXIS 648 (C.A.A.F. 2019).

21 See Appellant’s Reply Brief at 4-5.
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

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Rather than fix a bright-line rule of a specific number of days within 

which an objection may post-date a change to still be timely, we look to the 

operative stage of the proceeding and the context. The objection in Stout was 

made in a pretrial Article 39(a), UCMJ, hearing. While it is not clear whether 

the objection was lodged at arraignment or a subsequent session, it was 

certainly at the beginning stages of the process and long before the members 

returned findings. The rehearing on its merits did not commence until seven 

months after the objection was made.

In this case, Appellant argues:

If the Government’s quibble is with the fact that defense counsel’s preserved objection was made in a post-trial motion to 

dismiss, as discuss [sic] supra, trial defense counsel could not 

have objected until a change to the specification was made. As 

the Government acknowledges, “the Members’ announcement 

of their findings effected the ‘constructive changes’ at issue,” 

which did not occur until the very end of trial.22

This argument misses the point. Although the members’ findings effected 

any resulting constructive major change, their findings were the direct result 

of both the instructions given and the findings worksheet provided to guide 

their announcement. As to both of those aspects of the trial, Appellant 

specifically requested the military judge to treat assault consummated by a 

battery as a lesser included offense. We analyze Appellant’s objection or 

failure to object at this moment in time, not later. Looking at Appellant’s 

actions, we find that he not only failed to object to the possibility of being 

convicted of the offense of assault consummated by a battery, but that he was 

an active participant in promoting that possible case outcome. His earlier 

actions—inviting the exact result that was ultimately reached—are not 

negated by his later post-adjournment attempt to object to the very course of 

action he earlier sought. 

The Manual for Courts-Martial contains many requirements that objections be timely.23 Rule for Court-Marital 920(f) requires objections concerning 

instructions to be made “before the members close to deliberate.” This is for a 

reason and must carry some consequence. 

 

22 Appellant’s Reply Brief at 4-5 (citing Appellee’s Br. at 27.).

23 See Mil. R. Evid. 103(a)(1)(A) (requiring timely objection to admission of evidence); see also R.C.M. 919(c) (requiring objection to improper argument before 

findings instruction, or else waiver applies).
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

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A timely objection is required to “prevent[ ] a defense counsel from remaining silent, making no objection, and then raising the issue on appeal for 

the first time, well after the military judge could have cured the problem with 

an instruction to disregard or a limiting instruction.”24 Although the quoted 

passage refers to waiver in the context of improper argument, the same 

principle holds true here. While Appellant seeks to reframe this issue from 

one of waiver of instructional error to one of objection to a major change 

(which, as a jurisdictional error, can be made after adjournment), we find the 

first issue controls the second. We further find Appellant’s response to the 

first issue (affirmatively asking for the lesser included offense instruction) to 

be controlling as to the second issue as acceptance of any resulting constructive major change. To have any impact on the outcome, an objection must be 

lodged before the resulting harm (from an appellant’s point of view) would 

ensue. 

The very concept of waiver would be rendered meaningless and inconsequential if counsel were simply permitted to step in well after encountering 

the operative fork in the road, “un-waive” previously waived matters, and 

categorically undo all previous positions advanced before the court-martial to 

allow later argument on appeal. As the CAAF made clear in Davis, waiver 

reflects that counsel has made a knowing choice, potentially electing to 

pursue a trial strategy—as was done by TDC throughout this trial—that may 

offer significantly less punitive exposure for their client. Further, our 

superior court has found that “[b]y ‘expressly and unequivocally acquiescing’

to the military judge’s instructions, [an] [a]ppellant waive[s] all objections to 

the instructions, including in regards to the elements of the offense.”25 This is 

true even though Appellant did not specifically frame his request for the 

lesser included offense instruction as a knowing waiver to any resulting 

constructive major change that would result from conviction of that offense.

While Appellant’s objection to the constructive major change was lodged 

in a later session and that session was by definition part of the same trial,26

that objection stood in stark contrast to every other statement and action of 

TDC concerning the applicability of the putative lesser included offense. As 

 

24 United States v. Walker, 50 M.J. 749, 752-53 (N-M. Ct. Crim. App. 1999) (citing

United States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986)).

25 Davis, 79 M.J. at 331 (emphasis added) (quoting United States v. Smith, 2 

C.M.A. 440, 442 (1953)).

26 See R.C.M. 803.
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Opinion of the Court

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the objection was untimely, the issue is not jurisdictional, and therefore we 

consider whether Appellant suffered material prejudice.

4. Appellant suffered no material prejudice to his right to notice when his 

trial strategy effectively conceded assault consummated by a battery

When considering whether an appellant suffered material prejudice resulting from “incorrect instructions regarding lesser included offenses,” we 

consider the right to notice.27 As our superior court has stated, “prejudice can 

be caused by not having notice as to the offense that must be defended 

against.”28 Much like in Armstrong, “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.”29

Here, TDC not only affirmatively waived any objection on multiple occasions, 

but their trial strategy effectively revolved around conceding the acts that 

made up the putative lesser included offense. The Defense scarcely disputed 

the allegation from two separate victims that Appellant had succeeded in 

touching their genitals while they resisted his efforts. The only question for 

the members was whether Appellant’s voluntary intoxication negated his 

ability to form the requisite specific intent for abusive sexual contact.

From the pretrial stage forward, Appellant understandably sought to 

steer this proceeding away from the abusive sexual contact to the far less 

serious offense of assault consummated by a battery. The Defense included 

assault consummated by a battery on their own list of requested instructions.30 In the last paragraph of their opening statement, Defense laid out 

their theory of the case, saying:

Now, at the end of all of this, you may find him guilty of assault consummated by a battery. But ultimately, once you hear 

all the evidence, you are going to see that because he was so 

drunk he did not know what he was doing. That means that he 

did not have the specific intent that would be necessary to 

 

27 Armstrong, 77 M.J. at 473.

28 Id. (internal quotation marks omitted) (quoting United States v. Miller, 67 M.J. 

385, 388 (C.A.A.F. 2009)).

29 Id. (citing United States v. Oliver, 76 M.J. 271, 275 (C.A.A.F. 2017)).

30 See App. Ex. XVIII at 10 (Defense Proposed Instructions of 25 May 2018).
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Opinion of the Court

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make this a sexual crime. And the verdict, in that respect, is 

not guilty to abusive sexual contact.31

In an Article 39(a), UCMJ, hearing following the conclusion of the Defense case, the instructions were taking their final shape. Appellant’s counsel 

again explicitly agreed the military judge should instruct the members that 

assault consummated by a battery was a lesser included offense.

MJ: All right. Now, with regard to the LIO of abusive sexual 

contact, that is to say assault consummated by a battery, we also discussed last night whether Instruction 

5-11-2, ignorance or mistake when only general intent is 

in issue, is a proper instruction, and we agree that is not 

proper.

Defense, do you agree with that?

DC: Yes, sir.32

Further, to the military judge’s question asking if Appellant’s counsel found 

the findings worksheet objectionable, TDC replied: 

I do not. I do not believe it is objectionable. I would say our 

preference would be to add a (c) option for the Charge with assault consummated by battery on there. . . . I will state I do not 

find this findings worksheet in its current form objectionable, 

sir.33

The military judge gave his final findings instructions to the members 

and both Government and Defense counsel responded that they were satisfied.

MJ: All right. Option D of the examples there. That speaks 

to the lesser included offense. And that’s where—if you 

remember earlier in the instructions as to Specifications 

1 and 2 of Charge I, what the instructions say is, If you 

 

31 Record at 210.

32 Record at 401-02.

33 Record a 406. The TDC was referencing a “(c) option” the military judge proposed in an email to the parties that would further address the potential for mixed 

findings. The findings worksheet ultimately featured four options for the abusive 

sexual contact specifications, including not guilty, guilty, guilty by exceptions, and 

option (d), which stated “Not Guilty, but Guilty of Assault Consummated by a 

Battery, in violation of Article 128.” App. Ex. XXI at 1. 
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Opinion of the Court

13

find that the accused is not guilty of the charged offense, 

abusive sexual contact, then you must consider whether 

he is guilty of the lesser included offense of assault consummated by a battery; and that’s what option D give[s]

you. It gives you the option, if you so find, not guilty of 

the charged offense, abusive sexual contact, but guilty of 

assault consummated by a battery, okay?

. . . .

MJ: Do counsel for either side object to the question—to the 

instructions given or request additional instructions?

TC: No, Your Honor.

DC: No, Your Honor.34

The clear Defense strategy was to negate the “intent to gratify the sexual 

desire of any person” element in Article 120, UCMJ, necessary to convict 

Appellant of abusive sexual contact. While each of the victims had also been 

drinking that night, their memory of being forcibly touched by Appellant was 

clear and there was little room to attack their testimony. In both the oral 

wire intercept and his interrogation, Appellant said that, due to his voluntary 

intoxication, he had no memory of any of the pertinent events. In the oral 

wire intercept, Appellant even appeared to accept the premise of LCpl L’s 

accusation. Appellant made repeated statements acknowledging, rather than

disputing, the allegations, such as, “I know and I understand and I’m 

accepting that,” and “I know where I f[***]ed up from you telling me. I 

know.”35

In cross-examination of Government witnesses, TDC repeatedly sought 

details to highlight Appellant’s extreme consumption of alcohol to the point of 

vomiting and blacking out. The Defense had the same focus in its direct 

examination of its sole witness in its case in chief. The Defense expert in 

forensic psychiatry testified that it was probable that Appellant was in the 

severe intoxication range which could lead to both short and long-term 

memory loss. The Defense expert suggested Appellant may not have been 

able to form the requisite intent when he touched his victims’ genitals. 

The Defense’s strategy was consistent. From their pre-trial request for the 

assault consummated by a battery instruction, through their opening state-

 

34 Record at 454-55.

35 App. Ex. XVI at 14-15; see also Pros. Ex. 4 (audio recording).
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Opinion of the Court

14

ment, witness examinations, and persistent agreement with including the 

instruction and amending the findings worksheet, the strategy was clear. 

They concentrated all efforts on negating Appellant’s specific intent while 

tacitly conceding the acts that constituted assault consummated by a battery.

We find that Appellant was on notice that he should defend against assault 

consummated by a battery and that he was not materially prejudiced by the 

erroneous instruction. 

C. Ineffective Assistance of Counsel

Appellant contends that by requesting the assault consummated by a 

battery instruction and waiving objection to the instructions, his TDC were 

deficient and that this deficiency resulted in his conviction of offenses with

which he was never charged.

1. The legal standard of review

We review ineffective assistance claims de novo.36 In Strickland v. Washington, the Supreme Court held that, pursuant to the Sixth Amendment to 

the United States Constitution, criminal defendants are entitled to representation that does not fall “below an objective standard of reasonableness” in 

light of “prevailing professional norms.”37 Our assessment of that representation calls for us to employ a “strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.”38 In this “highly 

deferential” review, we must respect the “wide latitude counsel must have in 

making tactical decisions.”39 In order to rebut the presumption of competence, 

there must be a “showing that counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.”40 To prevail, Appellant must show that: (1) his TDC were 

deficient in their performance; and (2) there is a reasonable probability that 

their deficient performance caused him prejudice.41 To establish prejudice, 

 

36 United States v. Harpole, 77 M.J. 231, 236 (C.A.A.F. 2018).

37 Strickland v. Washington, 466 U.S. 668, 688 (1984).

38 Id. at 689.

39 Id. at 689-90.

40 United States v. Dewrell, 55 M.J. 131, 133 (2001) (quoting Strickland, 466 U.S. 

at 687).

41 Strickland, 466 U.S. at 687.
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Opinion of the Court

15

Appellant must show “that counsel’s errors were so serious as to deprive 

[him] of a fair trial, a trial whose result is reliable.”42

2. Discussion

As our superior court observed in Armstrong, “[d]espite our conclusion 

that the error was clear or obvious, we recognize that the military judge and 

counsel had limited guidance in addressing this issue.”43 Between the CAAF’s 

decision in Jones and the court’s opinion in Armstrong, there had been 

substantial litigation on lesser included offenses under Article 120, UCMJ. 

But no case resolved the question whether assault consummated by a battery 

was a lesser included offense of abusive sexual contact by bodily harm. 

Additionally, even in Armstrong, the CAAF noted that the 2016 Manual for 

Courts-Martial appendix of lesser included offenses noted that assault 

consummated by a battery was possibly a lesser included offense of abusive 

sexual contact “[d]epending on the factual circumstances in each case.”44

Given this uncertainty in the law, and the fact that the trial counsel and an 

experienced military judge agreed that assault consummated by a battery 

was a lesser included offense, we do not find that TDC’s performance was 

ineffective. 

Moreover, TDC had several tactical reasons for suggesting the lesser included offense. First, assault consummated by a battery has a maximum 

confinement of only six months. This makes it less likely to be considered a 

felony offense in most civilian jurisdictions, where a felony—typically 

carrying several repercussions in civic life—is often defined as a crime 

punishable by more than one year of imprisonment. Second, assault consummated by a battery carries a substantially lower maximum punishment

to confinement—6 months rather than 7 years—meaning Appellant’s 

exposure for both offenses was 1 year as opposed to 14 years. Third, conviction of assault consummated by a battery only exposed Appellant to a badconduct discharge, not the dishonorable discharge available had he been 

convicted of abusive sexual contact. Fourth, the pertinent Department of 

 

42 Id. 

43 Armstrong, 77 M.J. at 473 n.10.

44 Armstrong, 77 M.J. at 473 n.10. (alteration in original) (quoting MCM, Lesser 

Included Offenses, app. 12A at A12A-1, A12A-4 (2016 ed.)).
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

16

Defense Instruction45 lists abusive sexual contact as an offense requiring sex 

offender registration processing, but it does not require such processing for 

assault consummated by a battery.46 Our superior court has long recognized 

the “lifelong” consequences of sex offender registration—though collateral—

are so “severe” that the providence of an accused’s guilty plea is questioned 

and a military judge abuses his or her discretion by failing to ensure the 

accused is on notice of sex offender requirements before pleading guilty to a 

qualifying offense.47 Fifth, a conviction for assault consummated by a battery 

would on its face provide a less stigmatizing criminal record simply because 

the sexual nature of his offense would not be apparent from the nature of the 

UCMJ article. 

Finally, proof of Appellant’s guilt was strong. It was a wise tactical decision to give the members an alternative, less severe charge on which to 

convict Appellant. There was no conceivable approach by which TDC could 

contest the physical acts. LCpls L and S immediately reacted, told one 

another of Appellant’s assaults, and maintained consistent statements 

throughout the process. They had no apparent motive to fabricate. Their 

allegations were not disputed by Appellant’s own statements, in which he did 

not admit his actions but conceded that if LCpls L and S said he touched 

them, he must have touched them. 

The TDC likely perceived that they would have a difficult time negating 

Appellant’s specific intent. Although there was evidence Appellant was 

highly intoxicated, there was also evidence that undercut Appellant’s claim 

that he did not remember what happened. Whereas Appellant told the 

victims he had been in his own room all night, the evidence shows he did 

remember being in LCpl L’s room. He woke up the next day and went to LCpl 

L’s room to gather the rest of his property—a game controller, shoes, and his 

phone. He knew exactly where he had left his property, meaning he remembered where he had been. He also admitted during the oral wire intercept 

and his NCIS interrogation that he had been in LCpl L’s room. Members 

 

45 Dep’t of Defense Instruction 1325.07, Administration of Military Correctional 

Facilities and Clemency and Parole Authority, Appendix 4 to Enclosure 2 (11 Mar 

2013).

46 Although sex offender registration is accomplished at the state level, and abusive sexual contact may not require registration in a given state, the DoD Instruction 

requires notification to the convict and notification to the convict’s state of release for 

abusive sexual contact but not assault consummated by a battery. 

47 United States v. Riley, 72 M.J. 115, 122 (C.A.A.F. 2013). 
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

17

could find Appellant knowingly lied about not being in LCpl L’s room because 

he was conscious of his own guilt and in fact remembered touching LCpls L 

and S. That awareness and consciousness of guilt would undercut the entire 

Defense strategy. 

In addition, we believe TDC faced an uphill battle convincing members 

that Appellant did not know what he was doing (lacking specific intent) when 

he touched the two victims’ genitals. Appellant touched LCpl S on the inside 

of his thigh and his genitals over his shorts, not non-erogenous zones. 

Appellant forcibly reached into both victims’ clothing to touch their genitals. 

He was able to overcome their resistance. He didn’t fumble about but quickly 

reached for the testicles and penis of each of his victims. LCpl L testified 

Appellant moved his head toward his genitals; LCpl S testified that Appellant wrapped his hand around his penis and stroked it with a “masturbating 

motion.”48 Given the convincing testimony from two victims, we believe that, 

without a lesser included offense, the members would have been hard pressed 

to fully acquit Appellant by finding he lacked specific intent. In all aspects, 

the evidence against Appellant was very strong.

Facing such strong evidence of guilt on serious sexual charges, it was a 

reasonable course of action to request instruction on the purported lesser 

included offense. A conviction was likely, and a conviction on less severe

offenses was preferable. While Appellant argues based on the findings that 

he was prejudiced in that he was convicted of some offenses rather than no 

offenses, the TDC could not have known with certainty before trial that the 

members would ultimately find that Appellant lacked the requisite specific 

intent. Although negating that intent was a wise strategy, it was by no 

means certain to result in acquittal in the absence of lesser included offenses. 

Pursuing a strategy to put a lesser offense on the charge sheet was not an 

unwise tactical decision. 

In appreciation of the close call facing TDC, Appellant’s counsel chose to 

employ a strategy that essentially conceded the assault consummated by a 

battery and put that offense on the findings worksheet as an alternative to 

likely conviction of a more serious offense. 

While all parties erred in approaching assault consummated by a battery 

as a lesser included offense of abusive sexual contact, prior to the later 

release of Armstrong, this was neither settled nor especially clear. Notwithstanding this error, allowing the members a reasonable landing area for 

 

48 Record at 288.
United States v. Lopez, NMCCA No. 201800334

Opinion of the Court

18

uncontroverted offenses was an effective strategy that ultimately worked to 

the benefit of the Appellant. 

We find that TDC were not ineffective. 

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined that the approved findings and the sentence are correct 

in law and fact and that there is no error materially prejudicial to Appellant’s 

substantial rights. Arts. 59, 66, UCMJ. Accordingly, the findings and the 

sentence as approved by the convening authority are AFFIRMED. 

Senior Judge TANG and Judge STEPHENS concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court