This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS
FOR THE 

### A RMED 

### F ORCES

_______________ UNITED STATES Appellee

v.

M ichael J. GONZALES , Specialist United States Army , Appellant

No. 18

- 0347 Crim. App. No. 20130849 Argued April 23, 2019

— Decided June 7, 2019 Military Judge: Jacob Bashore (on rehearing)
For Appellant: Captain Steven J. Dray (argued); Colonel Elizabeth G. Marotta

, Lieutenant Colonel Christopher D. Carrier

, Lieutenant Colonel Tiffany D. Pond

, an d Major Julie L. Borchers (on brief) ; Captain Zachary A. Szilagyi

. For Appellee: Major Jeremy S. Watford (argued); Colonel Steven P. Haight and Lieutenant Colonel Eric K. Stafford (on brief) ; Lieutenant Colonel Wayne H. Williams and Major Virginia H. Tinsley

. Judge MAGGS delivered the opinion of the Court, in which Chief Judge STUCKY, and Judges RYAN

, OHLSON , and SPARKS

, joined.

_______________ Judge MAGGS delivered the opinion of the Court.
We granted review in this case to decide the assigned i ssue of “ [ w ] hether aggravated sexual contact of a child i s a lesser included offense of rape of a child

, ” as th e two offenses

a re defined in the version of Art icle 120, Uniform Co de of Military Justice ( UCMJ ) , in force from October 1, 2007

, through June 27, 2012. 1 Applying the elements test d e-

1 See Article 120(b), UCMJ, 10 U.S.C. § 920(b) (2006 & Supp. IV) (rape of child); id. Article 120(g), UCMJ, § 920(g) (defining a ggravated sexual contact with a child). These statutory provisions are reprinted in the Manual for Courts

- Martial

, United States

, Punitive Articles Applicable to Sexual Offenses Committed During the Period 1 October 2007 Through 27 June 2012 app. 21 at A21

- 1, A21

- 2 (2019 ed.) (MCM ). Article 120, UCMJ, has since been amended.United States v. Gonzales , No. 18

- 0347/AR Opinion of the Court

2 scribed in United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010 ), we conclude that the former offense i s not a lesser i nclu ded offense of the latter. W e nonetheless affirm the fin dings and sentence in this case under a plain error standard of re view because we conclude that the error was not clear and obvious.

I. Background

A military judge sitting as a general court

- martial co nvicted A ppellant, contrary to his pleas, of one specification of aggravated sexual contact with a child, one specification of aggravated sexual abuse of a child, one specification of ind ecent liberty wi th a child, and one specification of child e ndangerment in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920

, 934 ( 2006 & Supp

. IV ). 2 The military judge sentenced Appellant to be reduced to the grade of E

- 1, to fo rfeit all pay and allowances, to be confined for twenty

- two years, and to be discharged from the service with a disho norable discharge. The convening authority approved the findings and the sentence

. A ppellant received 1
, 274 days of credit against the sentence to confinement.
The specificat ion at issue in this case alleged that Appe llant committed rape when he “ did, at or near Fort Hood, Texas, between on or about 22 April 2010, and on or about 12 April 2011, engage in a sexual act, to wit: penetrating, with his penis, the vulva of Miss [AP] , a child who had not attained the age of 12 years. ” Appellant and AP had forme rly lived in the same household. AP testified that when she

was three years old

, Appellant had inappropriately touched her when she was taking a shower by plac ing his penis on h er “ front private part
, ” a term which meant her v agina

.

2 A general court

- martial previously had convicted Appellant, contrary to his pleas, of two specifications of rape of a child, two specif ications of aggravated sexual abuse of a child, and two spec ifications of child endangerment, in violation of Articles 120 and 134, UCMJ, 10 U.S.C. §§ 920, 934 (2006 & Supp. IV). But the United States Army Court of Criminal Appeals (ACCA) set aside the fin dings and sentence and authorized a rehearing in light of United States v. Hills , 75 M.J. 350 (C.A.A.F. 2015). United States v. Gonzales

, No. ARMY 20130849, 2017 CCA LEXIS 128 , 2017 WL 825279 (A. Ct. Crim. App. Feb. 22, 2017) . This appeal concerns the rehe aring.United States v. Gonzales , No. 18

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3 Trial counsel asked AP: “ Did his penis go inside of your front private, even if just a little bit. ” AP answered, “ No. ”

T he military judge found Appellant not guilty of rape of a child but guilty of wh at the military judge deemed to be the lesser included offense of aggravated sexual contact with a child. T he Government and Appellant had not previously ask ed the military judge to consider lesser included offenses, nor had the military judge discussed lesser included offenses with counsel

. Following the military judge’s announcement of his findings

, Appellant did not object to the finding or ask the military judge to reconsider the finding. The convening authority approved the findings and sentence, and the ACCA summarily affirmed. United States v. Gonzales

, No. ARMY 20130849, slip op

. at 1 (A. Ct. Crim. App. June 25, 2018) (unpublished)

. On appeal to this Court, Appellant asks us to vacate the military judge’s finding that he is guilty of aggravated sex ual contact with a child on grounds that this offense is not a lesser included offense of rape of a child.

II. Standard of Review

Whether one offense is a lesser included offense of another offense is a question of law. United States v. Gir oua rd , 70 M.J. 5 , 9 (C.A.A.F. 2011)

. When an appellant has preserved an objection to a finding of guil t y to a lesser included offense, we review the object ion de novo. See i d

. B ut when an appellant has forfeited such an objection, and raises it for the first time on appeal, we review the issue only for plain error

. United States v. Armstrong , 7 7 M.J. 465, 469 (C.A.A.F. 2018).
In this case, Appellant argues that the Court should r eview his objection de novo because the military judge did not give him an opportunity to preserve his objection. As e xplained above, the military judge found Appellant guilty of aggravated sexual contact with a child without first asking counsel whether that offense was a lesser included offense of rape of a child. The G overnment responds that Appellant could have ask ed the military judge to recon sider his finding and argues that, by failing to do so , Appellant forfeited his objection

. We agree with the Government.

Because the military judge did not ask the parties for their views on lesser included offense s before deliberating

,United States v. Gonzales , No. 18

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4 Appellant could have objected immediately after the military judge announced his finding that Appellant was guilty of aggravated sexual contact with a child

. Such an objection would n ot have been futile because Rule for Court s

- Martial (R.C.M.) 924(c) provides that : “ [i]n trial by military judge alone, the military judge may reconsider any finding of guilty at any time before announcement of sentence

. ” 3 Ana logous prece dent establishes t hat Appellant forfeited the i ssue by not objecting . In United States v. Treat , 73 M.J. 331
, 335 ( C.A.A.F. 2014)

, a military judge found the accused guilty of an offense by exceptions and substitutions without first discussing that possibility with the part ies

. The accused did not object at the time, but o n appeal argued that the e xceptions and substitutions created a fatal variance. Id

. We reviewed the military judge’s finding for plain error because the accused failed to object at trial

. Id. The same principle applies in this case and requires us to apply the plain error standard of review.

III. Plain Error Review Under plain error review, Appellant has the burden of demonstrating that: “ (1) there was error, (2) the error was [ clear ] and obvious, and (3) the error materially prejudiced a substantial right of the accused. ” United States v. Jones , 78 M.J. 37, 44 (C.A.A.F. 2018) (citation omitted )

. For this Court to grant relief under this test , “all three prongs must be sa tisfied.” United S tates v. Gomez , 76 M.J. 76, 79 (C.A.A.F. 2017) (internal quotation marks omitted) (quoting United States v. Bungert , 62 M.J. 346, 348 (C.A.A.F. 2006)). In this case, we determine that there was an error but that the e rror was not clear and obvious

. Appella nt therefore cannot prevail

. A. Whether There Was an Error At the time of trial, Article 79, UCMJ, 10 U.S.C. § 879 (2012)

, authorize d a court

- martial to find the accused “ guilty

3 The trial occurred in June, July, and August 2017. We note that the President has slightly revised the text of R.C.M. 924(c) in the MCM (2019 ed.). See Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 1, 2018) (effective Jan. 1, 2019).United States v. Gonzales , No. 18

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5 of an offense necessarily included in the offense charged. ” 4 The “ elements test ” determines whether an offense is nece ssarily included in the offense charged

. Jones , 68 M.J. at 472. I n Armstrong , we explained that we had applied the el ements test in two ways:
The first way is by comparing the statutory defin itions of the two offe nses. An offense is a lesser i ncluded 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)

. . . ; MCM pt. IV, para. 3.b.(1) (2012 ed.). The second way is by exa mining the specification of the charged offense. An o ffense 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 neces sarily satisfy all the elements of each offense. See, e.g., United States v. Arriaga , 70 M.J. 51, 55 (C.A.A.F. 2011)

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

. 77 M.J. at 46 9

– 70.

As in Armstrong, we begin with the statutory definitions. The applicable version of Article 120 , UCMJ, defines rape of

a child as follows : “ Any pers on subject to this chapter who

— (1) engages in a sexual act with a child who has no t attained the age of 12 years; . . . is gu ilty of rape of a child and shall be punished as a court

- martial may direct. ” 10 U.S.C. § 920(b) ( 2006 & Supp. IV ). “ S exual act ” means, in relevant part
, “ contact between the penis and the vulva, and for pu rposes of this subparagraph contact involving the penis o ccurs upon pene tration, however slight. ” Id. § 9 20(t)(1)(A)

. Article 120 , UCMJ, does not expressly identify the m ens rea for rape, b ut we have held that the mens rea for rape is a

4 Article 79 (b), UCMJ, now authorize s a court

- martial to find the accused guilty not only of “ an offense that is necessarily i ncluded in the offense charged ” but also “ any lesser included o ffense so designated by regulation prescribed by the President. ” National Defen se Authorization Act for Fiscal Year 2017, Pub. L. No. 114

- 328, § 5402, 130 Stat. 2000, 2939 (2016) (codified at 10 U.S.C. § 879(b)); cf. Jones , 68 M.J. at 471. We have not yet had occasion to interpret this amended provision.United States v. Gonzales , No. 18

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6 general intent to commit the sexual act. United States v. McDonald

, __ M.J. __ ( 6 ) (C.A.A.F. 2019)

. In contrast, at the time of the offense, Article 120

, UCMJ, defined a ggravated sexual contact with a child as follows: “ Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the se xual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court

- martial may direct. ” 10 U.S.C. § 120(g) (2006 & Supp. IV)

. “S exual
conta ct ” means, in relevant part

, “ the intentional touching

. .

. of the genitalia

. . . of another person

. . . with an intent to abuse, humiliate, or degrade any person or to arouse or gra tify the sexual desire of any person. ” Id. § 920(t)(2).
Citing these de finitions, Appellant argues that the el ements test is not satisfied because the offense of aggravated sexual contact with a child includes a specific intent that the offense of ra p e does not, namely, the specific intent “ to abuse, humiliate, or degrade any person or to arouse or gra tify the sexual desire of any person. ” The Government acknowledges that the definition of rape does not expressly include this specific intent but argue s that this difference should not matter

. The Government reasons that as a pra ctical matter, anyone who commits a rape of a child would have the specific intent required for committing aggravated sexual contact with a child

. In the Government’s words, “ a sexual intent is inherent in the very act of penile penetr ation of the vulva

. ”

Th e Court s of Criminal Appeals have disagreed about whether the general intent offenses of rape and sexual a ssault are inherently committed with the same specific intent necessary for sexual contact offenses

. T he ACCA concluded in United States v. Wagner
, No. ARMY 20111064

, 2013 CCA LEXIS 573

, at *30

, 2013 WL 3946239 , at *10 (A. Ct. Crim. App. July 29, 2013)

, that wrongful sexual contact is a lesser included offense of aggravated sexual assault. The c ourt re cognized that the former offense requir es a specific “ intent to abuse, humiliate, or degrade any person or to arouse or gra tify the sexual desire of any person ” while the latter offense requires only a general intent. Id. at *7 , 2013 WL 3946239, at *7. But the court reasoned that this differenc e did notUnited States v. Gonzales , No. 18

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7 matter because “ it is beyond cavil that every penile

- vaginal penetration includes a corresponding sexual intent. ” Id. at

* 30 , 2013 WL 3946239, at *8. In contrast, the United States Air Force Court of Criminal Appeals (AFCCA) concluded in United States v. Lyson

, No. ACM 38067, 2013 CCA LEXIS 816, *3 7

− 38
, 2013 WL 5436639 , at * 10− 11 (A.F. Ct. Crim. App. Sept. 16, 2013), that the specific intent required for abusive sexual contact prevents that offense from being a lesser included offense of aggravat ed sexual assault

. The issue also ha s divided the United States Courts of Appeals in cases concerning federal statutes similar to Art icle 120 , UCMJ

. In United States v. Demarrias , 876 F.2d 674, 676

− 77 (8th Cir. 1989) , the U nited States Court of Appeals fo r the Eighth Circuit held that abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1) and (3) is a lesser included offense of aggravated sexual abuse and sexual abuse of a minor in violation of 18 U.S.C. § 2241(a) and § 2243(a). The court recognized that abusive sexual contact requires a sp ecific intent “ to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, ” while aggravated sexual abuse and sexual abuse o f a minor are general intent crimes. Id. at 676 & n.3. But the court held that “ one who engages in [the acts described by those latter offense s ] i nherently intends to do so for sexual purposes. ” Id. at 676. In contrast, in United States v. Hour ihan , 66 F.3d 458 , 465 (2d Cir. 1995), the United States Court of Appe als for the S econd Circuit held that abusive sexual contact is not a lesser included offense of aggravated sexual abuse because the la tter does not require a specific intent “ to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of a ny
person. ” See United States v. Castillo , 140 F.3d 874, 886 −87 (10th Cir. 1998) (“Because section 2244 contains a specific intent element that section 2242 and 2243 do not have, the crime of abusive sexual contact is not a lesser included o ffense of the c rime of sexual abuse.”) ; see also United States v. Sneezer , 900 F.2d 177, 178−79 (9th Cir. 1990).

W e recognize that

, in most instance s, a person who co mmits conduct that would constitute rape of a child would act with a specific intent “ to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any pe rson

. ” But in our view, this likelihood is not enough to makeUnited States v. Gonzales , No. 18

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8 aggravated sexual contact a lesser included offense of rape of

a child

. We reach this conclusion for two reaso ns. First, the United States Supreme Court held in Schmuck v. United States

, 489 U.S. 705, 720 (1989), that the elements test requires “a textual comparison of criminal statutes,” e xplaining that such an approach lead s to “certain and pr edictable” outcomes

. The Supreme Court rejected an altern ative “inherent relationship” test , which would ask whether “proof of the greater offense can generally be expected to r equire proof of the lesser offense.” Id. at 709. In this case, we think the Government’s approach relies more on generalities with respect to likely proof than on a limited textual compa rison of statutory definitions

. I n Carter v. United States , 530 U.S. 255 , 260−62 (2000),
t he Supreme Court applied Schmuck in deciding whether a specific inten t offense could be a lesser included offense of a general intent offense. In that case

, one provision of a sta tute created an offense of taking property or money from a bank by force or vio lence, without expressly addressing the requir ed mens rea

. 18 U.S.C . § 2113( a ) . Another provision of the sam e statute created an offense of taking property or

money from a bank with a specific intent “ to steal or pu rloin .” Id. § 2113( b ). The Supreme Court read the former p r ovision to require proof of a general intent, much as we have done with the crime of rape. Carter , 530 U.S. at 268. The Supreme Court then concluded that the latter offense was
not a lesser included offense because it required a specific intent rather than a general intent

. 5 Id. at 274. Carter is i ndi stinguishable from this case.
Second, at least one counter example disproves the G o vernment’s argument that every rape of a child necessarily

5 The Supreme Court in Carte r considered but rejected several arguments for interpreting § 2113(a) as implicitly requiring the same specific intent that § 2113(b) requires. The rejected arg uments relied on the canon against interpreting statutes to have an absurd meaning, 530 U.S. at 263, the canon on imputing common law meaning to statutory terms, id. at 264, the presumption in favor of scienter in criminal statutes, id. at 267−68, and the legi slative history of the provisions, id. at 270−71. The Government has not contended that any of similar arguments would require a different result in this case.United States v. Gonzales , No. 18

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9 must be done with the specific intent required for aggrava ted sexual contact with a child

. Id. at 271 ( using an example
to illustrat e how § 2113( a ) could be violated without viola ting § 2113( b )). Specifically, a voluntarily intoxicated person could commit the offense of rape of a child without necessar ily committing the offense of aggravated sexual contact with

a child. We have held that v oluntary intoxication can not prevent the for mation of the general intent to commit rape. United States v. Brown , 43 M.J. 187, 189 (C.A.A.F. 1995)

. But v oluntary intoxication might prevent a person from forming the specific intent required for a sexual contact o ffense under Article 120, UCMJ

. See , e.g., United States v. Claxton

, No. ACM 38188, 2013 CCA LEXIS 1045, at *10−11, 2013 WL 6913102, at *3 (A.F. Ct. Crim. App . Dec. 17, 2013 ) ( holding that the military judge erred in not providing a vo luntary intoxication instruction because “ wrongful sexual contact is a specific

- intent crime and evidence of the appe llant ’ s voluntary intoxication could theoretically raise a re asonable doubt as to whether the ap pellant had this specific intent w hen he placed [the victim’s] hand on his penis” ) ; see also R.C.M. 916(l)(2) ( “ voluntary intoxication may be intr oduced for the purpose of raising a reasonable doubt as to the existence of

. . . specific intent ” ). For these reasons, we co nclude that aggravated sexual contact with a child is not “an offense necessarily included in the offense” of rape of a child under Article 79, UCMJ

. Finally, a s in Armstrong , we must consider whether the specification of the charged offense in this case was drafted in such a manner that it alleges facts that necessarily satisfy all the elements of the purported lesser offense. 77 M.J. at 472. The specification at issue , as quoted above, alleged that Appellant did “engage in a sexual act, to wit: penetrating, with his penis, the vulva of Miss [AP], a child who had not attained the age of 12 years.” The G overnment argues that th e wording of th is specification encompasses the elements of ag gravated sexual contact of a child because “ it would have been impossible for appellant to penetrate AP’s vulva with his penis, without first touching her genitalia with his penis, possessing the same sexual intent which would a ccompany the act of penetrat ion .” The problem with this a rgument, however, is that it again assumes that every act ofUnited States v. Gonzales , No. 18

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10 penile penetration of the vulva is accompanied by a specific sexual intent . As we have explained above, this assumption is not necessarily correct. We thus disagree w ith the G o vernment’s argument.

B. Whether the Error Was Clear and Obvious Having determined that the military judge err ed in fin ding Appellant guilty of a ggravated sexual contact with a child, we now must determine whether the error was clear and obvious. While the terms clear or obvious do not have any special definition, th e Supreme Court has distinguished clear and obvious errors from errors that are “ subject to re asonable dispute

. ” United States v. Marcus , 560 U.S. 258, 262 (2010) (internal quotation marks omitted) (quoting Puckett v. United States , 556 U.S. 129, 135 (2009)) ; see United States v. Salinas , 480 F.3d 750, 759 (5th Cir. 2007 ) (“Because this circuit ’ s law remains unsettled and the other federal circuits have reached dive rgent conclusions on th is [relevant] issue

. . . [ a ppellant ] cannot satisfy the second prong of the plain
error test

— that the error be clear under existing law.”); see also United States v. Thompson , 82 F.3d 849, 856 (9th Cir. 1996)

. We think that the fore going analysis has shown that the assigned issue in this case was subject to reasonable doubt both at the time of trial and on appeal

. As described above, t he AFCCA and the ACCA had reached conflicting conclusions on the question whether a person who commits a rape will necessarily act with the sp ecific intent required for a sexual contact. The United States Courts of Appeals have reached a similar disagreement over an analogous federal statute. In addition, at the time of tr ial, the 2008 edition of the MCM incorrectly identified aggr avated sexual contact with a child as a lesser included offense of rape of a child. MCM pt. IV, para. 45.d.(1)(a) & 45.d.(2)(a) (2008 ed. ). Although we have held that the MCM ’ s listing of lesser included offenses is not controlling, see Jones , 68 M.J.
at 471, a n error in the MCM is a factor in determining whether an issue is subject to reasonable doubt

. These co nsiderations prevent us from characterizi ng the military judge’s error as clear and obvious.

This case is distinguishable from our recent decision in Armstrong

. In Armstrong , we held it was a clear and obviousUnited States v. Gonzales , No. 18

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11 error to conclude that assault consummated by a battery was a lesser included offense of abusive sexual contact by bodily harm

. 77 M.J. at 472

− 73. W e reasoned that the issue involved a straightforward application of the elements test and that the case was similar to other cases in which we had applied the elements test in a similar way. Id. In contrast to the present case, we did not identify any conflicting prec edent on the issue. Finally, the applicable version of the MCM in Armstrong did not identify the lesser included o ffenses for abusive sexual contact

. Id. at 473 n.10. Thus in Armstro ng , unlike in this case, the MCM did not contribute to doubt about the issue.
C. Whether the Error Caused Prejudice Under the plain error standard of review, as noted above, we can address a forfeited issue only if we determine that there was an error, the error was clear and obvious, and that the error prejudiced the appellant. B ecause we conclude that

any error in this case was not clear and obvious, we need not reach the question of prejudice.

IV. Judgmen t
The judgment of the United States Army Court of Crim inal Appeals is affirmed

.