UNITED STATES, Appellee 

v. 

Akeem A. WILKINS, Master-at-Arms Third Class 

U.S. Navy, Appellant 

No. 11-0486 

Crim. App. No. 201000289 

United States Court of Appeals for the Armed Forces

Argued October 9, 2012 

Decided November 16, 2012 

STUCKY, J., delivered the opinion of the Court, in which ERDMANN 

and RYAN, JJ., and COX, S.J., joined. BAKER, C.J., filed a 

separate opinion concurring in the result. 

Counsel

For Appellant: Captain Michael D. Berry, USMC (argued); Major 

Kirk Sripinyo, USMC (on brief). 

For Appellee: Major Paul M. Ervasti, USMC (argued); Colonel 

Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on brief); 

Colonel Stephen C. Newman, USMC, and Major William C. Kirby, 

USMC. 

Military Judges: Christian Bareford (arraignment); Ross L. 

Leuning and E. H. Robinson (trial) 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Wilkins, No. 11-0486/NA 

2 

 Judge STUCKY delivered the opinion of the Court. 

 We granted review in this case to determine whether 

Appellant’s right to due process of law was violated when he was 

convicted for abusive sexual contact as a lesser included 

offense (LIO) of aggravated sexual assault. We hold that 

abusive sexual contact is not an LIO of aggravated sexual 

assault in this case, but Appellant was not prejudiced by the 

error. We therefore affirm the judgment of the United States 

Navy-Marine Corps Court of Criminal Appeals (CCA). 

I. 

 Contrary to Appellant’s pleas, members found him guilty in 

a general court-martial of abusive sexual contact and sodomy by 

force in violation of Articles 120 and 125, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 920, 925 (2006). He was 

sentenced to a dishonorable discharge and eighteen months of 

confinement. The convening authority approved the sentence and 

the CCA affirmed the findings and sentence. United States v. 

Wilkins, No. 201000289, slip op. (N-M. Ct. Crim. App. Mar. 24, 

2011) (unpublished). This Court remanded the present issue for 

consideration in light of United States v. McMurrin, 70 M.J. 15 

(C.A.A.F. 2011); United States v. Girouard, 70 M.J. 5 (C.A.A.F. 

2011); United States v. Bonner, 70 M.J. 1 (C.A.A.F. 2011); and 

United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010). United 
United States v. Wilkins, No. 11-0486/NA 

3 

States v. Wilkins, 70 M.J. 274 (C.A.A.F. 2011) (summary 

disposition). The CCA affirmed in a per curiam opinion. United 

States v. Wilkins, No. 201000289, slip op. (N-M. Ct. Crim. App. 

Nov. 29, 2011) (per curiam) (unpublished). 

II. 

A. 

 In June 2009, Appellant, the victim, Master-at-Arms Third 

Class (MA3) L, and several other sailors from their unit took a 

trip to Malia, Greece. The first night of the trip, the group 

drank heavily. MA3 L had approximately nineteen drinks, vomited 

several times, and had to be escorted to bed by another member 

from his unit at approximately 5:00 a.m. Soon thereafter, MA3 L 

awoke to a sensation in his groin area and pressure around his 

anus. He looked down and saw Appellant “coming up” from his 

groin area. MA3 L grunted and tried to push Appellant away. 

B. 

 The charge and specification at issue state: 

 CHARGE I: VIOLATION OF ARTICLE 120, UCMJ (aggravated 

sexual assault; abusive sexual contact) 

In that [Appellant], U.S. Navy, Naval Support Activity 

Souda Bay, on active duty, did, in Malia, Crete, 

Greece, on or about 26 June 2009, engage in a sexual 

act, to wit: placing his fingers or another object in 

the anus of [MA3 L], when [MA3 L] was substantially 

incapable of declining participation in the sexual act 

or communicating unwillingness to engage in the sexual 

act because he was asleep. 
United States v. Wilkins, No. 11-0486/NA 

4 

 Before closing arguments, the military judge sua sponte 

found Appellant not guilty of the aggravated sexual assault 

charge because the facts of the case did not fit the statutory 

definition of a “sexual act.” Article 120(t)(1), UCMJ. 

However, the military judge allowed the members to consider 

whether Appellant was guilty of abusive sexual contact as an LIO 

of aggravated sexual assault. Article 120(t)(2), UCMJ. Defense 

counsel did not object to the proposed LIO, but did object to 

unrelated issues in the instructions directly after the military 

judge stated he would allow the LIO to go to the members. 

C. 

 As Appellant did not object to the abusive sexual contact 

instruction at trial, the CCA reviewed for plain error and 

affirmed the findings and sentence on remand. The CCA held that 

the specification failed to state the charged offense of 

aggravated sexual assault but alleged every element of abusive 

sexual contact so as to put Appellant on notice and protect him 

against double jeopardy. The CCA compared the elements of the 

two offenses, and concluded that the military judge properly 

instructed the members that abusive sexual contact is an LIO of 

aggravated sexual assault. Because it found no error in the LIO 

instruction, the CCA did not analyze prejudice under the plain 

error standard. 
United States v. Wilkins, No. 11-0486/NA 

5 

III. 

A. 

 “Whether an offense is a lesser included offense is a 

question of law we review de novo.” United States v. Arriaga, 

70 M.J. 51, 54 (C.A.A.F. 2011). As there was no objection to 

the instruction at trial, this Court reviews for plain error. 

Id. Under a plain error analysis, the “Appellant has the burden 

of demonstrating that: (1) there was error; (2) the error was 

plain or obvious; and (3) the error materially prejudiced a 

substantial right of the accused.” Girouard, 70 M.J. at 11. 

B. 

 This Court applies the elements test to determine whether 

one offense is an LIO of another. United States v. Jones, 68 

M.J. 465, 468 (C.A.A.F. 2010). The test does not require that 

the “offenses at issue employ identical statutory language.” 

Alston, 69 M.J. at 216. Rather, after applying normal rules of 

statutory interpretation and construction, this Court will 

determine whether the elements of the LIO would necessarily be 

proven by proving the elements of the greater offense. Id.

 Aggravated sexual assault, the charged offense, requires 

that the accused “engage in a sexual act.” Article 120(c), 

UCMJ. Abusive sexual contact, the alleged LIO, piggybacks the 

definition of aggravated sexual assault: “Any person subject to 

this chapter who engages in or causes sexual contact with or by 
United States v. Wilkins, No. 11-0486/NA 

6 

another person, if to do so would violate subsection (c) 

(aggravated sexual assault) had the sexual contact been a sexual 

act, is guilty of abusive sexual contact . . . .” Article 

120(h), UCMJ. Because abusive sexual contact piggybacks the 

definition of aggravated sexual assault, all of the elements of 

the two offenses necessarily line up, except that aggravated 

sexual assault requires a “sexual act” whereas abusive sexual 

contact requires “sexual contact.” 

 A “sexual act” is defined as: 

 (A) contact between the penis and the 

vulva . . .; or 

 (B) the penetration, however slight, of the 

genital opening of another by a hand or finger 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. 

Article 120(t)(1), UCMJ. 

 “Sexual contact” is defined as: 

the intentional touching, either directly or through 

the clothing, of the genitalia, anus, groin, breast, 

inner thigh, or buttocks of another person, or 

intentionally causing another person to touch, either 

directly or through the clothing, the genitalia, anus, 

groin, breast, inner thigh, or buttocks of any person, 

with an intent to abuse, humiliate, or degrade any 

person or to arouse or gratify the sexual desire of 

any person. 

Article 120(t)(2), UCMJ. 

 Abusive sexual contact is an LIO of aggravated sexual 

assault in some instances. For example, if an accused is 
United States v. Wilkins, No. 11-0486/NA 

7 

charged with aggravated sexual assault by penetrating the 

genital opening of another, then any penetration of the genital 

opening would also require a touching of the genital opening. 

See Arriaga, 70 M.J. at 54-55 (holding that an offense may be an 

LIO of a greater offense even if there are ways of committing 

the lesser offense whereby it would not be an LIO of the 

greater). However, in this case, Appellant was charged with 

aggravated sexual assault by digitally penetrating the anus of a 

male victim. A sexual act is statutorily limited to genital 

openings,1 and the anus is not such an opening. Article 

120(t)(1), UCMJ. This Court is confined to the definitions 

formulated by Congress, and thus cannot construe “sexual act” to 

include the digital penetration of another’s anus. See Jones, 

68 M.J. at 468; Liparota v. United States, 471 U.S. 419, 424 

(1985) (“The definition of the elements of a criminal offense is 

entrusted to the legislature, particularly in the case of 

federal crimes, which are solely creatures of statute.”) 

(citation omitted). 

 There is plain and obvious error in this case because 

Appellant was charged with a legal impossibility. The actions 

alleged could never constitute the offense of aggravated sexual 

 

1

 “Genital” is defined as “of, relating to, or being a sexual 

organ.” Merriam-Webster’s Collegiate Dictionary 521 (11th ed. 

2008). “Genitalia” is defined as “the organs of the 

reproductive system.” Id.
United States v. Wilkins, No. 11-0486/NA 

8 

assault. Therefore, the specification was defective because it 

failed to allege the elements of aggravated sexual assault, and 

instructing on abusive sexual contact as an LIO was error. See

Girouard, 70 M.J. at 11; McMurrin, 70 M.J. at 18; Jones, 68 M.J. 

at 473; United States v. Miller, 67 M.J. 385, 388–89 (C.A.A.F. 

2009). 

C. 

 An error in charging an offense is not subject to automatic 

dismissal, even though it affects constitutional rights. United 

States v. Humphries, 71 M.J. 209, 212 (C.A.A.F. 2012). Rather, 

this Court tests for prejudice. See Article 59(a), UCMJ, 10 

U.S.C. § 859(a) (2006) (stating that an error must materially 

prejudice the substantial rights of the accused); Girouard, 70 

M.J. at 11–12; McMurrin, 70 M.J. at 20 (testing for prejudice 

where an individual was convicted of a properly alleged LIO that 

was not an LIO as a matter of law). 

 Appellant bears the burden of proving prejudice because he 

did not object at trial. Humphries, 71 M.J. at 217 n.10. 

Appellant must show “that under the totality of the 

circumstances in this case, the Government’s 

error . . . resulted in material prejudice to [his] substantial, 

constitutional right to notice.” Id. at 215. Appellant has not 

met this burden because he cannot establish prejudice to his 
United States v. Wilkins, No. 11-0486/NA 

9 

ability to defend against the charge he was convicted of or his 

right to notice. 

D. 

 The charging error in this case implicates Appellant’s 

constitutional right to notice.2 U.S. Const. amends. V, VI. 

“The Constitution requires that an accused be on notice as to 

the offense that must be defended against, and that only lesser 

included offenses that meet these notice requirements may be 

affirmed by an appellate court.” Miller, 67 M.J. at 388 (citing 

Jackson v. Virginia, 443 U.S. 307, 314 (1979); In re Winship, 

397 U.S. 358, 364 (1970); Cole v. Arkansas, 333 U.S. 196, 201 

(1948); Dunn v. United States, 442 U.S. 100, 107 (1979)). 

Appellant’s due process rights were not violated because he was 

on notice of what he needed to defend against throughout his 

court-martial. See Jones, 68 M.J. at 468 (“an accused may be 

convicted of uncharged LIOs precisely because they are deemed to 

 

2

 The charging error in this case could have been rectified by 

amending the specification pursuant to Rule for Courts-Martial 

(R.C.M.) 603. The practical effect of allowing abusive sexual 

contact to go to the members as an LIO was to effect a change to 

the charge sheet. However, we do not need to decide whether the 

change was major or minor because Appellant did not object to 

the military judge’s actions, and the change does not alter the 

fact that Appellant was not prejudiced. See R.C.M. 603(a) 

Discussion (“Minor changes also include those which reduce the 

seriousness of an offense.”), (d) (requiring the consent of the 

accused to a major change unless the charge or specification is 

preferred anew). 
United States v. Wilkins, No. 11-0486/NA 

10 

have notice” (citing United States v. Medina, 66 M.J. 21, 27 

(C.A.A.F. 2008))). 

 The substitution of the term “sexual act” for “sexual 

contact” in the specification could be prejudicial in some 

circumstances.3

 However, in this case, Appellant was on notice 

of all of the elements he had to defend against because the 

specification expressly stated that Appellant placed “his 

fingers or another object in [MA3 L’s] anus.” See United States 

v. Rauscher, 71 M.J. 225, 226–27 (C.A.A.F. 2012) (“The 

specification clearly placed Appellant on notice of that against 

which he had to defend. . . . Appellant defended against this 

theory throughout the trial.”). 

 Furthermore, the defense’s strategy demonstrated that 

Appellant understood he was defending against all of the 

elements of abusive sexual contact. The defense’s strategy was 

to (1) question whether the victim was substantially 

incapacitated, and (2) raise the issue of mistake of fact as to 

consent by Appellant. To this end, defense counsel’s crossexamination of MA3 L focused on Appellant and MA3 L’s previous 

friendship and the events leading up to the sexual contact. 

 

3

 For example, the failure to expressly allege a specific body 

part in a specification may render such a mistake prejudicial. 

Likewise, where the victim is female, there may be reasonable 

confusion about whether a charge was intended to allege that the 

accused committed a sexual act by penetrating a genital opening, 

or committed sexual contact by touching the genital opening. 
United States v. Wilkins, No. 11-0486/NA 

11 

This strategy would not have changed had the specification 

properly alleged “contact” instead of “act.” 

 Defense counsel did not challenge any of the elements of 

abusive sexual contact beyond MA3 L’s incapacitation or 

Appellant’s alleged mistake of fact. Instead, throughout the 

trial and during closing arguments, defense counsel readily 

conceded that Appellant penetrated or made contact with MA3 L’s 

anus. The manner in which the case was argued undercuts any 

argument that Appellant was not on notice of what he had to 

defend against or that his defense preparations were hampered. 

Therefore, Appellant has not demonstrated prejudice to a 

substantial right.4

 

4

 This case is distinguishable from cases in which we have 

recently found prejudice like Humphries, Girouard, and McMurrin. 

In Humphries, we held that the accused was prejudiced by the 

failure to allege the terminal element in a contested Article 

134, UCMJ, 10 U.S.C. § 934 (2006), specification. 71 M.J. at 

217. The government failed to correct the error at any point 

during the court-martial, and there was no mention of the 

missing terminal element anywhere in the trial record. Id. 

Unlike Humphries, the charge sheet in this case specifically 

described the theory of the case, and the Government presented 

specific evidence supporting the theory described. Furthermore, 

as noted above, defense counsel explicitly conceded that sexual 

conduct amounting to sexual contact occurred. In Girouard and 

McMurrin, this Court found prejudice where the accused was not 

charged with the offense of which he was convicted, the 

specification was not amended in accordance with the Rules for 

Courts-Martial, and the accused did not defend himself on the 

theory of the alleged LIO. Girouard, 70 M.J. at 11; McMurrin, 

70 M.J. at 20. Although the specification in this case 

incorrectly charged “sexual act,” its factual specificity meant 

that Appellant was able to defend himself on the theory of 
United States v. Wilkins, No. 11-0486/NA 

12 

IV. 

 Abusive sexual contact is not an LIO of aggravated sexual 

assault in this case, but Appellant was not prejudiced by the 

error. The decision of the United States Navy-Marine Corps 

Court of Criminal Appeals is affirmed. 

 

abusive sexual contact throughout the court-martial. Rauscher, 

71 M.J. at 226–27. 
United States v. Wilkins, No. 11-0486/NA 

BAKER, Chief Judge (concurring in the result): 

I generally agree with the reasoning of the majority 

opinion with the exception of footnote 4. Abusive sexual 

contact is a lesser included offense of aggravated sexual 

assault where contact with the genitalia is involved. The 

problem in this case is that the specification did not state the 

greater offense of aggravated sexual assault because it did not 

allege contact with the genitalia. Thus, based on the 

specification in this case, there was no greater offense from 

which to derive a lesser offense. This resulted in a defective 

specification with respect to the charge of aggravated sexual 

assault. However, the specification did state the offense of 

abusive sexual contact; Appellant was fully on notice of this 

charge and the factual theory upon which the Government was 

proceeding. He knew what he had to defend against. Therefore, 

any defect in the specification was harmless.