United States v. Riggins

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Quantaus R. RIGGINS, Staff Sergeant
United States Marine Corps, Appellant
No. 15-0334
Crim. App. No. 201400046
Argued October 27, 2015—Decided January 7, 2016
Military Judges: N. K. Hudspeth and C. M. Greer
For Appellant: Jeffrey S. Stephens, Esq. (argued); Lieuten-
ant R. Andrew Austria, JAGC, USN.
For Appellee: Lieutenant Amy L. Freyermuth, JAGC, USN
(argued); Colonel Mark K. Jamison, USMC, Lieutenant
Commander Keith B. Lofland, JAGC, USN; Captain Mat-
thew M. Harris, USMC, and Brian K. Keller, Esq. (on
brief).
Judge OHLSON delivered the opinion of the Court, in
which Chief Judge ERDMANN, Judges STUCKY and
RYAN, and Senior Judge LAMBERTH, joined.
_______________

Judge OHLSON delivered the opinion of the Court.1
We granted review in this case to determine whether as-
sault consummated by a battery, Article 128, Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 928 (2012), is a less-
er included offense of sexual assault and abusive sexual con-
tact, Article 120, UCMJ, 10 U.S.C. § 920 (2012). We conclude
that the former offense was not a lesser included offense of
the latter offenses under the particular circumstances pre-
sented in the instant case. Specifically, we hold that the Ar-
ticle 120, UCMJ, offenses with which Appellant was origi-
nally charged did not require the Government to prove a

1 Senior Judge Royce C. Lamberth, of the United States Dis-
trict Court for the District of Columbia, sat by designation, pursu-
ant to Article 142(f), Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 942(f) (2012).
 United States v. Riggins, No. 15-0334/MC
Opinion of the Court

lack of consent, but the Article 128, UCMJ, offense of which
Appellant ultimately was convicted did. We further hold
that the original specifications did not include an element
requiring that the bodily harm be done with unlawful force
or violence, but the Article 128, UCMJ, offense of which Ap-
pellant ultimately was convicted did. As a consequence, the
Article 128, UCMJ, offense was not a lesser included offense
of the Article 120, UCMJ, offenses, and Appellant did not
receive fair notice of what offense and under what legal the-
ory he was tried and ultimately convicted. Accordingly, we
reverse the decision of the United States Navy-Marine Corps
Court of Criminal Appeals (CCA) and remand this case for
further proceedings consistent with this opinion.

I. FACTS

During the relevant time period, Appellant was a staff
sergeant assigned to the Second Marine Logistics Group
aboard Camp Lejeune, North Carolina. LCpl MS was as-
signed to the 8th Engineer Support Battalion as a member
of Support Utilities where Appellant served as a staff non-
commissioned officer until March 1, 2013. Appellant was
transferred to other duties on March 1 to prepare for an Af-
ghanistan deployment, but he still had authority to issue
orders to members of the unit.

On March 20, 2013, Appellant returned to the shop and
directed LCpl MS to pick up doughnuts for the unit. He also
informed LCpl MS that he needed “that sexual favor.” LCpl
MS drove to the doughnut shop in her car while Appellant
followed in his truck. After parking, Appellant told LCpl MS
to get in his truck and she complied. In the truck, Appellant
started asking LCpl MS for “sexual favors,” but LCpl MS de-
clined “[n]umerous times.”

LCpl MS agreed with Appellant’s suggestion that they
“go on a ride” and Appellant drove LCpl MS to his on-base
home, parked his truck in the garage, and closed the garage
door. In the garage, Appellant resumed his requests for sex-
ual favors and LCpl MS continued to tell him “no.” Appel-
lant placed his hand on LCpl MS’s vagina over her clothing
and LCpl MS pushed his hand away and cried. Appellant
then started “pretty much begging about sex” and LCpl MS
displayed her breast in the hope Appellant “would just leave
[her] alone.” Appellant put his mouth on LCpl MS’s nipple,

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Opinion of the Court

but LCpl MS pushed Appellant off and repositioned her bra
and shirt to cover her breast. Appellant next asked LCpl MS
to masturbate him and she agreed.

LCpl MS then entered Appellant’s house and sat on the
living room couch. There, Appellant pulled down his pants
and LCpl MS touched his penis. She later testified at trial
that she did so because she was “scared that I was going to
get NJP’d,[2] that my Wounded Warrior package was going
to be dropped.” Appellant then undid LCpl MS’s pants and
inserted his finger in her vagina for “a couple of seconds.”
LCpl MS complied with Appellant’s request that she expose
her breasts, which resulted in Appellant placing his penis
between her breasts. Appellant finally pulled down LCpl
MS’s pants, inserted his penis in her vagina for a “couple of
minutes,” and removed his penis to ejaculate on her. LCpl
MS testified that by this point, she “just wanted to go ahead
and get it over with because [Appellant] wasn’t taking no as
an answer.”

II. PROCEDURAL HISTORY

The Government charged Appellant with, among other
offenses, two specifications of sexual assault and three speci-
fications of abusive sexual contact, in violation of Article
120, UCMJ. These charges alleged that Appellant:
did, at or near Camp Lejeune, North Carolina, on
or about 20 March 2013, commit sexual contact up-
on [LCpl MS], U.S. Marine Corps, to wit: touching
her vagina with his hand, by placing the said [LCpl
MS] in fear that, through the use or abuse of mili-
tary position, rank, or authority, he would affect
her military career.

… did, at or near Camp Lejeune, North Carolina,
on or about 20 March 2013, commit sexual contact
upon [LCpl MS], U.S. Marine Corps, to wit: touch-
ing her breast with his lips, by placing the said
[LCpl MS] in fear that, through the use or abuse of
military position, rank, or authority, he would af-
fect her military career.
….

2The term “NJP’d” refers to receiving nonjudicial punishment
under Article 15, UCMJ, 10 U.S.C. § 815 (2012).

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Opinion of the Court

… did, at or near Camp Lejeune, North Carolina,
on or about 20 March 2013, commit sexual contact
upon [LCpl MS], U.S. Marine Corps, to wit: touch-
ing her breast with his penis, by placing the said
[LCpl MS] in fear that, through the use or abuse of
military position, rank, or authority, he would af-
fect her military career.

… did, at or near Camp Lejeune, North Carolina,
on or about 20 March 2013, commit a sexual act
upon [LCpl MS], U.S. Marine Corps, to wit: pene-
tration of … her vulva with his finger, by placing
the said [LCpl MS] in fear that, through the use or
abuse of military position, rank, or authority, he
would affect her military career.

… did, at or near Camp Lejeune, North Carolina,
on or about 20 March 2013, commit a sexual act
upon [LCpl MS], U.S. Marine Corps, to wit: pene-
tration of … her vulva with his penis, by placing
the said [LCpl MS] in fear that, through the use or
abuse of military position, rank, or authority, he
would affect her military career.
The convening authority referred these specifications to a
general court-martial. Appellant pleaded not guilty to these
specifications and a contested trial was held before a mili-
tary judge alone.

Following the close of evidence and in the midst of his de-
liberations, the military judge reconvened the court-martial
and stated the following for the record:
I sent a note to counsel approximately 15 minutes
ago to ask them to be prepared to discuss with me a
potential lesser included offense[]. This is some-
thing that, obviously with members, we would’ve
taken up in a 39(a) session prior to instructions on
findings and it’s an area that I wanted to have
counsel have an opportunity to make a comment on
with regard to lesser included offenses rather than
just press on.

I think it’s important that I have counsel’s thoughts
with regard to lesser included offenses before I
complete my deliberations. Specifically, lesser in-
cluded offense with regard to the Article 120 charg-
es. I don’t believe there’s lesser included offenses on
the other charges, but certainly under the Article

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Opinion of the Court

120 charge, specifically assault consummated by a
battery is a potential lesser included offense.

We are at a bit of a disadvantage given the fact
that Article 120, the Article 120 law under which
we are currently operating doesn’t have a listing of
lesser included offenses, so I took a look at the pre-
vious Article 120 and obviously assault consum-
mated by a battery has, has I’ll say traditionally
been a lesser included offense of sexual assault or
abusive sexual contact.

The Government agreed with the military judge that
“an Article 128 violation would be a lesser included offense
of the [Article] 120 charges initiated.” However, Appellant’s
counsel disagreed, arguing that an assault consummated by
a battery offense contained a lack of consent element not
contained in the Article 120, UCMJ, violations. He then not-
ed that there was a stipulation that the sexual activity had
occurred, and argued that he had been “able to disprove
what the Government charged” in the original specifications
by demonstrating that, at the time of the sexual activity,
LCpl MS was not in fear that Appellant could affect her mil-
itary career because she already had received the
nonjudicial punishment which she claimed at trial had been
“looming over” her, and her Wounded Warrior Packet “had
already been brought forward.” Appellant’s counsel conclud-
ed by noting that if the original specifications had not specif-
ically cited the fact that the sexual acts and sexual contact
had been achieved through placing LCpl MS in fear, he
would have sought “a bill of particulars” from the Govern-
ment.

After hearing argument by both parties, the military
judge conducted additional deliberations. The military judge
acquitted Appellant of the two sexual assault specifications
and the three abusive sexual contact specifications, but con-
victed Appellant of the lesser included offense of assault
consummated by a battery for each specification.3 In special

3 In addition, contrary to Appellant’s pleas, the military judge
convicted Appellant of one specification each of violating a lawful
general order and communicating indecent language, in violation
of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934, and pursu-
ant to his pleas, the military judge convicted Appellant of one
specification each of violating a lawful general order, making a

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findings, the military judge determined that LCpl MS was
not placed in fear of Appellant affecting her military career,
as charged, but instead was “pressured in an unrelenting
manner by a Marine of superior rank” into having sex. The
military judge sentenced Appellant to confinement for three
years, a reduction to E-1, and a bad-conduct discharge, and
the convening authority approved this adjudged sentence.

On appeal to the CCA, Appellant challenged whether as-
sault consummated by a battery is a lesser included offense
of sexual assault and abusive sexual contact. The CCA con-
cluded that it was a lesser included offense, holding that the
Government could not prove sexual assault or abusive sexu-
al contact “by threatening or placing that other person in
fear without necessarily proving assault consummated by a
battery, because one cannot prove a legal inability to consent
without necessarily proving a lack of consent.” United States
v. Riggins, No. 201400046, 2014 CCA LEXIS 864, at *14,
2014 WL 6734827, at *5 (N-M. Ct. Crim. App. Nov. 26,
2014). The CCA affirmed the approved findings and sen-
tence.

We granted Appellant’s petition on the following issue:
Whether the lower court erred in deciding a ques-
tion of law which has not been, but should be, set-
tled by this Court when it held that assault con-
summated by battery was a lesser included offense
to abusive sexual contact and sexual assault.
United States v. Riggins, 74 M.J. 322 (C.A.A.F. 2015). For
the reasons set forth below, we hold that under the particu-
lar circumstances presented in the instant case, assault con-
summated by a battery is not a lesser included offense of
sexual assault and abusive sexual contact.

III. THE LAW

We conduct a de novo review to determine whether one
offense is a lesser included of another. United States v. Tun-
stall, 72 M.J. 191, 193 (C.A.A.F. 2013).

Article 79, UCMJ, 10 U.S.C. § 879 (2012), permits an ac-
cused to “be found guilty of an offense necessarily included

false official statement, and adultery, in violation of Articles 92,
107, and 134, UCMJ, 10 U.S.C. §§ 892, 907, 934 (2012).

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in the offense charged.” This Article provides the statutory
authority for a military judge to convict on, and an appellate
court to affirm on, a lesser included offense. United States v.
Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011).

The elements test determines whether one offense is a
lesser included offense of another. United States v. Jones,
68 M.J. 465, 470 (C.A.A.F. 2010). This test compares the el-
ements of each offense as follows:
If all of the elements of offense X are also elements
of offense Y, then X is [a lesser included offense] of
Y. Offense Y is called the greater offense because it
contains all of the elements of offense X along with
one or more additional elements.
Tunstall, 72 M.J. at 194 (quoting Jones, 68 M.J. at 470).
There is no requirement “‘that the two offenses at issue em-
ploy identical statutory language.’” United States v. Bonner,
70 M.J. 1, 2 (C.A.A.F. 2011) (quoting United States v. Alston,
69 M.J. 214, 216 (C.A.A.F. 2010)). Courts instead apply
normal rules of statutory interpretation and construction to
“‘determine whether the elements of the [lesser included of-
fense] would necessarily be proven by proving the elements
of the greater offense.’” United States v. Gaskins, 72 M.J.
225, 235 (C.A.A.F. 2013) (quoting United States v. Wilkins,
71 M.J. 410, 412 (C.A.A.F. 2012)). In making this lesser in-
cluded offense determination, courts examine the offense “in
the context of the charge at issue.” Alston, 69 M.J. at 216.

The elements test provides “notice to [an accused] that
he may be convicted” of the greater offense or the lesser in-
cluded offense. Schmuck v. United States, 489 U.S. 705, 718
(1989). In several cases we have stated that a lesser includ-
ed offense “meets this notice requirement if ‘it is a subset of
the greater offense alleged.’” See, e.g., Jones, 68 M.J. at 468.
(quoting United States v. Medina, 66 M.J. 21, 27 (C.A.A.F.
2008)); see also Gaskins, 72 M.J. at 235; Bonner, 70 M.J. at
2; Alston, 69 M.J. at 216. This notice is critical because “[t]he
due process principle of fair notice mandates that ‘an ac-
cused has a right to know what offense and under what legal
theory’ he will be” tried and convicted. Jones, 68 M.J. at 468
(quoting Medina, 66 M.J. at 26).

IV. ANALYSIS

The elements of assault consummated by a battery are:

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(1) That the accused did bodily harm[4] to a certain
person; and

(2) That the bodily harm was done with unlawful
force or violence.[5]
Manual for Courts-Martial, United States pt. IV, pa-
ra. 54.b.(2) (2012 ed.) (MCM); see also Bonner, 70 M.J. at 3.
The Manual requires that assault consummated by a bat-
tery “be done without legal justification or excuse and with-
out the lawful consent of the person affected.” MCM pt. IV,
para. 54.c.(1)(a) (emphasis added). We therefore have previ-
ously held that lack of consent is an element of the offense of
assault consummated by a battery. United States v. John-
son, 54 M.J. 67, 69 n.3 (C.A.A.F. 2000) (noting that Govern-
ment must “prove each and every element of the assault
consummated by a battery, one of which is lack of consent”).

The elements of sexual assault are:
(1) The accused committed a sexual act with anoth-
er person; and

(2) The sexual act was accomplished by placing the
other person in fear.
See Article 120(b)(1)(A), UCMJ.

The elements of abusive sexual contact are:

(1) The accused engaged in sexual contact with an-
other person; and

(2) The sexual contact was accomplished by placing
the other person in fear.
See Article 120(b)(1)(A), (d), UCMJ.

As can be seen, unlike assault consummated by a bat-
tery, lack of consent is not an element of either of the sexual

4 “[B]odily harm” is “‘any offensive touching of another, how-
ever slight.’” Bonner, 70 M.J. at 3 (quoting United States v. John-
son, 54 M.J. 67, 69 (C.A.A.F. 2000)); see also MCM pt. IV, para.
54.c.(1)(a).
5 “Unlawful force or violence means that the accused wrongful-
ly caused the contact, in that no legally cognizable reason existed
that would excuse or justify the contact.” Bonner, 70 M.J. at 3.

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assault or abusive sexual contact offenses as charged. There-
fore, in the instant case, an Article 128, UCMJ, offense can-
not be considered a lesser included offense of an Article 120,
UCMJ, offense. See Alston, 69 M.J. at 216 (noting that an
offense is not a lesser included offense when it requires an
element that is not an element of the greater offense); Jones,
68 M.J. at 473 (concluding that offense was not a lesser in-
cluded offense where it did not include the elements of the
greater offense).

We note, of course, that for both of the Article 120,
UCMJ, offenses charged in the instant case a “[l]ack of ver-
bal or physical resistance or submission resulting from …
placing another person in fear does not constitute consent.”
Article 120(g)(8)(A), UCMJ. However, the fact that the Gov-
ernment was required to prove a set of facts that resulted in
LCpl MS’s legal inability to consent was not the equivalent
of the Government bearing the affirmative responsibility to
prove that LCpl MS did not, in fact, consent.6

We also note that by charging Appellant with Article
120, UCMJ, offenses and by solely alleging that Appellant
had placed LCpl MS in fear of her military career, the Gov-
ernment had effectively removed from the equation at trial
any issue of consent. Accordingly, Appellant was not on no-
tice that he needed to, or even could, defend against the
charges by contesting the issue of lack of consent.

This lack of notice was exacerbated in the instant
case by the fact that the military judge developed and ap-
plied what was, in essence, a new legal theory—one that was
never charged or argued by the Government—in the middle
of his own deliberations in this case. This legal theory, which
posited that LCpl MS was not placed in fear of her military

6 The UCMJ’s definition of “consent” indicates as a matter of
law that placing the victim in fear prevents consent. See Article
120(g)(8)(A), UCMJ. Therefore, evidence regarding whether the
alleged victim knowingly, willingly, and lawfully consented could
certainly be relevant to the fact-finder’s determination of whether
the Government proved the placed-in-fear element beyond a rea-
sonable doubt. However, the introduction of such evidence is not
required under the provisions of the UCMJ. Indeed, in the instant
case, the Government’s theory at the court-martial never men-
tioned the consent of the victim.

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career but instead gave in to a higher-ranking Marine’s un-
relenting pressure to have sex, ran counter to what the Gov-
ernment had alleged in its charging documents. Thus, Ap-
pellant was deprived of his right to know what offense and
under what legal theory he was going to be tried and con-
victed. Jones, 68 M.J. at 468.

In deciding this case, we further observe that the “plac-
ing in fear” element of the sexual assault and abusive sexual
contact offenses is different from the “unlawful force or vio-
lence” element of the assault consummated by a battery of-
fense. Specifically, the “placing in fear” element requires “a
communication or action that is of sufficient consequence to
cause a reasonable fear that non-compliance will result in
the victim or another person being subjected to the wrongful
action contemplated by the communication or action.” Arti-
cle 120(g)(7), UCMJ. Thus, under the original charges in the
instant case, it was sufficient for the Government to merely
prove that LCpl MS was fearful that Appellant would nega-
tively affect her military career. However, “unlawful force or
violence” under Article 128, UCMJ, requires the Govern-
ment to prove an application of physical force. See Bonner,
70 M.J. at 3; Lamb v. State, 613 A.2d 402, 413–14 (Md. Ct.
Spec. App. 1992) (noting that force and violence for purposes
of battery “‘include any application of force’” even if it does
not cause injury so long as it is unlawful (quoting R. Per-
kins, Criminal Law 152–53 (3d ed. 1982)), cited with ap-
proval in United States v. Anzalone, 41 M.J. 142, 147
(C.M.A. 1994); cf. United States v. Behenna, 71 M.J. 228,
233–34 (C.A.A.F. 2012) (distinguishing between offer-type of
assault, which requires fear of imminent bodily harm, and
assault consummated by a battery, which focuses on “actual
bodily harm”).

This distinction between physical contact (for assault
consummated by a battery) and a mental state of fear con-
cerning the potential effect on the victim’s military career
(for sexual assault and abusive sexual contact) further
demonstrates that assault consummated by a battery con-
tains an element that is not included in the sexual assault
and abusive sexual contact offenses charged here.7 Cf. Unit-

7 Our holding in this case does not foreclose 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

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ed States v. Lewellyn, 481 F.3d 695, 697 (9th Cir. 2007) (not-
ing that showing of fear is not required for crime of assault
in which battery occurred); United States v. Boyles, 57 F.3d
535, 544 (7th Cir. 1995) (“‘Fear’ and ‘threats’ are different
from ‘force.’”); United States v. Frizzi, 491 F.2d 1231, 1232
(1st Cir. 1974) (stating that fear is not “necessary to make a
battery actionable under [18 U.S.C. § 111]”). As a conse-
quence, we hold that assault consummated by a battery is
not a lesser included offense of sexual assault or abusive
sexual contact as charged in this case. We therefore conclude
that Appellant’s conviction for assault consummated by a
battery violated his “constitutional rights to notice and to
not be convicted of a crime that is not [a lesser included of-
fense] of the offense[s] with which [Appellant] was charged.”
Girouard, 70 M.J. at 10. Such a constitutional error does not
require automatic reversal, however, and instead is tested
for prejudice. See United States v. McMurrin, 70 M.J. 15, 20
(C.A.A.F. 2011). “A constitutional error is harmless when it
appears beyond a reasonable doubt that the error com-
plained of did not contribute to the verdict obtained.” United
States v. Esparza, 540 U.S. 12, 17-18 (2003) (citation and in-
ternal quotation marks omitted); see also United States v.
Mott, 73 M.J. 319, 332 (C.A.A.F. 2013). For preserved consti-
tutional errors, such as in the instant case, the Government
bears the burden of establishing that the error is harmless
beyond a reasonable doubt. See United States v. Flores,
69 M.J. 366, 369 (C.A.A.F. 2011).

The Government has not met its burden in this case. As
noted above, the specifications at issue did not mention lack
of consent, the Government did not raise the issue of lack of
consent in the course of the trial but instead relied on the
theory that the sexual activity resulted from LCpl MS being
in fear of Appellant, and Appellant tailored his defense to
rebut the allegation that LCpl MS was “afraid [of] the
Wounded Warrior package being tampered with and … of
the looming NJP actually taking place.” The military judge
then found Appellant guilty, issuing special findings con-
taining a specific rationale neither advanced by the Gov-
ernment nor defended by Appellant. Cumulatively, these

offense. A specification placing the accused on notice of fear of bod-
ily harm and raising the issue of consent may well lead to a differ-
ent result than the one here. However, we need not reach that is-
sue in deciding the instant case.

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points inarguably demonstrate prejudice to Appellant.
Girouard, 70 M.J. at 11 (finding prejudice where the appel-
lant did not agree to the lesser included offense, appellant
did not defend on the lesser included offense, and the gov-
ernment’s theory was not tried on the lesser included of-
fense); McMurrin, 70 M.J. at 20; Jones, 68 M.J. at 473 n.11
(finding prejudice where case not tried on lesser included
offense theory and the issue was not addressed until after
the parties presented evidence).8

V. DECISION

We reverse the decision of the United States Navy-
Marine Corps Court of Criminal Appeals as to the findings
under the Additional Charge and the sentence. The findings
of guilty for the Additional Charge and its Specifications are
set aside, and that Charge and the Specifications are dis-
missed. The remaining findings of guilty are affirmed. The
record is returned to the Judge Advocate General of the Na-
vy for remand to the Court of Criminal Appeals for reas-
sessment of the sentence, or for a rehearing on sentence, if
necessary.

8 We further note that the Government’s brief before this
Court did not address prejudice. The Government attempted to
remedy this omission one day before oral argument by filing a let-
ter citing supplemental authority under C.A.A.F. R. 36A, in which
it identified three cases relating to the issue of prejudice “should
this Court find insufficient notice of the lesser included offense.”
See Citation to Supp. Authority by the United States, United
States v. Riggins, No. 15-0334 (Oct. 26, 2015). This was not a
proper use of Rule 36A because the rule is not intended to provide
a party with the opportunity to present entirely new arguments.
See C.A.A.F. R. 36A (requiring explanation as to why supple-
mental citations are significant by referring “to the page of the
earlier filed pleading”). If a party believes that this Court should
consider a new argument, it must seek permission to file a sup-
plemental brief under C.A.A.F. R. 30. See C.A.A.F. R. 36A Rules
Advisory Committee Comment (2007), 72 Fed. Reg. 67,597, 67,599
(2007) (noting that Rule 36A is not to “become a vehicle for unau-
thorized supplemental briefing”); C.A.A.F. R. 36A Rules Advisory
Committee Comment (1999), 64 Fed. Reg. 35,633, 35,634 (1999)
(noting that a party should seek leave of this Court if supple-
mental briefing is appropriate).

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