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Defense Failure to Object Dooms Issue on Appeal

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On June 7th, the Court of Appeals for the Armed Forces issued an opinion in United States v. Gonzales. This opinion reinforces how important it is for defense counsel to get objections and concerns on the record during trial. Specialist Gonzales was charged with, among other offenses, rape of a child, which requires penetration, however slight. At trial, however, the child victim testified that Specialist Gonzales had placed his penis on her “private part” but had not put it inside of her private part. The Military Judge did not discuss lesser included offenses prior to announcing findings and neither the Government nor the defense raised it with him. Nonetheless, the Military Judge announced a finding of not guilty to the charged offense of rape of a child, but a finding of guilty to the lesser included offense of aggravated sexual contact with a child. Following the announcement of findings, the defense counsel made no objection and did not ask for reconsideration of the findings.

On appeal, the defense argued that the offense of aggravated sexual contact with a child is not a lesser included offense of rape of a child because it requires a specific intent that is not present in the originally charged offense. When an issue concerning lesser included offenses is raised on appeal the manner in which the appellate court reviews that claim depends on whether or not the defense objected at trial. If the issue was raised at the trial level, then the appellate court reviews the issue de novo, essentially taking a fresh look at the issue. When the issue was not raised at trial, it is considered forfeited. The appellate court will only reverse the findings over a forfeited issue if the issue constitutes plain error. In order to find plain error, an appellate court must find that the military judge committed an error, that the error was plain and obvious, and that the error materially prejudiced the appellant’s rights.

Specialist Gonzales’ appellate counsel asked the Court to review the issue concerning the lesser included offense de novo since the Military Judge never discussed lesser included offenses before issuing his findings and therefore did not give the defense a chance to object. The Court disagreed, stating that the defense could have asked the Military Judge to reconsider his findings after they were announced. Because the defense did not object or otherwise raise the issue once the findings were announced, the Court found that the issue had been forfeited and reviewed the matter under the plain error standard.

When applying the plain error standard, the Court found that aggravated sexual contact with a child is not a lesser included offense of rape of a child, because it includes a specific intent not found in the original charge. Having found that the Military Judge committed an error, the Court then looked at whether that error was plain and obvious. The Court determined that it was not plain or obvious because the different Courts of Criminal Appeals and various United States Courts of Appeals had come to different conclusions on the matter leaving the issue unclear. Since the error committed by the Military Judge in finding Specialist Gonzales guilty of the lesser included offense was not plain or obvious, the Court affirmed the findings.

If the defense counsel had objected at the time the findings were announced, the Court would have conducted a de novo review, found that aggravated sexual contact with a child was not a lesser included offense of rape of a child and reversed the guilty finding. If you or your loved one is facing a court-martial or is appealing a court-martial conviction, you need someone with experience who knows the rules and the system. I have the experience you need. Please call Bill Cassara at (706) 445-2915 for a free consultation.

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