CORE CRIMINAL LAW SUBJECTS: Crimes: Article 79 - Conviction of Lesser Included Offenses

2012 (September Term)

United States v. Tunstall, 72 M.J. 191 (a military judge can only instruct on a lesser included offense where the greater offense requires members to find a disputed factual element which is not required for conviction of the lesser violation).

(as charged in this case, indecent acts (committing a sexual act in an open and notorious manner) is not a lesser included offense of aggravated sexual assault (engaging in a sexual act with an incapacitated person)). 

(an appellate court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO 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).

(a factfinder must be able to rationally acquit on the greater offense but still convict on the lesser offense; the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater; a lesser-included offense instruction is only proper where the charged greater offense requires the factfinder to find a disputed factual element which is not required for conviction of the lesser-included offense).

2010 (September Term)

United States v. Arriaga, 70 M.J. 51 (Article 79, UCMJ, states that an accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein).

(a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction). 

(regardless of whether one looks strictly to the statutory elements or to the elements as charged, housebreaking is a lesser included offense of burglary; comparing the statutory elements, it is impossible to prove a burglary without also proving a housebreaking; furthermore, the offense as charged in this case clearly alleges the elements of both offenses; here, the “intent” element of burglary was charged as the intent to commit an offense under Article 120, UCMJ; that charging language also satisfies the “intent” element of housebreaking (intent to commit a criminal offense); while in another case it may be possible to prove a housebreaking offense by proving the intent to commit a criminal offense not designated in the third element of burglary, that is not the offense charged in this case; the offense as charged included all of the elements of housebreaking and all of those elements are also elements of burglary; housebreaking is therefore a lesser included offense of burglary). 

(the fact that there may be an alternative means of satisfying an element in a lesser offense does not preclude it from being a lesser-included offense). 

United States v. Girouard, 70 M.J. 5 (Article 79, UCMJ, provides the statutory authority for a military judge to instruct on, and for an appellate court to affirm, an LIO). 

 

(in determining whether an offense is an LIO, a court applies the elements test).


United States v. Bonner, 70 M.J. 1 (an accused may be found guilty of an offense necessarily included in the offense charged; Article 79 requires application of the elements test to determine whether one offense is an LIO of a charged offense; under the elements test, the elements of the lesser offense are a subset of the elements of the charged offense; where the lesser offense requires an element not required for the greater offense, no instruction regarding an LIO is to be given).

 

(the elements test to determine whether one offense is an LIO of a charged offense does not require that the two offenses at issue employ identical statutory language; instead, after applying the normal principles of statutory construction, a court asks whether the elements of the alleged LIO are a subset of the elements for the charged offense; thus, it first determines the elements of the charged offense and the alleged LIO by applying the principles of statutory construction; then, it compares the elements of the two offenses to see if the latter is a subset of the former). 

2009 (September Term)


United States v. Jones, 68 M.J. 465 (an offense is not necessarily included in, a subset of, or an LIO of a charged greater offense when it has no elements in common with the elements of the charged offense but is nonetheless either listed as an LIO in the MCM or has been held by this Court to be an LIO on some other ground).

 

(the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged; if indeed an LIO is a subset of the greater charged offense, the constituent parts of the greater and lesser offenses should be transparent, discernible ex ante, and extant in every instance). 

 

(it is for Congress to define criminal offenses and their constituent parts; one offense either is or is not an LIO, necessarily included in another offense). 

 

(in determining what constitutes a lesser-included offense in the military justice system, an appellate court applies the elements test and looks to whether the elements of the purported LIO are a subset of the elements of the charged offense; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO 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). 

 
(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).   

 

(accuseds may be convicted of uncharged LIOs precisely because they are deemed to have notice). 

 
(the offense of indecent acts is not an LIO of the offense of rape because the elements of rape do not include all (or indeed any) of the elements of indecent acts, notwithstanding that the accused may have been on notice of the possibility that he might be convicted of such an LIO where (1) the offense of indecent acts was held to be an LIO of rape by the CAAF in US v. Schoolfield, 40 MJ 132, and (2) the MCM listed the offense of indecent acts as an LIO of rape; to the extent that Schoolfield and US v. Hudson, 59 MJ 357, hold otherwise, they are no longer good law). 

 

(suggesting that listing a criminal offense as an LIO within the MCM automatically makes it one, irrespective of its elements, ignores the very definition of a crime). 

 

(an LIO, the subset necessarily included in the greater offense, must be determined with reference to the elements defined by Congress for the greater offense; however, this opinion does not, and should not, be read to question the Presidentís ability to list examples of offenses with which one could be charged under Article 134, UCMJ; the President in those instances is not defining offenses but merely indicating various circumstances in which the elements of Article 134 could be met; the Presidentís listing of offenses under Article 134 is persuasive authority to the courts, and offers guidance to judge advocates under his command regarding potential violations of the article). 

 
(interpreting Article 79, UCMJ, to require the elements test for LIOs has the constitutionally sound consequence of ensuring that one can determine ex ante - solely from what one is charged with - all that one may need to defend against; this practice is surely preferable and more sound than judges at the trial and appellate levels making subjective judgments as to whether elements line up realistically).


2008 (Transition)


United States v. Miergrimado, 66 M.J. 34 (Article 79, UCMJ, which provides that an accused may be found guilty of an offense necessarily included in the offense charged, puts a defense attorney on notice that a lesser included offense instruction may be given). 

 

(the accused was provided fair notice and adequate opportunity to defend on the lesser included offense of attempted voluntary manslaughter, where the accused did not claim that attempted voluntary manslaughter was not a lesser included offense of the charged offense of attempted premeditated murder, where during the governmentís case-in-chief and prior to the accusedís testimony, the military judge made it clear that he intended to instruct on this lesser included offense and gave defense counsel the option to continue the case for several days, and where defense counsel accepted the additional time). 

 

United States v. Medina, 66 M.J. 21 (a lesser included offense is defined as an offense necessarily included in the offense charged; any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense).

 

(to determine whether a lesser offense is necessarily included in the offense charged, an appellate court applies the elements test derived from US v. Schmuck, 489 US 705 (1989); the comparison to be drawn is between offenses; since offenses are statutorily defined, that comparison is appropriately conducted by reference to the statutory elements of the offenses in question, and not, as the inherent relationship approach would mandate, by reference to conduct proved at trial regardless of the statutory definitions; one offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense). 

 

(clauses 1 and 2 of Article 134, UCMJ, are not necessarily lesser included offenses of offenses alleged under clause 3 of Article 134, UCMJ, although they may be, depending on the drafting of the specification). 

 

(for the purposes of a guilty plea under Article 134, UCMJ, it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a disorder or neglect under clause 1, conduct proscribed under clause 2, or all three; as a result, while it is appropriate for an appellate court to affirm a lesser included offense, an accused has a right to know to what offense and under what legal theory he or she is pleading guilty; this fair notice resides at the heart of the plea inquiry). 

 

(where an offense is a lesser included offense of the charged offense to which appellant pleaded guilty, appellant is by definition on notice because it is a subset of the greater offense alleged; however, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry, the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty). 


(in a contested case involving a guilty plea to a clause 3 offense under Article 134, a reviewing court must consider whether or not the prosecution  proceeded on the premise or theory
that the conduct  alleged under clause 3 was also prejudicial to good order or service discrediting in order to affirm lesser included offenses under clauses 1 or 2 in the event the clause 3 theory is invalidated; in such a case, the members will normally have been instructed as to the alternative theory; this is consistent with the principle that an appellate court may not affirm on a theory not presented to the trier of fact and adjudicated beyond a reasonable doubt). 

 

(with respect to Article 134, UCMJ, given its structure and elements, an accused must also know under what clause he is pleading guilty; this is accomplished either through advice by the military judge or through operation of the lesser included offense doctrine). 

 

(in this case, appellantís guilty pleas to clause 3 child pornography offenses under Article 134, UCMJ, were not knowing and voluntary to lesser offenses under clause 2 where appellant was not advised during the plea inquiry that in addition to pleading guilty to clause 3 offenses, he was by implication also pleading guilty to clause 2 offenses not charged or otherwise included in the specifications as drafted; although appellant admitted to service discrediting conduct in the context of pleading guilty to violations of clause 3, he did so without knowledge that in pleading guilty to clause 3 offenses, he was not required to plead guilty to service discrediting conduct under clause 2; it bears emphasis that this is a question about the knowing and voluntary nature of the plea and not the adequacy of the factual basis supporting the plea).  

 


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