MISCELLANEOUS MATTERS: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (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). 

(an appellate court applies the elements test to determine whether one offense is an LIO of another; applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense). 

(after comparing the elements of the indecent assault in violation of Article 134, UCMJ, and assault consummated by a battery in violation of Article 128, UCMJ, it is evident that each element of assault consummated by battery would necessarily be met by proving the first two elements of indecent assault and thus assault consummated by a battery is an LIO of indecent assault). 

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). 

2011 (September Term)

United States v. Ballan, 71 M.J. 28 (indecent acts with a child is not an LIO of rape of a child).   

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. McMurrin, 70 M.J. 15 (negligent homicide is not an LIO of involuntary manslaughter; prejudice to good order and discipline and service discredit are not subsumed within the elements of involuntary manslaughter). 

 

United States v. Girouard, 70 M.J. 5 (assuming without deciding that simple negligence is subsumed within premeditation, it is nonetheless apparent that negligent homicide contains additional elements that are not elements of premeditated murder: the terminal elements of Article 134, UCMJ, prejudice to good order or service discredit; therefore, negligent homicide is not an LIO of premeditated murder). 

 

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

 

United States v. Alston, 69 M.J. 214 (the test for determining lesser included offenses under the UCMJ provides in pertinent part that an accused may be found guilty of an offense necessarily included in the offense charged; an elements test is applied in the course of determining whether an offense is necessarily included within another offense; under the elements test, 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; where the lesser offense requires an element not required for the greater offense, no instruction regarding a lesser included offense is to be given; this approach permits lesser offense instructions only in those cases where the charge contains the elements of both offenses, and as a result gives notice to the accused that he may be convicted on either charge; the elements test does not require that the two offenses at issue employ identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction).   

 

(the MCM expressly notes that its listing of lesser included offenses is not all-inclusive). 

 

(even though the MCM does not list aggravated sexual assault as a lesser included offense with respect to rape by force, the military judge properly instructed the members that aggravated sexual assault was a lesser included offense of rape by force in the context of the charge at issue). 

 

(in this case, the elements of aggravated sexual assault were necessarily included in the charge at issue, rape by force, that alleged that appellant caused the victim to engage in a sexual act, to wit: penetration of her vagina with his fingers by using power or strength or restraint applied to her person sufficient that she could not avoid or escape the sexual conduct; the first element of aggravated sexual assault - causing another person to engage in a sexual act - is the same for both offenses; the second element of aggravated sexual assault - causing bodily harm - is defined in Article 120(t)(8), UCMJ, to include an offensive touching, however slight, and that element is a subset of the force element in the offense of rape under Article 120(a), UCMJ, as defined in Article 120(t)(5)(C), UCMJ [*but note that the definitions of force in Article 120(t)(5)(A), UCMJ, and Article 120(t)(5)(B), UCMJ, which do not require an offensive touching, are not at issue in the present case]). 


2009 (September Term)

United States v. Yammine, 69 M.J. 70 (indecent acts with a child under Article 134, UCMJ, is not a lesser included offense of forcible sodomy under Article 125, UCMJ).

 

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 President’s 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 President’s 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).

 

United States v. Lubasky, 68 M.J. 260 (a change in the subject of the larceny at the appellate stage of review may not be analyzed and upheld as a nonfatal variance:  under the UCMJ and the RCMs, “variance” occurs at trial, not the appellate level; while an appellate court may affirm an LIO to larceny under Article 59, UCMJ, larceny from one person is not an LIO of larceny from another person). 

 

(the question whether a variance to the ownership of property in a charged larceny specification was fatal would be one an appellate court could answer if the factfinder had made findings by exceptions and substitutions; as noted in RCM 918, exceptions and substitutions may be made by the factfinder at the findings portion of the trial; but nothing in either the UCMJ or the RCMs suggests that, at the appellate level, crossing out the alleged property owner in a larceny specification and inserting the name of some other owner is permissible; RCM 918 does not grant an appellate court the authority to make that change; while Article 59(b), UCMJ, provides an appellate court with the power to approve or affirm so much of a finding as includes an LIO where the evidence as to the greater offense is not legally sufficient, that provision does not provide authority for the proposition that larceny from one entity is an LIO of larceny from another entity).


2008 (September Term)

 

United States v. McCracken, 67 M.J. 467 (an appellate court may not affirm an included offense on a theory not presented to the trier of fact).

 

(open and notorious indecent acts under Article 134, UCMJ, was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120, UCMJ, where the members were not instructed on the theory that appellant’s conduct was open and notorious). 


United States v. Miller, 67 M.J. 385 (the courts of criminal appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the UCMJ, may not affirm a conviction to a “simple disorder,” under Article 134, UCMJ, as an offense necessarily included in the enumerated articles; Article 134, UCMJ, is not an “offense necessarily included” under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ).

 

(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).

 

(Article 79, UCMJ, provides that an accused may be found guilty of an offense necessarily included in the offense charged, and the MCM explanation of Article 79, UCMJ, advises that a lesser offense is included in a charged offense when the specification contains allegations which either expressly or by fair implication put the accused on notice to be prepared to defend against it in addition to the offense specifically charged). 

 

(the notice requirement is met when the elements of the lesser offense are a subset of the elements of the charged offense; an accused is by definition on notice of a lesser included offense because it is a subset of the greater offense alleged). 

 

(a simple disorder under Article 134, UCMJ, is not a lesser included offense of resisting apprehension under Article 95, UCMJ, because Article 134, UCMJ, has an element not present in Article 95, UCMJ; clauses 1 and 2 of Article 134, UCMJ, include the element that, in addition to doing or failing to do a certain act, “under the circumstances, the accused’s conduct was to the prejudice of good order and discipline or was of a nature to bring discredit upon the armed forces” - an element not contained in the textual exposition of Article 95, UCMJ).

 

(the principle of fair notice mandates that an accused has a right to know to what offense and under what legal theory he will be convicted and that a lesser included offense meets this notice requirement if it is a subset of the greater offense alleged; this precedent is consistent with the Constitution and Supreme Court precedent regarding due process). 

 

(clauses 1 and 2 of Article 134, UCMJ, are not per se included in every enumerated offense under the UCMJ, overruling United States v. Fuller, 54 M.J. 107 (C.A.A.F. 2000), United States v. Sapp, 53 M.J. 90 (C.A.A.F. 2000), United States v. Britton, 47 M.J. 195 (C.A.A.F. 1997), and United States v. Foster, 40 M.J. 140 (C.M.A. 1994)). 


United States v. Conliffe, 67 M.J. 127 (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; an accused may be found guilty of an offense necessarily included in the offense charged). 

 

(where an offense is a lesser included offense of the charged offense, an accused 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).

 

(the MCM expressly states that an unlawful entry violation under Article 134, UCMJ, is a lesser included offense to a housebreaking charge under Article 130, UCMJ; the first two elements of unlawful entry are subsumed within the first element of housebreaking, which expressly requires that the accused “unlawfully entered” a certain location; the third element required for unlawful entry is inherently included within the second element of housebreaking). 

 

(appellant, who pleaded guilty to housebreaking, was by definition on notice that unlawful entry was a lesser included offense of housebreaking because it is a subset of the greater offense alleged; further, the military judge advised appellant that he had the option of only pleading guilty to unlawful entry if appellant did not possess the criminal intent required for housebreaking; while the military judge did not provide the specific elements of unlawful entry to appellant, the military judge defined unlawful entry and put appellant on notice of this alternative theory of guilt). 

 

(in the context of this case, appellant, who pleaded guilty to housebreaking and conduct unbecoming an officer and a gentleman, was on fair constructive notice that his admission to discredit in the context of pleading guilty to conduct unbecoming an officer and a gentleman amounted to an admission to discrediting conduct for the purposes of the offense of unlawful entry, a lesser included offense of housebreaking; first, the military judge placed him on explicit notice that unlawful entry was a lesser included offense to housebreaking; second, as a matter of law and logic, discredit is encompassed within the concept of conduct unbecoming an officer and a gentleman, to which appellant readily pleaded). 

 

(as a matter of law, it is well-established that, when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133). 

 

(conduct unbecoming an officer rationally entails a higher level of dishonor or discredit than simple prejudice to good order and discipline; thus, when a servicemember engages in conduct unbecoming an officer and a gentleman, he or she also necessarily engages in service discrediting conduct or conduct prejudicial to good order and discipline). 


2008 (Transition)


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, appellant’s 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).  

 

2007


United States v. Thomas, 65 M.J. 132 (wrongful possession of drugs is a lesser included offense of wrongful introduction under Article 112a, UCMJ).


United States v. Young
, 64 M.J. 404 (where the facts demonstrate that the acts or quantities of contraband are distinct, separate convictions for both distribution and possession may be upheld).   


(an accused may be separately convicted and punished for distributing a portion of a quantity of drugs and for possessing that portion he retains). 


(in this case, the evidence supports the conclusion that appellant was convicted of distributing one quantity of marijuana and thereafter retaining (possessing) a distinct remaining quantity; possession of marijuana with the intent to distribute is not a lesser included offense of distributing marijuana, where the possession with the intent to distribute charge is based on 18 pounds of marijuana found in the bedroom of appellant’s cousin, and the distribution charge is based on empty plastic bags, marijuana residue in those bags, and the large quantity of cash found in appellant’s Crown Royal bag; the evidence supports an inference that appellant had completed a marijuana transaction before law enforcement entered the premises and discovered the remaining 18 pounds of marijuana; because the evidence supports a factfinder’s conclusion that the marijuana appellant was charged with possessing was not the same marijuana that he was charged with distributing, the offenses do not stand as greater and lesser included offenses, and both findings of guilty may stand). 


2005


United States v. Leak, 61 M.J. 234 (offenses are multiplicious if one is a lesser-included offense of the other).


(where accused was convicted of maltreatment under Article 93 for engaging in sexual acts with a person subject to his orders and its lesser offense of a simple disorder under Article 134 for the same conduct, the disorder offense must be dismissed as multiplicious for findings).

2003

United States v. Riley, 58 MJ 305 (negligent homicide in violation of Article 134 is a lesser included offense of involuntary manslaughter).

2002

United States v. Palagar, 56 MJ 294 (when a specific offense is also charged as a violation of Article 133, the specific offense has been treated as a lesser-included offense; this follows from the fact that whenever a specific offense is also charged as conduct unbecoming an officer, the elements of proof for conduct unbecoming are the same as those set forth in the paragraph of the Manual which treats that specific offense, with the additional requirement that the act or omission constitutes conduct unbecoming an officer and gentleman).

2001

United States v. Frelix-Vann, 55 MJ 329 (where a larceny is alleged as the sole basis for a charge of conduct unbecoming an officer under Article 133, paragraph 59c(2), Part IV, Manual for Courts-Martial, United States (1995 ed.), establishes that the elements of larceny are necessarily included or required elements of the conduct unbecoming offense).

2000

United States v. Cherukuri,  53 MJ 68 (when the underlying conduct is the same, a service discredit or disorder under Article 134 is a lesser-included offense of conduct unbecoming an officer under Article 133, and dismissal of the lesser-included offense is required under the Double Jeopardy Clause of the United States Constitution).

(conduct unbecoming an officer under Article 133 rationally entails a higher level of dishonor or discredit than simple prejudice to good order and discipline under Article 134; and where the underlying acts of each charge are the same, only one offense, conduct unbecoming an officer, has a different element than the other).

(where the particular acts alleged in four specifications alleging indecent assaults and a single specification of conduct unbecoming an officer were the same (i.e., the indecent assaults), the offenses stand as greater and lesser-included offenses based on the same underlying conduct; a gravamen of the offense approach for determining greater and lesser-included offenses is not adopted).

United States v. Davis, 53 MJ 202 (negligent homicide is a lesser-included offense of unpremeditated murder and involuntary manslaughter; negligence is merely a legally less serious element of the intentional killing involved in murder and the battery involved in involuntary manslaughter).

United States v. Tollinchi, 54 MJ 80 (indecent act is a lesser-included offense of rape where the act of sexual intercourse is in the presence of a third party).

United States v. Fuller, 54 MJ 107 (under the circumstances of this case, appellant’s conduct did not constitute maltreatment; however, that conduct, including sexual relations with a PFC and encouraging another noncommissioned officer to have sexual intercourse with her, was prejudicial to good order and discipline or service discrediting and constituted the lesser-included offense of a simple disorder under Article 134, UCMJ).


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