CAAF Opinion Digest · one opinion, every topic

U.S. v. McCracken, 67 M.J. 467

Decided Jul 10, 2009 · No. 08-0440/MC · September 2008 Term · Opinion (PDF)

Digested under 6 topics

Core Criminal Law Subjects: Crimes: Article 120 - Rape and Carnal Knowledge Pre-2019 offenses

  1. 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

Core Criminal Law Subjects: Crimes: Article 134 -- Indecent Acts with Another Pre-2019 offenses

  1. 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
  2. an appellate court may not affirm an included offense on a theory not presented to the trier of fact

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

  1. an appellate court may not affirm an included offense on a theory not presented to the trier of fact
  2. a court of criminal appeals may not affirm an Article 134, UCMJ, offense based solely on the charging of an enumerated offense at trial

Trial Stages: Appeals: Courts of Criminal Appeals › Factual sufficiency

  1. an appellate court may not affirm an included offense on a theory not presented to the trier of fact
  2. a court of criminal appeals may not affirm an Article 134, UCMJ, offense based solely on the charging of an enumerated offense at trial

Trial Stages: Appeals: Court of Appeals for the Armed Forces

  1. an appellate court may not affirm an included offense on a theory not presented to the trier of fact

Miscellaneous Matters: Multiplicity and Lesser Included Offenses: Lesser Included Offenses

  1. an appellate court may not affirm an included offense on a theory not presented to the trier of fact
  2. 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
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Last updated by the court: Oct 13, 2026 · mirrored Oct 29, 2026 · Always confirm a holding against the opinion itself (linked from each case name).