U.S. v. Alston, 69 M.J. 214

Military Justice Personnel: Military Judge: Instructions

1. the MCM expressly notes that its listing of lesser included offenses is not all-inclusive
2. 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
3. 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]

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (a) Rape

1. 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
2. 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]
3. each circumstance set forth in the definition of force in Article 120(t)(5)(C), UCMJ, describes an act of force applied by one person against another person involving sufficient power to compel submission or overcome or prevent resistance; applying the common and ordinary understanding of the words in the statute, each act of force described in Article 120(t)(5)(C), UCMJ, at a minimum, includes an offensive touching that satisfies the bodily harm definition in Article 120(t)(8)

Core Criminal Law Subjects: Crimes: Article 120 - Rape, Sexual Assault, and Other Sexual Misconduct Pre-2019 offenses › (c) Aggravated Sexual Assault

1. 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
2. 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]
3. each circumstance set forth in the definition of force in Article 120(t)(5)(C), UCMJ, describes an act of force applied by one person against another person involving sufficient power to compel submission or overcome or prevent resistance; applying the common and ordinary understanding of the words in the statute, each act of force described in Article 120(t)(5)(C), UCMJ, at a minimum, includes an offensive touching that satisfies the bodily harm definition in Article 120(t)(8)

Trial Stages: Merits: Instructions › Lesser-included offenses

1. 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
2. the MCM expressly notes that its listing of lesser included offenses is not all-inclusive
3. 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
4. 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]

Miscellaneous Matters: Manual for Courts-Martial: Generally

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

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

1. 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
2. the MCM expressly notes that its listing of lesser included offenses is not all-inclusive
3. 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
4. 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]