United States v. Moore, decided 28 October 2010.
Appellant alleges, inter alia, that assault with intent to commit rape is not a lesser-included offense of rape under United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) and that his conviction should be set aside. We agree, and provide relief in our decretal paragraph. Because we decide the case on the basis of this assignment of error, we do not consider appellant’s other allegations.
Also a quick note about “notice.”
The Court of Appeals for the Armed Forces (CAAF) elaborated on this concept in United States v. Miller, 67 M.J. 385, 388 (C.A.A.F. 2009) in stating that an accused should not have to look further than his charge sheet to know what he is expected to defend against. “[T]he 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.” Id. at 389 (quotations and citations omitted).
NMCCA has just reminded us of the current law, unaltered by Miller or Jones in United States v. Fosler, when dealing with Article 134, UCMJ, charging.