Here is an interesting Order in United States v. Aguilar where the court has specified an issue.
Whether assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928, of which the appellant was convicted, is a lesser included offense of the charged Rape by Use of Physical Violence in violation of Article 120, UCMJ, 10 U.S.C. § 920, if the proof does not show the assault is the alleged act of physical violence that compelled sexual intercourse.1
The footnote is:
Although specification 2 of the Charge alleges rape by physical violence such that the victim could not escape, the government theory appears to be aggravated sexual assault based on victim incapacitation. (Record 51, 453) This view of the proof is consistent with both the recommendations of the investigating officer and the trial testimony of the victim that the assault (a slap) was simply an act that awoke an unconscious victim rather than an act of force which compelled sexual intercourse. (Record 64-65, 72; Investigating Officer’s Report, Item 21, paragraph c(2)(b)) Although neither side in this judge alone trial requested consideration of any lesser included offenses on this specification of the charge, the military judge sua sponte found the appellant guilty of simple assault consummated by a battery under Article 128. (Record 448, 477-78) We particularly invite the parties’ views on the constitutional due process notice requirements necessary for conviction of a lesser included offense. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).