In United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009), the CAAF upheld unlawful entry as a lesser included offense under Article 59(b), UCMJ. Under Art. 59(b), “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.” Interpreting Art. 79 and Medina, the CAAF held that unlawful entry is a lesser included offense of housebreaking. The Court observed that unlawful entry is listed as a lesser included offense of housebreaking. See 2008 MCM, pt. IV, ¶ 56.d.(1). Next, the Court analyzed the elements. The first two elements of unlawful entry (entry of the property of another and that the entry was unlawful) are “subsumed within” the first element of housebreaking (that the accused “unlawfully entered a certain location”). The Court then ruled that the third element of unlawful entry (conduct prejudicial to good order and discipline or service discrediting conduct) was “inherently included” in the second element (“with intent to commit a criminal offense therein”). By entering without authority and possessing the intent to commit an offense punishable by the UCMJ, the accused engaged in service discrediting conduct or conduct prejudicial to good order and discipline. Also, the CAAF held that the accused knew that, in pleading guilty to the housebreaking charge, he was knowingly and voluntarily pleading guilty to the LIO of unlawful entry and was waiving his right to contest that offense. He was “by definition on notice” since unlawful entry is a subset of the elements of housebreaking. Additionally, the military judge defined unlawful entry and advised the accused that he had the option of pleading guilty to unlawful entry if he did not possess the criminal intent needed for housebreaking. Further, by admitting to “discrediting conduct” when explaining why his conduct was unbecoming, he admitted that his conduct was service discrediting. A service discredit or disorder is a lesser included offense for conduct unbecoming when the underlying conduct is the same. See United States v. Cherukuri, 53 M.J. 68 (C.A.A.F. 2000). So, when the accused pled guilty to housebreaking, “he was also on fair constructive notice” that he was pleading guilty to the lesser included offense of unlawful entry.” The Court affirmed the lesser included offense of unlawful entry for the three specifications of housebreaking.
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