In United States v. McCracken, 67 M.J. 467 (C.A.A.F. 2009) the CAAF had to determine whether the N-MCCA erred by affirming a lesser included offense based on a theory of criminality not presented by the Government at trial? The Court set aside the findings and dismissed the charge and the specification. The CAAF concluded that “as a matter of law . . . under the circumstances of this case, open and notorious indecent acts . . . was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120 . . . .” According to United States v. Riley, 50 M.J. 410 (C.A.A.F. 1999) and United States v. Chiarella, 445 U.S. 222 (1980), an appellate court may not affirm an included offense on a theory not presented to the trier of fact. Furthermore, according to United States v. Miller, 67 M.J. 385 (C.A.A.F. 2009), supra, an appellate court may not affirm an Article 134 offense based solely on the charging of an enumerated offense at trial. In a concurring opinion, Judge Baker outlines the uncertainty that Miller and McCracken caused in the military lesser included offenses doctrine, and articulates four vital questions that remain in the court’s jurisprudence that starts with United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), and continues through Conliffe, Miller, and McCracken, supra.
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