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.”
I happened to have business at MDW today so I stopped by to take LTC Lakin’s pulse for his upcoming court-martial and watch today’s Article 39(a), UCMJ, session.
The writ was denied today. A straight line standard denial [thanks to CAAFLog for a copy].
1. Mr. Jensen was excused from further participation in the case at the specific affirmative consent of LTC Lakin, because he’d been “discharged.” See R.C.M. 506(c).
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:
Court-Martial Trial Practice Blog