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.

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).

2. Neal Puckett formerly entered his appearance.

3. Mr. Puckett asked for a continuance because he is appearing in United States v. Wuterich, at Camp Pendleton, CA, beginning 2 November 2010.

4. Trial was continued to 14-16 December 2010.

5. The judge indicated that the defense had raised an issue with Specifications 3 and 4, Charge II, indicated that would be taken up later, and referred counsel to United States v. Jones.

6. United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010) is a recent case on multiplicity and LIO’s. A quick look at the specifications indicates that they could be the same offense charged twice and potentially multiplicious – under pre-Jones case law.

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).