No. 2: The Lego Test for Lesser Included Offenses

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No. 2

The Lego Test for Lesser Included Offenses

MJA 2016 Provides Something New and Painful to Stumble Over

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By Major Andrew M. Lewis

The question of what constitutes a lesser-included offense [in the military justice system] . . . is a Hydra.1

The complicated history of determining lesser included offenses (LIOs) under the Uniform Code of Military Justice (UCMJ) gained a new chapter with the Military Justice Act of 2016 (MJA 2016). While MJA 2016 simplified and clarified certain areas of military justice, it has only muddied the waters regarding LIO identification. Prior to MJA 2016, determining the LIO of a given punitive article under the UCMJ required performing a strict elements test from United States v. Jones; this test often proved challenging to counsel and judges alike.2 Confusion over LIOs was particularly common when it came to the relationships between the various rape and sex offenses, and determining which LIOs they implicated.3

In an attempt to simplify LIO analysis, MJA 2016 has instead released a kraken of confusion. The Military Justice Act of 2016 sought to combine (1) the certainty of the elements test with (2) the convenience of looking to a list of offenses in the Manual for Courts-Martial (MCM).4 The Military Justice Act of 2016 did the first part by codifying the judicially-created elements test in Article 79(b)(1), UCMJ.5 It accomplished the second part by allowing the President to designate offenses that are “reasonably included in the greater offense” in Article 79(b)(2).6 The President did so by listing such offenses in Appendix 12A, effective 1 January 2019.7 However, when the President designated offenses that contained elements not present in the greater offense as LIOs, the current understanding of LIOs was turned on its head.8

Instead of acquiring a simpler process for LIO determinations, practitioners now find themselves in uncharted, and potentially dangerous, territory. Failure to correctly identify proper LIOs can lead to Constitutionally-improper notice, legally incorrect instructions, confusion of members, or other issues on appeal.9 Depending on when the issue is identified, the remedy may be as drastic as dismissal of charges.10

To avoid these pitfalls and provide proper notice to military accused, practitioners must develop a new method for analyzing the relationships between offenses and identifying those raised by the preferred charges, a task previously in the hands of the strict elements test.11 Filling this gap requires the development and application of a new method for determining LIOs, which this article refers to as the “Lego Test.”12

The proposed Lego Test identifies (1) the elements contained in an offense; (2) the elements raised by any enumerated LIOs in Appendix 12A; and (3) the offenses that can be formed by this collection of elements. Put differently, practitioners identify “building blocks”—or elements—from the charged offense(s) and the LIOs contained in Appendix 12A, then combine them to “build” offenses of which the accused may be convicted. Accordingly, under the new version of Article 79, an accused will now be on notice to defend against all of (1) the preferred charges, (2) those enumerated in Appendix 12A, and (3) those “built” via the Lego Test.

This article first traces the history of LIO analysis, focusing on the importance of the due process requirement of proper notice. This history will start with the first adoption of an elements test in 1993,13 through the military’s attempts to conform the elements test to the UCMJ, and ultimately the return of the strict elements test in 2010.14 That framework must be understood to ensure that the Lego Test is in compliance because the notice requirement will, likely, endure post-MJA 2016. Second, this article analyzes the changes brought by MJA 2016 and the new Appendix 12A, and what those changes mean for the primacy of the elements test in determining what constitutes an LIO. Third, the Lego Test is introduced and explained in order to provide practitioners with a method for identifying LIOs under MJA 2016. Finally, the Lego Test will be used with the new Article 120(b)(2)(A)15 to demonstrate the significant practical implications of these recent changes and how, under MJA 2016, an accused is potentially on notice of a whole host of previously-unimagined offenses.

A History of LIO Analysis Under the UCMJ

When addressing and analyzing LIOs under the UCMJ, military appellate courts have been primarily concerned with one issue: whether the accused was properly placed on notice that they must defend against such a charge.16 This requirement found its roots in notions of due process—that an accused should only be required to defend against what is on a charge sheet or indictment.17 While notice may appear to be a relatively straight-forward concept, the method by which military appellate courts have determined whether that notice has been provided was continually developing.

The First Elements Test

Prior to 2019, Article 79’s text only required that “an accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.”18 Such a broad definition meant courts had a great deal of latitude to determine what offenses were “necessarily included” in the greater offense.

The first elements test came from the Supreme Court’s 1989 decision in Schmuck v. United States, which established an elements test for determining federal LIOs.19 Prior to Schmuck, military courts had applied a loose test that granted broad discretion to military judges in determining LIOs.20 Under this test, military judges could instruct LIOs when the “offenses [were] substantially the same kind,” even when the offenses contained different elements.21 This reading of Article 79 placed significant responsibility in the hands of military judges, at both the trial and appellate levels, to determine what exactly was “fairly embraced” by the charged offenses.22 In retrospect, it is easy to recognize how such variability could run afoul of the due process requirement of notice. Despite these potential issues, the impetus for change did not come from within the military appellate system. Instead, it came from the U.S. Supreme Court.

With Schmuck, the Supreme Court adopted an “elements test” to determine LIOs for federal criminal offenses.23 The Court hoped to reduce confusion and provide some certainty on what instructions would be appropriate in a given case.24 The Court was concerned that the inherent relationship approach—in use at the time—allowed for “questions of degree and judgment,” increasing the variability of results; this ran afoul of the “certainty and predictability” sought in criminal procedure.25 Notably, when addressing the constitutional requirement of notice under such an approach, the Court expressed concern that LIOs would not be identified until after all the evidence had been introduced at trial.26 Given the similarities between the federal rule and Article 79, it is unsurprising that military courts took notice of the Court’s decision in Schmuck.

With United States v. Teters, the Court of Military Appeals de facto established Schmuck’s elements test as the standard for determining LIOs under the UCMJ.27 The military followed the Supreme Court’s lead and explicitly did away with the “fairly embraced” test.28 While this decision may have provided a working test for enumerated punitive articles, the Teters test still had to grapple with the peculiarities of the military justice system, particularly the General Article.29

The Elements Test Meets the Military Justice System

Over the next seventeen years, military courts sought to carve out exceptions to the elements test in order to accommodate some of the unique features of the military justice system.30 Throughout these cases, the military justice system, and its practitioners, tried to wriggle away from an elements test that would have resulted in significant changes to its practice. For example, in United States v. Foster, the Court of Appeals for the Armed Forces (CAAF) held that all enumerated punitive articles in the UCMJ contained an implicit element—that the conduct was prejudicial to good order and discipline or of a nature to bring discredit upon the armed forces—in order to allow offenses under the General Article to be an LIO of enumerated offenses.31 Without this implicit element, the elements test would have prevented an Article 134 offense from ever being an LIO of an enumerated offense, even if they were listed as such in the MCM.

This time period also saw CAAF read the requirements for proper notice rather broadly, providing some flexibility to military practitioners. The Court of Appeals for the Armed Forces held that notice was provided not just through the required elements of the statute, but also through those alleged in the specification.32 This was known as the “pleadings-elements approach” to LIO determinations.33 Notably, in expanding the definition of notice, CAAF looked beyond the statutory language—to the presidentially-provided explanation to Article 79—a practice that later CAAF decisions would back away from.34

Notice Moves the Military Back Toward the Strict Elements Test

The late-2000s saw CAAF—and military jurisprudence—move toward a stricter interpretation of the elements test, while continuing to rely on the importance of proper notice for determining the validity of LIOs. For example, in addressing whether a violation of Article 134(2) (service discrediting conduct) was an LIO of Article 134(3) (non-capital offenses), the court looked to whether the accused was on notice that by pleading guilty to the incorporated offense under Article 134(3), he was also admitting guilt to Article 134(2).35

The next year, in United States v. Miller, CAAF held that a Court of Criminal Appeals could not substitute a finding of guilty to a “simple disorder” under Article 134 for a finding of guilty to an enumerated punitive offense, following a finding of factual insufficiency to the enumerated offense.36 Relying on the importance of fair notice and the due process requirements of the Fifth Amendment, the Miller case overruled Foster and held that an Article 134 offense is not per se included in all of the enumerated punitive articles.37 However, this holding did not address other LIO issues relating to Article 134.38

United States v. Jones and the Return of the Strict Elements Test

The LIO odyssey finally arrived back at a strict elements test with CAAF’s 2010 decision in United States v. Jones, which held that a strict elements test was the only manner that would ensure that an accused is provided proper notice.39 In Jones, the military judge sua sponte gave instructions for indecent acts under Article 134 and as an LIO of rape under Article 120—even though they possessed no common elements.40 Following deliberations, the accused was convicted of the LIO of committing an indecent act.41 Telegraphing its answer, CAAF framed the issue as:

[W]hether an offense is “necessarily included” in, a subset of, or an LIO of a charged “greater” offense when it has no elements in common with the elements of the charged offense but is nonetheless either listed as an LIO in the MCM or has been held by this Court to be an LIO on some other ground.42

In answering the presented issue, CAAF notably began its analysis by framing the issue as one “implicat[ing] constitutional due process imperatives of notice” and the authority to designate LIOs, two issues at the center of the new Article 79.43 The Court of Appeals for the Armed Forces opined that proper notice is provided when an LIO is a subset of the greater offense “in every instance,” and not dependent on case-specific facts—a repudiation of the pleadings-elements approach.44 The court noted that decisions, such as Foster, in drifting away from the elements test of Teters, ran afoul of its recent focus on “the significance of notice and elements in determining whether an offense is a subset (and thus an LIO) of the greater offense.”45

In addition, CAAF affirmed that the authority to designate LIOs rested solely with Congress, and not the President.46 This issue was raised because the government argued that the MCM’s explanation sections, which provided lists of LIOs, were sufficient to provide due process notice of possible LIOs the accused may face.47 The Court of Appeals for the Armed Forces found, however, that the designation of criminal offenses under the UCMJ is a power of Congress—not the President.48 Accordingly, the determination of LIOs should be based on the Congressionally-created elements.49

The Jones majority was careful to distinguish this limit on executive power from the authorities specifically delegated to the President under the UCMJ. For example, while persuasive to courts, the President’s listing of ways that Article 134 can be violated was “not defining offenses but merely indicating various circumstances in which the elements of Article 134, UCMJ, could be met;” and, therefore, distinct from the issue at hand.50 The court went on to contrast Articles 36 and 56, which authorize the President to prescribe certain rules and maximum punishments, with Article 79; which, at the time, delegated no authority to the President to determine LIOs.51 In doing so, CAAF left open the possibility that—in the future—Congress could delegate such authority to the President.52

After Jones, and until 1 January 2019, the determination of LIOs was based on a strict elements test, with reference to those elements prescribed by statute. When performing such a test,

one compares the elements of each offense. If all of the elements of offense X are also elements of offense Y, then X is an LIO of Y. Offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements.53

With a refined LIO landscape, it was then up to practitioners to perform, and—in some cases—stumble over the elements test.

The Importance of Notice and the Way Ahead

In the post-Jones world, CAAF continued to focus on the importance of due process and notice when examining pleadings, even when not specifically addressing LIOs.54 While the strict elements test may be a relatively new approach, the focus on due process and notice has been of consistent concern. Under the strict elements test, the necessary notice was provided through examination of the elements of the offense(s) on the charge sheet. However, in an MJA-2016 world, such due process notice can now originate from a second source.

Military Justice Act of 2016

The Military Justice Act of 2016 arguably represents the most significant changes to the UCMJ in the past half-century.55 Included within those changes is a complete reworking of the processes for determining LIOs under the UCMJ. Unlike many of the developments that LIO determinations have seen in the past forty years, these changes are statutory, rather than judicially-inspired.

The New Article 79 and Delegation to the Executive

Article 79 was dramatically amended by MJA 2016 to provide the Executive the authority to designate LIOs.56 Whereas the pre-2019 version of Article 79 provided one basis for identifying LIOs, the new Article 79 keeps the “necessarily included” language,57 while also specifically authorizing the President to designate offenses “reasonably included” in the greater offense.58 The President designates LIOs through executive order and lists those offenses in Appendix 12A of the MCM.59 It appears that the drafters took note of the discussion in Jones regarding Congress’s authority to delegate this authority to the Executive, and did so.60 With the signing of Executive Order 13825, the President exercised that authority and designated a host of specified LIOs of which an accused is now on notice to defend against.61

Based on both a plain reading of the statute, and its accompanying explanation, it would appear that determining all of an offense’s LIOs would require both performing a strict elements test and looking to Appendix 12A.62 This, however, raises the question of what happens if an LIO in Appendix 12A contains an element not present in the greater offense. Answering that question requires a closer examination of the new Appendix 12A.

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Appendix 12A LIOs that Violate the Elements Test

Examination of the new Appendix 12A reveals that the President has, in fact, designated as LIOs offenses which would not satisfy the strict elements test. Specifically, a number of the Article 120 violations for rape and sexual assault have LIOs listed in Appendix 12A that contain an element not present in the greater offense: a lack of consent.63 The presence of a lack of consent as an element in some, but not all, Article 120 offenses has long been a source of confusion for both counsel and judges.64

The new Appendix 12A lists a number of LIOs that run directly counter to CAAF’s holding in United States v. Riggins, and would not be LIOs under the strict elements test.65 For starters, Appendix 12A lists Article 128—assault with intent to commit rape—as an LIO of all rape offenses under Article 120, and assault with intent to commit sexual assault as an LIO of all sexual assault offenses.66 Assault with intent to commit a specified crime contains two elements: (1) that the accused assaulted a certain person, and (2) that at the time of the assault, the accused intended to commit the specified crime.67 An assault is defined as “an unlawful attempt or offer, made with force or violence, to do bodily harm to another, whether or not the attempt or offer is consummated. It must be done without legal justification or excuse and without the lawful consent of the person affected.”68 Accordingly, a lack of consent is an element of assault with intent to commit rape or sexual assault. Given that it is listed as an LIO for all rape and sexual assault offenses, and many of those do not require proof of a lack of consent, it would not be an LIO under the strict elements test of Jones.69

Furthermore, simple assault under Article 128 is listed as an LIO of rape by force causing or likely to cause death or grievous bodily harm.70 Under the statutory definitions, a person cannot legally consent to force causing or likely to cause death or grievous bodily harm.71 As in Riggins, if charging this theory of rape, the government would not have to prove a lack of consent; they only have to prove that the described force was used, even if that force would have resulted in a legal inability to consent.72 Therefore, lack of consent is not an element of this subsection of rape. However, its listed LIO—simple assault—has a lack of consent as one of its elements, and would not be an LIO under Jones.73

Now that an accused charged with any rape or sexual assault offense is on notice via Appendix 12A that an assault may be an LIO of the charged offense, are they on notice that the government may prove a lack of consent? Does that mean that the accused is now entitled to argue the affirmative defense of consent or mistake of fact as to consent? Now that an accused is on notice of a lack of consent, what other offenses will they have to defend against? While the Analysis section for Article 79 contemplates the President’s authority to designate LIOs that would not strictly satisfy the elements test, it does not address any of the attendant issues with having an LIO contain elements not included in the greater offense.74

Enter the Lego Test

The Military Justice Act 2016’s amendment to Article 79, and the publishing of Appendix 12A, has ended the reign of the strict elements test over the LIO universe. While Jones’s reasoning and logic still apply to identifying LIOs under Article 79(b)(1), they are no longer the final authority for determining all LIOs. To adapt to the new LIO world in which the military justice system now finds itself, a new test is needed. The Lego Test satisfies that need by adhering to the principle well-established by case law—the use of elements ensures that proper notice is provided to an accused. The Lego Test differs from the strict elements test in that those elements come from the charged offense, as well as those listed in Appendix 12A.

The Lego Test is a three-step process that involves identifying elements, or “building blocks,” and then using those “blocks” to “build” offenses, of which the accused is now on notice to defend against. First, practitioners will look to the charged offenses and identify all of the elements (the “building blocks”) contained therein. This practice should be second-nature to seasoned practitioners, as it has been the method for determining LIOs since Jones.75 The second step involves identifying any enumerated LIOs in Appendix 12A and, likewise, breaking those into their elements. The final step is to take all the elements identified in the first and second steps and determine what offenses can be created, or “built,” from those elements—or their legally less serious versions.

Under the new Article 79, an accused will now be on notice to defend against all of the preferred charges, including those listed in Appendix 12A and those identified via the Lego Test. Put differently, an accused is now on notice of a collection of elements against which he or she must defend. Once provided proper notice of those elements, an accused may properly be convicted of any offense which contains some combination of those elements.76 When constructing those offenses, it is not necessary that the statutory language be identical; rather, practitioners should continue to use the normal principles of statutory interpretation.77

While building offenses from a collection of elements may seem out of place in a criminal justice system, it is wholly in accord with established military appellate decisions. Throughout its opinions, from Teters to Jones and Riggins, CAAF has been primarily concerned with the due process requirement that an accused be provided proper notice of which offenses they may stand convicted.78 Using the Lego Test to build offenses satisfies this requirement. Furthermore, CAAF’s concern over the Executive improperly identifying LIOs has been answered with the amending of Article 79, so all the elements noticed by Appendix 12A are done so through proper delegation of Congressional authority.79

The Lego Test is a three-step process that involves identifying elements, or “building blocks,” and then using those “blocks” to “build” offenses, of which the accused is now on notice to defend against.

Illustrative Example: Sexual Assault and the Lego Test

To illustrate how the Lego Test may play out at trial, it is helpful to use an actual punitive article. Given that it has been at the center of many an LIO issue, Article 120 and its various subsections will serve as an apt demonstrative aid.80

For this example, an accused is charged with committing a sexual assault by threatening or placing the victim in fear.81 Performing the Lego Test, the first step is to examine the elements of the charged offense.82 The first element is the sexual act alleged.83 The second is issuing the threat that places the victim in fear.84

The next step of the Lego Test involves identifying any listed LIOs in Appendix 12A and breaking them into their elements. Article 128, assault with the intent to commit sexual assault, is listed as an LIO of all sexual assault violations.85 Assault with intent to commit a specified crime has two elements. The first is that the accused assaulted the victim; the second is that when the accused did so, he intended to commit a sexual assault.86 As the first element—committing an assault—is an offense comprised of multiple elements, it too must be broken down. Depending on the facts at issue, an assault can be charged a number of ways.87 One of the elements of assault, regardless of how it is charged, is that it was committed without the consent of the victim.88 Therefore, in the current example, this Article 128 offense adds a number of elements: (1) that the act occurred without the consent of the victim; (2) that the accused attempted to do, or offered to do, bodily harm to a certain person; (3) that the attempt or offer was done unlawfully; and (4) that the attempt or offer was done with force or violence.89

Having identified the building blocks, the final step of the Lego Test involves identifying those offenses of which the accused has been provided proper notice to defend against. An offense that is now an LIO under the Lego Test, but would not have been under the strict elements test, is a sexual assault committed without the consent of the victim.90 This sexual assault contains two elements: (1) that the accused committed a sexual act upon the victim; and (2) that the act was done without the consent of the victim.91 The first element comes from the charged offense and the second element is one of the elements of the listed LIO in Appendix 12A.92 Notably, this offense would not be an LIO under the strict elements test, as a lack of consent is not raised by placing someone in fear.93

Should a trial counsel or a military judge94 propose an instruction for sexual assault without consent, an astute defense counsel may argue that it is not a proper LIO because it does not fit neatly into either Article 79(b)(1) or Article 79(b)(2). They would argue that (1) it is not an LIO under the strict elements test, and therefore not “necessarily included in the offense charged” and (2) it is not listed in Appendix 12A, therefore no further discussion or analysis is necessary.95 While some military judges may accept this argument, and therefore end the discussion, some may not. These judges may instead look to decades of precedent focused on the importance of notice and ask whether the accused was on notice that they would have to defend against these elements, and therefore this offense.96 A defense counsel would be hard-pressed to explain how they were not aware that a lack of consent may be an issue, given that an offense containing that element is listed in Appendix 12A. If it came down to a rigid reading of the new Article 79, against decades of precedent focused on the due process requirement of notice, history would seem to be on the side of notice. Given the recent statutory change, and the corresponding uncertainty as to how courts will interpret these changes, defense counsel do their client a disservice by ignoring potential offenses raised by the Lego Test, as well as the associated defenses they may unlock.97

Practical Implications

Responsibility for performing this test will fall on the shoulders of all practitioners but, as they must ultimately determine what to instruct as an LIO, military judges will bear the brunt of these decisions.98 This responsibility is significant, as incorrect LIO determinations can have drastic consequences, including the dismissal of charges.99 As it will likely take time for cases tried under the new Article 79 to work their way through the appellate process, military judges will function without the specific guidance of appellate decisions for the immediate future. However, as discussed supra in “A History of LIO Analysis Under the UCMJ,” a military judge focusing on whether an accused was fairly on notice that they must defend against a certain charge, and its elements, will be adhering to decades of precedent and judicial guidance.100

Counsel for both parties will also continue to play active roles in the manner in which LIOs are determined and litigated. While military judges should instruct on LIOs properly identified by the Lego Test, trial counsel can always consider charging in the alternative, as that will also provide proper notice to the accused.101 Across the aisle, a diligent defense counsel will either ask for a preliminary ruling as to what LIOs are potentially available, or be prepared to defend against any offense raised by the Lego Test. Neither party will be viewed kindly if they continue to operate with a pre-2019 mindset when it comes to LIO identification.

Conclusion

The 2019 version of Article 79 created a new LIO landscape for military justice practitioners. With Congress explicitly delegating the authority to designate LIOs to the Executive, the strict elements test of Jones is no longer controlling for LIO determinations. While that test is no longer controlling, its elements-based analysis lives on, now in the Lego Test. Offenses—both on the charge sheet and identified in Appendix 12A—must be broken down to their basic elements to determine what offenses are actually available for instruction as LIOs. In doing so, practitioners will be following the text of the amended Article 79 and, most importantly, will be adhering to decades of precedent protecting an accused’s due process right to proper notice.

The Lego Test will accomplish what the strict elements test used to—it will provide a relatively easy method by which practitioners can ascertain which offenses may be instructed as LIOs.102 It is also, by its nature, adaptable to future changes. Should the President list additional offenses in Appendix 12A, the same methodology would still apply to properly identify LIOs.

The Military Justice Act of 2016 dramatically changed many aspects of military justice practice, including how to determine LIOs. However, these changes do not mean that practitioners should abandon principles that have guided military justice practice pre-MJA 2016. Notice will continue to be the guiding force in identifying LIOs, and applying the Lego Test will ensure an accused’s right to that proper notice will remain protected. TAL

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Maj Lewis is the Senior Defense Counsel for the Marine Corps Air Ground Combat Center in Twentynine Palms, California.

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Notes

1. United States v. Weymouth, 43 M.J. 329, 342 (C.A.A.F. 1995) (Crawford, J., concurring in the result).

2. United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The strict elements test is performed by lining up the elements of one offense with another. If the elements of one offense are a subset of those of another offense, then the first is an LIO of the second. Id. See also discussion infra notes 47, 55 and accompanying text.

3. See, e.g., United States v. Riggins, 75 M.J. 78 (C.A.A.F. 2016); United States v. Mostenbocker, No. 201600285, 2017 CCA LEXIS 359 (N-M. Ct. Crim. App. Aug. 10, 2017).

4. Manual for Courts-Martial, United States (2016) [hereinafter 2016 MCM].

5. UCMJ art. 79(b)(1) (2016).

6. UCMJ art. 79(b)(2) (2016).

7. Exec. Order No. 13,825, 83 Fed. Reg. 9,889, 10,346–53 (Mar. 1, 2018) (publishing Appendix 12A to the MCM).

8. For example, Article 128, Assault with intent to commit rape, is listed as an LIO for all Rape offenses under Article 120. Such an assault offense requires proof that the victim did not consent to the assault. However, lack of consent is not an element in each rape offense under Article 120. Therefore, the presidentially-identified LIO contains an element not present in the greater offense. See infra Appendix 12A LIOs that Violate the Elements Test.

9. See Schmuck v. United States, 489 U.S. 705, 720–21 (1989).

10. United States v. Riggins, 75 M.J. 78, 85–86 (C.A.A.F. 2016).

11. See, e.g., United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010).

12. This name comes from the way charges will now be “built,” not the pain associated with standing on such a piece. Lego Brand building bricks are toy blocks that are used to build structures by stacking the bricks on top of one another. See generally About Us: The LEGO® Brand, LEGO, https://www.lego.com/en-us/aboutus/lego-group/the-lego-brand/ (last visited Feb. 8, 2021).

13. United States v. Teters, 37 M.J. 370 (C.M.A. 1993).

14. Jones, 68 M.J. 465.

15. UCMJ art. 120(b)(2)(A) (2017).

16. See, e.g., Schmuck v. United States, 489 U.S. 705, 717–18 (1989); Jones, 68 M.J. at 468; United States v. Baker, 14 M.J. 361, 367–68 (C.M.A. 1983), overruled by Teters, 37 M.J. 370 at 375–76; United States v. Mostenbocker, No. 201600285, 2017 CCA LEXIS 359, at *19 (N-M. Ct. Crim. App. Aug. 10, 2017).

17. See Schmuck, 489 U.S. at 747; Jones, 68 M.J. at 468 (quoting United States v. Medina, 66 M.J. 21, 26–27 (C.A.A.F. 2008)).

18. UCMJ art. 79 (2016) (emphasis added).

19. Schmuck, 489 U.S. at 716–18. Schmuck was examining Federal Rule of Criminal Procedure 31(c) which provided, “The defendant may be found guilty of an offense necessarily included in the offense charged,” language almost identical to that of Article 79. Id. at 708 n.1; Teters, 37 M.J. at 375.

20. Baker, 14 M.J. at 367–68.

21. Id.

22. See id. at 368.

23. Schmuck, 489 U.S. at 716–18.

24. Id. at 721 (quoting United States v. Schmuck, 380 F.2d 384, 389–90 (7th Cir. 1988)).

25. Id.

26. Id. at 719–21.

27. United States v. Teters, 37 M.J. 370, 375–76 (C.M.A. 1993).

28. Id. at 376.

29. UCMJ art. 134 (2016). Article 134 criminalizes three types of acts: (1) “those disorders and neglects prejudicial to good order and discipline;” (2) “conduct of a nature to bring discredit upon the armed forces;” and (3) “crimes and offenses not capital.” Id.

30. See, e.g., United States v. Weymouth, 43 M.J. 329, 333 (C.A.A.F. 1995); United States v. Foster, 40 M.J. 140, 143 (C.M.A. 1994), overruled in part by United States v. Miller, 67 M.J. 385, 386 (C.A.A.F. 2009).

31. Foster, 40 M.J. at 143.

32. Weymouth, 43 M.J. at 333.

33. Id. at 335.

34. Id. at 333. See, e.g., United States v. Jones, 68 M.J. 465, 471–72 (C.A.A.F. 2010).

35. United States v. Medina, 66 M.J. 21, 27 (C.A.A.F. 2008). In Medina the accused had been charged with multiple specifications of assimilated crimes under Article 134(3), however, during the guilty plea inquiry the military judge had the accused also confirm that his conduct was service discrediting. On appeal, the Army Court of Criminal Appeals amended the findings for two of the specifications, instead finding him guilty of the purportedly LIO of Article 134(2). Id. at 22.

36. United States v. Miller, 67 M.J. 385, 386 (C.A.A.F. 2009).

37. Id. at 388–89.

38. Such issues included “whether a lesser included offense that includes elements not included in the greater offense may be affirmed in other circumstances, i.e., where the lesser included offense is listed in the Manual for Courts-Martial, United States or where the lesser included offense is not objected to at trial and is instructed upon by the military judge.” United States v. McCracken, 67 M.J. 467, 468 n.2 (C.A.A.F. 2009).

39. Jones, 68 M.J. at 468.

40. Id. at 466–67.

41. Id. at 468. This was common practice at the time, as CAAF pointed out that the MCM listed Indecent Act as an LIO of Indecent Assault, and Indecent Assault as an LIO of Rape and that Indecent Acts had been previously held to be an LIO of Rape. Id. at 467 (citing Manual for Courts-Martial, United States pt. IV, ¶¶ 45.d(1)(c), 63.d(2) (2005); United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994)).

42. Id. at 467.

43. Id. at 468 (emphasis added).

44. Id.

45. Id. at 470 (emphasis added).

46. Id. at 468, 471–72.

47. Id. at 470.

48. Id. at 471.

49. Id.

50. Id.

51. Id. at 472.

52. Id.

53. Id. at 470.

54. The Court of Appeals for the Armed Forces’ focus on the importance of pleadings providing the necessary notice of the elements to be defended against was at the center of United States v. Fosler in which the court held that Article 134 offenses must “expressly or by necessary implication” allege the terminal element. United States v. Fosler, 70 M.J. 225, 226 (C.A.A.F. 2011).

55. See, e.g., Amy Bushatz, Need to Know: These New UCMJ Laws Start Jan. 1, Military.com (Dec. 31, 2018), https://www.military.com/daily-news/2018/12/31/need-know-these-new-ucmj-laws-start-jan-1.html; Marine Administrative Message, 631/18, 052049Z NOV 18, Commandant, Marine Corps, subject: Military Justice Act of 2016 Training for Commanding Officers With Court-Martial Convening Authority.

56. UCMJ art. 79 (2016).

57. UCMJ art. 79(b)(1) (2016).

58. UCMJ art. 79(b)(2), 79(c) (2016).

59. Manual for Courts-Martial, United States pt. IV, ¶ 3.b.(3)(B) (2019) [hereinafter 2019 MCM]. Appendix 12A existed prior to MJA 2016, but was only for convenience, as the strict elements test was the ultimate arbiter of LIOs. See 2016 MCM, supra note 4, app. 12A.

60. See supra notes 51–52 and accompanying text.

61. Exec. Order No. 13,825, 83 Fed. Reg. 9,889, 10,346–53 (Mar. 1, 2018) (publishing Appendix 12A to the MCM).

62. 2019 MCM, supra note 59, pt. IV, ¶ 3.b.(1).

63. See infra notes 65–73 and accompanying text.

64. See UCMJ art. 120 (2017); United States v. Riggins, 75 M.J. 78, 81–82, 84 (C.A.A.F. 2016).

65. Riggins dealt with an accused that was convicted of various specifications of assault consummated by a battery, in violation of Article 128, as LIOs of sexual assaults and abusive sexual contacts that were accomplished by placing the victim in fear. Riggins was a military judge-alone case in which the military judge decided sua sponte to consider the Article 128 violations as LIOs, even though the defense objected to the assaults being LIOs. In holding that Article 128 is not an LIO of a sexual assault or abusive sexual contact accomplished by placing the victim in fear, CAAF distinguished between situations in which the government must prove facts in which a person would be legally unable to consent, and situations in which the government is required to affirmatively prove that the victim did not, in fact, consent to the conduct in question. The Court of Appeals for the Armed Forces held that since Article 120 offenses committed via fear did not affirmatively require the government to prove a lack of consent, then an offense that requires that element, such as assault consummated by battery, is not an LIO under the strict elements test. Riggins, 75 M.J. at 81–84. Put differently, a lack of consent is not an implied element of a sexual assault, or abusive sexual contact, by placing the victim in fear. United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017) (citing Riggins, 75 M.J. 78 at 83–84).

66. 2019 MCM, supra note 59, app. 12A at A12A-6 to -7.

67. 2019 MCM, supra note 59, pt. IV, ¶ 77.b.(5).

68. 2019 MCM, supra note 59, pt. IV, ¶ 77.c.(2)(a).

69. See Riggins, 75 M.J. at 83–84.

70. 2019 MCM, supra note 59, app. 12A at A12A-6.

71. UCMJ art. 120(g)(7)(B) (2017).

72. See Riggins, 75 M.J. at 83–84.

73. 2019 MCM, supra note 59, pt. IV, ¶ 77.c.(2)(a). See, e.g., United States v. Johnson, 54 M.J. 67, 69 n.3 (C.A.A.F. 2000) (a lack of consent is an element of assault consummated by battery); United States v. Arab, 55 M.J. 508, 515 (A. Ct. Crim. App. 2001) (a lack of consent is an element of assault).

74. 2019 MCM, supra note 59, pt. IV, ¶ 79 analysis, at A17-1.

75. See United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010).

76. Provided that the evidence properly raises those elements or offenses. See 2019 MCM, supra note 59, pt. IV, ¶ 79 analysis, at A17-1.

77. See United States v. Gaskins, 72 M.J. 225, 235 (C.A.A.F. 2013); United States v. Bonner, 70 M.J. 1, 2 (C.A.A.F. 2011).

78. See discussion supra A History of LIO Analysis Under the UCMJ and note 65.

79. See Jones, 68 M.J. at 472.

80. UCMJ art. 120 (2017). This example will use the 2017 version of Article 120, as that is the one that will confront the new Article 79. Id.

81. UCMJ art. 120(b)(1)(A) (2017). The 2012 version of this charge was the one at issue in United States v. Riggins. United States v. Riggins, 75 M.J. 78, 83 (C.A.A.F. 2016).

82. See supra fig. (containing a visual depiction of the Lego Test as applied to this example).

83. UCMJ art. 120(b)(1)(A) (2017).

84. Id.

85. 2019 MCM, supra note 59, app. 12A at A12A-7.

86. Id., pt. IV, ¶ 77.b.(5).

87. See UCMJ art. 128(a) (2018).

88. See supra note 73.

89. 2019 MCM, supra note 59, pt. IV, ¶ 77.b.(1).

90. UCMJ art. 120(b)(2)(A) (2017) (sexual assault without consent). This specific subsection of Article 120 did not exist prior to MJA 2016. It replaces sexual assault via bodily harm. UCMJ art. 120(b)(1)(B) (2012).

91. 2019 MCM, supra note 59, pt. IV, ¶ 60.b.(2)(d).

92. See infra app., fig.“Built Offense: Sexual Assault Without Consent—Article 120(b)(2)(A) (2019).”

93. See United States v. Riggins, 75 M.J. 78, 83–84 (C.A.A.F. 2016).

94. Military judges have a sua sponte duty to instruct on LIOs “reasonably raised by the evidence.” 2019 MCM, supra note 59, pt. IV, ¶ 3.b.(4). This does not require a significant amount of evidence—only “some evidence to which the court members may attach credit if they so desire.” United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000).

95. See UCMJ art. 79(b) (2016).

96. See discussion supra A History of LIO Analysis Under the UCMJ.

97. For example, evidence of an accused’s military character is admissible to show the probability of innocence for Article 128, but not for Article 120. Therefore, the instruction of certain LIOs will make previously-inadmissible evidence both relevant and admissible. 2019 MCM, supra note 59, Mil. R. Evid. 404(a)(2)(A).

98. See discussion supra note 94; see, e.g., United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A. 1990)).

99. See, e.g., United States v. Riggins, 75 M.J. 78, 86 (C.A.A.F. 2016)..

100. See discussion supra A History of LIO Analysis Under the UCMJ.

101. See 2019 MCM, supra note 59, R.C.M. 307(c)(3) discussion (G)(v). This strategy requires some cleanup, should the accused be convicted of both offenses.

102. Assuming they are reasonably raised by the evidence. See discussion supra note 94.