United States v. McCracken

Judge ERDMANN

delivered the opinion of the court.

Upon consideration of the granted issues1 and the briefs and arguments of the parties, we conclude as a matter of law that under the circumstances of this case, open and notorious indecent acts under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000), was neither expressly nor inherently a lesser included offense of the charged offense of rape under Article 120, UCMJ, 10 U.S.C. § 920 (2000).

In this case the parties agreed that indecent acts was a lesser included offense of rape and the military judge subsequently…