                      UNITED STATES, Appellee

                                   v.

                    Chad M. MCCRACKEN, Sergeant
                   U.S. Marine Corps, Appellant

                             No. 08-0440

                     Crim. App. No. 200600484

     United States Court of Appeals for the Armed Forces

                      Argued December 2, 2008

                       Decided July 10, 2009

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and RYAN, J., joined. BAKER, J., filed a
separate opinion concurring in the result. STUCKY, J.,
filed a separate opinion concurring in part and dissenting
in part.

                               Counsel


For Appellant:     Lieutenant Gregory W. Manz, USN (argued).

For Appellee: Colonel Louis J. Puleo, USN (argued);
Captain Geoffrey S. Shows, USMC (on brief).

Military Judge:     Paul J. Ware


This opinion is subject to revision before final publication.
United States v. McCracken, No. 08-0440/MC


       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 instructed the members that “[i]n order to

find the accused guilty of this lesser offense, you must be

convinced . . . [t]hat on or about 28 April 2004 . . . the

accused committed a certain wrongful act with Corporal [KM]

1
    We granted review of the following issues:

                                I.

       WHETHER THE LOWER COURT ERRED BY AFFIRMING A
       LESSER-INCLUDED OFFENSE BASED ON A THEORY OF
       CRIMINALITY NOT PRESENTED BY THE GOVERNMENT
       AT TRIAL.

                              II.

       WHETHER THE LOWER COURT ERRED IN REASSESSING
       APPELLANT’S SENTENCE INSTEAD OF REMANDING
       THE CASE FOR A SENTENCE REHEARING.

67 M.J. 36 (C.A.A.F. 2008).



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United States v. McCracken, No. 08-0440/MC


. . . by fondling her breasts and vagina . . . .”     However,

the Navy-Marine Corps Court of Criminal Appeals affirmed on

the ground that McCracken’s conduct was open and notorious,

which was not the factual basis upon which members were

instructed.   United States v. McCracken, No. NMCCA

200600484, 2008 CCA LEXIS 39, at *19, 2008 WL 274920, at *7

(N-M. Ct. Crim. App. Jan. 29, 2008) (unpublished).     We have

stated that “[a]n appellate court may not affirm an

included offense on ‘a theory not presented to the’ trier

of fact.”   United States v. Riley, 50 M.J. 410, 415

(C.A.A.F. 1999) (quoting United States v. Chiarella, 445

U.S. 222, 236 (1980)).   Further, in our recent opinion in

United States v. Miller, 67 M.J. 385, 389 (C.A.A.F. 2009),

we held that a Court of Criminal Appeals may not affirm an

Article 134, UCMJ, offense based solely on the charging of

an enumerated offense at trial.2


2
  Miller addressed the narrow issue as to whether the
holding in United States v. Foster, 40 M.J. 140, 143
(C.M.A. 1994), “that an accused is on notice of an Article
134, UCMJ, lesser included offense because every enumerated
offense under the UCMJ is per se prejudicial to good order
and discipline or service discrediting” had continuing
validity and found it did not. Miller, 67 M.J. at 388-89.
Miller did not address other potential issues related to
Article 134, UCMJ, lesser included offense, such as 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


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United States v. McCracken, No. 08-0440/MC


     As our disposition of the first granted issue

dramatically changes the penalty landscape in this case, it

requires that we authorize a sentence rehearing on the

remaining offense and we need not address the second

granted issue.   See Riley, 58 M.J. at 312; United States v.

Sales, 22 M.J. 305, 307-08 (C.M.A. 1986).    Accordingly, it

is, by the Court, this tenth day of July, 2009,

     ORDERED:

     That the decision of the United States Navy-Marine

Corps Court of Criminal Appeals is reversed as to the

finding of guilty of indecent acts and the sentence.    The

remaining findings are affirmed.   The findings of guilty of

Charge II and its specification are set aside and Charge II

and its specification are dismissed.   The sentence is set

aside.   A rehearing on sentence is authorized.




trial and is instructed upon by the military judge. Those
issues are reserved for another day.


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United States v. McCracken, No. 08-0440/MC


     BAKER, Judge (concurring in the result):

     I concur in the result.   However, I would decide this case

based on the instructions given to the members by the military

judge, rather than by breaking what is arguably new and

unexplained ground in the law involving lesser included

offenses.

     In this case, the parties agreed that indecent acts was a

lesser included offense of rape.   The military judge then

instructed the members that “[i]n order to find the accused

guilty of this lesser offense [indecent acts with another], you

must be convinced . . . [t]hat on or about 28 April . . . , the

accused committed a certain wrongful act with Corporal [KM] . .

. by fondling her breasts and vagina . . . .”    However, the

United States Navy-Marine Corps Court of Criminal Appeals

affirmed this lesser offense on the ground that Appellant’s

conduct was open and notorious.    Therefore, even assuming

without deciding that indecent acts is a lesser included offense

of rape in this case, we cannot know whether the members would

have found the act in question indecent because it was “open and

notorious” based on all the facts and circumstances had they not

found Appellant guilty of indecent assault.1    I therefore believe


1
  Had the members rejected the greater offenses of rape and
indecent assault, they would necessarily have been left with
private consensual sexual contact between unmarried persons in
the absence of the evidence offered by the defense. Such
United States v. McCracken, No. 08-0440/MC


the nature of the definition of indecent acts provided in the

instruction in this case precluded the lower court from

affirming the lesser included offense.

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

considered and restated the current state of the law with

respect to lesser included offenses before concluding that

“Article 134, UCMJ, is not an offense necessarily included in

Article 95, UCMJ.”   Id. at 389 (overruling United States v.

Foster, 40 M.J. 140 (C.M.A. 1994), and its progeny to the extent

those cases “support the proposition that clauses 1 and 2 of

Article 134, [Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§ 934 (2002)], are per se included in every enumerated

offense”).   However, the granted issue in McCracken raises a

number of issues involving lesser included offenses in the

military justice system that are arguably left unresolved after

Miller, including:




private consensual conduct has never been punishable in the
military as an indecent act. United States v. Stocks, 35 M.J.
366, 367 (C.M.A. 1992) (sexual foreplay in private setting is
not criminally “indecent”); United States v. Hickson, 22 M.J.
146, 150 (C.M.A. 1986) (“private sexual intercourse between
unmarried persons is not punishable”), overruled on other
grounds by United States v. Hill, 48 M.J. 352 (C.A.A.F. 1997)
(summary disposition); United States v. Snyder, 1 C.M.A. 423,
427, 4 C.M.R. 15, 19 (1952) (fornication in the absence of
aggravating circumstances is not an offense under military law
because “Congress has not intended by Article 134 . . . to
regulate the wholly private moral conduct of an individual”).

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United States v. McCracken, No. 08-0440/MC


(1)   Whether or not the offenses expressly listed by the

      President as violations of Article 134, UCMJ, such as

      indecent acts, that are identified in the Manual for

      Courts-Martial, United States as a lesser included offense

      to a particular enumerated offense can satisfy the

      requirements of Article 79, UCMJ, 10 U.S.C. § 879 (2000)

      (as a “necessarily included” lesser offense);

(2)   Whether the elements test articulated in Schmuck v. United

      States, 489 U.S. 705, 716 (1989), precludes the President

      from delineating certain Article 134, UCMJ, offenses as

      lesser included offenses of enumerated offenses absent a

      statutory change to the enumerated offense;

(3)   Whether the due process principles advanced in Schmuck can,

      as a matter of law, be satisfied through mechanisms of fair

      notice other than the elements test; and

(4)   What appellate effect, if any, does an agreement by the

      parties at trial that an offense is a lesser included

      offense have on the greater offense being considered on

      appeal.

      It may well be that the majority opinion currently resolves

each of these outstanding issues through implication.   But, in

my view, these issues warrant more than a summary disposition.

Moreover, in fairness to the parties, and given the importance

of the lesser included offense structure to the administration


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United States v. McCracken, No. 08-0440/MC


of military justice, these issues should not be resolved by

implication, but should receive briefing, argument, and

appropriate analytic consideration.




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United States v. McCracken, No. 08-0440/MC


     STUCKY, Judge (concurring in part and dissenting in part):

     I respectfully disagree with the implication contained in

the majority opinion that the lower court could have affirmed a

conviction for indecent acts with another if it were “inherently

a lesser included offense of the charged offense of rape.”

United States v. McCracken, __ M.J. __, (2) (C.A.A.F. 2009).

More than fifteen years ago, this Court abandoned the “inherent

relationship” and “fairly embraced” tests for lesser included

offenses in favor of the statutory elements test.    See United

States v. Teters, 37 M.J. 370, 376 (C.M.A. 1993) (citing Schmuck

v. United States, 489 U.S. 705, 716 (1989)).

     One offense is not a lesser included offense of another

“unless the elements of the lesser offense are a subset of the

elements of the charged offense.”     Schmuck, 489 U.S. at 716.

“Since offenses are statutorily defined, that comparison is

appropriately conducted by reference to the statutory elements

of the offenses in question.”   Id.    One element of the offense

of indecent acts with another under Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2000), is that the

conduct be prejudicial to good order and discipline or service

discrediting, while the offense of rape, Article 120, UCMJ, 10

U.S.C. § 920 (2000), contains no such element.    Therefore,

indecent acts with another is simply not a lesser included

offense of rape.
United States v. McCracken, No. 08-0440/MC


     With regard to the remedy, rather than order a sentence

rehearing, I would remand to the United States Navy-Marine Corps

Court of Criminal Appeals for sentence reassessment.




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