New CAAF decision on CCA's authority to affirm an LIO on a theory not presented to the trier of fact at the court-martial

United States v. McCracken, __ M.J. ___, No. 08-0440/MC (C.A.A.F. July 10, 2009). Judge Erdmann writes for the majority. Judge Baker concurred in the result while Judge Stucky concurred in part and dissented in part.

The majority observed that NMCCA affirmed a finding of guilty to indecent acts based on a theory that the members weren't instructed on at trial. CAAF proceeded to quickly conclude that NMCCA erred by doing so, quoting United States v. Riley, 50 M.J. 410, 415 (C.A.A.F. 1999), for the proposition that an appellate court can't affirm an LIO on a theory not presented to the trier of fact. CAAF then set aside the sentence while authorizing a rehearing.

Judge Baker concurred in the result, noting that he "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." He observed that "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." Judge Baker then presented a list of legal questions that he suggests the majority decided by implication.

Judge Stucky also wrote separately, proclaiming that "indecent acts with another is simply not a lesser included offense of rape." Rather than remand for resentencing, he would return the case to NMCCA for reassessment of the sentence.

I'm still trying to understand all of the facets of the disagreements among the judges. The lines of demarcation between the majority opinion and Judge Baker's concurrence aren't readily apparent, though I think I understand the doctrinal distinction that Judge Stucky is making about how LIOs are to be determined. More later.