ANSWER: THERE IS AN AGREEMENT TO COMMIT THE OFFENSE. IF ONE OF THE
CONSPIRATORS COMMITS THE REQUISITE OVERT ACT, THEN THE OFFENSE OF
F. Lesser Included Offenses.
A lesser included offense is a crime which is necessarily included in the charged offense.
One example of this would be the lesser included offense of robbery is larceny. Housebreaking would
be a lesser included offense of burglary because they both prescribe the same basic conduct, that is the
unauthorized entry into the structure of another with the intent to commit a criminal offense therein.
However, burglary is a greater offense because of the specific requirements of breaking and entry into a
dwelling house at nighttime with intent to commit certain serious offenses therein.
Lesser included offenses are important because the court-martial may find an accused guilty of a
lesser included offense when it finds the prosecution has failed to prove the charged offense beyond a
reasonable doubt. Moreover, reviewing authority might choose to approve only a finding of the lesser
included offense. Because of these facts, investigators must prepare their investigative reports being
aware of the range of possible offenses of which an accused might be convicted. Only with this
foresight can the law enforcement officer be assured that the facts he has gathered are sufficient to
satisfy the elements of proof required for these various offenses.
PART I - DEFENSES TO CRIMINAL LIABILITY
The accused in a criminal case is not required to present any evidence, or prove he is innocent.
Rather, the prosecution has the burden to establish his guilt beyond a reasonable doubt. Frequently,
however, the accused will raise various defenses which he claims, establish his innocence or raise
reasonable doubt. He may claim that even though he committed the acts charged, he is still not
criminally responsible based on one or more of the following defenses.
A. Intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a complete
defense. The defense may, however, try to show that the intoxication made the accused unable to form a
specific intent. (RCM 916(1) (2).) In a case of assaulting an MP, the defense might try to show the
accused was so intoxicated that he didn't know the status of the victim. U.S. v. Martinez, 14 MJ 647
(ACMR 1982). If it is a general intent crime, the voluntary intoxication is irrelevant. U.S. v. Gertson,
15 MJ 990 (NMCMR 1983).
In U.S. v. Prince, 24 MJ 643 (AFCMR 1987), the accused "denied that he had knowingly
used cocaine. He testified that he had learned shortly before trial that his wife had surreptitiously
slipped cocaine powder into a mixed drink she prepared for him...the appellant's wife testified that she
had, indeed, placed cocaine in her husband's drink without telling him. She explained that she was
attempting to find a way to improve her husband's sexual performance and had used cocaine at her
sister's suggestion that it