test1 123 (Side 123)Attempt as a Lesser Included Offense

Attempt as a Lesser Included Offense

  1. “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.” Article 79.
  2. United States v. Banks, 7 M.J. 501 (A.F.C.M.R. 1979). Attempted destruction of military property was a lesser included offense of sabotage, prosecuted under Article 134(3) and 18 U.S.C. § 2155.
  3. The specification alleging the greater offense and the facts of the case put the defense on notice of the existence of the lesser offense of attempt. See United States v. LaFontant, 16 M.J. 236 (C.M.A. 1983) (affirming lesser included offense of attempted possession of LSD, even though members had not been instructed thereon, because the accused was convicted of actual possession and there was evidence that accused consciously and intentionally possessed a substance he believed to be LSD); United States v. Guillory, 36 M.J. 952 (A.C.M.R. 1993) (plea of guilty to attempted possession provident where inquiry establishes guilt to greater offense of possession with intent to distribute, even though military judge did not advise accused of elements of attempt).
  4. Specific intent requirement. United States v. Roa, 12 M.J. 210 (C.M.A. 1982) (attempt requires specific intent even where greater offense does not).