Lesser Included Offenses and Findings by Exceptions and Substitutions
Key takeaways
- The test is elements, not conduct: an offense is an LIO only if its elements are a subset of the greater offense’s elements. United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).
- The judge has a sua sponte duty to instruct on every LIO reasonably raised by the evidence — and doubt about whether the evidence raises it goes to the accused. Gillenwater.
- The defense has no “all or nothing” veto: the judge may give an LIO instruction over defense objection if the prosecution or the court wants it. Emmons; Miergrimando.
- Findings by exceptions and substitutions cannot change the nature of the offense or increase its seriousness or maximum punishment — that is a fatal variance. Teffeau.
- Excepting “divers occasions” without identifying the single incident found produces an ambiguous, unreviewable finding — charges have been dismissed with prejudice for it. Walters; Wilson.
The elements test: what counts as an LIO
Article 79, UCMJ lets a court-martial convict an accused of an offense “necessarily included” in the one charged. What is necessarily included is decided by the elements test: an offense is a lesser included offense only if all of its elements are a subset of the elements of the charged offense, so that proving the greater necessarily proves the lesser. CAAF fixed that as the governing standard in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), sweeping away looser approaches that had compared the offenses’ conduct or pleadings instead of their elements.
Two practical consequences follow. First, the listings of lesser included offenses in Part IV of the Manual for Courts-Martial — published for each punitive article under paragraph 3 — are a starting point, but the elements comparison controls; the Manual is available from the Joint Service Committee on Military Justice. Second, because the notice comes from the charge sheet itself, an accused is on notice of every true LIO of the offenses referred against him — how the government drafts the specification is covered in charges and specifications. Attempts are classic LIOs: it was error not to instruct on attempted murder where the evidence suggested the victim may already have been dead when shot. United States v. Brown, 63 M.J. 735 (A. Ct. Crim. App. 2006).
When the judge must instruct on an LIO
R.C.M. 920(e)(2) makes LIO instructions part of the mandatory core of findings instructions, and the military judge has a sua sponte duty — no request needed — to instruct on every lesser included offense reasonably raised by the evidence, unless trial on it is barred by the statute of limitations. United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000). The working rules:
- The threshold is low. A matter is “in issue” when some admitted evidence, without regard to its source or credibility, could support it — and the judge, not the members, decides whether it is raised. United States v. Hibbard, 58 M.J. 71 (C.A.A.F. 2003).
- Doubt favors the accused. Any doubt about whether the evidence is sufficient to require an LIO instruction is resolved in favor of the accused. United States v. Gillenwater, 43 M.J. 10 (C.A.A.F. 1995).
- Severity ordering. The judge may instruct on LIOs in order of severity of punishment or of elements. United States v. Emmons, 31 M.J. 108 (C.M.A. 1990).
- Time-barred LIOs. Where some LIOs may be barred by the statute of limitations, the judge must personally discuss the issue with the accused and, absent waiver, limit the instructions to the periods not time-barred. United States v. Thompson, 59 M.J. 432 (C.A.A.F. 2004).
Waiver, objection, and the “all or nothing” myth
Defense teams sometimes want the panel to face a stark choice — convict of the serious charge or acquit outright — betting that members unconvinced of the greater offense will walk the accused rather than compromise. The law only partly cooperates:
- The defense may affirmatively waive LIO instructions. United States v. Strachan, 35 M.J. 362 (C.M.A. 1992).
- But there is no defense veto. Either party may request an LIO instruction, and the judge may give one over defense objection — the prosecution is not to be denied a conviction of the lesser offense when it has carried its burden on that offense. United States v. Emmons, 31 M.J. 108 (C.M.A. 1990); United States v. Miergrimando, 66 M.J. 34 (C.A.A.F. 2008).
- An appellate wrinkle: a service court reviewing the whole record under Article 66 may affirm a conviction of an LIO that was never instructed on at trial — even one both parties waived. United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008). What the Courts of Criminal Appeals can do with findings is covered in Article 66 review.
The strategic decision — embrace the LIO as a safe harbor for the panel, or fight to keep it out — is one of the most consequential calls in a contested trial, and it interacts directly with how the members will apply the three-fourths vote specification by specification.
What this means if you’re charged with a serious offense
Read your charge sheet with this in mind: each specification carries hidden passengers — every lesser included offense the elements test supports. A panel that acquits you of sexual assault can still convict of an included assault; a desertion charge carries unauthorized absence inside it. Sometimes that layering is your best protection, giving cautious members a middle path; sometimes it manufactures a conviction from a case the government could not prove. Which it is in your case is a judgment call — make it with counsel who has litigated LIO instructions, not discovered them at trial.
Exceptions and substitutions: the mechanics
Alongside conviction of a named LIO, R.C.M. 918(a) lets the factfinder return a finding of guilty by exceptions and substitutions: excepting (striking) words or figures from the specification, and where necessary substituting others, then finding the accused not guilty of the excepted language and guilty of what remains. It is how a panel convicts of what the evidence actually showed — a different date, a smaller quantity, one incident instead of several — without a new charge sheet.
Used properly, the device can protect the accused. Where a stipulation and providence inquiry showed a shorter period of misconduct than charged, it was error for the judge not to except the excess period — entering findings on the specification as written left a record showing more criminality than actually occurred. United States v. Pryor, 57 M.J. 821 (N-M. Ct. Crim. App. 2003). But two hard limits police the device: the modified finding must not be ambiguous, and it must not work a material variance.
The “divers occasions” trap
The ambiguity limit has generated a distinctive line of dismissals. When a specification alleges misconduct “on divers occasions” and the factfinder excepts those words — converting a multiple-incident allegation into a single-incident conviction — the finding must identify which incident supported the conviction. If it does not, the accused stands acquitted of all but one unidentified occasion, no appellate court can review the conviction’s factual basis, and CAAF has dismissed the affected charges with prejudice.
| Case | What happened | Result |
|---|---|---|
| United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) | Drug use “on divers occasions”; panel substituted “one occasion” without saying which of six proven uses | Findings and sentence set aside |
| United States v. Wilson, 67 M.J. 423 (C.A.A.F. 2009) | Judge excepted “on divers occasions” from a child rape specification; two possible incidents, none identified | Charge dismissed with prejudice |
| United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010) | Judge clarified only that the finding was for “the one occasion” — still without identifying it | Findings ambiguous; charges dismissed with prejudice |
| United States v. Ross, 68 M.J. 415 (C.A.A.F. 2010) | Child pornography on three storage media; “divers occasions” excepted without identifying which media | Charge dismissed |
| United States v. Saxman, 69 M.J. 540 (N-M. Ct. Crim. App. 2010) | Convicted of possessing 4 of 22 charged videos, none specified | Charge dismissed with prejudice |
The fix is procedural and mandatory: members must be instructed that any finding removing “divers occasions” language must specify the conduct it rests on, and in a judge-alone trial the judge should state on the record which incident grounds the conviction. Wilson. For the defense, an ambiguous modified finding is an appellate issue of the first rank — the remedy has repeatedly been dismissal with prejudice.
Fatal variance: the outer limit
The second limit is substantive. A finding by exceptions and substitutions may narrow a specification; it may not transform it. A variance between pleadings and findings is material — and fatal — when it changes the nature of the offense, or increases its seriousness or maximum punishment:
- In United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003), members converted a charge of wrongfully providing alcohol to a delayed-entry recruit into one of seeking a nonprofessional personal relationship with her. That rewrote the offense’s nature; the finding was set aside.
- In United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014), a judge substituted a description of a flight for the charged flight number in a missing-movement case. The variance was material — the government must prove the specific movement it charged — though it failed for lack of prejudice, because the accused’s impossibility defense applied equally to the substituted description.
The variance framework thus asks two questions: was the variance material, and did it prejudice the accused — typically by denying notice and the chance to defend, or by exposing him to double prosecution. Related pleading-level protections — including challenges to duplicative or piled-on specifications — live in multiplicity and unreasonable multiplication of charges.
Pleading guilty to an LIO
Lesser included offenses are also a pleading tool. The rule expressly authorizes a plea of:
“not guilty of an offense as charged, but guilty of a named lesser included offense.”R.C.M. 918(a)(1)(B)
When the accused pleads to an LIO, defense counsel should hand up a written revised specification as an appellate exhibit, so the record shows exactly what offense the plea admits. Sequencing matters too: where a judge entered not-guilty findings on the greater offense immediately after accepting an LIO plea — before the government had its chance to prove the greater offense — the premature finding was no acquittal, because a judge cannot foreclose the government’s case before it is presented. United States v. Fowler, 74 M.J. 689 (A. Ct. Crim. App. 2015). And in a mixed-plea case, the admissions made during the guilty-plea inquiry can be considered on the contested greater offense only insofar as they establish the LIO’s common elements. United States v. Grijalva, 55 M.J. 223 (C.A.A.F. 2001). The plea colloquy that makes any guilty plea stick — including an LIO plea — is the subject of the providence inquiry.
Practitioner’s note
Before every contested trial we chart the specifications: for each one, every LIO the elements test supports, its maximum punishment, and whether we want it instructed. That chart drives plea negotiations, the instructions conference, and the findings-worksheet review — the last place to catch a “divers occasions” ambiguity before it becomes a verdict. When a panel returns modified findings, we compare every excepted and substituted word against the charged specification on the spot, because a material variance or an unidentified single occasion is far easier to fix — or exploit — while the court is still assembled.
Frequently asked questions
Can I be convicted of a crime I was never charged with at a court-martial?
Only of a lesser included offense — one whose elements are entirely contained within a charged offense, so the charge sheet itself gave you notice of it. Under Article 79, UCMJ and the elements test of United States v. Jones, proving the charged offense necessarily proves the LIO. Anything outside that subset requires a new charge.
What is the elements test for lesser included offenses?
An offense is a lesser included offense only if all of its elements are a subset of the greater offense's elements — if you can commit the greater without committing the lesser, it is not an LIO. CAAF adopted this as the exclusive test in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), replacing broader conduct-based approaches.
Can the defense refuse a lesser included offense instruction?
The defense can affirmatively waive LIO instructions, but it has no veto. Either party may request the instruction, and the military judge may give it even over defense objection if the evidence reasonably raises the lesser offense — the government is entitled to a conviction of the LIO if it proved one. An all-or-nothing defense strategy needs the government's acquiescence.
What does guilty by exceptions and substitutions mean?
It is a finding that convicts on a modified specification — the factfinder strikes (excepts) charged words and may substitute others, acquitting the accused of the stricken language. It lets the panel match the finding to what the evidence proved, such as one incident instead of several, but it cannot change the nature of the offense or make it more serious.
What is a fatal variance in a court-martial finding?
A material difference between the offense charged and the offense found — one that changes the nature of the offense, increases its seriousness or punishment, or leaves the accused without notice of what to defend against. Findings that cross that line are set aside, and ambiguous findings that fail to identify the conduct convicted have been dismissed with prejudice.
About the attorneys behind this guide
Michael Waddington, Civilian Military Defense Lawyer
Michael Waddington has charted lesser included offenses in serious contested courts-martial for more than 25 years — Article 120 prosecutions, violent offense cases, and war crimes trials worldwide where the real exposure hid inside the charged specifications. A former Army prosecutor and defense counsel and a trial advocacy instructor, he has litigated LIO instructions from both counsel tables and scrutinizes every modified finding for the variance and ambiguity defects that have unwound convictions at CAAF.
Alexandra González-Waddington, Founding Partner
Alexandra González-Waddington, founding partner of Gonzalez & Waddington, has spent more than 20 years defending service members in cases built on layered charge sheets — sexual assault, domestic violence, and murder prosecutions where the fight over which lesser offenses reached the panel shaped the verdict. She has negotiated pleas to named lesser included offenses, reviewed findings worksheets line by line at counsel table, and legally reviewed this page against Article 79, R.C.M. 918, and current CAAF precedent.
Talk to a civilian court-martial defense lawyer today
Gonzalez & Waddington defends Soldiers, Sailors, Airmen, Marines, Guardians, and Coast Guardsmen worldwide — in UCMJ investigations, courts-martial, Article 15/NJP actions, GOMOR rebuttals, administrative separation boards, and Boards of Inquiry. We defend the whole case: the investigation, the trial, the administrative fallout, and the long-term consequences to your rank, retirement, clearance, and discharge.
Sources for this guide include the Uniform Code of Military Justice, the Manual for Courts-Martial (2024 ed.), the Rules for Courts-Martial, the TJAGLCS Criminal Law Deskbook, and the cited decisions of the Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals. It is attorney advertising and general legal information — not legal advice, and reading it does not create an attorney–client relationship. Every case turns on its own facts. Service procedures vary; Army references (AR 27-10) are noted where used.