Opinion of the Court
Robert E. Quinn, Chief Judge:The accused was charged with attempted rape. At the trial, the law officer instructed on assault with intent to commit rape and indecent assault as lesser 'included offenses. On this appeal the accused contends that the law officer erred in these instructions to his prejudice.
In United States v Hobbs, 7 USCMA 693, 23 CMR 157, the majority of the Court held that assault with intent to commit rape is lesser included in a charge of attempted rape. However, whether a lesser offense is present in a particular case depends upon the evidence. Here, after careful review of the evidence, we are constrained to conclude that no lesser offense is reasonably raised. Consequently, the accused could not have been harmed by the purported error in the instructions relating to the lesser offenses. United States v Gurevich, 7 USCMA 203, 21 CMR 329. Therefore, the decision of the board of review is affirmed.
Judge Latimer concurs.