(concurring):
I agree with the disposition of the charge under the Assimilative Crimes Act because trial counsel failed to prove the essential element of jurisdiction.*
I also agree that the military judge could have taken judicial notice of the fact of jurisdiction under Mil.R.Evid. 201, if otherwise appropriate under the rules.
I am also concerned by the staff judge advocate’s comments about the sufficiency of the evidence. If the evidence is sufficient only to prove the fatal assault of December 12, then, as noted in the principal opinion, only the homicide charge can survive. That would be analogous to a charge of assault with intent to commit murder and a charge of the resulting homi*192cide. The former is clearly lesser-included in the latter.
However, notwithstanding the staff judge advocate’s review, my reading of the record convinces me that the Government proved its case of multiple assaults over a long period of time. It is, of course, a classic circumstantial-evidence case, as are practically all cases of child abuse (in this case, the multiple assaults, Additional Charge II). The record shows that appellant had the opportunity, the inclination, and the present ability to commit the assaults. The testimony and the photographs convince me that this child was battered, assaulted, beaten, and bruised over a long period of time and that the fatal blow was separate and distinct from the older, equally brutal and vicious blows.
I do agree with the remand to the Court of Military Review for a new look at the evidence in light of the staff judge advocate’s review. And it is never inappropriate for the Court of Military Review to reconsider a sentence if appellate review has altered the posture of the case. As stated in the principal opinion, this does not require a change in the sentence but permits it.
In light of the posture of the litigation and the motion by appellant at trial to dismiss the charge, it is easy to conclude that this was never at issue and was waived. It was raised for the first time on appeal. When counsel attack jurisdiction for the first time on appeal, we should require that appellant allege that there was no jurisdiction. Then, we could review the record to examine whether there is a basis for the allegation. However, because the sentence as approved is within the statutory maximum for the infanticide, the issue is moot. In all likelihood, the assimilated charge was multiplicious with the assault and battery charge as the proof developed.