This opinion is subject to administrative correction before final dispositio n.

Before MONAHAN, STEPHENS, and DEERWESTER Appellate Military Judges

_________________________



### UNITED STATES Appellee

v.
Findley C. K. SCHULTZ Private First Class (E

- 2 ), U.S. Marine Corps Appellant

No. 20 20 00 040

Decided: 2 5 February 2021

Appeal from the United States Navy

- Marine Corps Trial Judiciary

M ilitary Judge : Roger E. Mattioli

Sentence adjudged 29 October 2019 by a general court

- martial convened at Marine Corps Base Quantico, Virginia , consisting of a military judge sitting alone. Sentence in the Entry of Judgment : reduction

to E

- 1, confinement for four years, total forfeiture of all pay and allowances , and a d ishonorable discharge

.
For Appellant: Captain Thomas P. Bels ky , JAGC, USN

For Appellee: Lieutenant Commander Jeffrey S. Marden , JAGC, USN Major Kerry E. Friedewald , USMC

Chief Judge MONAHAN delivered the opinion of the Court, in which Senior Judge STEPHENS and Judge DEERWESTER joined.United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

2 _________________________

This opinion does not serve as binding precedent, but may be cited as persuasive authority under

NMCCA Ru le of Appellate Procedure 30.2.

_________________________

MONAHAN

, Chief Judge:
Appellant was convicted, consistent with his pleas, of aggravated assau lt with the infliction of substantial bodily harm, in violation of Article 128, Uniform Code of Military Justice [ UCMJ ]

. 1 Appellant was also convicted, contrary to his pleas

, of attempted unpremeditated murder

, 2 in violation of Article 80, UCMJ.

A ppellant asse rts three assignments of error [ AOE s ] : (1) the evidence waslegally and factually insufficient to sustain a conviction for attempted unpremeditated murder ; (2) the convictions for attempted unpremeditated murder and aggravated assault are multiplicious and an unreasonable multiplication of charges ; and (3) the segmented sentence imposed by the military judge for Appellant ’ s guilty plea for aggravated assault was inappropriately severe. We find merit in the second AOE, set aside the lesser offense of aggravated assault

, and reassess the sentence , which renders the third AOE moot.



### I. B ACKGROUND

In winter of 2019, Appellant was finishing his training to operate heavy equipment at Fort Leonard Wood , Missouri . Weighing only 125 pounds and measuring five feet, six inches in height, he was the target of frequent bullying from his classmates

. In addition to feeling friendless, Appellant ’ s spirits were low because his girlfriend had recently broken off their relationship and because he worried he failed his recent test to graduate the course

.

1 10 U.S.C. § 928

.

2 Appellant was acquitted of a separate specification of attempted premeditated murder , as well as a specification of communicating a threat

.United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

3 On the afternoon of the incident at issue , Appellant stood with his class in formation , at ease, while they wait ed for a bus to take them back to their barracks

. Lance Corporal [LCpl] Sierra

, 3 a fellow student who wa s approximately six feet, four inch es tall

, stood to the left of Appellant

. Throughout the day LCpl Sierra had been taunting Appellant by repeatedly calling him “ J ew Boy, ” although Appellant is not in fact Jewish. Appellant insulted LCpl Sierra in response.
While standing in formation, LCpl Sierra once again called Appellant

“ Jew Boy. ” Appellant told LCpl Sierra to stop him calling that, but LCpl Sierra refused and repeated the slur

. While both men still stood fac ing forward, Appellant replied “ if you don ’ t stop that

, I ’ m going to f [***] g cut your throat. ” 4 Eyewitnesses heard Appellant angrily threaten to kill LCpl Sierra. 5
LCpl Sierra laughed and answered that he did not believe Appellant would actually do anything , calling him “ Jew Boy ” 6 once more

. This pro mpted Appellant to use his right hand to pull out a folding tactical knife from his back pocket . Th e knife was the sharper of two pocket knives that Appellant carried on his person that day

. Rather than being intimidated by the knife, LCpl Sierra challenge d Appellant to meet him later in the room where the students practiced martial arts . R ealizing his threats had no effect on his tormentor, Appellant raised his right arm, crossing it over his left shoulder, and tried to stab LCpl Sierra in the upper chest and throat area

. Upon seeing that LCpl Sierra ’ s fully zippered Gore

- Tex jacket blocked the knife from penetrating to the skin

, Appellant instead began aiming for LCpl Sierra ’ s stomach area

. LCpl Sierra

, who initially believed that A ppellant was joking

,
re alized he was being threatened and turned to face Appellant, put ting his hands on Appellant ’ s shoulders to push Appellant towards the ground

. LCpl Sierra and Appellant ’ s classmates noticed the commotion and rushed in to restrain both i ndividuals. LCpl Papa , who was standing directly behind Appellant

, used a “ figure

- four ” chokehold to separate him from LCpl Sierra

. A s LCpl Papa attempted to restrain him, Appellant continued to

3 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.

4 Pros. Ex. 5

, at 31.

5 R. at 94

- 96, 140, 154.

6 Pros. Ex. 5

, at 36

.United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

4 stab LCpl Sierra , successfully puncturing LCpl Sierra ’ s lower left back side

, until he finally hit the ground and dropped the knife.
An ambulance subsequently brought LCpl Sierra to the Fort Leonard Wood Emergency Room [ER] for treatment

. LCpl Sierra had a few small abrasions on his chest, a laceration on his finger, and a three inch wid e, one inch deep wound i n his back

. Although the back wound was no t life

threatening, the attending ER nurse testified that had the knife gone any deeper, it could have punctured LCpl Sierra ’ s kidney or renal artery

— injuries that could have proven fatal

. D uring a n Army Criminal Investigation Command [ CID ] inter rogation conducted later that day, Appellant acknowledged multiple times that once he pulled out his knife and the fight turned physical, he felt “ committed ” and that “ there was no going back. ” 7 Although Appellant expressed relief that LCpl Sierra would heal from the wounds and suffer no permanent injury, he

a dmitted that at the time of the incident , his intent was to hurt LCpl Sierra and that he understo od he could potentially kill the other Mar ine

. 8

The G overnment later charged Appellant with , among other things, two specifications of attempted murder under Article 80
, UCMJ. Specification 1 of Charge I alleged “ Attempted Murder

— Premeditated. ” Specification 2 of Charge I , on the other hand, alleg ed “ Attempted Murder

— Unpremeditated. ” Specifically

, Specification 2 alleged that Appellant “ did attempt to murder [LCpl S ierra ] by means of repeatedly stabbing him with a knife. ” 9 However

, following an Article 32 preliminary hearing, the p reliminary h earing o fficer [PHO] suggested that Specification 2 might also be proven by showing that Appellant attempted “ to inflict grievous bodily harm ” upon LCpl Sierra

. 10 Prior to the referral of charges, t he G overnment incorporated a variation of the PHO ’ s suggest ed theory of culpability into Specification 2 of Charge I by making a “ pen

- and

- ink ” modification to the charge sheet by adding “ or inflict great bodily harm upon

. ” 11

7 Id . at 40

- 41

.

8 Id . at 41 , 58

- 61

.

9 Charge sheet (emphasis added)

.

10 Preliminary hearing officer ’ s report at 4 (emphasis added)

.

11 Charge sheet (emphasis added).United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

5 

### II. D ISCUSSION

A. Legal and Factual Sufficiency of Attempted Unpremeditated Murder Conviction

We review each case de novo for legal and factual sufficiency. 12
When testing for legal sufficiency, we look at “ whether, considering theevidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elemen ts beyond a reasonable doubt. ” 13 Our assessment of legal sufficiency is limited to the evidence produced at trial. 14 In performing this analysis, we must “ draw every reasonable infer-

12 UCMJ art. 66 ; United States v. Washington , 57 M.J. 394 , 399 (C.A.A.F. 2002). We recognize that Public Law 116

- 283 amended Article 66(d)(1)(B) regarding our factual sufficiency review as follows:
(B) F ACTUAL S UFFICIENCY R EVIEW

. — (i) In an appeal of a finding of guilty under subsection (b), theCourt [of Criminal Appeals] may consider whether the finding is correct in fact upon request of the ac cused if the accused makes a specific showing of a deficiency in proof.
(ii) After an accused has made such a showing, the Court mayweigh the evidence and determine controverted questions of fact subject to

— (I) appropriate deference to the fact that t he trial court saw and heard the witnesses and other evidence; and
(II) appropriate deference to findings of fact entered into the record by the military judge.
(iii) If, as a result of the review conducted under clause (ii), the Court is clearly convin ced that the finding of guilty was againstthe weight of the evidence, the Court may dismiss, set aside, or modify the finding, or affirm a lesser finding.
However, the amendment to Article 66(d)(1)(B) applies only with respect to a case in which every fin ding of guilty in the Entry of Judgment is for an offense that occurred on or after 1 January 2021. Pub. L. No. 116

- 283, § 542(e), 134 Stat.

_ _ (2021).

13 United States v. Turner , 25 M.J. 324 (C.M.A. 1987) ( citing Jackson v. Virginia

, 443 U.S. 307, 319 (197 9)).

14 United States v. Dykes , 38 M.J. 270, 272 (C.M.A. 1993).United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

6 ence from the evidence of record in favor of the prosecution. ” 15 “ The standar d for legal sufficiency involves a very low threshold to sustain a conviction. ” 16
In evaluating factual sufficiency, we must determine whether, after evaluating all the evidence in the record of trial and making allowances for not having observed the witnes ses, we are convinced of Appellant ’ s guilt beyond a reasonable doubt. 17 In performing this function, we must take “ a fresh, impartial look at th e evidence, ” applying “ neither a presumption of innocence or a presumption of guilt, ” and we must make our own, “ independent determination as to whether the evidence constitutes proof of each required element beyond a reasonable doubt. ” 18

1. Appellant ’ s argument that the military judge probably utilized an erroneous standard in convicting him of attempted unpremeditated murder is unpersuasive

. As an initial matter, Appellant argues that we cannot be confident that his conviction for attempted unpremeditated murder does not rest on an improper legal theory. Specifically, when the G overnment essentially adopted the recommendation of the PHO to amend Specification 2 of Charge I to include in the disjunctive the theory that Appellant attempted “ to inflict great bodily harm ” upon LCpl Sierra, it injected a legally incorrect standard into the specification be cause the offense of a ttempted murder requires the specific intent to kill. 19
Military judges are presumed to know and follow the law. 20 “ However, such a presumption will not be utilized if the record of trial reveals that the judge probably utilized an erro neous standard of law in making his find-

15 United States v. Gutierrez , 74 M.J. 61, 65 (C.A.A.F. 2015) (internal citations omitted)

.

16 United States v. King , 78 M.J. 218, 221 (C.A.A.F. 2019) (internal citations omitted).

17 Turner , 25 M.J. at 325.

18 Washington , 57 M.J. at 399.

19 United States v. Roa , 12 M.J. 210, 212 (C.M.A. 1982).

20 United States v. Eri c kson , 65 M.J. 221, 225 (C.A.A.F. 2007); United States v. Dellarosa , 30 M.J. 255, 259 (C.M.A. 1990); United States v. Lewis , 12 M.J. 20 5, 208 n.4 (C.M.A. 1982); Roa , 12 M.J. at 211.United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

7 ings. ” 21 Appellant argues that the military judge in his case “ probably utilized an erroneous standard in reaching his findings ” primarily because he made no mention at any point during the proceedings of the deficien cy contained in the specification. 22 Appellant also argues that this conclusion is even moreprobable because the military judge did not make any special findings concerning his v erdict, because Appellant asserts that evidence of specific intent to kill was weak, 23 and because the military judge failed to sua sponte recognize that the attempted murder and aggravated assault convictions were multiplicious. 24
We are not persuaded by Appellant ’ s arguments on this issue. I t certainly would have been a better pract ice for the military judge to affirmatively address on the record the legal infirmity of the “ intent to inflict great bodily harm ” theory , added by “ pen

- and

- ink ” change into the specification prior to referral . However, there is no evidence in the record t o conclude that the military judge utilized this erroneous standard of law when he convicted Appellant of attempted unpremeditated murder. First, the Government never argued or admitted evidence that Appellant was guilty of attempted unpremeditated murder because he acted with an attempt to inflict great bodily harm. Rather, throughout the trial the Government’s case sought to prove that Appellant ’ s attack upon LCpl Sierra constituted attempted premediated murder with the specific intent to kill. Second, fo r his part, Appellant ’ s trial strategy revolved around disproving the intent to kill, as evidenced by his opening statement, motion for a finding of not guilty pursuant to Rule for Courts

- Martial [R.C.M.] 917, and closing argument focusing exclusively on

t hat element. Third, the military judge denied Appellant ’ s R.C.M. 917 motion because : (1) the location of where Appellant attempted to stab, including the gut and throat, “ indicated an intent to kill ” ; (2) Appellant admitted to law enforcement that he “ shou ld not be trying to kill ” ; and (3) Appellant told LCpl Sierra “ I ’ m going to kill you. ” 25

21 Roa , 12 M.J. at 211.

22 Appellant ’ s Br. at 10

- 11.

23 Id. at 11.

24 Appellant ’ s Reply Br. at 4

- 5.

25 R. at 232

- 33.United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

8 We are also unpersuaded by Appellant ’ s argument that it is “ even more probable ” 26 that the military judge utilized an erroneous legal standard in convicting him because the military judge did not make any special findings concerning his verdict . In a judge alone trial, the parties hold the key as to whether the military judge makes special findings. 27 In this case, Appellant ’ s trial defense team elected to not request the military judge to make special findings, and we decline to find that the absence of such special findin g s makes it more likely that the military judge convicted Appellant using an incorrect legal standard.
Moreover, we find Appellant’s argument unpersuasiv e that the military judge should be stripped of the presumption that he knew and followed the law on this issue because he committed plain error on a different legal issue. Specifically, Appellant highlights that the military judge did not sua sponte dismi ss on the grounds of multiplicity his conviction for aggravated assault after the military judge convicted him of attempted unpremeditated murder. Although we agree that it was plain error for the military judge to have not treated these two specifications as multiplicious, (see discussion infra ) we disagree that this isolated misstep should deprive the military judge of the overall presumption that he knew and followed the law as applied to other legal issues that arose in Appellant’s case

. Finally, as dis cussed infra , we find that Appellant’s conviction for attempted unpremeditated murder was both legally and factually sufficient. Thus, we reject Appellant’s argument that the evidence of his specific intent to kill LCpl Sierra was weak.

For the reasons stated above, we find Appellant’s argument, that the military judge probably utilized an erroneous standard in convicting him of attempted unpremeditated murder, to be without merit.

2. Appellant ’s conviction for attempted unpremeditated murder is both legall y and factually sufficient

. In addressing the issue of legal sufficiency in this case, Appellant invites us to apply a test applied by the Court of Appeals for the Armed Forces [CAAF] in United States v. Weatherspoon . There, CAAF enunciated a test, in the context of its review of the legal sufficiency of a conviction for aggravated

26 Appellant ’ s Br. at 11.

27 R.C.M. 918(b).United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

9 assault, to assess the likelihood that an instrumentality was a “means likely to produce death or grievous bodily harm.” However, we agree with the Government that Weatherspoon i s inapplicable to our analysis on whether there was legally sufficient evidence of Appellant’s intent to support his conviction for attempted unpremeditated murder.
Instead, we are guided on this issue by the principle that is used by military judges to i nstruct court members, “Direct evidence of intent is often unavailable. The accused’s intent, however, may be proved by circumstantial evidence. In deciding this issue, you must consider all relevant facts and circumstances .

. . .” A s our sister service court articulated long ago, direct evidence of intent is often lacking and “ must be inferred from all of the circumstantial evidence surrounding the offenses, that is

, from the acts done and the things said at the time. ” 28 I n the context of assessing the le gal sufficiency of a murder or attempted murder conviction, a military court may find specific intent to kill from the “ high risk of homicide ” accompanying an appellant ’ s actions and inference that he “ intended the natural and probable consequences of [his ] acts

. . . . ” 29

Here , after angrily threatening LCpl Sierra that he would “ cut his f [***] g throat ” and that he would kill him, Appellant selected the sharper of the two knives in his possession and tried to stab LCpl Sierra in the upper chest and throat a rea. Upon seeing that LCpl Sierra ’ s fully zippered Gore

- Tex jacket blocked the knife from penetrating to the skin, Appellant instead began aiming for LCpl Sierra ’ s stomach area. Subsequently, when a classmate attempted to restrain him, Appellant continued to stab LCpl Sierra, successfully puncturing LCpl Sierra ’ s lower left backside, until he finally hit the ground and dropped the knife. Although the back wound was not life

threatening, the attending ER nurse testified that had the knife gone any deeper, it could have punctured LCpl Sierra ’ s kidney or renal artery

— injuries that could have proven fatal. Later w hile under interrogation by CID , Appellant provided equivocal responses as to his intent when he repeat-

28 United States v. Polk , 48 C.M.R. 993, 996 (A.F.C.M.R. 1974).

29 United States v. Willis , 46 M.J. 258, 261 (C.A.A.F. 1997) (internal citations omitted) . This legal principle is also contained in the Manual for Courts

- Martial

, which discusses the intent requirement for unpremeditated murder and states, “ It

may be inferred that a person intends the natural and probable consequences of an act purposely done. ” Manual for Courts

- Martial, United States (2019 ed.)

, pt. IV, ¶ 56

. c(3)(a).United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

10 edly stabbed LCpl Sierra. 30 However, Appellant also told the CID special agent that once he brandished his knife , he felt “ committed ” and that “ there was no going back. ” 31
Based on Appellant ’ s statements and actions, and considering the evidence in the light most favorable to the P rosecution, we find t hat a reasonable factfinder could have found all the essential elements of attempted unpremeditated murder beyond a reasonable doubt, to include the element that Appellant had the specific intent to kill.
Moreover, after evaluating all the evidence in the record of trial and making allowances for not having observed the witnesses, we too are convinced of Appellant ’ s guilt beyond a reasonable doubt of this offense. With regard to the intent element, we believe that he formed the specific intent to kill just before he began to stab LCpl Sierra or as he continued to stab LCpl Sierra in various vital parts of his body, to include in the back in the vicinity of LCpl Sierra ’ s kidney.

W e find the evidence both legal ly and factual ly sufficien t to support Appellant’s conviction for attempted unpremeditated murder.

B. Multiplicity of Unpremeditated Murder and Aggravated Assault Convictions
Appellant contends and the G overnment concedes that Appellant’s conviction of Charge III, Specification 2

— aggravated assault with the infliction of substantial bodily harm

— is multiplicious with th e greater offense of which he was convicted under Charge I, Specification 2

— attempted unpremeditated murder. We agree.
Because this issue was not raised at trial, we review for plain error. 32 Th us, Appellant must establish that the re is error that is “ clear and obvious ” and that “ results in material prejudice to his substantial rights. ” 33 Here, Appellant ’ s convictions for attempted unpremeditated murder and aggravat-

30 Pros. Ex. 5 at 41, 58

- 6 1 ( a lthough Appellant expressed relief at that LCpl Sierr a would heal from the wounds and suffer no permanent injury, he admitted at the time of the incident, his intent was to hurt LCpl Sierra and that he understoo d he could potentially kill the other Marine )

.

31 Id . at 40

- 41.

32 United States v. Oliver , 76 M.J. 271, 27 4 (C.A.A.F. 2017).

33 Id. at 275.United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

11 ed assault for repeatedly stabbi ng LCpl Siera in vital parts of his body, including his back

, amounted to one offense. Therefore, it was plain error to convict Appellant of both attempted unpremeditated murder and aggravated assault for the same attack without subsequently taking correct ive action. Accordingly, we set aside the finding of guilty of the lesser offense in Charge III, Specification 2, and dismiss that specification with prejudice. 34

C. Sentence Reassessment
Having set aside the guilty finding to Charge III, Specification 2, we must determine if we can reassess the sentence “ more expeditiously, more intelligently, and more fairly than a new court

- martial. ” 35 In reassessing sentences,

we “ act with broad discreti on. ” 36
So long as we are able to determine that the sentence imposed on Appellant , absent the error, would have been at least of a certain magnitude and no higher than he would have received without the error, we may reassess the sentence. 37 Any sentence we seek to affirm must be “ appropriate, ” meaning it is not only “ purged of prejudicial error [but] also

. . . ‘ appropriate ’ for the offense involved. ” 38

We look to the non

- exclusive list of five factors in Winckelmann to determine whether to reassess a sentence or to order a sentencing rehearing: (1) whether there has been a dramatic change in the penalty landscape and exposure; (2) the forum of the court

- martial; (3) whether the remaining offenses capture the gravamen of the criminal conduct; (4) whether significant aggravating circumstances remain admissible and relevant; and (5) whether the remaining offenses are the type with which we as appellate

34 Our resolution of this issue renders moot Appellant ’ s secondary argument with regard to this AOE, that his convictions for attempted unpremeditated murder and aggravated assault represent an unreasonable multiplica tion of charges. Likewise, by setting aside his conviction for aggravated assault, Appellant ’ s third AOE, that theadjudged segmented sentence for his aggravated assault conviction was inappropriately severe, is rendered moot.

35 United States v. Winckleman n , 73 M.J. 11, 15 (C.A.A.F. 2013) (internal quotation marks omitted).

36 Id.

37 United States v. Harris , 53 M.J. 86, 88 (C.A.A.F. 2000).

38 United States v. Sales , 22 M.J. 305, 308 (C.M.A. 1986).United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

12 judges have experience and familiarity to reasonably determine what s entence would have been imposed at trial. 39

Under all the circumstances presented, we find that we can reassess the sentence and it is appropriate for us to do so. There is only a marginal change in the penalty landscape and exposure as the remaining offen se committed by Appellant, attempted unpremeditated murder, subjected him to a maximum of 20 years confinement. The appellant was sentenced by a military judge. The remaining offense captures the gravamen of the criminal conduct for which the appellant was sentenced, and there is no change in admissiblesentencing evidence. Additionally, we have significant experience and familiarity with the offense that remain s and conclude that sentence reassessment is appropriate. Absent the error, we are confident that the court

- martial would have imposed a sentence no less severe than that contained in the entry of judg ment

— four years ’ confinement, reduction to E

- 1, total forfeitu re of all pay and allowances, and a dishonorable discharge. I ndeed, because Appellant was sentenced by a military judge sitting alone, who utilized segmented sentencing pursuant to the Military Justice Act of 2016, we are particularly confident that the confinement portion of the adjudged sentence for attempted unpremeditated murder would have remained at four years. 40
Finally, we conclud e the reassessed sentence purges the error from the original sentence and is an appropriate punishment for the modified findings and this offender. 41



### III. C ONCLUSION

The finding of guilty to Charge III, Specification 2 is SET ASIDE and that specification is DISMISSED WITH PREJUDICE . After careful consideration of the record and briefs of the appellate counsel, we have determined that, following our corrective action, the remaining findings and the sentence

are correct in law and fact and that no error materially prejudicial to Appel-

39 Winckelmann , 73 M.J. at 15

- 16.

40 See United States v. Page

, __ M.J. __, No. 202000069, 2021 CCA LEXIS 60, at *14 (N

- M. Ct. Crim. App. Feb. 11, 2021).

41 Sales , 22 M.J. at 308.United States v. S chultz

, NMCCA No. 20 20 00 0 40 Opinion of the Court

13 lant ’ s substantial rights remains. 42 Accordingly, the remaining findings and

sentence
, as reassessed by this Court

, are AFFIRMED

. Senior Judge STEPHENS and Judge DEERWESTER concur

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

42 UCMJ arts. 59, 66

.