This opinion is subject to administrative correction before final disposition.

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. 202000040

Decided: 25 February 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military 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 dishonorable discharge.

For Appellant: 

Captain Thomas P. Belsky, 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. Schultz, NMCCA No. 202000040

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

MONAHAN, Chief Judge:

Appellant was convicted, consistent with his pleas, of aggravated assault 

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.

Appellant asserts three assignments of error [AOEs]: (1) the evidence was 

legally 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. BACKGROUND

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. Schultz, NMCCA No. 202000040

Opinion of the Court

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On the afternoon of the incident at issue, Appellant stood with his class in 

formation, at ease, while they waited for a bus to take them back to their 

barracks. Lance Corporal [LCpl] Sierra,3 a fellow student who was

approximately six feet, four inches tall, stood to the left of Appellant. 

Throughout the day LCpl Sierra had been taunting Appellant by repeatedly 

calling him “Jew 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 facing

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 prompted

Appellant to use his right hand to pull out a folding tactical knife from his 

back pocket. The 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 challenged Appellant to meet him later in the room where the 

students practiced martial arts. Realizing 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 Appellant was joking,

realized he was being threatened and turned to face Appellant, putting 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 individuals. LCpl Papa, who was standing directly 

behind Appellant, used a “figure-four” chokehold to separate him from 

LCpl Sierra. As 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. Schultz, NMCCA No. 202000040

Opinion of the Court

4

stab LCpl Sierra, successfully puncturing LCpl Sierra’s lower left backside, 

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 wide, one 

inch deep wound in his back. Although the back wound was not lifethreatening, 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.

During an Army Criminal Investigation Command [CID] interrogation

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 

admitted that at the time of the incident, his intent was to hurt LCpl Sierra 

and that he understood he could potentially kill the other Marine.8

The Government 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, alleged “Attempted Murder—Unpremeditated.”

Specifically, Specification 2 alleged that Appellant “did attempt to murder

[LCpl Sierra] by means of repeatedly stabbing him with a knife.”9 However,

following an Article 32 preliminary hearing, the preliminary hearing officer 

[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, the Government incorporated a variation of

the PHO’s suggested 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. Schultz, NMCCA No. 202000040

Opinion of the Court

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II. DISCUSSION

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 the 

evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements 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) FACTUAL SUFFICIENCY REVIEW.—

(i) In an appeal of a finding of guilty under subsection (b), the 

Court [of Criminal Appeals] may consider whether the finding is correct in fact upon request of the accused if the accused makes a specific showing of a deficiency in proof.

(ii) After an accused has made such a showing, the Court may 

weigh the evidence and determine controverted questions of fact subject to—

(I) appropriate deference to the fact that the 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 convinced that the finding of guilty was against 

the 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 finding 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 (1979)).

14 United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
United States v. Schultz, NMCCA No. 202000040

Opinion of the Court

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ence from the evidence of record in favor of the prosecution.”15 “The standard 

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 witnesses, we are convinced of Appellant’s guilt beyond a 

reasonable doubt.17 In performing this function, we must take “a fresh, 

impartial look at the 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 Government 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 because the offense of attempted 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 erroneous 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. Erickson, 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. 205, 208 

n.4 (C.M.A. 1982); Roa, 12 M.J. at 211.
United States v. Schultz, NMCCA No. 202000040

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 deficiency contained in 

the specification.22 Appellant also argues that this conclusion is even more 

probable because the military judge did not make any special findings concerning his verdict, 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. It certainly 

would have been a better practice 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 to 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, for 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 

that 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 “should 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. Schultz, NMCCA No. 202000040

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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 findings

makes it more likely that the military judge convicted Appellant using an 

incorrect legal standard.

Moreover, we find Appellant’s argument unpersuasive 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 

dismiss 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 discussed 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 legally 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).
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Opinion of the Court

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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 is 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 instruct 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 . . . .” As 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 In the context of assessing the legal 

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 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. 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 lifethreatening, 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 while 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. Schultz, NMCCA No. 202000040

Opinion of the Court

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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 Prosecution, we find that 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.

We find the evidence both legally and factually sufficient to support Appellant’s conviction for attempted unpremeditated murder.

B. Multiplicity of Unpremeditated Murder and Aggravated Assault 

Convictions

Appellant contends and the Government concedes that Appellant’s conviction of Charge III, Specification 2—aggravated assault with the infliction of 

substantial bodily harm—is multiplicious with the 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

Thus, Appellant must establish that there 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, 58-61 (although Appellant expressed relief at that LCpl Sierra 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 understood he 

could potentially kill the other Marine).

31 Id. at 40-41.

32 United States v. Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017).

33 Id. at 275.
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ed assault for repeatedly stabbing 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 corrective 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 discretion.”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 multiplication of charges. Likewise, by 

setting aside his conviction for aggravated assault, Appellant’s third AOE, that the 

adjudged segmented sentence for his aggravated assault conviction was inappropriately severe, is rendered moot.

35 United States v. Wincklemann, 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. Schultz, NMCCA No. 202000040

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judges have experience and familiarity to reasonably determine what sentence 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 offense 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 admissible 

sentencing evidence. Additionally, we have significant experience and familiarity with the offense that remains 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 judgment— four years’ confinement, reduction to E-1, total forfeiture

of all pay and allowances, and a dishonorable discharge. Indeed, 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 conclude the reassessed sentence purges the error from the 

original sentence and is an appropriate punishment for the modified findings 

and this offender.41

III. CONCLUSION

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.
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Opinion of the Court

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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.