UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

TOZZI, CAMPANELLA AND CELTNIEKS

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist KEVIN A. HUGGINS

United States Army, Appellant

ARMY 20121043

Headquarters, United States Army Africa

Reynold P. Masterton, Military Judge

Colonel Mark Tellitocci, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr, 

JA, Major Vincent T. Schuler, JA; Captain Brian J. Sullivan, JA (on brief)

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief)

20 March 2015

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MEMORANDUM OPINION

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

A panel of officer and enlisted members, sitting as a general court-martial 

convicted appellant, contrary to his pleas, of one specification aggravated assault 

with intent to commit infliction of grievous bodily harm and one specification of 

aggravated assault with a means likely to produce death or grievous bodily harm, in 

violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (2006) 

[hereinafter UCMJ]. The panel sentenced appellant to a bad-conduct discharge, 

confinement for sixty days, forfeiture of all pay and allowances, and reduction to the 

grade of E-1. The convening authority approved the sentence as adjudged and 

credited appellant with 20 days of confinement credit against the sentence to 

confinement. 
HUGGINS–ARMY 20121043

2

We now review appellant’s case under Article 66, UCMJ. Appellant raises 

three assignments of error, one of which warrants discussion and relief. 

Specifically, appellant argues the military judge erred by not merging the two 

aggravated assault specifications for findings as multiplicious. We agree. 

BACKGROUND

Appellant was charged and found guilty of two specifications of aggravated 

assault in violation of Article 128, both arising from the same conduct. The 

government charged appellant using alternative theories as follows: 

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

SPECIFICATION 1: In that [appellant], U.S. Army, did at or 

near Vincenza, Italy, on or about 1 May 2012, commit an 

assault upon [SPC JDB], by striking him in the head, face, 

and nose with a closed fist and did thereby intentionally 

inflict grievous bodily harm upon him, to wit: a fractured 

skull, right eye socket and nose. 

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

SPECIFICATION 2: In that [appellant], U.S. Army, did at or 

near Vincenza, Italy, on or about 1 May 2012, commit an 

assault upon [SPC JDB], by striking him in the head, face, 

and nose with means and force likely to produce death or 

grievous bodily harm, to wit: a closed fist. 

Prior to trial, defense counsel motioned the military judge to consolidate the 

aggravated assault specifications as multiplicious. Defense argued in the alternative 

that together the two specifications constituted an unreasonable multiplication of 

charges. During trial, the government stated the specifications were not 

multiplicious but rather were charged in the alternative. The military judge ruled 

that Specification 2 was not a lesser included offense of Specification 1 and denied 

the defense motion. The panel convicted appellant of both specifications. 

After findings, the military judge again refused to dismiss one of the 

specifications reasoning that the two specifications had different elements and were 

not multiplicious. He did, however, merge them for sentencing. Appellant now 

argues he should only be convicted of a single specification of aggravated assault. 

We agree and accept the government’s concession in this regard. 
HUGGINS–ARMY 20121043

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LAW AND DISCUSSION

Multipilcity

Whether an offense is a lesser-included offense is a question of law we review 

de novo. United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011) (quoting United

States v. Miller, 67 M.J. 385, 387 (C.A.A.F. 2009) (citations omitted)). 

“The prohibition against multiplicity is grounded in compliance with the 

‘constitutional and statutory restrictions against Double Jeopardy.’” United States v. 

Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United States v. Quiroz, 55 M.J. 

334, 337 (C.A.A.F. 2001)). Accordingly, an accused may not be convicted and 

punished for two offenses where one is necessarily included in the other, absent 

congressional intent to permit separate punishments. See United States v. Teters, 37 

M.J. 370, 376 (C.M.A. 1993). 

We apply the elements test to determine whether one offense is a lesser

included offense of another. United States v. Jones, 68 M.J. 465, 468-470

(C.A.A.F. 2010). “Under the elements test, one compares the elements of 

each offense. If all of the elements of offense X are also elements of offense

Y, then X is an LIO of Y. Offense Y is called the greater offense because it 

contains all of the elements of offense X along with one or more additional 

elements.” Id. at 470. The elements test “permits lesser offense instructions 

only in those cases where the indictment contains the elements of both 

offenses,” and as a result “gives notice to the defendant that he may be 

convicted on either charge.” Schmuck v. United States, 489 U.S. 705, 718, 

(1989). “[A]pplying normal rules of statutory interpretation and construction, 

this Court will determine whether the elements of the LIO would necessarily 

be proven by proving the elements of the greater offense.” United States v. 

Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012). As normal principles of statutory 

construction may be employed in this determination, “[t]he elements test does 

not require that the two offenses at issue employ identical statutory 

language.” United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). The 

ultimate rationale for the elements test is that “[t]he due process principle of 

fair notice mandates that 'an accused has a right to know what offense and 

under what legal theory’ he will be convicted.” Jones, 68 M.J. at 468 (quoting 

United States v. Medina, 66 M.J. 21, 26-27 (C.A.A.F. 2008)).

The elements of the aggravated assault with intent to commit infliction of 

grievous bodily harm are as follows: 

(1) That the accused assaulted a certain person;

(2) That grievous bodily harm was thereby inflicted upon 

such person;
HUGGINS–ARMY 20121043

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(3) That the grievous bodily harm was done with unlawful 

force or violence;

(4) That the accused, at the time, had the specific intent 

to inflict grievous bodily harm.

Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], Part IV, ¶ 

54.b.(4)(b); see also UCMJ art. 128(b)(2).

The offense of assault with a dangerous weapon or other means or force likely 

to produce death or grievous bodily harm contains the following elements: 

(1) That the accused attempted to do, offered to do, or 

did bodily harm to a certain person;

(2) That the accused did so with a certain weapon, means, 

or force;

(3) That the attempt, offer, or bodily harm was done with 

unlawful force or violence;

(4) That the weapon, means, or force was used in a 

manner likely to produce death or grievous bodily harm.

MCM, Part IV, ¶ 54.b.(4)(a); see also UCMJ art. 128(b)(1).

While the language of the elements of each offense is not identical, a careful 

reading of the elements reveals the language of Art 128(b)(1) is a subset of Article 

128(b)(2). One might argue that the greater offense only requires proof that the 

accused intended to produce death or grievous bodily harm and that grievous bodily 

harm was inflicted, the instrument of that harm may not necessarily have been a 

“means or force likely to produce death or grievous bodily harm.” Such an 

argument, however, is contrary to the President’s guidance , where he has defined

“other means or force likely to produce death or grievous bodily harm” this way: 

The phrase “other means or force” may include any means 

or instrumentality not normally considered a weapon. 

When the natural and probable consequence of a particular 

use of any means or force would be death or grievous 

bodily harm, it may be inferred that the means or force is 

“likely” to produce that result. The instrumentality may be 

irrelevant if the method employing its use is in a manner 

likely to inflict death or grievous bodily harm. 
HUGGINS–ARMY 20121043

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MCM, ¶ 54.c.(4)(a)(ii). Applying normal rules of statutory interpretation and 

construction, we find proving the greater offense would necessarily prove the lesser 

offense in this case.

Here, appellant repeatedly beat an unconscious soldier about the head, face,

and nose with his closed fists, resulting in broken bones and serious injury. We 

cannot imagine a situation where the government could prove appellant intended to 

cause and actually caused grievous bodily harm in the manner alleged (as required 

by the greater offense) without also proving that appellant's actions were likely to 

produce grievous bodily harm. We, therefore, find the aggravated assault with a 

means or force likely to produce grievous bodily harm or death is a proper lesser

included offense of aggravated assault with intent to commit intentional infliction of 

grievous bodily harm. As a remedy, we affirm the specification stating the greater 

offense.

CONCLUSION

After consideration of the entire record of trial, the finding of guilty of 

Specification 2 of Charge II is set aside and that specification is dismissed. 

The remaining findings of guilty are AFFIRMED. 

Because the military judge merged both aggravated assaults findings for 

sentencing, the factors announced in United States v. Winckelmann, 73 M.J. 11, 15-

16 (C.A.A.F. 2013) weigh in favor of reassessing and affirming the sentence. 

Accordingly, the sentence is AFFIRMED.

Senior Judge TOZZI and Judge CELTNIEKS concur. 

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR.

FOR THE COURT: