## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before KERN, MORAN, and ALDYKIEWICZ Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s SHELTON A. HUNT United States Army, Appellant

ARMY 20111081

Headquarters, 82d Airbor ne Division (Rear) (Provisional) (convened) Headquarters, 82d Airbor ne Division (action)

Karin G. Tackaber ry, Military Judge

Lieutenant Colonel Paul J. Cu cuzzella, Staff Judge Advocate

For Appellant: Major Ja ired D. Stallard, 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; Captai n Daniel H. Karna, JA (on brief)

25 June 2014

--------------------------------- SUMMARY DISPOSITION

---------------------------------

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of violating a lawful general regulation, in viol ation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892 (2006) [hereinafter UCMJ]. Contrary to appellant’s plea s, the military judg e convicted appella nt of attempted larceny, attempted robbe ry, four specifications of cons piracy, willfully disobeying a lawful command of his superior commission ed officer, violatin g a lawful general regulation, assault in which grievous bodi ly harm is intentio nally inflicted, two specifications of assault with a dangerous weapon, housebreaking, and drunk and disorderly conduct, in violation of Articles 80, 81, 90, 92, 128, 130, and 134, UCMJ. The military judge sentenced appellant to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances , and reduction to the grade of E-1.HUNT–ARMY 20111081

2 The convening authority ap proved 9 years and 11 mont hs confinement and the

remainder of the sentence. 1

We now review appellant’s case under Article 66, UC MJ. Two of appellant’s three assignments of error warrant discussion and relief. First, appellant argues that his conviction for attempted larceny (Specification 2 of Additional Charge I) is multiplicious with his conv iction for attempted robb ery (Specification 1 of Additional Charge I). Seco nd, appellant argues that his convictions for conspiracy to commit larceny, conspi racy to commit ro bbery, and conspira cy to commit housebreaking (Specification 1, 2, and 3 of Additional Charge II, respectively) constitute a single conspiracy. The government concedes both claims. The remaining assignment of er ror and the matters raised personally by appellant

pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) do not warrant

relief.

BACKGROUND

On or about 30 January 2011, appellan t and his co-conspirators broke into a house that they suspected contained illegal drugs and money. Th ey dressed in dark clothing and one conspirator carried a pistol. Appe llant personally kicked down the

house’s back door. Before breaking into the house, appellant and his coconspirators smoked a “blunt” of spice. Al l of the co-conspirat ors knew that they were armed, and the purpose of the housebreaki ng was to steal drugs and money, by force if necessary. Ultimatel y, appellant and hi s co-conspirators did not find any drugs or money in the house.

Later that night, appellant and others became aware of a possible fight at a nightclub called the Speak Easy. Appellan t learned that anothe r person, Specialist (SPC) H, had been “disrespecting” Pr ivate First Class (PFC) Jackson, whom appellant knew. Private First Class Jackson wanted a gun brought to him. Appellant brought the pistol used in the housebreaki ng to the Speak Easy and gave it to PFC Jackson, who was visibly angr y. Private First Class J ackson said that he would

handle the situation. Even tually appellant, PFC Jacks on, and others followed SPC H and his vehicle onto the Fort Bragg insta llation. Private Firs t Class Jackson fired the pistol thirteen times into SPC H’s vehicle. A passenger in that vehicle, SPC G,

was shot in the arm.

1 The convening author ity credited appellant with 151 days of credit against the

sentence to confinement.HUNT–ARMY 20111081

3 LAW AND DISCUSSION

A. Multiplicity

Appellant stands convicte d of both attempted robb ery and attempted larceny

as a result of his actions before and du ring the hou sebreaking. 2 “Robbery is a compound offense cons isting of assaul t and larceny.” United States v. Cunningham

, 6 U.S.C.M.A. 106, 107, 19 C.M.R. 23 2, 233 (C.M.A. 1955). “Offenses are multiplicious if one is a lesser-i ncluded offense of the other.” United States v. Palagar , 56 M.J. 294, 296 (C .A.A.F. 2002). Lesser-included offenses are “necessarily included” within the greater offense. See UCMJ art. 79; cf

. United

States v. Jones , 68 M.J. 465 (C.A.A.F. 2010). As a matter of logic, appellant’s attempt to commit robbery ne cessarily includes an attemp t to commit la rceny. The lesser offense of attempted la rceny is thus multiplicious with the greater offense of attempted robbery.

B. Conspiracy

Appellant was found guilty of, inter alia , three separate sp ecifications of conspiracy: conspiracy to commit lar ceny, conspiracy to commit robbery, and conspiracy to commit house breaking. The object crimes of these specifications

involved the earlier housebrea king into the hou se containing su spected drugs and money. Appellant argues that he should only be convicte d of a single conspiracy. As we explained in an earlier decision:

“[C]onspiracy is a pa rtnership in crime.” Pinkerton v. United States

, 328 U.S. 640, 644 (1946). The essence of a co nspiracy is in the “agreement or confederation to comm it a crime, and that is what is punishable as a conspiracy, if any overt act is take n in pursuit of it.” United States v. Bayer , 331 U.S. 532 , 542 (1947); see Braverman v.

United States , 317 U.S. 49, 53 ( 1942). As such, it is ordinarily the agreement that forms the unit of pros ecution for conspira cy, “even if it contemplates the commission of severa l offenses.” Ro llin M. Perkins & Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982) (citing

Braverman , 317 U.S. at 53); see United States v. Pereira , 53 M.J. 183, 184 (C.A.A.F. 2000) (finding singl e conspiracy to commit murder, robbery, and kidnapping); cf. United States v. Universal C. I. T. Credit Corp ., 344 U.S. 218, 221 & n.3 (1952) (intro ducing concept of “unit of prosecution”).

United States v. Finlayson , 58 M.J. 824, 826 (Army Ct. Crim. App. 2003). Among

the factors we use to determine the numb er of conspiracies include “(1) the

2 He also stands convicted of hou sebreaking under Article 130.HUNT–ARMY 20111081

4 objectives and (2) nature of the scheme in each alleged conspiracy ; (3) the nature of the charge and (4) the overt acts alleged in each; (5) the time and (6) location of each of the alleged conspiraci es; (7) the conspiratorial pa rticipants in each; and (8) the degree of interdependence between the alleged conspiracies.” Id. at 827.

After weighing these factors, we conclude that appe llant and his coconspirators engaged in a single conspiracy here. These acts occurred at the same time, had the same participan ts, and were wholly interdep endent. The housebreaking was a means to achieve the objective of stealing drugs and money. Given this record, we conclude that appellant and his co-conspirators had a single agreement to commit multiple crimes.

The government urges us to consolidat e Specifications 1, 2, and 3 of Additional Charge II. See Finlayson , 58 M.J. at 829. Howeve r, for the same reasons we found attempted larceny to be multiplicious with attempted robbery, we find conspiracy to commit larceny to be mu ltiplicious with cons piracy to commit robbery. We will set aside the finding of guilt of Specificat ion 1 of Additional Charge II and dismiss that specification. We will then consolidate Specifications 2

and 3 of Additional Charge II into the Specification of Addi tional Charge II.

C. Reassessment

Given the errors noted a bove, we are conf ident, consideri ng the remaining specifications, that we ca n reassess appellant’s sentence at our level. United States

v. Winckelmann , 73 M.J. 11 (C.A.A.F. 2013); United States v. Sales, 22 M.J. 305, 307 n.3 (C.M.A. 1986). We note that the military judge treated the three conspiracy specifications at issue as on e specification for sentenci ng purposes. The military judge also treated the atte mpted robbery, attempted larceny, and housebreaking specifications as one for sent encing. Appellant also rema ins convicted of numerous other offenses, including several assault convictions arising from the shooting on Fort Bragg. Thus, neithe r the penalty landscape nor the admissible aggravation evidence has changed.

Appellant also elected tria l by judge alone, and we “are more lik ely to be certain of what a military judg e would have d one as opposed to members.”

Wincklemann , 73 M.J. at 16. Fina lly, we have extensive experience with the remaining convictions, and we are confid ent that we can reli ably assess what sentence a military judge would have imposed on the remaining fi ndings of guilt.

Id . We are confident that the military judg e would have adjudged the same sentence absent the errors noted. However, beca use the convening authority approved two years and one month le ss confinement than the milita ry judge adjudged, we affirm

that lesser sentence. See UCMJ art. 66(c) (“ [A] Court of Criminal Appeals may act only with respect to the fi ndings and sentence as ap proved by the convening authority.”).HUNT–ARMY 20111081

5 CONCLUSION

After consideration of the entire record of trial, ap pellant’s assi gnments of error, and the matters personally raised by appellant pursuant to Grostefon , the findings of guilty of Specif ication 2 of Additional Char ge I and Specification 1 of Additional Charge II are set aside and those specifications are dismissed. Specifications 2 and 3 of Additional Charge II ar e consolidated into the Specification of Additional Ch arge II, to read as follows:

In that Private First Cl ass Shelton A. Hunt, U.S. Army, did at or near Fort Bragg, North Carolina on or about 30 January 20 11, conspire with Private (E-1) Cordic L. Coleman, Private First Class Kamarques K. Dyess, Private (E-1) Br yan C.N. Alston, and Pr ivate First Class Cerion

R. Allen to commit of fenses under the Unif orm Code of Military Justice, to wit: robbery and housebreaking, and in order to effect the object of the conspiracy the said Pr ivate First Class Shelton A. Hunt did dress in black, acquire a firear m, travel to the dwelling house of another, conceal his face, and kick in the back door of said dwelling house to gain entrance.

The remaining findings of gu ilty are AFFIRMED. The sent ence as approved by the convening authority is AFFI RMED. All rights, privileges, and pr operty, of which appellant has been deprived by virtue of th at portion of the findings set aside by this decision, are hereby ordered restored.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: