UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

GLANVILLE, HERRING, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class ASHLEY N. THOMAS 

United States Army, Appellant 

ARMY 20120857 

Headquarters, III Corps and Fort Hood 

Gregory Gross, Military Judge (arraignment) 

James L. Varley, Military Judge (trial) 

Colonel Stuart W. Risch, Staff Judge Advocate (pretrial) 

Colonel Richard W. Rousseau, Staff Judge Advocate (post-trial) 

For Appellant: Colonel Kevin Boyle, JA; Major Yolanda D. McCray Jones, JA; 

Captain Brian D. Andes, JA (on brief). 

For Appellee: Major A.G. Courie III, JA; Major Matthew T. Grady, JA (on brief). 

25 November 2015 

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SUMMARY DISPOSITION 

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Per Curiam: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to her pleas, of aggravated assault with intent to inflict grievous bodily 

harm in violation of Article 128, Uniform Code of Military Justice [hereinafter 

UCMJ], 10 U.S.C. § 928 (2006). The military judge convicted appellant, contrary to 

her pleas, of attempted unpremeditated murder, assault consummated by a battery, 

and aggravated assault with a dangerous weapon in violation of Articles 80 and 128, 

UCMJ, 10 U.S.C. §§ 880, 928 (2006). The military judge sentenced appellant to a 

dishonorable discharge, thirteen years confinement, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. The convening authority approved 

only so much of the sentence as provided for a dishonorable discharge, confinement 

for twelve years and eleven months, forfeiture of all pay and allowances, and 

reduction to the grade of E-1. The convening authority also credited appellant with 

306 days against the sentence to confinement. 
THOMAS—ARMY 20120857 

2

Appellant’s case is before the court for review pursuant to Article 66, UCMJ. 

Appellant raises two assignments of error, one of which merits discussion and relief. 

The remaining assignment of error is thus rendered moot. The matters personally 

raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 

1982), are without merit. 

Multiplicity and Unreasonable Multiplication of Charges: 

Attempted Murder and Aggravated Assault 

Appellant pleaded guilty to aggravated assault with intent to inflict grievous 

bodily harm upon Specialist (SPC) PC on or about 1 April 2012 (Specification 1 of 

Charge II). The military judge also convicted appellant, contrary to her pleas, of 

attempted unpremeditated murder of SPC PC on or about 1 April 2012 (Specification 

1 of Charge I).* Appellant now argues the military judge should have dismissed the 

aggravated assault with intent to inflict grievous bodily harm offense after 

application of the doctrines of multiplicity or unreasonable multiplication of 

charges. 

At trial, the government’s attempted solution in its response to the defense 

motion for appropriate relief was to “merge for sentencing” the attempted 

premeditated murder with the aggravated assault with intent to inflict grievous 

bodily harm, should appellant be convicted of both. “As a matter of logic and law, 

if an offense is multiplicious for sentencing it must necessarily be multiplicious for 

findings as well.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012). 

Without addressing whether appellant should have moved to dismiss for 

multiplicity after findings, we analyze the issue of multiplicity for plain error. 

United States v. Barner, 56 M.J. 131, 137 (C.A.A.F 2002). An appellant may 

demonstrate plain error by proving the offenses are “facially duplicative.” United 

States v. St. John, 72 M.J. 685, 687 n.1 (Army. Ct. Crim. App. 2013). 

“Facially duplicative” means the factual components of the charged offenses 

are the same. Id. at 687 (citing United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 

1997)). “Two offenses are not facially duplicative if each ‘requires proof of a fact 

which the other does not.’” United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 

2004)(quoting United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004)). This 

analysis does not solely involve a “‘literal application of the elements test,’” but 

rather requires a “realistic comparison of the two offenses to determine whether one 

is rationally derivative of the other.” Pauling, 60 M.J. at 94 (quoting Hudson, 59 

M.J. at 359). It “turns on both the factual conduct alleged in each specification and 

 

*

 The government charged appellant with attempted premeditated murder of SPC PC 

in Specification 1 of Charge I, to which the military judge found her not guilty but 

guilty of the lesser-included offense of attempted unpremeditated murder. 
THOMAS—ARMY 20120857 

3

the providence inquiry conducted by the military judge at trial.” Pauling, 60 M.J. at 

94 (quoting Hudson, 59 M.J. at 359) (internal quotation marks omitted). 

Consequently, where after examination of these factors, an offense is a lesserincluded offense of another, the offenses are facially duplicative. See St. John, 72 

M.J. at 688-89; see also United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002). 

“Whether an offense is a lesser-included offense is a matter of law we review de 

novo.” St. John, 72 M.J. at 687 (quoting United States v. Arriaga, 70 M.J. 51, 54 

(C.A.A.F. 2011)). 

We find these offenses as charged in this case are facially duplicative because 

the conduct alleged in the attempted unpremeditated murder finding is factually the 

same as that alleged in the aggravated assault with intent to inflict grievous bodily 

harm specification. The providence inquiry established that appellant stabbed SPC 

PC in the torso with a knife on 1 April 2012. The contested portion of the courtmartial established appellant’s specific intent to kill SPC PC by stabbing her with a 

knife in the torso on 1 April 2012. Under the facts of this case, the aggravated 

assault with intent to inflict grievous bodily harm was a lesser-included offense of 

the attempted murder. 

Trial defense counsel filed motions alleging multiplicity and an unreasonable 

multiplication of charges, but no motions regarding the specifications in question 

here presumably because she believed she should not be convicted of a lesserincluded offense to a specification to which she pled not guilty. The military judge, 

with the government’s concession, treated the two specifications as “merged for 

sentencing.” However, an “unauthorized conviction has ‘potential adverse 

consequences that may not be ignored,’ and constitutes unauthorized punishment in 

and of itself.” United States v. Savage, 50 M.J. 244, 245 (C.A.A.F. 1999) (quoting 

Ball v. United States, 470 U.S. 856, 865 (1985)). We will set aside and dismiss the 

aggravated assault with intent to inflict grievous bodily harm conviction in our 

decretal paragraph. 

CONCLUSION 

The finding of guilty of Specification 1 of Charge II is set aside. 

Specification 1 of Charge II is dismissed. The remaining findings of guilty are 

AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, the entire record, 

and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08 

(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 

2013), we are confident the military judge would have adjudged the same sentence 

absent the error noted. The approved sentence is AFFIRMED. All rights, 

privileges, and property, of which appellant has been deprived by virtue of that 

portion of the findings set aside by this decision, are ordered restored.
THOMAS—ARMY 20120857 

4

FOR THE COURT: 

JOHN P. TAITT 

 Deputy Clerk of Court 

JOHN P. TAITT 

Chief Deputy Clerk of Court 

FOR THE COURT: