## UNITED STATES ARMY COUR T 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 Co rps and Fort Hood Gregory Gross, Military Judge (arraignment) James L. Varley, Military Judge (trial) Colonel Stuart W. Risch, Sta ff Judge Advocate (pretrial) Colonel Richard W. Rousseau, St aff Judge Advocat e (post-trial)

For Appellant: Colo nel Kevin Boyle, JA; Major Yo landa D. McCray Jones, JA; Captain Brian D. Ande s, JA (on brief).

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

25 November 2015

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

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

Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to he r pleas, of aggravated assault with intent to inflict grievous bodily
harm in violation of Artic le 128, Uniform Code of M ilitary Justice [hereinafter UCMJ], 10 U.S.C. § 928 (2006) . The military judge convicte d appellant, contrary to her pleas, of attempted unp remeditated murder, assault consummated by a battery, and aggravated assault with a dangerous w eapon in violation of Articles 80 and 128, UCMJ, 10 U.S.C. §§ 880, 928 (2006). The military j udge sentenced appellant to a dishonorable discharge, thirteen years confinement, forfeitu re of all pay and allowances, and reduction to the grade of E-1. The convening au thority approved only so much of the sentence as provided for a dishonorab le discharge, confinement for twelve years and eleven months, forf eiture of all pay and allowances, and reduction to the grade of E-1. The convening authority al so credited ap pellant with 306 days against the sent ence to co nfinement.THOMAS—ARMY 20120857

2 Appellant’s case is before the court for review pu rsuant to Article 66, UCMJ. Appellant raises two assignments of error, one of which me rits discussion and relief. The remaining assignment of error is thus rendered m oot. The matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), are wit hout merit.

Multiplicity and Unreasonable Multiplication of Charges: Attempted Murder and Aggravated Assault

Appellant pleaded guilty to aggravated as sault with intent to inflict grievous bodily harm upon Specialist (SPC ) PC on or about 1 April 2012 (Spe cification 1 of Charge II). The milita ry judge also co nvicted appellant, contra ry to her pleas, of attempted unpremeditated murd er 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 infl ict grievous bodily harm offense after application of the doctrines of multiplic ity 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 ap pellant be convicted of both. “As a matter of logic and law, if an offense is multiplicious for sentencing it must nece ssarily be multi plicious for findings as well.” United States v. Campbell , 71 M.J. 19, 23 (C.A.A.F. 2012).

Without addressing whethe r 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 (A rmy. Ct. Crim. App. 2013).

“Facially duplicative” m eans 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 dupli cative if each ‘requi res 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 i nvolve a “‘literal application of the elements test,’” but rather requires a “realistic comparison of the two offenses to determine wh ether one is rationally derivati ve 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 appe llant with attempte d premeditated murder of SPC PC in Specification 1 of Charge I, to whic h the military judge fo und her not guilty but guilty of the lesser-include d offense of attempted un premeditated murder.THOMAS—ARMY 20120857

3 the providence inquiry c onducted 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 anot her, the offenses are facially duplicative. See St. John , 72 M.J. at 688-89; see also United St ates v. Palagar , 56 M.J. 294, 296 (C .A.A.F. 2002).
“Whether an offense is a lesser-include d 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 fa cially duplicative because the conduct alleged in the at tempted unpremeditated murder finding is factually the same as that alleged in the aggravated assault with intent to inflict grievous bodily harm specification. The prov idence inquiry established that appellant stabbed SPC PC in the torso with a knife on 1 April 2012. The contested po rtion of the courtmartial established appe llant’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 bodi ly harm was a lesse r-included offense of the attempted murder.

Trial defense counsel filed motions alle ging multiplicity and an unreasonable multiplication of charges, but no motions re garding the specificat ions in question here presumably because she believed she should not be conv icted of a lesserincluded offense to a specifi cation to which she pled not guilty. The military judge, with the government’s concession, treated the two sp ecifications as “merged for sentencing.” However, an “unauthorized conviction has ‘potential adverse consequences that may not be ignored,’ a nd 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 (1 985)). We will set as ide and dismiss the aggravated assault with intent to inflic t 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 remain ing findings of guilty are

AFFIRMED.

Reassessing the sentence on the basis of the errors note d, 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 confiden t 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 appellan t 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: