## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before YOB, KRAUSS and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class COLT M. SMITH United States Army, Appellant

ARMY 20110398

Headquarters, United States Army Mane uver Support Cent er of Excellence Charles D. Hayes, Military Judge Colonel James R. Agar II , Staff Judge Advocate

For Appellant: Colonel Patr icia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard Gorini, JA; Ca ptain Matthew T. Grady (on brief).

For Appellee: Li eutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, JA (on brief).

26 June 2013

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

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

YOB, Senior Judge:

A panel of officers, sitting as a general court-ma rtial, convicted appellant, contrary to his pleas, of maiming and aggravated assa ult by intentiona l infliction of grievous bodily harm, in vi olation of Articles 124 and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 924, 928 (2006) [her einafter UCMJ]. The panel sentenced appellant to a bad-conduct di scharge, confinement for five years, forfeiture of all pay and al lowances, a reprimand, and redu ction to the grade of E-1. The convening authority (CA) approved the sent ence as adjudged.

The case is before this court for review under Article 66, UCMJ. We have
considered the record of tr ial and written briefs of th e parties in which appellant raises two assignments of erro r. First, appellant asserts that aggravated assault by intentional infliction of grievous bodily harm is a lesser-i ncluded offense of maiming. Second, appell ant argues that the CA ’s action as it pert ained to waiver of forfeitures was ambiguous a nd vague, thus necessitating a new action by the CA. We agree with appellant on both counts . We have also re viewed the mattersSMITH — ARMY 20110398

2 personally raised by appellant under United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), and find appellant’s arguments to be without merit.

In this case, the government charged ap pellant with both maiming a child and aggravated assault by intentionally inflicting grievous bodily harm to that same child. Both the maiming and aggravated assault specifica tions identically describe appellant’s criminal c onduct as “applying pres sure to [the infant ’s] ribs and causing him to undergo rotati onal acceleration and decelera tion and head im pact” causing “broken bones, bleeding on the brain, and damage to the brain. ” The military judge
stated that he intended to instruct on lesser-i ncluded offenses as it related to the maiming and aggravated assault specificati ons. However, the m ilitary judge did not instruct the panel whether they could c onsider aggravated assault as a lesserincluded offense of ma iming, to which neither party objected.

“Whether an offense is a lesser-inclu ded offense is a que stion 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)). If counsel does not object during trial, the failure to instruct on a lesser-included offense is reviewed for plain error. Id. This court applies the “elements test” to
determine whether one offe nse is lesser-included offense of another. United States
v. Jones , 68 M.J. 465, 470–71 (C.A.A.F . 2010).

We accept the government’s concession that under the unique facts of this case, applying the elements test, ther e is no doubt the aggravated assault specification was both multip licious and a lesser-include d offense of maiming. See
United States v. Teeters , 37 M.J. 370, 377 (C .M.A. 1993) (citing Blockburger v.
United States , 284 U.S. 299, 304 (1932)) (“[W]h ere the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whet her each provision requires proof of an a dditional fact which th e other does not.”)); Jones , 68 M.J. at
470. See also Manual for Courts-Martial

, United States (2008 ed.) [hereinafter
MCM ], pt. IV, ¶ 50d.(3). Notwithstanding the gover nment’s concession, the government argues that trial defense couns el forfeited this issue by not raising multiplicity at trial, thus requiring a plain error analysis. Under this analysis, “appellant has the burd en of demonstrating that: (1) there was error; (2) the error was plain and obvious; and, (3) the error materially pr ejudiced a substantial right of
the accused.” United States v. Wilkins , 71 M.J. 410, 412 (C.A.A .F. 2012). We find the military judge’s error in failing to find the two offe nses multiplici ous, coupled with failing to in struct the panel that aggravated as sault is a lesser-included offense of maiming, was plain and obv ious error. Even though the military judge merged
the two offenses for sentenci ng purposes, we find the du al convictions themselves prejudicial, where, as here, Congress di d not intend appellan t’s conduct to be punishable under both Arti cles 124 and 128, UCMJ. Ball v. United States , 470 U.S. 856, 862 (1985). Thus, give n the finding of guilty to the maiming offense underSMITH — ARMY 20110398

3 Article 124, UCMJ, we apply a remedy with respect to the multiplicious offenses of setting aside the finding of guilty to th e lesser-included offe nse of aggravated
assault with intent to co mmit grievous bodily harm under Article 128, UCMJ. However, we recognize that since the military judge merged the offenses for sentencing purposes, the sentencing land scape is not dramat ically changed. Therefore, we see no need to adjust th e adjudged sentence.

In appellant’s next assi gnment of error, he asserts the CA’s action was ambiguous and incomplete rega rding waiver of automatic fo rfeitures. In his action, completed on 18 October 2011 , the CA noted he was term inating the deferment of appellant’s automatic and adjudged forfeitu res he previously granted for the benefit of appellant’s minor chil dren on 25 May 2011. The CA ’s action also waived appellant’s automatic forfeiture s, effective on the date of action, fo r a period of six months, with the direction that the funds be paid to the guardian of appe llant’s minor
children for the benefit of those children.

However, the CA’s action failed to disapprove appe llant’s adjudged forfeitures, rendering the waiver of automatic forfeitu res meaningless. In order to
effectuate the clear intent of the conven ing authority to prov ide appellant with
maximum relief from forfeitu res for the benefit of appe llant’s dependent children, and in the interest of judici al economy, we set aside that po rtion of the se ntence that
includes forfeitu re of pay.

CONCLUSION

The finding of guilty of Specification 1 of Charge II is set aside and that Specification is dismissed. The remaining fi ndings of guilty are AFFIRMED. Reassessing the sentence on the basis of the er ror noted, the entir e record, and in accordance with the principles of United States v. Sales , 22 M.J. 305 (C.M.A. 1986)
and United States v. Moffeit , 63 M.J. 40 (C.A.A .F. 2006), the court affirms only so much of the sentence as provides for a ba d-conduct discharge, confinement for five years, a reprimand, and reduction to the grade of E- 1. All rights, privileges, and property, of which ap pellant has been depr ived by virtue of that aspect of the findings and sentence se t aside by this decision, are ordered restored. See Articles 58b(c) & 75(a), UCMJ.

Judge KRAUSS and Judge BURTON concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: