UNITED STATES ARMY COURT 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 Maneuver Support Center of Excellence 

Charles D. Hayes, Military Judge 

Colonel James R. Agar II, Staff Judge Advocate 

 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Richard Gorini, JA; Captain Matthew T. Grady (on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel, 

JA (on brief). 

26 June 2013 

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SUMMARY DISPOSITION 

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YOB, Senior Judge: 

A panel of officers, sitting as a general court-martial, convicted appellant, 

contrary to his pleas, of maiming and aggravated assault by intentional infliction of 

grievous bodily harm, in violation of Articles 124 and 128, Uniform Code of 

Military Justice, 10 U.S.C. §§ 924, 928 (2006) [hereinafter UCMJ]. The panel 

sentenced appellant to a bad-conduct discharge, confinement for five years, 

forfeiture of all pay and allowances, a reprimand, and reduction to the grade of E-1. 

The convening authority (CA) approved the sentence as adjudged. 

The case is before this court for review under Article 66, UCMJ. We have 

considered the record of trial and written briefs of the parties in which appellant 

raises two assignments of error. First, appellant asserts that aggravated assault by 

intentional infliction of grievous bodily harm is a lesser-included offense of 

maiming. Second, appellant argues that the CA’s action as it pertained to waiver of 

forfeitures was ambiguous and vague, thus necessitating a new action by the CA. 

We agree with appellant on both counts. We have also reviewed the matters 
SMITH — 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 appellant with both maiming a child and 

aggravated assault by intentionally inflicting grievous bodily harm to that same 

child. Both the maiming and aggravated assault specifications identically describe 

appellant’s criminal conduct as “applying pressure to [the infant’s] ribs and causing 

him to undergo rotational acceleration and deceleration and head impact” causing 

“broken bones, bleeding on the brain, and damage to the brain.” The military judge 

stated that he intended to instruct on lesser-included offenses as it related to the 

maiming and aggravated assault specifications. However, the military judge did not 

instruct the panel whether they could consider aggravated assault as a lesserincluded offense of maiming, to which neither party objected. 

“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)). 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 offense 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, there is no doubt the aggravated assault 

specification was both multiplicious and a lesser-included 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]here 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 whether each provision 

requires proof of an additional fact which the 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 government’s concession, the 

government argues that trial defense counsel forfeited this issue by not raising 

multiplicity at trial, thus requiring a plain error analysis. Under this analysis, 

“appellant has the burden of demonstrating that: (1) there was error; (2) the error 

was plain and obvious; and, (3) the error materially prejudiced 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 offenses multiplicious, coupled 

with failing to instruct the panel that aggravated assault is a lesser-included offense 

of maiming, was plain and obvious error. Even though the military judge merged 

the two offenses for sentencing purposes, we find the dual convictions themselves 

prejudicial, where, as here, Congress did not intend appellant’s conduct to be 

punishable under both Articles 124 and 128, UCMJ. Ball v. United States, 470 U.S. 

856, 862 (1985). Thus, given the finding of guilty to the maiming offense under 
SMITH — ARMY 20110398 

3 

Article 124, UCMJ, we apply a remedy with respect to the multiplicious offenses of 

setting aside the finding of guilty to the lesser-included offense of aggravated 

assault with intent to commit grievous bodily harm under Article 128, UCMJ. 

However, we recognize that since the military judge merged the offenses for 

sentencing purposes, the sentencing landscape is not dramatically changed. 

Therefore, we see no need to adjust the adjudged sentence. 

 

In appellant’s next assignment of error, he asserts the CA’s action was 

ambiguous and incomplete regarding waiver of automatic forfeitures. In his action, 

completed on 18 October 2011, the CA noted he was terminating the deferment of 

appellant’s automatic and adjudged forfeitures he previously granted for the benefit 

of appellant’s minor children on 25 May 2011. The CA’s action also waived 

appellant’s automatic forfeitures, effective on the date of action, for a period of six 

months, with the direction that the funds be paid to the guardian of appellant’s minor 

children for the benefit of those children. 

However, the CA’s action failed to disapprove appellant’s adjudged 

forfeitures, rendering the waiver of automatic forfeitures meaningless. In order to 

effectuate the clear intent of the convening authority to provide appellant with 

maximum relief from forfeitures for the benefit of appellant’s dependent children, 

and in the interest of judicial economy, we set aside that portion of the sentence that 

includes forfeiture of pay. 

CONCLUSION 

The finding of guilty of Specification 1 of Charge II is set aside and that 

Specification is dismissed. The remaining findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the error noted, the entire 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 bad-conduct discharge, confinement for five 

years, a reprimand, and reduction to the grade of E-1. All rights, privileges, and 

property, of which appellant has been deprived by virtue of that aspect of the 

findings and sentence set 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: