UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, CAMPANELLA, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Private E1 JUSTIN A.J. FREY

United States Army, Appellant

ARMY 20120227

Headquarters, Fort Riley

Jeffery R. Nance, Military Judge

Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Matthew R. 

Laird, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, 

JA; Major Robert A. Rodrigues, JA; Captain Benjamin W. Hogan, JA (on brief).

21 February 2014

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SUMMARY DISPOSITION

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Senior Judge COOK: 

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

contrary to his pleas, of one specification of desertion, one specification of 

involuntary manslaughter of a child under age 16, and three specifications of battery 

of a child under age 16, in violation of Articles 85, 119 and 128, Uniform Code of 

Military Justice, 10 U.S.C. §§ 885, 919 and 928 (2006) [hereinafter UCMJ].

1

 The 

 

1 Appellant was found not guilty of three specifications of aggravated assault in 

which grievous bodily harm is intentionally inflicted upon a child under the age of 

16 years, but guilty of the lesser included offense of assault consummated by battery 

of a child under the age of 16 years for each of these offenses. The military judge 

acquitted appellant of murder and four additional specifications of battery of a child 

under 16 years of age.
FREY—ARMY 20120227

2

convening authority approved the adjudged sentence of a dishonorable discharge and 

eight years of confinement.

2

This case is before us pursuant to Article 66, UCMJ. Appellant raises one

assignment of error and appellant personally raises matters pursuant to United States 

v. Grostefon, 12 M.J. 431 (C.M.A. 1982). None of these issues merit discussion or 

relief, however, one additional matter does merit discussion and relief.

BACKGROUND

Appellant currently stands convicted of violating Article 119, UCMJ, 

involuntary manslaughter of a child under 16 years of age as follows:

[Appellant], U.S. Army, did, at or near Fort Riley, Kansas, on or about 

25 April 2011, while perpetrating an offense directly affecting

the person of Master [LF], to wit: a battery, unlawfully kill 

Master [LF], a child under 16 years of age, by causing him to

undergo rotational acceleration and deceleration head trauma. 

Pursuant to one of his convictions under Article 128, UCMJ, appellant was 

also found guilty of committing a battery upon Master [LF] on 25 April 2011 “by 

causing pressure to his torso, neck and head” and thereby “producing rotational 

acceleration and deceleration head trauma.” Based on the evidence adduced at trial 

and the record before us, it is clear that this battery is the same battery that supports 

appellant’s conviction for involuntary manslaughter. The overlap is not partial, but 

complete. 

LAW AND DISCUSSION

“The Fifth Amendment protection against double jeopardy provides that an 

accused cannot be convicted of both an offense and a lesser-included offense.” 

United States v. Hudson, 59 M.J. 357, 358 (C.A.A.F. 2004), overruled on other 

grounds by United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). See also Article 

44(a), UCMJ; Blockburger v. United States, 284 U.S. 299 (1932); United States v. 

Teters, 37 M.J. 370 (C.M.A. 1993); United States v. St. John, 72 M.J. 685, 687 

(Army Ct. Crim. App. 2013). “Charges reflecting both an offense and a lesserincluded offense are impermissibly multiplicious.” Hudson, 59 M.J. at 358. An 

offense is a lesser included offense if its elements are the same or a subset of the 

 

2

Pursuant to the military judge’s ruling, the convening authority c redited appellant

with 284 days against his sentence to confinement. The convening authority also 

deferred until action, and waived for six months from action, the automatic 

forfeiture of pay and allowances required by Article 58b, UCMJ, for the benefit of 

appellant’s surviving son. 
FREY—ARMY 20120227

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charged offense. Schmuck v. United States, 489 U.S. 705, 716 (1989); See also 

Jones, 68 M.J. 465. 

The aggravated battery specification in question, Specification 3 of Charge 

III, as charged, was not a lesser-included offense of the involuntary manslaughter 

charge because it contained the additional element that appellant had committed the 

assault with the specific intent to inflict grievous bodily harm. However, when the 

military judge found appellant guilty only of the lesser-included offense of simple

battery upon a child, he eliminated this additional element. Consequently, the 

offense became a lesser included offense of the involuntary manslaughter 

conviction. See Schmuck, 489 U.S. at 719 (“it is impossible to commit the greater 

without having first committed the lesser”) (citation and internal quotation marks 

omitted). Although not dispositive, assault consummated by a battery is a listed 

lesser included offense under Article 119, UCMJ. See Manual for Courts-Martial, 

United States (2008 ed.), pt. IV, ¶44.d(1)(a).

Accordingly, appellant’s conviction for the lesser included offense is 

multiplicious and must be set aside. 

 

CONCLUSION

On consideration of the entire record, the finding of guilty of Specification 3, 

Charge III is set aside and dismissed. We AFFIRM the remaining findings of guilty.

We are able to reassess the sentence on the basis of the error noted and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles and non-exhaustive list of 

factors3articulated by our superior court in United States v. Winckelmann, 73 M.J. 

11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). 

Here, all four enumerated Winkelmann factors support our ability to reassess 

appellant’s sentence. First, the military judge, after convicting appellant of both 

offenses, found that Specification 3 of Charge III was “an unreasonable 

multiplication of charges” with the involuntary manslaughter conviction a nd further 

stated that he would “treat them as one for sentencing.” Thus, in regards to factor 

one, we find our setting aside of Specification 3 of Charge III does not result in a 

 

3

(1) “Dramatic changes in penalty landscape and exposure.”; (2) “Whether an 

appellant chose sentencing by members or a military judge alone.”; (3) “Whether the 

nature of the remaining offenses capture the gravamen of criminal conduct included 

within the original offenses . . . .”; and (4) “Whether the remaining offenses are of 

the type that judges of the courts of criminal appeals should have the experience and 

familiarity with to reliably determine what sentence would have been imposed at 

trial.” Winckelmann, 73 M.J. at 15-16.
FREY—ARMY 20120227

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change in penalty landscape or exposure. Considering factor two, appellant was 

sentenced by a military judge alone. As for factor three, we find the nature of the 

remaining involuntary manslaughter conviction not only captures the gravamen of 

the battery charge, but as discussed above, necessarily incorporates the same 

misconduct found in the now dismissed battery specification. Finally, in regards to 

the fourth factor, the remaining offenses are the type of offense s that we have the 

experience and familiarity with to reliably determine what sentence would have been 

imposed.

Reassessing the sentence based on the error noted, the amended findings of 

guilty, the entire record and the matters personally raised by appellant pursuant to 

Grostefon, 12 M.J. 431, we AFFIRM the sentence as approved by the convening 

authority. We find this reassessed sentence is not only purged of any error, but is 

also appropriate. 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 

hereby ordered restored.

 

Judge CAMPANELLA and Judge HAIGHT concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court 

MALCOLM H. SQUIRES, JR.

Clerk of Court

FOR THE COURT: