## 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 20 1 2 0 227

Headquarters, Fort Riley Jeffery R

. Nance , Mil itary Judge

Lieutenant Colonel Daniel G. Brookhart , Staff Judge Advocate

For Appellant: Lie utenant Colonel Peter Kageleiry , Jr.

, JA; Captain Matthew R. Laird, JA (on brief ).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varl ey, JA; Major Robert A. Rodrigues , JA; Captain Benjamin W. Hogan

, JA (on brief)

.

21 February 201 4

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

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

Senior Judge COOK :

A military judge sitting as a general cou rt

- 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 Article s 85

, 119 a nd 128

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

. 1 The

1 A ppellant was found not guilty of three specifications of aggravated assault in which grievous bodily harm is intentionally inflic ted upon a child under the age of 16 years, but gu ilty 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 s pecifications of battery of a child under 16 years of age.FREY

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2

convening authority approved the adjudged sentence o f a dishonorable discharge and eight years of confinement

. 2

This case is before us pursuant to A rticle 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. 198 2). None of these issues merit discussion or relief, however, one additional matter does meri t 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 committ ing a battery upon Master [LF] on 25 April 2011 “by causing pressure to his torso, neck and head” and thereby “producing rotational

acceleration and dec eleration 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

gr ounds 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 lesser

included 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 w aived 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

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3

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

Jones , 68 M.J. 465

.

Th e 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. H owever, when the military judge found appellant guilty only of the lesse r

- included offense of simple battery upon a child, he elimina ted 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).

A ccordingly, appell ant’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

.

W e are able to r eassess 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 p rinciples and non

- exhaustive list of

factors 3 articulated by our superior court in United States v. Winckelmann

, 73 M.J. 11, 15

- 16 (C.A.A.F. 2013) a nd United States v. Sales , 22 M.J. 305 (C.M.A. 1986)

.

Here, a ll four enumerated Winkelmann factors suppor t 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, i n regards to factor

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

3 (1) “ D ramatic changes in penalty landscape and exposur e.”; (2) “W hether an appellant chose se ntencing by memb ers or a military judge alone .” ; (3) “ W hether the nature of the remaining offenses capture the gravamen of criminal conduct included

with in the original offenses . . . .”; and (4) “W hether 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

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4

change in penalty landscape or exposure. Considering factor two , appellant was sentenced by a military judge alone. As for factor three

, w e f ind 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

miscondu ct 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

.

R eassessing the sentence based on the error noted, the amended finding s of guilty, the entire record and the matters personally raised by appellant pursuant to Grostefon , 12 M.J. 431

, we AFFIRM the sentence as appro ved by the convening authority. We find t his 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: