UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            KERN, ALDYKIEWICZ, and MARTIN
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                           Specialist NATHAN R. KNIGHT
                            United States Army, Appellant

                                     ARMY 20110858

                               Headquarters, Fort Bliss
                           Karen W. Riddle, Military Judge
                     Colonel Francis P. King, Staff Judge Advocate

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Captain Steve T. Na m, JA (on brief).


                                        29 July 2013

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

ALDYKIEWICZ, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of rape by force, forcible sodomy, and aggravated assault with
a dangerous weapon, in violation of Articles 120, 125, and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 925, 928 (2006 & Supp V 2011), amended by 10
U.S.C. § 920 (2012) [hereinafter UCMJ], respectively. The convening authority
approved the adjudged sentence of a dishonorable discharge, confinement for twelve
years, and reduction to the grade of E-1. 1

       This case is before us for review pursuant to Article 66, UCMJ. One of
appellant’s assignments of error merits discussion and relief. All other matters
raised by appellant, including those matters personally raised pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), do not merit relief.




1
    Appellant was credited with 133 days of pretrial confinement credit.
KNIGHT — ARMY 20110858

                                  BACKGROUND

       During the early morning hours of 7 May 2011 on Fort Bliss, Texas, appellant
observed Specialist (SPC) DF, a soldier appellant knew for less than two months and
with whom he had no prior relationship, returning to her trailer, a trailer that served
as her on-post quarters. Unbeknownst to SPC DF, appellant followed her. Once
behind SPC DF, appellant grabbed her and placed a knife to her throat, pushing her
in between several trailers, threatening to kill her if she screamed or resisted . Once
he established control of SPC DF, appellant put his knife in his pocket and
proceeded to first anally sodomize, and then rape her, both acts occurring from
behind as appellant held SPC DF against a trailer. Appellant sodomized SPC DF for
five to ten minutes and raped her for another five to ten minutes.

      Appellant subsequently pled guilty to rape by force, forcible sodomy, and
aggravated assault with a dangerous weapon, as follows:

      CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 120

             SPECIFICATION 1: In that SPC Nathan Knight, U.S.
             Army, did, at or near Fort Bliss, Texas, b etween or about
             [sic] 1 May 2011 and 15 May 2011, cause SPC [DF] to
             engage in a sexual act, to wit: penetration of her vulva by
             his penis, by using a dangerous weapon or object to wit: a
             knife or a sharp object against her body.

      CHARGE III: VIOLATION OF THE UCMJ, ARTICLE 125

             THE SPECIFICATION: In that Specialist Nathan Knight,
             U.S. Army, did, at or near Fort Bliss, Texas, between on
             or about 1 May 2011 and 15 May 2011, commit sodomy
             with Specialist [DF] by force and without the consent of
             SPC [DF].

      CHARGE IV: VIOLATION OF THE UCMJ, ARTICLE 128

             THE SPECIFICATION: In that Specialist Nathan Knight,
             U.S. Army, did, at or near Fort Bliss, Texas, between on
             or about 1 May 2011 and 15 May 2011, commit an assault
             upon SPC [DF] by touching her on the neck with a
             dangerous weapon, to wit: a knife.




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KNIGHT — ARMY 20110858

                              LAW AND DISCUSSION

       For the first time on appeal, appellant alleges that his conviction for
aggravated assault with a dangerous weapon is multiplicious with his convictions for
rape by force and forcible sodomy. We agree in part. A review of the record reveals
that the aggravated assault with a dangerous weapon, a knife to SPC DF’s neck, was
the force used to effectuate both the rape by force and forcible sodomy.

       “[A]ppellate consideration of multiplicity claims is effective ly waived by
unconditional guilty pleas, except where the record shows that the challenged
offenses are ‘facially duplicative.’” United States v. St. John, __ MJ ___ (3) (Army
Ct. Crim. App. 2013) (internal citations omitted); see United States v. Heryford, 52
M.J. 265, 266 (C.A.A.F. 2000). “Facially duplicative means the factual components
of the charged offenses are the same.” St. John, __ M.J. at ___ (3) (internal
citations omitted). “Whether specifications are factually duplicative is determined
by reviewing the language of the specifications and ‘facts apparent on the face of the
record.’” Heryford, 52 M.J. at 266 (quoting United States v. Lloyd, 46 M.J. 19, 24
(C.M.A. 1997)). In this case, the pleadings alone demonstrate that the rape by force
is facially duplicative with the aggravated assault with a dangerous weapon. Our
review of the “the language of the specifications and ‘facts apparent on the face of
the record,’” Heryford, 52 M.J. at 266, confirms this conclusion.

        “The Fifth Amendment protection against double jeopardy provides that an
accused cannot be convicted of both an offense and a lesser -included offense. See
Article 44(a), UCMJ, 10 U.S.C. § 844(a) (2000); Blockburger v. United States, 284
U.S. 299 (1932); United States v. Teters, 37 M.J. 370 (C.M.A. 1993). Charges
reflecting both an offense and a lesser-included offense are impermissibly
multiplicious.” 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).
An offense is a lesser-included offense if its elements are the same or a subset of the
charged offense. Schmuck v. United States, 489 U.S. 705, 716 (1989); United States
v. Jones, 68 M.J. 465 (C.A.A.F. 2010). In other words, “it is impossible to commit
the greater without first having committed the lesser.” Schmuck, 489 U.S. at 719.
“The elements test does not require that the two offenses at issue employ identical
statutory language. Instead, the meaning of the offenses is ascertained by applying
the ‘normal principles of statutory construction.’” United States v. Alston, 69 M.J.
214, 216 (C.A.A.F. 2010) (quoting Carter v. United States, 530 U.S. 255, 263
(2000)). As plead and under the facts of this case, we conclude that aggravated
assault with a dangerous weapon is a lesser -included offense of rape by force. Cf.
United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2013) (relying on the elements as
alleged in the specification to determine greater -lesser relationship between
offenses). Accordingly, appellant’s conviction for aggravated assault with a
dangerous weapon must be set aside, a matter conceded by the government in its
pleadings before this court.



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KNIGHT — ARMY 20110858

                                   CONCLUSION

       On consideration of the entire record, including those matters personally
raised by appellant, the findings of guilty of Charge IV and its specification are set
aside and Charge IV and its specification are dismissed. The remaining findings of
guilty are AFFIRMED. Appellant still faces a maximum punishment of life without
eligibility of parole, and the aggravation evidence before the sentencing authority is
unchanged. 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), to include
the factors identified by Judge Baker in his concurring opinion in Moffeit, the
approved sentence is AFFIRMED. 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 ordered restored. See UCMJ art. 75(a).
      Judge MARTIN concurs.

KERN, Senior Judge, concurring in the result:

       In my opinion, the charged aggravated assault with a dangerous weapon is not
a lesser-included offense of the charged rape by force. However, I concur in setting
aside the findings of guilty to aggravated as sault with a dangerous weapon (Charge
IV and its specification). After application of the Quiroz factors, the aggravated
assault with a dangerous weapon offense constitutes an unreasonable multiplication
of charges with the rape by force and forcible sodo my offenses when the force used
to effectuate both the rape and sodomy was the aggravated assault. See United
States v. Quiroz, 55 M.J. 334, 338–339 (C.A.A.F. 2001).




                                       FOR
                                        FORTHETHE
                                               COURT:
                                                  COURT:




                                       MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                       Clerk
                                        Clerkof Court
                                                of Court




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