UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                  Staff Sergeant RIGOBERTO CARRILLO, JR.
                          United States Army, Appellant

                                  ARMY 20130208

                       Headquarters, 25th Infantry Division
                          David L. Conn, Military Judge
   Colonel Mark A. Bridges, Staff Judge Advocate (advice and recommendation)
  Lieutenant Colonel Steven M. Ranieri, Acting Staff Judge Advocate (addendum)



For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Sara
E. Lampro, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Alison L. Gregoire, JA; Captain Sean P. Fitzgibbon, JA (on brief).


                                   27 August 2014
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------
Per Curiam:

      A panel of officers and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of assault with a means likely to produce
death or grievous bodily harm and assault by intentionally inflicting grievous bodily
harm, in violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928
(2006) [hereinafter UCMJ]. The panel sentenced appellant to a bad-conduct
discharge, confinement for two years, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority approved the adjudged
sentence.

      This case is before us for review under Article 66, UCMJ. One of appellant’s
assignment’s of error warrants discussion and relief. His other assignment of error
and personal submission made pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), do not warrant relief.
CARRILLO—ARMY 20130208

       Appellant was charged and found guilty of two specifications of aggravated
assault arising from a single stabbing. In Specification 1 of the Charge, appellant
was charged with committing “an assault upon Specialist [DP] by stabbing him in
the abdomen with a means likely to produce death or grievous bodily harm, to wit: a
knife.” In Specification 2 of the Charge, appellant was charged with committing “an
assault upon Specialist [DP] by stabbing him in the abdomen and did thereby
intentionally inflict grievous bodily harm upon him, to wit: a deep cut.”

       At arraignment, the trial counsel acknowledged that the offenses were pled in
the alternative. During findings instructions, the military judge instructed the panel:

             Now, this is a permissible manner of charging a criminal
             act. You must make separate findings of whether the
             accused is guilty or not guilty of each of these offenses. I
             advise you it is possible to find the accused guilty of one
             offense but not the other. If you find the accused guilty of
             both offenses, which is also possible, I will make an
             appropriate determination as to how your verdict shall be
             construed as a matter of law.

After the panel returned findings of guilty to both specifications, the military judge
merged the two specifications into a single specification:

             In that [appellant] U.S. Army, did at or near Schofield
             Barracks, Hawaii, on or about 4 July 2012, commit an
             assault on Specialist [DP], by stabbing him in the
             abdomen with the means likely to produce death or
             grievous bodily harm which was with a knife and did
             thereby intentionally inflict grievous bodily harm upon
             him to wit: a deep cut.

The military judge provided the panel with a flyer with the amended specification
and properly instructed them that the maximum punishment was a dishonorable
discharge, confinement for five years, total forfeitures, and reduction to the grade of
E-1, which is the maximum punishment for assault by intentionally inflicting
grievous bodily harm.

       This court is now faced with a single specification that states two offenses.
See Rule for Courts-Martial [hereinafter R.C.M.] 307(c)(4) (“Each specification
shall state only one offense.”). Ordinarily, the sole remedy for a duplicitous
specification is severance of the specification into two or more specifications, each
of which alleges a separate offense contained in the duplicitous specification.
R.C.M. 906(b)(5) discussion. However, other remedies may be appropriate if the
duplicitous specification results in other defects. Id. In this case, severance is an



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CARRILLO—ARMY 20130208

inappropriate remedy. First, it would return the specifications to the status quo
preceding the military judge’s remedy and does not provide appropriate relief to
appellant. Second, and more importantly, as charged, it is impossible to prove
assault by intentionally inflicting grievous bodily harm without also proving assault
with a means likely to produce death or grievous bodily harm.

       Thus, the assault with a means likely to produce death or grievous bodily
harm specification is a lesser-included offense of assault by intentionally inflicting
grievous bodily harm. See United States v. St. John, 72 M.J. 685, 687-88 (Army. Ct.
Crim. App. 2013) (examining the specifications as pleaded in applying the elements
test). “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). As a remedy, we affirm a specification stating the greater offense.

       This remedy does not affect the sentence for two reasons. First, the military
judge instructed the panel that they could only sentence appellant for a single
offense. Second, the gravamen of the offense and admissible aggravation evidence
remain unchanged. See 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). *

                                   CONCLUSION

      Upon consideration of the entire record, including the matters submitted
pursuant to Grostefon, this court only affirms so much of the Specification of The
Charge and The Charge as follows:

             THE CHARGE: VIOLATION OF THE UCMJ, ARTICLE
             128.

             The Specification: In that [appellant] U.S. Army, did at or
             near Schofield Barracks, Hawaii, on or about 4 July 2012,
             commit an assault on Specialist [DP], by stabbing him in
             the abdomen and did thereby intentionally inflict grievous
             bodily harm upon him to wit: a deep cut.

Reassessing the sentence on the basis of the error noted and in accordance with the
principles announced in Winckelmann, the sentence is AFFIRMED. We find this
reassessed sentence is not only purged of any error but is also appropriate. All

*
  We further note that the result of trial and appellant’s clemency submission both
indicate that appellant was convicted of two specifications. To the extent that the
convening authority erroneously relied on the result of trial, we find no prejudice to
appellant, in part because our relief moots any claim of prejudice.


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CARRILLO—ARMY 20130208

rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by our decision, are ordered restored.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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