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

                              ----------------------------------
                               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 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 inflic ted 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

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 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 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.


                                            2
FREY—ARMY 20120227

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 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) 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.


                                          3
FREY—ARMY 20120227

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 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 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
                                         FORTHE
                                             THECOURT:
                                                 COURT:




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




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