UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              YOB, KRAUSS and BURTON
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                       Private First Class COLT M. SMITH
                          United States Army, Appellant

                                   ARMY 20110398

     Headquarters, United States Army Maneuver Support Center of Excellence
                         Charles D. Hayes, Military Judge
                 Colonel James R. Agar II, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard Gorini, JA; Captain Matthew T. Grady (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA (on brief).

                                      26 June 2013
                               --------------------------------
                               SUMMARY DISPOSITION
                               --------------------------------

YOB, Senior Judge:

       A panel of officers, sitting as a general court-martial, convicted appellant,
contrary to his pleas, of maiming and aggravated assault by intentional infliction of
grievous bodily harm, in violation of Articles 124 and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 924, 928 (2006) [hereinafter UCMJ]. The panel
sentenced appellant to a bad-conduct discharge, confinement for five years,
forfeiture of all pay and allowances, a reprimand, and reduction to the grade of E-1.
The convening authority (CA) approved the sentence as adjudged.

       The case is before this court for review under Article 66, UCMJ. We have
considered the record of trial and written briefs of the parties in which appellant
raises two assignments of error. First, appellant asserts that aggravated assault by
intentional infliction of grievous bodily harm is a lesser-included offense of
maiming. Second, appellant argues that the CA’s action as it pertained to waiver of
forfeitures was ambiguous and vague, thus necessitating a new action by the CA.
We agree with appellant on both counts. We have also reviewed the matters
SMITH — ARMY 20110398

personally raised by appellant under United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), and find appellant’s arguments to be without merit.

       In this case, the government charged appellant with both maiming a child and
aggravated assault by intentionally inflicting grievous bodily harm to that same
child. Both the maiming and aggravated assault specifications identically describe
appellant’s criminal conduct as “applying pressure to [the infant’s] ribs and causing
him to undergo rotational acceleration and deceleration and head impact” causing
“broken bones, bleeding on the brain, and damage to the brain.” The military judge
stated that he intended to instruct on lesser-included offenses as it related to the
maiming and aggravated assault specifications. However, the military judge did not
instruct the panel whether they could consider aggravated assault as a lesser-
included offense of maiming, to which neither party objected.

       “Whether an offense is a lesser-included offense is a question of law we
review de novo.” United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011) (quoting
United States v. Miller, 67 M.J. 385, 387 (C.A.A.F. 2009) (citations omitted)). If
counsel does not object during trial, the failure to instruct on a lesser-included
offense is reviewed for plain error. Id. This court applies the “elements test” to
determine whether one offense is lesser-included offense of another. United States
v. Jones, 68 M.J. 465, 470–71 (C.A.A.F. 2010).

       We accept the government’s concession that under the unique facts of this
case, applying the elements test, there is no doubt the aggravated assault
specification was both multiplicious and a lesser-included offense of maiming. See
United States v. Teeters, 37 M.J. 370, 377 (C.M.A. 1993) (citing Blockburger v.
United States, 284 U.S. 299, 304 (1932)) (“[W]here the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not.”)); Jones, 68 M.J. at
470. See also Manual for Courts-Martial, United States (2008 ed.) [hereinafter
MCM], pt. IV, ¶ 50d.(3). Notwithstanding the government’s concession, the
government argues that trial defense counsel forfeited this issue by not raising
multiplicity at trial, thus requiring a plain error analysis. Under this analysis,
“appellant has the burden of demonstrating that: (1) there was error; (2) the error
was plain and obvious; and, (3) the error materially prejudiced a substantial right of
the accused.” United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012). We find
the military judge’s error in failing to find the two offenses multiplicious, coupled
with failing to instruct the panel that aggravated assault is a lesser-included offense
of maiming, was plain and obvious error. Even though the military judge merged
the two offenses for sentencing purposes, we find the dual convictions themselves
prejudicial, where, as here, Congress did not intend appellant’s conduct to be
punishable under both Articles 124 and 128, UCMJ. Ball v. United States, 470 U.S.
856, 862 (1985). Thus, given the finding of guilty to the maiming offense under



                                           2
SMITH — ARMY 20110398

Article 124, UCMJ, we apply a remedy with respect to the multiplicious offenses of
setting aside the finding of guilty to the lesser-included offense of aggravated
assault with intent to commit grievous bodily harm under Article 128, UCMJ.
However, we recognize that since the military judge merged the offenses for
sentencing purposes, the sentencing landscape is not dramatically changed.
Therefore, we see no need to adjust the adjudged sentence.

       In appellant’s next assignment of error, he asserts the CA’s action was
ambiguous and incomplete regarding waiver of automatic forfeitures. In his action,
completed on 18 October 2011, the CA noted he was terminating the deferment of
appellant’s automatic and adjudged forfeitures he previously granted for the benefit
of appellant’s minor children on 25 May 2011. The CA’s action also waived
appellant’s automatic forfeitures, effective on the date of action, for a period of six
months, with the direction that the funds be paid to the guardian of appellant’s minor
children for the benefit of those children.

       However, the CA’s action failed to disapprove appellant’s adjudged
forfeitures, rendering the waiver of automatic forfeitures meaningless. In order to
effectuate the clear intent of the convening authority to provide appellant with
maximum relief from forfeitures for the benefit of appellant’s dependent children,
and in the interest of judicial economy, we set aside that portion of the sentence that
includes forfeiture of pay.

                                   CONCLUSION

       The finding of guilty of Specification 1 of Charge II is set aside and that
Specification is dismissed. The remaining findings of guilty are AFFIRMED.
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), the court affirms only so
much of the sentence as provides for a bad-conduct discharge, confinement for five
years, a reprimand, and reduction to the grade of E-1. All rights, privileges, and
property, of which appellant has been deprived by virtue of that aspect of the
findings and sentence set aside by this decision, are ordered restored. See Articles
58b(c) & 75(a), UCMJ.

      Judge KRAUSS and Judge BURTON concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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


                                           3
