                                CORRECTED COPY

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

                             UNITED STATES, Appellee
                                         v.
                      Staff Sergeant CHARLES W. HASKETT
                           United States Army, Appellant

                                    ARMY 20130581

              Headquarters, U.S. Army Training Center and Fort Jackson
                   David H. Robertson, Military Judge (arraignment)
                     Kirsten V.C. Brunson, Military Judge (trial)
                Colonel Steven B. Weir, Staff Judge Advocate (pretrial)
       Lieutenant Colonel Robert L. Manley III, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Major
A.G. Courie III, JA; Captain Tara E. O’Brien, JA (on brief).


                                  20 November 2015 1

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

TOZZI, Senior Judge:

       A panel of officer members sitting as a general court-martial convicted
appellant, contrary to his pleas, of three specifications of violating a general
regulation, two specifications of maltreatment, two specifications of sexual assault,
three specifications of abusive sexual contact, one specification of aggravated sexual
contact, one specification of assault consummated by a battery, and one specification
of false official statement, in violation of Articles 92, 93, 120, 128, and 107 Uniform
Code of Military Justice, 10 U.S.C. §§ 892, 893, 920, 928, 907 (2012) [hereinafter
UCMJ]. The panel sentenced appellant to a dishonorable discharge, confinement for
six years, forfeiture of all pay and allowances, and reduction to E-1. The convening

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HASKETT—ARMY 20130581

authority approved the findings and only so much of the sentence extending to a
dishonorable discharge, confinement to five years and eleven months, forfeiture of
all pay and allowances, and a reduction to E-1. 2

       We now review appellant’s case under Article 66, UCMJ. Appellant raises
one assignment of error. We find the matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are without
merit. In his sole assignment of error, appellant alleges the military judge
committed plain error by failing to find the Specification of Charge IV (assault
consummated by a battery) multiplicious with Specification 6 of Charge III
(aggravated sexual contact). We agree and provide relief in our decretal paragraph.

                             LAW AND DISCUSSION

    Appellant was found guilty, inter alia, of the following violations of the
UCMJ:

             CHARGE III: Violation of the UCMJ, Article 120.

             Specification 6: In that [appellant], U.S. Army, did, at or
             near Fort Jackson, South Carolina, on or about 1
             December 2012, touch through the clothing the breast of
             Private M.R.T., by using unlawful force, with an intent to
             arouse and gratify the sexual desire of [appellant].

             CHARGE IV: Violation of the UCMJ, Article 128.

             The Specification: In that [appellant], U.S. Army, did, at
             or near Fort Jackson, South Carolina, on or about 1
             December 2012, unlawfully grab with his hands the wrist
             and elbow of Private M.R.T..

        Appellant’s convictions for aggravated sexual contact and assault
consummated by a battery arose from the same incident. Appellant, while serving as
a drill sergeant, engaged in an inappropriate conversation with Private (PVT)
M.R.T., a trainee, who was on fireguard duty in the barracks. 3 Appellant was


2
 The convening authority credited appellant with thirty days against his sentence to
confinement for post-trial delay.
3
 This conversation resulted in appellant’s conviction of one specification of
violating a general regulation under Article 92, and one specification of
maltreatment under Article 93.



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standing on a balcony outside the window of the barracks when he asked PVT
M.R.T. to give him a “high five.” After PVT M.R.T. complied, appellant grabbed
M.R.T.’s wrist and elbow, pulled her closer towards him, and subsequently touched
her breast through her clothing. Private M.R.T. testified that appellant did not let go
of her prior to touching her breast, although he “pulls harder” after she attempted to
pull back from him. We find the grabbing of PVT M.R.T.’s wrist, elbow, and the
touching of her breast occurred very close in time if not nearly simultaneously.

        Failure to make a timely objection based on multiplicity grounds results in
forfeiture of the issue. United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997).
However, “appellant may show plain error and overcome forfeiture by proving the
specifications are facially duplicative.” United States v. St. John, 72 M.J. 685, 687
n.1 (Army Ct. Crim. App. 2013). “Facially duplicative means the factual
components of the charged offenses are the same.” St. John, 72 M.J. at 687. “The
test to determine whether an offense is factually the same as another offense, and
therefore lesser-included to that offense, is the ‘elements’ test.” United States v.
Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004)(citing United States v. Foster, 40 M.J.
140, 142 (C.M.A. 1994)). “Offenses are multiplicious if one is a lesser-included
offense of the other.” United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002).
“Whether an offense is a lesser-included offense is a matter of law we review de
novo.” United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011).

       Here, the military judge instructed the panel that the unlawful force element
for both aggravated sexual contact and assault consummated by a battery offenses
was that appellant grabbed M.R.T’s wrist and elbow. We conclude that the assault
consummated by a battery specification facially duplicates the aggravated sexual
contact specification because it merely describes the force used to commit the
aggravated sexual contact. It is clear from the record that appellant’s commission of
aggravated sexual contact necessarily includes the assault consummated by a battery.
See UCMJ art. 79; cf. United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). The
lesser offense of assault consummated by a battery is thus multiplicious with the
greater offense of aggravated sexual contact. Accordingly, we find that appellant's
conviction of both offenses was plain error and we will dismiss the lesser-included
offense.

                                   CONCLUSION

      After consideration of the entire record, the finding of guilty of the
Specification of Charge IV is set aside and that specification is dismissed. The
remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior



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court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In
evaluating the Winckelmann factors, we first find no dramatic change in the penalty
landscape that might cause us pause in reassessing appellant’s sentence, as the
dismissal of the Specification of Charge IV lowers the potential maximum sentence
from sixty-three years and six months to sixty-three years. We find the remaining
offenses capture the gravamen of appellant’s criminal conduct. Finally, based on
our experience, we are familiar with the remaining offenses so that we may reliably
determine what sentence would have been imposed at trial.

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principals of Winckelmann, we AFFIRM the approved
sentence. 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.
      Judge CAMPANELLA and Judge CELTNIEKS concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:



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




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