UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         COOK, CAMPANELLA, and HAIGHT
                             Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
                        Specialist CLAYTON W. MOSES
                         United States Army, Appellant

                                  ARMY 20130831

                 Headquarters, 8th Theater Sustainment Command
                          David L. Conn, Military Judge
                 Colonel Paul T. Salussolia, Staff Judge Advocate


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

For Appellee: Lieutenant Colonel James L. Varley, JA (on brief).


                                    17 April 2014

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                              SUMMARY DISPOSITION
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CAMPANELLA, Judge

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of wrongful possession of Fentanyl, wrongful use of Fentanyl,
wrongful possession of Testosterone Enanthate, and stealing Fentanyl in violation of
Articles 112a and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 912a and 921
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge and confinement for three months. The convening authority approved the
adjudged sentence. *

      This case is before us for review pursuant to Article 66, UCMJ. This case
was submitted on its merits and appellant personally raised matters pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find the matters raised




*
 The convening authority waived automatic forfeitures required by Article 58b,
UCMJ, for the benefit of appellant’s wife.
MOSES—ARMY 20130831

personally by appellant are without merit. However, we find one additional matter
warrants discussion and relief.

                               BACKGROUND

      Appellant was working as a licensed practical nurse in the intensive care unit
(ICU) at Tripler Army Medical Center (TAMC).

       After suffering a significant knee injury during his third deployment,
appellant became addicted to narcotic pain medication during his rehabilitation. To
support his addiction, while working at TAMC, appellant stole Fentanyl from
TAMC’s supplies on numerous occasions between 14 June 2012 and 1 March 2013.
Appellant did so through various means including removing it from ICU patients’
intravenous (IV) bags while they slept, ordering it for patients not actually
prescribed Fentanyl and then taking it, taking it from patients prescribed Fentanyl
who were discharged before receiving it, and pretending to dispose of unused
quantities, but instead carrying it away for his own personal use.

      Appellant self-injected the stolen Fentanyl on multiple occasions throughout
the charged time frame at various locations including his car, home, and at the
hospital.

       At the culmination of his addiction, appellant tried unsuccessfully to take his
own life. The following day, appellant was retrieved from his home by his
noncommissioned officer in charge based on his absence from work. Appellant was
taken to his commander, and when she inquired about his absence, appellant
began to admit his addiction. His commander stopped appellant and sent him to the
Schofield Barracks Criminal Investigative Command office to be interviewed.
Ultimately, appellant confessed to criminal investigators that he had been stealing
Fentanyl from TAMC and injecting it.

      Appellant was subsequently charged with and pleaded guilty to the separate
offenses of stealing, using, and possessing Fentanyl, each on divers occasions. The
larceny, use, and possession of the Fentanyl, as charged, occurred over the identical
time period and at the same location (Oahu, Hawaii).

       While discussing appellant’s maximum punishment exposure, the defense
counsel requested and the trial counsel agreed that for sentencing purposes, the
military judge should merge the use and the possession specifications.




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MOSES—ARMY 20130831


                                  DISCUSSION

                                    Multipicity

       Whether two offenses are the same for double jeopardy purposes is a question
of law we review de novo. United States v. Roderick, 62 M.J. 425, 431 (C.A.A.F.
2006).

      Multiplicity is a doctrine, rooted in the Constitution's Fifth Amendment
Double Jeopardy Clause, which provides that no person shall “be subject for the
same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend V; see
United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993). “[The Double Jeopardy
Clause] protects against a second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense after conviction. And it
protects against multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith,
490 U.S. 794 (1989) (footnotes omitted).

       The Supreme Court has recognized that when Congress creates two distinct
offenses, there is a presumption “that it intends to permit cumulative sentences, and
legislative silence on this specific issue does not establish an ambiguity or rebut this
presumption.” Garrett v. United States, 471 U.S. 773, 793 (1985). “Thus, unless
Congress has expressly stated otherwise, a multiplicity violation is determined by
applying the elements test.” United States v. Campbell, 71 M.J. 19, 26 (C.A.A.F.
2012) (citing United States v. Morrison, 41 M.J. 482, 483 (C.A.A.F. 1995)); see also
Blockburger v. United States, 284 U.S. 299 (1932).

       In accordance with United States v. Bullington, 18 M.J. 164 (C.M.A. 1984),
this court has held that specifications alleging use and possession of the same
controlled substance are multiplicious when the amount of controlled substance used
is the same amount that is possessed and the offenses occur at the same time and
location. United States v. Jackson, ARMY 20010355, 2005 WL 6520250 (Army Ct.
Crim. App. 24 Aug. 2005) (mem. op.). Moreover, possession of a controlled
substance that is incident to use is a lesser-included offense of that use. Id. at *2;
see also Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 37.d.(2)(a);
United States v. Holt, 16 M.J. 393, 394 (C.M.A. 1983) (viewing failure of trial or
service appellate courts to dismiss lesser-included offenses as plain error, despite
absence of motion at trial). “Where the lesser-included offense has been charged
along with the greater offense, ‘the military judge should not [enter] findings of
guilty as to both offenses.’” Jackson, 2005 WL 6520250, at *2 (quoting United
States v. Thomas, 43 M.J. 903, 904 (Army Ct. Crim. App. 1996)); see also United
States v. Monday, 52 M.J. 625, 628 n.7 (Army Ct. Crim. App. 1999).




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MOSES—ARMY 20130831

       According to the stipulation of fact and the facts described by appellant
during the providence inquiry, it is clear that the Fentanyl appellant possessed was
precisely the same Fentanyl that he both stole from TAMC and used. The military
judge failed to elicit facts from appellant that established the possession offense
concerned a residual amount of Fentanyl separate and apart from the used Fentanyl.
See Jackson, 2005 WL 6520250, at *1-2. We are therefore uncertain that appellant
understood and agreed that in order to be convicted of both use and possession of
Fentanyl, his possession of the drug could not be inherent in his use of it. See Rule
for Courts–Martial 910(e); United States v. Davenport, 9 M.J. 364, 367 (C.M.A.
1980).

       Under these circumstances, Specification 2 of Charge III (possession of
Fentanyl) is a lesser-included offense of Specification 1 of Charge III (use of
Fentanyl) and is multiplicious. See Bullington, 18 M.J. at 165. As such, we will set
aside and dismiss the possession of Fentanyl specification in our decretal paragraph.

                                   CONCLUSION

      On consideration of the entire record and the noted error, the finding of guilty
of Specification 2 of Charge III is therefore set aside and that Specification is
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 the circumstances presented
by appellant’s case and in accordance with the principles 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).

       In evaluating the Winckelmann factors, we find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Our dismissal of Specification 2 of Charge III does not affect appellant’s
punishment exposure because the military judge merged Specifications 1 and 2 of
Charge III for sentencing. Second, appellant was tried and sentenced by a military
judge. Third, we find the nature of the remaining offenses still captures the
gravamen of the original offenses and the aggravating circumstances surrounding
appellant’s conduct remains admissible and relevant to the remaining offenses.
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 based on the noted error, we AFFIRM the approved
sentence. 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 our decision, are
ordered restored.



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MOSES—ARMY 20130831


    Senior Judge COOK and Judge HAIGHT concur.

                                FOR  THECOURT:
                                FOR THE  COURT:



                                ANTHONY O. POTTINGER
                                ANTHONY         O. POTTINGER
                                Acting Clerk of Court
                                Acting Clerk of Court




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