       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                   FOR THE    ARMED FORCES
                          _______________

                        UNITED STATES
                            Appellee
                                 v.
        Deontray D. COLEMAN, Private First Class
               United States Army, Appellant
                           No. 19-0087
                     Crim. App. No. 20170013
           Argued May 22, 2019—Decided July 10, 2019
                 Military Judge: Jacob D. Bashore
   For Appellant: Captain Zachary A. Szilagyi (argued);
   Colonel Elizabeth G. Marotta, Lieutenant Colonel Tiffany
   D. Pond, and Major Julie L. Borchers (on brief).
   For Appellee: Major Marc B. Sawyer (argued); Colonel Ste-
   ven P. Haight and Lieutenant Colonel Eric K. Stafford (on
   brief); Captain Jessika M. Newsome and Captain Meredith
   M. Picard.
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge STUCKY, and Judges RYAN,
   SPARKS, and MAGGS, joined.
                   _______________

   Judge OHLSON delivered the opinion of the Court.
    A military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of one
specification of attempted murder (Specification 1 of Charge
I) and one specification of willfully discharging a firearm
under circumstances to endanger human life (Specification
of Charge VII) in violation of Articles 80 and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 934
(2012).1 We granted review to determine whether the

   1  The military judge also convicted Appellant of two additional
offenses contrary to his pleas—one specification of failure to obey
an order and one specification of willfully discharging a firearm, in
violation of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892, 934
(2012). In addition, the military judge convicted Appellant pursu-
ant to his pleas of one specification of failure to go to his place of
duty, two specifications of disrespect toward a superior commis-
sioned officer, one specification of disrespect toward a noncommis-
            United States v. Coleman, No. 19-0087/AR
                      Opinion of the Court

willfully discharging a firearm specification is multiplicious
with the attempted murder specification. We conclude that
the two specifications are not multiplicious because each
offense requires proof of an element not included in the
other. Accordingly, we affirm the judgment of the lower
court.
                          I. Background

    In 2015, Specialist QB was running errands near Fort
Hood, Texas, with his then-fiancé, AW, and AW’s three-year-
old daughter, YW. When AW received a phone call, SPC QB
believed it was from Appellant, whom he perceived as a
romantic rival. SPC QB attempted to call back Appellant,
but Appellant did not answer. Instead, Appellant sent a text
message directing SPC QB to a nearby residential street.
SPC QB drove to the designated location with AW and YW
in the car. When they arrived, Appellant fired a Smith and
Wesson .40 caliber handgun at SPC QB’s car, striking the
front fender and driver’s side door.
    Based on these events, the Government charged
Appellant with three specifications of attempted murder,
one specification of willfully discharging a firearm under
circumstances to endanger human life, and one specification
of reckless endangerment.2 Appellant was acquitted of the
two specifications of attempted murder relating to AW and
YW. However, he was convicted of willfully discharging a
firearm and attempting to murder SPC QB. At the court-
martial, Appellant did not raise any multiplicity claims.



sioned officer, and one specification of failure to obey an order, in
violation of Articles 86, 89, 91, and 92, UCMJ, 10 U.S.C. §§ 886,
889, 891, 892 (2012). The adjudged and approved sentence con-
sisted of reduction to E-1, confinement for ten years and eight
months, and a dishonorable discharge. Upon appellate review, the
United States Army Court of Criminal Appeals (CCA) dismissed
the contested specification for failure to obey an order, and reas-
sessed the sentence to the same earlier approved sentence.
   2  The military judge acquitted Appellant of the reckless en-
dangerment specification. The military judge also acquitted Appel-
lant of an additional specification of attempted murder that was
not related to the events discussed in this opinion.



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            United States v. Coleman, No. 19-0087/AR
                      Opinion of the Court

                       II. Applicable Law

   Multiplicity claims “are forfeited by failure to make a
timely motion to dismiss, unless they rise to the level of
plain error.” United States v. Barner, 56 M.J. 131, 137
(C.A.A.F. 2001).3 “[F]or an appellant to prevail under plain
error review, there must be an error, that was clear or
obvious, and which prejudiced a substantial right of the
accused.” United States v. Tovarchavez, 78 M.J. 458, 462
(C.A.A.F. 2019). Relief is only available to an appellant
when all three of these prongs are satisfied. United States v.
Gomez, 76 M.J. 76, 79 (C.A.A.F. 2017).
    The Fifth Amendment’s Double Jeopardy Clause
precludes a court, contrary to the intent of Congress, from
imposing multiple convictions and punishments under
different statutes for the same act or course of conduct.
United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993). In
Teters, we abandoned the “fairly embraced” doctrine of
United States v. Baker, 14 M.J. 361 (C.M.A. 1983), and
adopted the separate elements test articulated by the
Supreme Court in Blockburger v. United States, 284 U.S.
299 (1932), to determine whether one offense is
multiplicious of another. Teters, 37 M.J. at 375–76.4
Accordingly, for more than a quarter century we have used
the Blockburger test to determine whether specifications are
multiplicious. See, e.g., United States v. Campbell, 71 M.J.
19, 23 (C.A.A.F. 2012).


   3  In United States v. Hardy, this Court concluded that an ob-
jection to unreasonable multiplication of charges is waived if not
raised before the entry of an unconditional guilty plea. 77 M.J.
438, 443 (C.A.A.F. 2018). We decline to determine whether this
holding applies in the instant case. Our opinion in Hardy was is-
sued in June 2018. In the instant case the Government filed its
brief in April 2019 and oral argument was held in May 2019. De-
spite this timing, the Government did not cite Hardy, or raise the
issue of waiver. Accordingly, we decline to sua sponte raise this
issue on the Government’s behalf.
   4 The “fairly embraced” test under Baker compared the “plead-
ings and proof” of one specification to the “pleadings and proof” of
another specification to determine whether they were
multiplicious. Teters, 37 M.J. at 374–75, 374 n.2 (internal quota-
tion marks omitted).



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           United States v. Coleman, No. 19-0087/AR
                     Opinion of the Court

   In Blockburger, the Supreme Court stated:
      The applicable rule is that where 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 a
      fact which the other does not.
284 U.S. at 304. As we have noted, “It is now unquestionably
established that this test is to be applied to the elements of
the statutes violated and not to the pleadings or proof of
these offenses.” Teters, 37 M.J. at 377. Therefore, this
Court’s application of Blockburger focuses on a strict facial
comparison of the elements of the charged offenses. See, e.g.,
United States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010).
                        III. Analysis

   To determine whether two charges are multiplicious, we
engage in a three-step inquiry. First, we determine whether
the charges are based on separate acts. If so, the charges are
not multiplicious because separate acts may be charged and
punished separately. See United States v. Neblock, 45 M.J.
191, 197 (C.A.A.F. 1996); see also Ebeling v. Morgan, 237
U.S. 625, 629–30 (1915). Here, the record demonstrates that
the two specifications at issue were based on a single act—
the shooting of a firearm at a vehicle containing SPC QB,
AW, and YW on September 7, 2015.
    Second, because the charges are based upon a single act,
we next must determine whether Congress made “an overt
expression of legislative intent” regarding whether the
charges should be viewed as multiplicious. Teters, 37 M.J. at
376. Both parties agree that the respective statutes are
silent as to congressional intent and we concur. Therefore,
we need not delve further into that question.
    Third and finally, because there is no overt expression of
congressional intent, we must seek to infer Congress’s intent
“based on the elements of the violated statutes and their
relationship to each other.” Id. at 376–77. Specifically, if
each statute requires proof of an element not contained in
the other, it may be inferred that Congress intended for an
accused to be charged and punished separately under each




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           United States v. Coleman, No. 19-0087/AR
                     Opinion of the Court

statute. Id. (citing United States v. Dixon, 509 U.S. 688
(1993); Blockburger, 284 U.S. at 304).
    Application of this test is straightforward in the instant
case. The Article 134, UCMJ, offense with which Appellant
was charged (i.e., the offense of willfully discharging a
firearm under circumstances to endanger human life)
requires proof of prejudice to good order and discipline, or
evidence of service discrediting conduct, to satisfy the
terminal element. Manual for Courts-Martial, United States
pt. IV, para. 81.b.(4) (2016 ed.) (MCM). However, the Article
80, UCMJ, offense of attempted murder requires no such
proof. MCM pt. IV, paras. 4.b., 43.b.(2). Similarly, the Article
80, UCMJ, offense of attempted murder requires proof that
the act was done with the specific intent to commit a certain
offense under the UCMJ. (Here, that “certain offense” was
the killing of SPC QB without justification or excuse. See
United States v. Allen, 21 M.J. 72, 73 (C.M.A. 1985) (holding
that the specific intent to kill is an essential element of
attempted murder).) However, the Article 134, UCMJ,
offense of willfully discharging a firearm under
circumstances to endanger human life requires no such
proof. Instead, the Article 134, UCMJ, offense merely
requires that the discharge of a firearm be done “willful[ly].”
MCM pt. IV, para. 81.b.(2). Because each offense contains a
unique element, “the Blockburger rule is clearly satisfied in
this case, and separate offenses warranting separate
convictions and punishment can be presumed to be
Congress’ intent.” Teters, 37 M.J. at 377–78.
   Appellant disagrees with this conclusion. He argues that
the terminal element of his Article 134, UCMJ, offense was
“necessarily implied” in the attempted murder offense.
Appellant’s argument is without merit. In the past decade
we have repeatedly held that the terminal element of an
Article 134, UCMJ, offense is not inherently included within
other elements and is instead a separate and distinct
element that the government must prove. United States v.
Miller, 67 M.J. 385, 389 (C.A.A.F. 2009) (“[To the extent that
prior decisions] support the proposition that clauses 1 and 2
of Article 134, UCMJ, are per se included in every
enumerated offense, they are overruled.”); see, e.g., United
States v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011); United


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           United States v. Coleman, No. 19-0087/AR
                     Opinion of the Court

States v. Jones, 68 M.J. 465, 473 (C.A.A.F. 2010); Anderson,
68 M.J. at 385; see also United States v. Fosler, 70 M.J. 225,
233 (C.A.A.F. 2011).
   Further, Appellant’s position implicitly asks this Court to
wade backwards into murky pre-Teters waters and readopt
the “fairly embraced” approach to multiplicity. However, the
Supreme Court correctly characterized this approach as “rife
with the potential for confusion” and far less certain and
predictable in its application than the elements-based
approach. Schmuck v. United States, 489 U.S. 705, 720–21
(1989). Accordingly, we decline to adopt Appellant’s position.
   Because we conclude that there was no error in charging
Appellant with both attempted murder and willful discharge
of a firearm under circumstances to endanger human life,
Appellant cannot prevail under the plain error test.
                        IV. Decision

   The judgment of the United States Army Court of
Criminal Appeals is affirmed.




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