UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                     Before
                        GLANVILLE, HERRING, and BURTON
                            Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                    Private First Class ASHLEY N. THOMAS
                         United States Army, Appellant

                                  ARMY 20120857

                      Headquarters, III Corps and Fort Hood
                   Gregory Gross, Military Judge (arraignment)
                      James L. Varley, Military Judge (trial)
             Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
          Colonel Richard W. Rousseau, Staff Judge Advocate (post-trial)


For Appellant: Colonel Kevin Boyle, JA; Major Yolanda D. McCray Jones, JA;
Captain Brian D. Andes, JA (on brief).

For Appellee: Major A.G. Courie III, JA; Major Matthew T. Grady, JA (on brief).


                                 25 November 2015

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to her pleas, of aggravated assault with intent to inflict grievous bodily
harm in violation of Article 128, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. § 928 (2006). The military judge convicted appellant, contrary to
her pleas, of attempted unpremeditated murder, assault consummated by a battery,
and aggravated assault with a dangerous weapon in violation of Articles 80 and 128,
UCMJ, 10 U.S.C. §§ 880, 928 (2006). The military judge sentenced appellant to a
dishonorable discharge, thirteen years confinement, forfeiture of all pay and
allowances, and reduction to the grade of E-1. The convening authority approved
only so much of the sentence as provided for a dishonorable discharge, confinement
for twelve years and eleven months, forfeiture of all pay and allowances, and
reduction to the grade of E-1. The convening authority also credited appellant with
306 days against the sentence to confinement.
THOMAS—ARMY 20120857

       Appellant’s case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises two assignments of error, one of which merits discussion and relief.
The remaining assignment of error is thus rendered moot. The matters personally
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), are without merit.

            Multiplicity and Unreasonable Multiplication of Charges:
                  Attempted Murder and Aggravated Assault

      Appellant pleaded guilty to aggravated assault with intent to inflict grievous
bodily harm upon Specialist (SPC) PC on or about 1 April 2012 (Specification 1 of
Charge II). The military judge also convicted appellant, contrary to her pleas, of
attempted unpremeditated murder of SPC PC on or about 1 April 2012 (Specification
1 of Charge I). * Appellant now argues the military judge should have dismissed the
aggravated assault with intent to inflict grievous bodily harm offense after
application of the doctrines of multiplicity or unreasonable multiplication of
charges.

       At trial, the government’s attempted solution in its response to the defense
motion for appropriate relief was to “merge for sentencing” the attempted
premeditated murder with the aggravated assault with intent to inflict grievous
bodily harm, should appellant be convicted of both. “As a matter of logic and law,
if an offense is multiplicious for sentencing it must necessarily be multiplicious for
findings as well.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).

       Without addressing whether appellant should have moved to dismiss for
multiplicity after findings, we analyze the issue of multiplicity for plain error.
United States v. Barner, 56 M.J. 131, 137 (C.A.A.F 2002). An appellant may
demonstrate plain error by proving the offenses 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. Id. at 687 (citing United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F.
1997)). “Two offenses are not facially duplicative if each ‘requires proof of a fact
which the other does not.’” United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F.
2004)(quoting United States v. Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004)). This
analysis does not solely involve a “‘literal application of the elements test,’” but
rather requires a “realistic comparison of the two offenses to determine whether one
is rationally derivative of the other.” Pauling, 60 M.J. at 94 (quoting Hudson, 59
M.J. at 359). It “turns on both the factual conduct alleged in each specification and


*
  The government charged appellant with attempted premeditated murder of SPC PC
in Specification 1 of Charge I, to which the military judge found her not guilty but
guilty of the lesser-included offense of attempted unpremeditated murder.


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THOMAS—ARMY 20120857

the providence inquiry conducted by the military judge at trial.” Pauling, 60 M.J. at
94 (quoting Hudson, 59 M.J. at 359) (internal quotation marks omitted).
Consequently, where after examination of these factors, an offense is a lesser-
included offense of another, the offenses are facially duplicative. See St. John, 72
M.J. at 688-89; see also 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.” St. John, 72 M.J. at 687 (quoting United States v. Arriaga, 70 M.J. 51, 54
(C.A.A.F. 2011)).

       We find these offenses as charged in this case are facially duplicative because
the conduct alleged in the attempted unpremeditated murder finding is factually the
same as that alleged in the aggravated assault with intent to inflict grievous bodily
harm specification. The providence inquiry established that appellant stabbed SPC
PC in the torso with a knife on 1 April 2012. The contested portion of the court-
martial established appellant’s specific intent to kill SPC PC by stabbing her with a
knife in the torso on 1 April 2012. Under the facts of this case, the aggravated
assault with intent to inflict grievous bodily harm was a lesser-included offense of
the attempted murder.

       Trial defense counsel filed motions alleging multiplicity and an unreasonable
multiplication of charges, but no motions regarding the specifications in question
here presumably because she believed she should not be convicted of a lesser-
included offense to a specification to which she pled not guilty. The military judge,
with the government’s concession, treated the two specifications as “merged for
sentencing.” However, an “unauthorized conviction has ‘potential adverse
consequences that may not be ignored,’ and constitutes unauthorized punishment in
and of itself.” United States v. Savage, 50 M.J. 244, 245 (C.A.A.F. 1999) (quoting
Ball v. United States, 470 U.S. 856, 865 (1985)). We will set aside and dismiss the
aggravated assault with intent to inflict grievous bodily harm conviction in our
decretal paragraph.

                                   CONCLUSION

      The finding of guilty of Specification 1 of Charge II is set aside.
Specification 1 of Charge II is dismissed. The remaining findings of guilty are
AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of United States v. Sales, 22 M.J. 305, 307-08
(C.M.A. 1986) and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), we are confident the military judge would have adjudged the same sentence
absent the error noted. The approved sentence is AFFIRMED. 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.



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THOMAS—ARMY 20120857


                       FOR
                       FOR THE
                           THE COURT:
                               COURT:



                       JOHN P. TAITT
                       JOHN   P. TAITT
                       Chief Deputy Clerk of Court
                       Deputy Clerk of Court




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