UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                           KERN, MORAN, and ALDYKIEWICZ
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                      Private First Class SHELTON A. HUNT
                          United States Army, Appellant

                                   ARMY 20111081

        Headquarters, 82d Airborne Division (Rear) (Provisional) (convened)
                   Headquarters, 82d Airborne Division (action)
                        Karin G. Tackaberry, Military Judge
           Lieutenant Colonel Paul J. Cucuzzella, Staff Judge Advocate


For Appellant: Major Jaired D. Stallard, JA; Captain Brian J. Sullivan, JA (on brief)

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Daniel H. Karna, JA (on brief)


                                      25 June 2014
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of violating a lawful general regulation, in violation of Article
92, Uniform Code of Military Justice, 10 U.S.C. § 892 (2006) [hereinafter UCMJ].
Contrary to appellant’s pleas, the military judge convicted appellant of attempted
larceny, attempted robbery, four specifications of conspiracy, willfully disobeying a
lawful command of his superior commissioned officer, violating a lawful general
regulation, assault in which grievous bodily harm is intentionally inflicted, two
specifications of assault with a dangerous weapon, housebreaking, and drunk and
disorderly conduct, in violation of Articles 80, 81, 90, 92, 128, 130, and 134, UCMJ.
The military judge sentenced appellant to a dishonorable discharge, confinement for
twelve years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
HUNT–ARMY 20111081

The convening authority approved 9 years and 11 months confinement and the
remainder of the sentence. 1

        We now review appellant’s case under Article 66, UCMJ. Two of appellant’s
three assignments of error warrant discussion and relief. First, appellant argues that
his conviction for attempted larceny (Specification 2 of Additional Charge I) is
multiplicious with his conviction for attempted robbery (Specification 1 of
Additional Charge I). Second, appellant argues that his convictions for conspiracy
to commit larceny, conspiracy to commit robbery, and conspiracy to commit
housebreaking (Specification 1, 2, and 3 of Additional Charge II, respectively)
constitute a single conspiracy. The government concedes both claims. The
remaining assignment of error and the matters raised personally by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) do not warrant
relief.

                                  BACKGROUND

       On or about 30 January 2011, appellant and his co-conspirators broke into a
house that they suspected contained illegal drugs and money. They dressed in dark
clothing and one conspirator carried a pistol. Appellant personally kicked down the
house’s back door. Before breaking into the house, appellant and his co-
conspirators smoked a “blunt” of spice. All of the co-conspirators knew that they
were armed, and the purpose of the housebreaking was to steal drugs and money, by
force if necessary. Ultimately, appellant and his co-conspirators did not find any
drugs or money in the house.

       Later that night, appellant and others became aware of a possible fight at a
nightclub called the Speak Easy. Appellant learned that another person, Specialist
(SPC) H, had been “disrespecting” Private First Class (PFC) Jackson, whom
appellant knew. Private First Class Jackson wanted a gun brought to him. Appellant
brought the pistol used in the housebreaking to the Speak Easy and gave it to PFC
Jackson, who was visibly angry. Private First Class Jackson said that he would
handle the situation. Eventually appellant, PFC Jackson, and others followed SPC H
and his vehicle onto the Fort Bragg installation. Private First Class Jackson fired
the pistol thirteen times into SPC H’s vehicle. A passenger in that vehicle, SPC G,
was shot in the arm.




1
 The convening authority credited appellant with 151 days of credit against the
sentence to confinement.


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HUNT–ARMY 20111081

                               LAW AND DISCUSSION

                                     A. Multiplicity

       Appellant stands convicted of both attempted robbery and attempted larceny
as a result of his actions before and during the housebreaking. 2 “Robbery is a
compound offense consisting of assault and larceny.” United States v. Cunningham,
6 U.S.C.M.A. 106, 107, 19 C.M.R. 232, 233 (C.M.A. 1955). “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). Lesser-included offenses are
“necessarily included” within the greater offense. See UCMJ art. 79; cf. United
States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). As a matter of logic, appellant’s
attempt to commit robbery necessarily includes an attempt to commit larceny. The
lesser offense of attempted larceny is thus multiplicious with the greater offense of
attempted robbery.

                                     B. Conspiracy

      Appellant was found guilty of, inter alia, three separate specifications of
conspiracy: conspiracy to commit larceny, conspiracy to commit robbery, and
conspiracy to commit housebreaking. The object crimes of these specifications
involved the earlier housebreaking into the house containing suspected drugs and
money. Appellant argues that he should only be convicted of a single conspiracy.
As we explained in an earlier decision:

         “[C]onspiracy is a partnership in crime.” Pinkerton v. United States,
         328 U.S. 640, 644 (1946). The essence of a conspiracy is in the
         “agreement or confederation to commit a crime, and that is what is
         punishable as a conspiracy, if any overt act is taken in pursuit of it.”
         United States v. Bayer, 331 U.S. 532, 542 (1947); see Braverman v.
         United States, 317 U.S. 49, 53 (1942). As such, it is ordinarily the
         agreement that forms the unit of prosecution for conspiracy, “even if it
         contemplates the commission of several offenses.” Rollin M. Perkins
         & Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982) (citing
         Braverman, 317 U.S. at 53); see United States v. Pereira, 53 M.J. 183,
         184 (C.A.A.F. 2000) (finding single conspiracy to commit murder,
         robbery, and kidnapping); cf. United States v. Universal C. I. T. Credit
         Corp., 344 U.S. 218, 221 & n.3 (1952) (introducing concept of “unit of
         prosecution”).

United States v. Finlayson, 58 M.J. 824, 826 (Army Ct. Crim. App. 2003). Among
the factors we use to determine the number of conspiracies include “(1) the

2
    He also stands convicted of housebreaking under Article 130.


                                            3
HUNT–ARMY 20111081

objectives and (2) nature of the scheme in each alleged conspiracy; (3) the nature of
the charge and (4) the overt acts alleged in each; (5) the time and (6) location of
each of the alleged conspiracies; (7) the conspiratorial participants in each; and (8)
the degree of interdependence between the alleged conspiracies.” Id. at 827.

       After weighing these factors, we conclude that appellant and his co-
conspirators engaged in a single conspiracy here. These acts occurred at the same
time, had the same participants, and were wholly interdependent. The housebreaking
was a means to achieve the objective of stealing drugs and money. Given this
record, we conclude that appellant and his co-conspirators had a single agreement to
commit multiple crimes.

      The government urges us to consolidate Specifications 1, 2, and 3 of
Additional Charge II. See Finlayson, 58 M.J. at 829. However, for the same reasons
we found attempted larceny to be multiplicious with attempted robbery, we find
conspiracy to commit larceny to be multiplicious with conspiracy to commit
robbery. We will set aside the finding of guilt of Specification 1 of Additional
Charge II and dismiss that specification. We will then consolidate Specifications 2
and 3 of Additional Charge II into the Specification of Additional Charge II.

                                  C. Reassessment

       Given the errors noted above, we are confident, considering the remaining
specifications, that we can reassess appellant’s sentence at our level. United States
v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013); United States v. Sales, 22 M.J. 305,
307 n.3 (C.M.A. 1986). We note that the military judge treated the three conspiracy
specifications at issue as one specification for sentencing purposes. The military
judge also treated the attempted robbery, attempted larceny, and housebreaking
specifications as one for sentencing. Appellant also remains convicted of numerous
other offenses, including several assault convictions arising from the shooting on
Fort Bragg. Thus, neither the penalty landscape nor the admissible aggravation
evidence has changed.

       Appellant also elected trial by judge alone, and we “are more likely to be
certain of what a military judge would have done as opposed to members.”
Wincklemann, 73 M.J. at 16. Finally, we have extensive experience with the
remaining convictions, and we are confident that we can reliably assess what
sentence a military judge would have imposed on the remaining findings of guilt.
Id. We are confident that the military judge would have adjudged the same sentence
absent the errors noted. However, because the convening authority approved two
years and one month less confinement than the military judge adjudged, we affirm
that lesser sentence. See UCMJ art. 66(c) (“[A] Court of Criminal Appeals may act
only with respect to the findings and sentence as approved by the convening
authority.”).



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HUNT–ARMY 20111081

                                   CONCLUSION

       After consideration of the entire record of trial, appellant’s assignments of
error, and the matters personally raised by appellant pursuant to Grostefon, the
findings of guilty of Specification 2 of Additional Charge I and Specification 1 of
Additional Charge II are set aside and those specifications are dismissed.
Specifications 2 and 3 of Additional Charge II are consolidated into the
Specification of Additional Charge II, to read as follows:

      In that Private First Class Shelton A. Hunt, U.S. Army, did at or near
      Fort Bragg, North Carolina on or about 30 January 2011, conspire with
      Private (E-1) Cordic L. Coleman, Private First Class Kamarques K.
      Dyess, Private (E-1) Bryan C.N. Alston, and Private First Class Cerion
      R. Allen to commit offenses under the Uniform Code of Military
      Justice, to wit: robbery and housebreaking, and in order to effect the
      object of the conspiracy the said Private First Class Shelton A. Hunt
      did dress in black, acquire a firearm, travel to the dwelling house of
      another, conceal his face, and kick in the back door of said dwelling
      house to gain entrance.

The remaining findings of guilty are AFFIRMED. The sentence as approved by the
convening authority 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 hereby ordered restored.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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