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

                             UNITED STATES, Appellee
                                          v.
                            Specialist KEVIN A. HUGGINS
                            United States Army, Appellant

                                     ARMY 20121043

                      Headquarters, United States Army Africa
                        Reynold P. Masterton, Military Judge
                    Colonel Mark Tellitocci, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr,
JA, Major Vincent T. Schuler, 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 Benjamin W. Hogan, JA (on brief)


                                       20 March 2015
                                -----------------------------------
                                 MEMORANDUM OPINION
                                -----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A panel of officer and enlisted members , sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification aggravated assault
with intent to commit infliction of grievous bodily harm and one specification of
aggravated assault with a means likely to produce death or grievous bodily harm, in
violation of Article 128, Uniform Code of Military Justice, 10 U.S.C. § 928 (2006)
[hereinafter UCMJ]. The panel sentenced appellant to a bad-conduct discharge,
confinement for sixty days, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved the sentence as adjudged and
credited appellant with 20 days of confinement credit against the sentence to
confinement.
HUGGINS–ARMY 20121043

       We now review appellant’s case under Article 66, UCMJ. Appellant raises
three assignments of error, one of which warrants discussion and relief.
Specifically, appellant argues the military judge erred by not merging the two
aggravated assault specifications for findings as multiplicious. We agree.

                                     BACKGROUND

       Appellant was charged and found guilty of two specifications of aggravated
assault in violation of Article 128, both arising from the same conduct. The
government charged appellant using alternative theories as follows:

      CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

             SPECIFICATION 1: In that [appellant], U.S. Army, did at or
             near Vincenza, Italy, on or about 1 May 2012, commit an
             assault upon [SPC JDB], by striking him in the head, face,
             and nose with a closed fist and did thereby intentionally
             inflict grievous bodily harm upon him, to wit: a fractured
             skull, right eye socket and nose.

      CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

             SPECIFICATION 2: In that [appellant], U.S . Army, did at or
             near Vincenza, Italy, on or about 1 May 2012, commit an
             assault upon [SPC JDB], by striking him in the head, face,
             and nose with means and force likely to produce death or
             grievous bodily harm, to wit: a closed fist.

       Prior to trial, defense counsel motioned the military judge to consolidate the
aggravated assault specifications as multiplicious. Defense argued in the alternative
that together the two specifications constituted an unreasonable multiplication of
charges. During trial, the government stated the specifications were not
multiplicious but rather were charged in the alternative. The military judge ruled
that Specification 2 was not a lesser included offense of Specification 1 and denied
the defense motion. The panel convicted appellant of both specifications.

       After findings, the military judge again refused to dismiss one of the
specifications reasoning that the two specifications had different elements and were
not multiplicious. He did, however, merge them for sentencing. Appellant now
argues he should only be convicted of a single specification of aggravated assault.
We agree and accept the government’s concession in this regard.




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HUGGINS–ARMY 20121043

                             LAW AND DISCUSSION

                                     Multipilcity

       Whether an offense is a lesser-included offense is a question of law we review
de novo. United States v. Arriaga, 70 M.J. 51, 54 (C.A.A.F. 2011) (quoting United
States v. Miller, 67 M.J. 385, 387 (C.A.A.F. 2009) (citations omitted)).
“The prohibition against multiplicity is grounded in com pliance with the
‘constitutional and statutory restrictions against Double Jeopardy.’” United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) (quoting United States v. Quiroz, 55 M.J.
334, 337 (C.A.A.F. 2001)). Accordingly, an accused may not be convicted and
punished for two offenses where one is necessarily included in the other, absent
congressional intent to permit separate punishments. See United States v. Teters, 37
M.J. 370, 376 (C.M.A. 1993).

      We apply the elements test to determine whether one offense is a lesser
      included offense of another. United States v. Jones, 68 M.J. 465, 468-470
      (C.A.A.F. 2010). “Under the elements test, one compares the elements of
      each offense. If all of the elements of offense X are also elements of offense
      Y, then X is an LIO of Y. Offense Y is called the greater offense because it
      contains all of the elements of offense X along with one or more additional
      elements.” Id. at 470. The elements test “permits lesser offense instructions
      only in those cases where the indictment contains the elements of both
      offenses,” and as a result “gives notice to the defendant that he may be
      convicted on either charge.” Schmuck v. United States, 489 U.S. 705, 718,
      (1989). “[A]pplying normal rules of statutory interpretation and construction,
      this Court will determine whether the elements of the LIO would necessarily
      be proven by proving the elements of the greater offense.” United States v.
      Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012). As normal principles of statutory
      construction may be employed in this determination, “[t]he elements test does
      not require that the two offenses at issue employ identical statutory
      language.” United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). The
      ultimate rationale for the elements test is that “[t]he due process principle of
      fair notice mandates that 'an accused has a right to know what offense and
      under what legal theory’ he will be convicted.” Jones, 68 M.J. at 468 (quoting
      United States v. Medina, 66 M.J. 21, 26-27 (C.A.A.F. 2008)).

      The elements of the aggravated assault with intent to commit infliction of
      grievous bodily harm are as follows:

             (1) That the accused assaulted a certain person;

             (2) That grievous bodily harm was thereb y inflicted upon
             such person;



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HUGGINS–ARMY 20121043

             (3) That the grievous bodily harm was done with unlawful
             force or violence;

             (4) That the accused, at the time, had the specific intent
             to inflict grievous bodily harm.

Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], Part IV, ¶
54.b.(4)(b); see also UCMJ art. 128(b)(2).

       The offense of assault with a dangerous weapon or other means or force likely
to produce death or grievous bodily harm contains the following elements:

             (1) That the accused attempted to do, offered to do, or
             did bodily harm to a certain person;

             (2) That the accused did so with a certain weapon, means,
             or force;

             (3) That the attempt, offer, or bodily harm was done with
             unlawful force or violence;

             (4) That the weapon, means, or force was used in a
             manner likely to produce death or grievous bodily harm .

MCM, Part IV, ¶ 54.b.(4)(a); see also UCMJ art. 128(b)(1).

       While the language of the elements of each offense is not identical, a careful
reading of the elements reveals the language of Art 128(b)(1) is a subset of Article
128(b)(2). One might argue that the greater offense only requires proof that the
accused intended to produce death or grievous bodily harm and that grievous bodily
harm was inflicted, the instrument of that harm may not necessarily have been a
“means or force likely to produce death or grievous bodily harm.” Such an
argument, however, is contrary to the President’s guidance , where he has defined
“other means or force likely to produce death or grievous bodily harm” this way:

             The phrase “other means or force” may include any means
             or instrumentality not normally considered a weapon.
             When the natural and probable consequence of a particular
             use of any means or force would be death or grievous
             bodily harm, it may be inferred that the means or force is
             “likely” to produce that result. The instrumentality may be
             irrelevant if the method employing its use is in a manner
             likely to inflict death or grievous bodily harm.




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HUGGINS–ARMY 20121043

MCM, ¶ 54.c.(4)(a)(ii). Applying norm al rules of statutory interpretation and
construction, we find proving the greater offense would necessarily prove the lesser
offense in this case.

       Here, appellant repeatedly beat an unconscious soldier about the head, face,
and nose with his closed fists, resulting in broken bones and serious injury. We
cannot imagine a situation where the government could prove appellant intended to
cause and actually caused grievous bodily harm in the manner alleged (as required
by the greater offense) without also proving that appellant's actions were likely to
produce grievous bodily harm. We, therefore, find the aggravated assault with a
means or force likely to produce grievous bodily harm or death is a proper lesser
included offense of aggravated assault with intent to commit intentional infliction of
grievous bodily harm. As a remedy, we affirm the specification stating the greater
offense.

                                    CONCLUSION

      After consideration of the entire record of trial, the finding of guilty of
Specification 2 of Charge II is set aside and that specification is dismissed.

      The remaining findings of guilty are AFFIRMED.

      Because the military judge merged both aggravated assaults findings for
sentencing, the factors announced in United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013) weigh in favor of reassessing and affirming the sentence.
Accordingly, the sentence is AFFIRMED.

      Senior Judge TOZZI and Judge CELTNIEKS concur.


                                         FOR THE COURT:




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




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