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

                           UNITED STATES, Appellee
                                         v.
                      Private First Class BRYAN J. HANKS
                          United States Army, Appellant

                                  ARMY 20120597

                         Headquarters, Fort Hood, Texas
              James L. Varley and Patricia H. Lewis, Military Judges
                 Colonel Stuart W. Risch, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Captain Timothy J. Kotsis, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
Nathan S. Mammen, JA (on brief).


                                 25 November 2014

                             -----------------------------------
                               OPINION OF THE COURT
                             -----------------------------------



CAMPANELLA, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of aggravated assualt with a means likely to produce grievous
bodily harm upon a child under the age of 16 years, in violation of Article 128,
Uniform Code of Military Justice, 10 U.S.C. § 928 (2006) [hereinafter UCMJ]. A
panel of officer and enlisted members sitting as a general court -martial convicted
appellant, contrary to his pleas, of maiming and aggravated assault in which
grievous bodily harm is intentionally inflicted upon a child under the age of 16
years, in violation of Articles 124 and 128, UCMJ. The panel sentenced appellant to
a dishonorable discharge and confinement for 30 months. The convening authority
HANKS—ARMY 20120597

approved only so much of the sentence as provided for confinement for 29 months
and a dishonorable discharge. 1

      This case is before us for review under Article 66, UCMJ. Appellant raises
one assigned error which requires discussion but no relief.

                                 BACKGROUND

       One evening while his wife was away at work, appellant was at his home at
Fort Hood, Texas, watching his 22-month old son, JH. Around 2130, appellant was
boiling water on his stove in preparation to strip the kitchen floor. After the water
reached a boil, appellant placed the pot of water on the floor. Around the same time,
JH became restless and began to cry. Appellant tried unsuccessfully to sooth e JH.
When appellant’s attempts to stop JH from crying failed, appellant became “very
angry and lost [his] patience.” Appellant then picked JH up, brought him into the
kitchen, and holding him by his arms, forced JH’s hands into the scalding water. As
a result, JH suffered second degree burns on his hands and wrists. The burns
ultimately resulted in significant scarring and fixed deformity.

      Appellant was charged with and found guilty of the following offenses:

      CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 124.

             THE SPECIFICATION: In that [appellant], U.S. Army,
             did at or near Fort Hood, Texas, on or about 7 October
             2011, maim [JH], by forcing [JH’s] hands in a pot of
             scalding water.

      CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

             THE SPECIFICATION: In that [appellant], U.S. Army,
             did at or near Fort Hood, Texas, on or about 7 October
             2011, commit an assault upon [JH], a child under the
             age of 16 years of age, by forcing [JH’s] hands in a pot
             of scalding water, a means likely to produce grievous
             bodily harm, and did thereby intentionally inflict


1
 In the addendum to the advice to the convening authority, the staff judge advocate
recommended granting appellant 30 days of clemency because of excessive post-trial
delay. The convening authority also deferred automatic forfeitures until action and
waived automatic forfeitures for an additional six months for the benefit of
appellant’s dependents.




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             grievous bodily harm upon [JH] to wit: burned hands
             and wrists. 2

      On appeal, appellant asserts the military judge abused her discretion by not
dismissing either the Specification of Charge II, aggravated assault in which
grievous bodily harm was intentionally inflicted, or the Specification of Charge I,
maiming, as an unreasonable multiplication of charges exaggerating appellant’s
criminality. We disagree.

                             LAW AND DISCUSSION

                                     Multiplicity

       Before reaching the issue of unreasonable multiplication of charges, we first
address the issue of multiplicity. The government asserts the aggravated assault in
this case is a lesser-included offense of maiming and is, therefore, multiplicious .3
As a threshold matter, we do not share this opinion.

      “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)).




2
  We note that the aggravated assault specification in this case was inartfully
drafted. While it is only a single specification, it states two offenses. The assault
with a means likely to produce death or grievous bodily harm specification is a
lesser-included offense of assault by intentionally inflicting grievous bodily harm.
See United States v. St. John, 72 M.J. 685, 687-88 (Army. Ct. Crim. App. 2013)
(examining the specifications as pleaded in applying the elements test). Here, the
government need not have expressly pleaded a lesser -included offense in a
specification stating the greater offense because, as a matter of logic, the lesser
offense was “necessarily included” by implication. UCMJ art. 79; see Rule for
Courts-Martial [hereinafter R.C.M.] 307(c)(4) discussion (“In no case should both an
offense and a lesser included offense be separately charged.”). We exercise our
discretion and affirm the greater offense. By doing so, we necessarily affirm the
lesser-included offense. The remainder of our opinion analyzes the facts and the law
based on this greater offense.
3
 Notwithstanding the government’s “concession,” the government also argues
appellant waived the multiplicity issue by not raising it at trial.




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       The appellant was charged with maiming JH by forcing JH’s hands into a pot
of scalding water on 7 October 2011.

      As alleged, the Article 124 offense requires proof of three elements:

         1. The appellant inflicted injury on JH by forcing JH’s hands into a
         pot of scalding water;

         2. The injury seriously disfigured JH’s body, destroyed or disabled
         an organ or member, or seriously diminished JH’s physical vigor by
         the injury to an organ or member; and

         3. The appellant inflicted this injury with the intent to cause some
         injury to JH.

See Manual for Courts-Martial, United States [hereinafter MCM], (2008 ed.), pt. IV,
¶ 50.b.

      As alleged, the Article 128 offense of aggravated assault in which grievous
bodily harm is intentionally inflicted requires proof of four elements:

         1. The appellant assaulted JH by forcing JH’s hands into a pot
         of scalding water;

         2. Grievous bodily harm was inflicted upon JH;

         3. The grievous bodily harm was done with unlawful force or
         violence; and

         4. The appellant, at the time, had the specific intent to inflict
         grievous bodily harm.

See MCM, pt. IV, ¶ 54.b.(4)(b).

       To determine whether a charged offense provides sufficient notice of some
other offense, both the Supreme Court and the Court of Appeals for the Armed
Forces apply an elements test which analyzes whether the elements of the lesser
offense are a subset of the charged offense:

       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 el ements of offense
       X along with one or more additional elements.



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United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). Put another way, the
Supreme Court in Schmuck v. United States explained: “To be necessarily included
in the greater offense the lesser must be such that it is impossible to commit the
greater without first having committed the lesser. ” 489 U.S. 705, 719 (1989)
(quotation marks and citations omitted). Normal principles of statutory construction
determine whether words used in the elements of a charged offense may include
other though not expressly stated words in the elements of a lesser-included offense.
United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (citing Carter v. United
States, 530 U.S. 255, 263 (2000)).

       Applying these principles to the facts and circumstances of the present case,
we find that the aggravated assault with intent to commit grievous bodily harm is not
a lesser-included offense of maiming. Maiming requires only the intent to injure
generally but not a specific intent to maim. MCM, pt. IV, ¶ 50.b(c)(3). Assault, in
which grievous bodily harm is intentionally inflicted , on the other hand, requires the
specific intent to inflict grievous bodily harm. MCM, pt. IV, ¶ 54.b(4)(b)(iv). In
other words, one could commit the offense of maiming without also committing the
aggravated assault if the perpetrator maimed a victim intending to cause some injury
as required by the elements of maiming, but did not intend to cause the victim
grievous bodily harm. Likewise, one can commit an assault in which grievous
bodily harm is intentionally inflicted and not maim their victim if the bodily harm
inflicted is serious but not disfiguring or permanently destructive . These offenses
can each stand alone, as “each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).

        As alleged in this case, the elements of aggravated assault are not a subset of
the charged maiming. We make this finding cognizant of the fact that that the
offense of assault in which grievous bodily harm is intentionally inflicted is listed in
the MCM as a lesser-included offense of maiming, Article 124, UCMJ. MCM, pt.
IV, ¶ 50.d.(3); see also Jones, 69 M.J. at 470-72 (rejecting the proposition that
listing a criminal offense as a lesser-included offense in the MCM necessarily makes
it so). Furthermore, in so holding, we disagree with the Navy-Marine Court of
Criminal Appeals’ holding in United States v. Allen, 59 M.J. 515, 531 (N.M. Ct.
Crim. App. 2013) (“We find that assault intentionally inflicting grievous bodily
harm is a lesser-included offense of the more serious crime of maiming the baby.”)
(citing MCM, 1995 ed., pt. IV, ¶ 50.d.(3)). We also decline to accept the
government’s concession in this regard as a panel of this court did in an earlier
decision under similar circumstances. United States v. Smith, ARMY 20110398,
2013 CCA LEXIS 514 (Army Ct. Crim. App. 26 June 2013) (“We accept the
government’s concession that under the unique facts of this case, applying the
elements test, there is no doubt the aggravated assault [by intentional infliction of
grievous bodily harm] specification was both multiplicious and a lesser -included
offense of maiming.”) (citations omitted).



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                          Unreasonable Multiplication of Charges

       “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” R.C.M. 307(c)(4). The
prohibition against unreasonable multiplication of charges “addresses those features
of military law that increase the potential for overreaching in the exercise of
prosecutorial discretion.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012)
(quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)). In Quiroz, our
superior court listed five factors to guide our analysis of whether charges have been
unreasonably multiplied:

             (1) Did the accused object at trial that there was an
             unreasonable multiplication of charges and/or
             specifications?;

             (2) Is each charge and specification aimed at distinctly
             separate criminal acts?;

             (3) Does the number of charges and specifications
             misrepresent or exaggerate the appellant's criminality?;

             (4) Does the number of charges and specifications
             [unreasonably] increase the appellant's punitive
             exposure?; and

             (5) Is there any evidence of prosecutorial overreaching or
             abuse in the drafting of the charges?

55 M.J. at 338 (internal citation and quotation marks omitted) (internal alteration
reflects the holding by CAAF in Quiroz that “unreasonably” was the appropriate
legal standard).

       Applying the Quiroz factors to the facts of this case, first we note appellant
made a sentencing objection–not a findings objection–to the charging scheme at
trial. We, therefore, find this factor does not favor appellant. Second, each charged
offense is aimed at a separate and different criminal purpose. Campbell, 71 M.J. at
24. Maiming requires an act of physical injury that degrades the appearance or
function of a person in a substantially permanent nature and the precise injury
inflicted need not be intended specifically by the perpetrator. Aggravated assault in
which grievous bodily harm is intentionally inflicted requires a more demanding
specific intent which maiming does not. Appellant’s conduct consisted of a
“singular act, but each one implicated multiple and significant criminal law
interests, none necessarily dependent on the other.” Id. Third, we find the separate
charges do not exaggerate appellant’s conduct. While the two distinct and separate


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charges are based on the same act, together they accurately reflect appellant’s
criminality in a way that one charge standing alone would not. We also do not find
in appellant’s favor in regards to the fourth Quiroz factor, because the military judge
merged the offenses for sentencing resulting in no increase in punitive exposure to
appellant. Lastly, we find no evidence of prosecutorial overreaching. Having
considered the Quiroz factors as applied to the appellant’s case, we do not find an
unreasonable multiplication of charges for findings .

                                   CONCLUSION

      Upon consideration of the entire record, we affirm only so much of the
Specification of Charge II as follows:

            In that Private First Class Bryan J. Hanks, U.S. Army, did at
            or near Fort Hood, Texas, on or about 7 October 2011,
            commit an assault upon [JH], a child under the age of 16
            years of age, by forcing [JH’s] hands in a pot of scalding
            water and did thereby intentionally inflict grievous bodily
            harm upon [JH] to wit: burned hands and wrists.

The remaining findings of guilty are affirmed.

      Because the military judge merged the aggravated assault and maiming
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
                                         FORTHE
                                             THECOURT:
                                                 COURT:




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




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