United States v. Pate

CCA 38250. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we conclude that the assault consummated by battery offense (Specification 2 of Charge I) involving rib fractures is a lesser included offense of *353the aggravated assault offense in which grievous bodily harm was intentionally inflicted (Specification 2 of Charge II). See United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010). Compare Manual for Courts-Martial, United States pt. IV, para. ¶ 54.b.(2) (2008 ed.) (MCM) with MCM pt. IV, para. 54.b.(4)(b)(i), (iii). We also conclude that the assault consummated by battery offense involving liver damage (Specification 4 of Charge I) is a lesser included offense of the aggravated assault by other means offense (Specification 1 of Charge II). See Jones, 68 M.J. at 468. Compare MCM pt. IV, para. 54.b.(2) with MCM pt. IV, para. 54.b.(4)(a)(i), (iii). We finally conclude that the aggravated assault by other means offense involving head injuries (Specification 4 of Charge II) is a lesser included offense of the maiming offense (Specification 1 of Charge I). See Jones, 68 M.J. at 468; see also United States v. McLean, 70 M.J. 573, 576 (A.F. Ct. Crim. App. 2011). These specifications therefore are impermissibly multiplicious. See United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002); see also Brown v. Ohio, 432 U.S. 161, 165-69 (1977). Thus, we dismiss the assault consummated by battery offenses and the aggravated assault by other means offense involving head injuries. See United States v. Leak, 61 M.J. 234, 249 (C.A.A.F. 2005). However, where the military judge found these offenses multiplicious for sentencing and because Appellant does not ask us to remand for a sentence reassessment, we will not reverse as to the sentence. Accordingly, it is ordered that the petition is granted on the following issue: [See also ORDERS GRANTING PETITION for review.]

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING THE FINDINGS WHEN THREE CONVICTIONS WERE LESSER INCLUDED OFFENSES OF THREE OTHER CONVICTIONS.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 2 and 4 of Charge I and Specification 4 of Charge II, but is affirmed in all other respects. The findings of guilty as to Specifications 2 and 4 of Charge I and Specification 4 of Charge II are set aside, and these specifications are dismissed.