United States v. Costello

17 M.J. 132, 1984 CMA LEXIS 23139

• Court: United States Court of Military Appeals
• Decided: January 16, 1984
• Docket: No. 47,027; NMCM 83-1644
• Status: Published

Opinions

Opinion of the Court

PER CURIAM:

At his special court-martial, appellant was convicted of specifications alleging, inter alia, that on April 8, 1982, he struck his named superior commissioned officer who was then in the execution of his office “in the chest with his open hands”; that on April 8, 1982, he willfully disobeyed a lawful command from the same named superior commissioned officer to “halt”; and that on April 8, 1982, he “resisted] being lawfully apprehended by” the same named officer, in violation of Articles 90 and 95, Uniform Code of Military Justice, 10 U.S.C. §§ 890 and 895, respectively. We granted review to determine whether the assault and the disobedience of the lawful order are multiplicious for findings purposes with the resisting apprehension. We conclude they are not.

In establishing a test for multiplicity as to findings, we stated in United States v. Baker, 14 M.J. 361, 368 (C.M.A.1983):

Assuming both offenses arise out of one transaction, one offense may be a lesser-included offense of another offense in two situations: First, where one offense contains only elements of, but not all the elements of the other offense; second, where one offense contains different elements as a matter of law from the other offense, but these different elements are fairly embraced in the factual allegations of the other offense and established by evidence introduced at trial.

Accord United States v. Doss, 15 M.J. 409 (C.M.A.1983). Each of the offenses of concern here contains at least one element not involved in either of the others. Compare Articles 90(1) and (2), with Article 95, supra. Moreover, as the specifications here are framed, those different elements are not “fairly embraced” in the specifications of the others. See United States v. Jean, 15 M.J. 433 (C.M.A.1983), where we found multiplicious for findings purposes a specification alleging assault and one alleging resisting apprehension, each of which alleged that the respective offense was committed “by kicking at the said Conway.” Accordingly, the convictions of both offenses here can stand.

* See United States v. Glover, 16 M.J. 397 (C.M.A.1983); United States v. Holt, 16 M.J. 393 (C.M.A.1983).

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.

Three charges with a total of six specifications were preferred against appellant. One of the specifications was dismissed by the military judge for unreasonable multiplication of the charges. While even the remaining five specifications border on “over charging,” we perceive no prejudice here — especially since trial was by special, rather than general, court-martial.