United States v. Smeller

17 M.J. 938, 1984 CMR LEXIS 4677
CourtU S Air Force Court of Military Review
DecidedFebruary 22, 1984
DocketACM S26156
StatusPublished

This text of 17 M.J. 938 (United States v. Smeller) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Smeller, 17 M.J. 938, 1984 CMR LEXIS 4677 (usafctmilrev 1984).

Opinion

DECISION

BENKIN, Judge:

On 17 July 1983, the accused, having become intoxicated, drove an automobile onto Laughlin Air Force Base, Texas. Some ten months earlier, the Deputy Base Commander of Laughlin Air Force Base had revoked the accused’s privilege to operate a motor vehicle upon that installation and had notified the accused of the revocation. As a result, the accused was charged with disobeying the Deputy Base Commander’s order, in violation of Article 92, Uniform Code of Military Justice, 10 U.S.C. § 892, and with operating a motor vehicle while drunk, in violation of Article 111, U.C.M.J., 10 U.S.C. § 911.

The accused was tried by a special court-martial on 5 August 1983. Following the arraignment, trial defense counsel made a motion for appropriate relief, arguing that the two charges were multiplicious for findings purposes and that only one of them should be allowed to stand. The military judge denied the motion. The accused then entered a plea of guilty, which was accepted, and the trial proceeded on the issue of the appropriate sentence. A motion to treat the specifications of Charges I and II as multiplicious for sentencing purposes was denied by the military judge. After hearing the accused’s unsworn statement and considering documentary evidence, the court-martial sentenced the accused to a bad conduct discharge.

The case is here following approval of the findings and sentence by both the convening authority and the supervisory, general court-martial, authority. Although two errors have been assigned by the accused, the only assignment meriting extended discussion is the claim that the two offenses of which the accused was convicted were multiplicious for sentencing purposes and should have been so treated by the military judge.

Although both of the offenses of which the accused was convicted arose out of the same historical event, his operation of an automobile during the morning hours of 17 July 1983, this case falls short of a violation of the proscription against transmuting a single transaction into “the basis for an unreasonable multiplication of charges...” M.C.M.1969 (Rev.), para. 26b. Construing that prohibition, the Court of Military Appeals has held, that two charges are multiplicious for purposes of findings if one of them necessarily includes all the elements of the other, e.g., as where one is a lesser-included offense of the other, or where the two offenses contain some disparate elements but those elements are “fairly embraced” in the language of the charges and are established by the evidence at trial. United States v. DiBello, 17 M.J. 77 (C.M.A.1983) (quoting United States v. Baker, 14 M.J. 361, 368 (C.M.A.1983)); see also United States v. Holt, 16 M.J. 393 (C.M.A.1983); United States v. Doss, 15 M.J. 409, 413 (C.M.A.1983).

The elements of the two offenses with which the accused was charged are not completely coextensive, nor is one a lesser included offense of the other. To demonstrate the accused’s guilt of violating the Deputy Base Commander’s order, it was necessary to establish that the order was issued and that the accused had knowledge of its contents. Neither of these elements was relevant to the drunk driving charge. Similarly, proof that the accused was drunk, though essential to his successful prosecution under Article 111, was not relevant to the charge that his disobedience of the order not to operate a motor vehicle on the base violated Article 92.

More persuasive than these purely mechanistic distinctions, however, is the result one obtains when the claim of multiplicity is considered in light of the purposes that the above quoted language of paragraph 26 b sought to achieve. According to United States v. Baker, supra at 365, the prohibi[940]*940tion in paragraph 26b “seeks to avoid the situation where a single criminal offense is exaggerated into many seemingly separate crimes so as to create the impression that the accused is a bad character and therefore lead the court-martial to resolve against him doubt created by the evidence.” In a case where one of the charges against the accused is laid under Article 92 of the Code, the evil that paragraph 26b aims to avoid is the use of an order, either specifically directed to the accused or of a more general nature,' to perform a duty that is also imposed by the substantive terms of another punitive article as a vehicle for escalating the apparent criminality of what is essentially only a single violation of the law. It was held, for instance, that an accused who was restricted to his ship and breached the restriction could not lawfully be charged with both breach of restriction and violation of a lawful order to remain aboard the vessel. United States v. Doss, supra. Similarly, the Court of Military Appeals has held that a charge of indecent assault was multiplicious for findings purposes with a charge of violating a general regulation forbidding the selfsame conduct that constituted the criminal assault. United States v. Lott, 14 M.J. 489 (C.M.A.1983).1

In the instant case, it cannot fairly be said that the issuance of the order, and the charge of violating it, serve entirely (or even primarily) to escalate the offense of drunk driving into something more serious or to portray the accused unfairly as a repeat offender. For one thing, the two charges aim at achieving different societal objectives: on the one hand to vindicate the authority of an installation commander to control motor vehicle operation on the installation, and, on the other hand, to protect the public safety from the baneful effects of drunk driving. For another, the onset of the violations with which the accused was charged occurred at different times and places. The accused became intoxicated off the base, and his violation of Article 111 first took place when he placed his automobile in motion.2 But it was not until the accused drove his vehicle onto Laughlin Air Force Base that the separate and distinct crime of violating an order to refrain from driving on base was committed. In these circumstances, we conclude that the prosecution and conviction of the accused for both of those offenses did not transgress the rule against unreasonable multiplication of charges.

This brings us to the more difficult question of whether the two offenses should have been considered multiplicious for sentencing purposes. The question whether two offenses involving the same act or transaction should be deemed separate for sentencing purposes is different from the question whether the offenses may be charged and prosecuted as separate offenses. Because they share a common pejorative — “multiplicious”—discussion of these questions is sometimes confused. They are distinct, however. The notion that two offenses may be multiplicious for sentencing purposes is derived, at least in part, from paragraph 76a of the Manual for Courts-Martial. Subparagraph 76a(5) provides that—

The maximum authorized punishment may be imposed for each of two or more separate offenses arising out of the same act or transaction. If one offense is included in the other, the offenses are not separate. Also, the general rule is that offenses are not separate unless each requires proof of an element not required to prove the other.

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10 M.J. 795 (U S Air Force Court of Military Review, 1981)
United States v. Graves
12 M.J. 583 (U S Air Force Court of Military Review, 1981)
United States v. Baker
14 M.J. 361 (United States Court of Military Appeals, 1983)
United States v. Lott
14 M.J. 489 (United States Court of Military Appeals, 1983)
United States v. Doss
15 M.J. 409 (United States Court of Military Appeals, 1983)
United States v. Holt
16 M.J. 393 (United States Court of Military Appeals, 1983)
United States v. Glover
16 M.J. 397 (United States Court of Military Appeals, 1983)
United States v. Pettersen
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United States v. DiBello
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Bluebook (online)
17 M.J. 938, 1984 CMR LEXIS 4677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smeller-usafctmilrev-1984.