In a published opinion issued last month in United States v. Hanks, __ M.J. __, No. 20120597 (A. Ct. Crim. App. Nov. 25, 2014) (link to slip op.), a three judge panel of the Army CCA holds that convictions for maiming, in violation of Article 124, and aggravated assault in which grievous bodily harm is intentionally inflicted, in violation of Article 128, that are based on the same underlying act, are neither multiplicious nor an unreasonable multiplication of charges. Judge Campanella writes for the panel.
The decision creates a split between the Army CCA and the Navy-Marine Corps CCA, which has found that “assault intentionally inflicting grievous bodily harm is a lesser-included offense of the more serious crime of maiming.” United States v. Allen, 59 M.J. 515, 531 (N-M. Ct. Crim. App. 2003).
The appellant was prosecuted for the following incident:
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 soothe 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.
Slip op. at 2. The appellant was tried by general court-martial. He pleaded guilty to 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, but not guilty to the offenses of maiming, in violation of Article 124, and of aggravated assault in which grievous bodily harm is intentionally inflicted upon a child under the age of 16, in violation of Article 128. A panel of members with enlisted representation then convicted the appellant of the maiming charge and the greater aggravated assault offense, and he was sentenced to confinement for 30 months and a dishonorable discharge.
The military judge merged the Article 124 and 128 convictions for sentencing, but on appeal the appellant asserted that the judge should have dismissed one of the charges as an unreasonable multiplication of charges. The Government responded by conceding that the charges are multiplicious but arguing that the “appellant waived the multiplicity issue by not raising it at trial.” Slip op. at 3 n.3. The CCA rejects both arguments and affirms the findings and sentence.
Judge Campanella’s opinion begins by listing the elements of each offense:
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).
Slip op. at 4. While these offenses certainly appear to be very similar, Judge Campanella highlights two important differences:
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.
Slip op. at 5. Judge Campanella notes that this conclusion conflicts with a published 2003 decision by the NMCCA that found that aggravated assault in which grievous bodily harm is intentionally inflicted is a lesser included offense of maiming, and also with a recent unpublished decision by a different panel of the Army CCA:
[I]n 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. 203) (“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).
Slip op. at 5. The Army CCA’s opinion in Smith is available here.
I think that in the wake of United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (discussed here) (returning to the elements test for determining LIOs), it’s clear that the NMCCA’s decision in Allen is incorrect and aggravated assault in which grievous bodily harm is intentionally inflicted is not a lesser included offense of maiming. The assault offense requires the specific intent to cause grievous bodily harm, while maiming “require[s] no more than an intent to injure, not an intent to inflict serious injury.” United States v. Hicks, 20 C.M.R. 337, 340 (C.M.A. 1956). Because the assault offense requires a greater measure of intent than maiming, it cannot be a lesser included offense of maiming.
Additionally, Judge Companella’s conclusion that grievous bodily harm need not be disfiguring or permanently destructive is well-founded. The legislative history of Article 124 reveals that maiming requires significantly greater injury than grievous bodily harm. Article 124 is based on the common law crime of mayhem that was prohibited by Article 93 of the Articles of War. See Hicks, 20 C.M.R. at 339. See also H.R. Rep. 81-491, at 58 (1949). “[M]ayhem” is an older form of the word “maim.” United States v. Outin, 42 M.J. 603, 607 n.4 (N-M. Ct. Crim. App. 1995) (discussing People v. Keenan, 227 Cal.App.3d 26 (1991) (available here)). In Keenan, the California court explained:
Mayhem . . . was at common law restricted to injuries that substantially reduced the victim’s formidability in combat; the rationale being to preserve the king’s right to the military services of his subjects. Gradually, the crime evolved to include injuries that did not affect the victim’s fighting ability. Our current mayhem statute is based upon the Coventry Act of 1670, which first broadened mayhem to include mere disfigurement.
227 Cal. App. 3d at 34 (marks and citation omitted). So, maiming requires a greater degree of injury than aggravated assault.
Because of this, I think the conclusion that the convictions in Hanks are not multiplicious is clearly right.
However, Judge Campanella also considers the possibility that the Government’s charging decision constitutes an 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)).
Slip op. at 6. Applying the five-factor test from Quiroz, Judge Campanella concludes that the charges are not unreasonably multiplied.
I think this conclusion is wrong, particularly when considering recent CAAF precedent addressing multiple convictions for a single underlying act. Judge Campanella doesn’t provide any details on why the appellant was charged with both aggravated assault and maiming for the single act of forcing his son’s hands into the scalding water, but I suspect they were charged for contingencies of proof because of the different degrees of injury and intent implicated by each charge. If the members didn’t find the injury severe enough to constitute maiming, the separate charge of aggravated assault in which grievous bodily harm is intentionally inflicted provided an alternative theory of criminal liability (if the members found that the appellant intended to inflict grievous bodily harm, which they did).
Earlier this year CAAF explained that:
We have held before that when a “panel return[s] guilty findings for both specifications and it was agreed that these specifications were charged for exigencies of proof, it [is] incumbent” either to consolidate or dismiss a specification. United States v. Mayberry, 72 M.J. 467, 467-68 (C.A.A.F. 2013); accord United States v. Wickware, 73 M.J. 350 (C.A.A.F. 2014) (order granting review and reversing in part).
United States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014) (CAAFlog case page). I analyzed the reasoning of Elespuru, Wickware, and Mayberry, and explained why I believe they address the application of the doctrine of unreasonable multiplication of charges, in this post about the NMCCA’s decision United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014).
In Hanks it’s clear that the members found that the appellant both intended to inflict grievous bodily harm and that he caused sufficient injury to constitute maiming. Judge Campanella writes that the dual convictions “do not exaggerate appellant’s conduct” because “together they accurately reflect appellant’s criminality in a way that one charge standing alone would not.” Slip op. at 6-7. But I don’t think this is a reasonable conclusion. Maiming carries a maximum punishment that includes confinement for 20 years, while the maximum confinement for the aggravated assault conviction is only eight years. Moreover, while maiming doesn’t require the specific intent to cause so serious an injury (or even grievous bodily harm), the members’ conclusions about the appellant’s intent is a relevant factor in determining a sentence. Put differently, the appellant didn’t need to intend to maim to be convicted of maiming, but a finding that he did intend to maim is a significant factor for sentencing. Accordingly, the additional criminal conviction for aggravated assault, based on the same underlying act, is wholly unnecessary to adequately punish the appellant.
This case is a good candidate for certification by the JAG in order to definitively resolve the split between the NMCCA and the ACCA (and between the panels within the ACCA). However, if CAAF does act on this case (through a certification or a grant), I suspect that the court will dismiss the aggravated assault conviction with a citation to Elespuru, and affirm the sentence, in a summary disposition.