Larry WALLACE, Jr., Private First Class
U.S. Army, Appellant
Crim. App. No. 9500234
United States Court of Appeals for the Armed Forces
Argued May 12, 1998
Decided September 30, 1998
For Appellant: Captain Patricia A. Lewis (argued); Colonel John T. Phelps II, Lieutenant Colonel Michael L. Walters, and Major Leslie A. Nepper (on brief); Captain John M. Head.
For Appellee: Captain Chris A. Wendelbo (argued); Colonel Joseph E. Ross and Lieutenant Colonel Frederic L. Borch III (on brief); Captain John H. Bergen.
Military Judge: William G. Fischer
Opinion amended Feb 25, 1999
Opinion of the Court
COX, Chief Judge:
Appellant was convicted of various assaults on a child under 16 years of age, and child abuse under the Colorado child abuse statutes. See Colo. Rev. Stat. § 18-6-401. 1/
Appellant was originally sentenced to a dishonorable discharge, 15 years’ confinement, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals reassessed his sentence, however, and reduced confinement to 14 years 9 months, after that court found that the military judge failed to announce findings for one of the Charges, creating an ambiguity in the sentencing portion of the proceedings.
Appellant asks us to set aside his conviction for a pattern of child abuse, as charged under the assimilated Colorado Revised Statutes, and asks us to authorize a rehearing on sentence for two reasons. First, he claims that the Colorado statute was preempted by Congress’s codification of assault on a child under the age of 16, Article 128, UCMJ, 10 USC § 928. Second, he asks us to find this conviction multiplicious with his other convictions for assaults that established the pattern of abuse for which he was convicted under the Colorado statute. 2/
We agree with appellant’s first contention, and grant the necessary relief. 3/
First, appellant cannot stand convicted of violating both the Colorado child abuse statute and the assault statute in the UCMJ. As this Court stated in United States v. Irvin, 21 MJ 184 (CMA 1986), "the Assimilative Crimes Act is intended to fill gaps that would otherwise exist in Federal criminal law, rather than to allow a redefining of crimes prescribed by Congress." Id. at 187-88, citing United States v. Wright,5 MJ 106 (CMA 1978); United States v. Butler,541 F.2d 730 (8th Cir. 1976). In Irvin, we specifically stated that the Colorado child abuse statute covers conduct outside the scope of Article 128, and that this conduct could only be charged as an assimilated offense if the conduct could not be charged under any other provision of the UCMJ. 21 MJ at 189.
From this record, it is apparent that appellant was being charged for the same conduct in each charge, i.e., assaulting his girlfriend’s 5-year-old son on various occasions. Although the Government initially conceded error, it now argues that the Colorado child abuse statute also encompasses appellant’s failure to seek medical treatment for the child. 4/ While "lack of proper medical care" could have been potentially charged under this statute, the Government did not do so in this case.
During a pretrial motions session, trial counsel attempted to argue this very point. The military judge, however, ruled that this conduct was not properly alleged in the Charge as drafted. The Government took no corrective action to redraft, re-prefer, or re-refer this Charge prior to trial. Therefore, the act of failing to seek medical treatment for the child was excluded from the assimilated offense as both drafted and presented to the members. Because this Charge only alleged the assaults -- the same assaults charged under the Article 128 specifications -- the child abuse Charge is preempted. SeeIrvin, 21 MJ at 188-89. 5/
The decision of the United States Army Court of Criminal Appeals as to specification 1 of Charge II is reversed. The findings of guilty thereon are set aside. That specification and Charge are dismissed. The decision as to the remaining findings of guilty is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals, which may reassess the sentence based on the remaining findings of guilty or order a rehearing on sentence.
Judges SULLIVAN, CRAWFORD, GIERKE, and EFFRON concur.
1/ Appellant was tried by a military judge sitting alone as a general court-martial convened at Fort Carson, Colorado. He was convicted of four specifications of assault on a child under the age of 16, three specifications of aggravated assault on a child under 16, and one specification of child abuse assimilated from the Colorado Revised Statutes. The assault Charges were violations of Article 128, and the child abuse Charge was a violation of Article 134, Uniform Code of Military Justices, 10 USC §§ 928 and 934. All of the assaults arose out of various types of physical abuse taken against his girlfriend’s son.
2/ On October 29, 1997, we granted the following issues for review:
WHETHER THE MILITARY JUDGE AND THE ARMY COURT OF CRIMINAL APPEALS ERRED BY FAILING TO DISMISS SPECIFICATION 1, CHARGE II, A VIOLATION OF TITLE 18, ARTICLE 6, SECTION 401, COLORADO REVISED STATUTES, WHEN THE COURT OF MILITARY APPEALS HAD PREVIOUSLY AND SPECIFICALLY HELD THAT PARTICULAR STATUTE WAS PREEMPTED BY CONGRESS.
WHETHER THE MILITARY JUDGE ERRED WHEN HE RULED, OVER DEFENSE OBJECTION, THAT SPECIFICATION 1, CHARGE II (PATTERN OF ABUSE), WAS NOT MULTIPLICIOUS WITH THE ASSAULTS WHICH ESTABLISHED THE PATTERN OF ABUSE (SPECIFICATIONS 1-4 OF CHARGE I, AND ADDITIONAL CHARGE I.)
4/ The pertinent part of that statute is:
5/ This holding renders Issue II moot. We cannot tell, in any event, exactly how the military judge treated the Colorado child abuse specification. His ruling seemed to indicate that he treated it as partially, but not completely, multiplicious for sentencing with the assault specifications. He stated: