UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                         TOZZI, CAMPANELLA, and CELTNIEKS
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                        Staff Sergeant WESTON K. DAVIS
                          United States Army, Appellant

                                    ARMY 20150219

                    Headquarters, 10th Regional Support Group
                           Mark Bridges, Military Judge
            Lieutenant Colonel May L. Nicholson, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA (on
brief & on brief in response to specified issues).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Timothy C. Donahue, JA (on brief); Colonel Mark H. Sydenham, JA; Major Daniel
D. Derner, JA; Captain Samuel E. Landes, JA (on brief in response to specified
issues).


                                  25 February 2016

                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
consistent with his pleas, of one specification of destruction of non-military
property, one specification of assault consummated by battery, one specification of
reckless endangerment, and one specification of communicating a threat, in violation
of Articles 109, 128, and 134 Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. §§ 909, 928, and 934 (2012). The military judge sentenced appellant to a
bad-conduct discharge, confinement for four months, and reduction to the grade of
E-1. The convening authority approved the sentence as adjudged.

       This case is at issue before us for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error which we find has no merit. The matters
raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982) are also without merit. We find one additional issue, however, that warrants
DAVIS —ARMY 20150219

discussion and relief. This court specified two issues for further review and
briefing; the following issue was specified in our order:

             WHETHER THE ARTICLE 134, UCMJ OFFENSE OF
             RECKLESS ENDANGERMENT SHOULD BE
             DISMISSED AS CONSTITUTING AN UNREASONABLE
             MULTIPLICATION OF CHARGES IN LIGHT OF
             WILLIAMS V. STATE, 100 MD. APP. 468, 641 A.2d 990
             (1994)?

                                   BACKGROUND

      Appellant and his roommate, Staff Sergeant (SSG) ZI, got into a heated
argument during a night of socializing at a local restaurant and bar in Okinawa,
Japan. The argument culminated with appellant telling SSG ZI not to return to the
apartment the two men shared. Staff Sergeant ZI left the bar, returned to their
apartment, and retired to his bedroom where he went to sleep.

       A short time later, SSG ZI awoke to appellant knocking on his bedroom door
and demanding SSG ZI to leave the apartment. When SSG ZI did not respond or
leave, appellant repeatedly hit the door with a baseball bat, eventually smashing a
large hole in the door. As appellant hit the door, he yelled “I’m going to kill you.”
Staff Sergeant ZI stood on the other side of the bedroom door bracing it with his
body to keep appellant from entering the bedroom. As he held the door closed, SSG
ZI quietly called the police. At some point during appellant’s violent frenzy, SSG
ZI was hit on the arm by the bat as appellant swung it at the door.

       Appellant eventually put down the bat and tried to pry the door open with a
knife. When this failed, he began stabbing the door with the knife. After more than
forty minutes of this violent tirade, appellant stopped and went downstairs and soon
after he was arrested by police responding to the scene.

                              LAW AND DISCUSSION

            Assault Consummated by Battery and Reckless Endangerment

       The prohibition against unreasonable multiplication of charges has long
provided reviewing authorities with a traditional legal standard of reasonableness to
address the consequences of an abuse of prosecutorial discretion in the context of
the unique military justice system. United States v. Quiroz, 55 M.J. 334, 338-39
(C.A.A.F. 2001). Rule for Courts-Martial 307(c)(4) is the current regulatory
expression of that prohibition, directing that “[w]hat is substantially one transaction
should not be made the basis for an unreasonable multiplication of charges against
one person.” The principle provides that the government may not needlessly “pile



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on” charges against an accused. United States v. Foster, 40 M.J. 140, 144 n.4
(C.M.A. 1994).

      Our superior court has endorsed the following non-exhaustive list of factors in
determining whether an unreasonable multiplication of charges has occurred:

                (1) Did the [appellant] object at trial that there was an
                unreasonable multiplication of charges and/or
                specifications?

                (2) Is each charge and specification aimed at distinctly
                separate criminal acts?

                (3) Does the number of charges and specifications
                misrepresent or exaggerate the appellant's criminality?

                (4) Does the number of charges and
                specifications [unreasonably] increase the appellant's
                punitive exposure?

                (5) Is there any evidence of prosecutorial overreaching
                or abuse in the drafting of the charges?

Quiroz, 55 M.J. at 338-39 (internal quotation marks omitted).

       First, appellant did not raise the issue of unreasonable multiplication of
charges at trial. 1 This weighs against appellant. Second, appellant was convicted of
two crimes occurring simultaneously or within seconds of each other that arose out
of the same course of conduct during appellant’s efforts to break down the door and
get SSG ZI to leave the apartment. Appellant was convicted of both assault
consummated by battery with a bat and reckless endangerment by trying to break
down the door with a bat and knife as SSG ZI braced the door with his body,
conduct that was likely to cause death or grievous bodily harm. The reckless
endangerment specification arose from the same act of appellant swinging and
hitting SSG ZI with the bat. Both offenses occurred at the same time, location, and
during the same criminal course of conduct. Here, the assault consummated by the
battery with the bat is aimed at the same action as the reckless endangerment
specification. We, therefore, conclude the striking of SSG ZI with the bat and the
reckless endangerment constitute a single transaction under these facts. Convicting
appellant twice for what amounts to a single offense exaggerates his criminality and
unfairly subjects appellant to increased punitive exposure. Lastly, although we find


1
    He also did not specifically waive the issue at trial or in his pre-trial agreement.



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no prosecutorial overreaching or abuse in drafting charges, we conclude on balance,
that the Quiroz factors weigh in appellant's favor and an unreasonable multiplication
of specifications exists. 2

                                  Sentence Reassessment

       This court has “broad discretion” when reassessing sentences. United States
v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has repeatedly
held that if we “can determine to [our] satisfaction that, absent any error, the
sentence adjudged would have been of at least a certain severity, then a sentence of
that severity or less will be free of the prejudicial effects of error.” United States v.
Sales, 22 M.J. 305, 308 (C.M.A. 1986). This analysis is based on a totality of the
circumstances with the following as illustrative factors:

             (1) Dramatic changes in the penalty landscape and
             exposure.

             (2) Whether an appellant chose sentencing by members or a
             military judge alone. As a matter of logic, judges of the
             courts of criminal appeals are more likely to be certain of
             what a military judge would have done as opposed to
             members. This factor could become more relevant where
             charges address service custom, service discrediting
             conduct or conduct unbecoming.

             (3) Whether the nature of the remaining offenses capture
             the gravamen of criminal conduct included within the
             original offenses and, in related manner, whether
             significant or aggravating circumstances addressed at the
             court-martial remain admissible and relevant to the
             remaining offenses.

             (4) Whether the remaining offenses are of the type that
             judges of the courts of criminal appeals should have the
             experience and familiarity with to reliably determine what
             sentence would have been imposed at trial.


2
 Given our dismissal of the assault consummated by battery, it is unnecessary to
reach a judgment as to whether the assault consummated by battery is an
unreasonable multiplication of charges with the communication of a threat. See
United States v. Cox, ARMY 20111136, 2014 LEXIS 876 (Army Ct. Crim. App. 26
Nov. 2014)(sum. disp.).




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Winckelmann, 73 M.J. at 15-16 (internal citations omitted).

      Applying these factors to this case, we are confident that reassessment is
appropriate. First, we look to the penalty landscape. Appellant’s confinement
exposure is reduced from five years and six months to five years confinement. The
remainder of the penalty landscape is unchanged. Second, appellant was sentenced
by a military judge. We are confident we can discern what punishment a military
judge would adjudge in this case. Third, the gravamen of the criminal conduct
included within the original offenses remains the same. Lastly, the offenses are ones
that we have experience and familiarity with in determining what sentence would
have been imposed at trial.

                                   CONCLUSION

     The finding of guilty of Specification 3 of Charge I is set aside and
DISMISSED. The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record,
and in accordance with the principles of Winckelmann, 73 M.J. at 15-16, the
sentence is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of his findings set aside by this decision, are
ordered restored.

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                        FOR THE COURT:




                                        MALCOLM H. SQUIRES, JR.
                                        MALCOLM H. SQUIRES, JR.
                                        Clerk of Court
                                        Clerk of Court




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