UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Specialist GARY R. MYERS
                          United States Army, Appellant

                                  ARMY 20120575

                       Headquarters, 25th Infantry Division
                           David Conn, Military Judge
            Colonel George R. Smawley, Staff Judge Advocate (pretrial)
            Colonel Mark A. Bridges, Staff Judge Advocate (post -trial)


For Appellant: Major Jacob D. Bashore, JA; Captain A. Jason Nef, JA; Captain
Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA;
Captain Kenneth W. Borgnino, JA (on brief).


                                   20 August 2013

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

COOK, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of wrongfully attempting to view child
pornography on divers occasions, three specifications of wrongfully attempting to
produce child pornography on divers occasions, and three specifications of
wrongfully viewing child pornography on divers occasions, in violation of Articles
80 and 134, Uniform Code of Military Justice, 10 U.S.C. § § 880 and 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for eight years, forfeiture of all pay and allowances , and
reduction to the grade of Private E1. Pursuant to a pretrial agreement, the convening
authority approved only so much of the sentence as provided for a dishonorable
discharge, five years of confinement, forfeiture of all pay and allowances, and
reduction to the grade of Private E1.
MYERS – ARMY 20120575

       This case is before this court for review under Article 66, UCMJ. Appellant
submitted a merits pleading to this court and personally raised the issue of
unreasonable multiplication of charges , as well as another issue which does not
merit discussion or relief, pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). Thereafter, this court issued an order to both the government and
appellant’s counsel to brief the specified issue * of unreasonable multiplication of
charges. We have now received briefs from both parties on this issue.

                              LAW AND DISCUSSION

       In its brief, the government concedes Specifications 2, 4, and 6 of Charge II,
the three specifications of wrongfully attempting to produce child pornography, were
unreasonably multiplied with Specification s 1, 3, and 5 of Charge II, the three
specifications of wrongfully attempting to view child pornography over the same
time span. We agree and accordingly accept the government’s concession.

      Pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 307(c)(4), “[w]hat is
substantially one transaction should not be made the basis for an unreaso nable
multiplication of charges against one person.” Our superior court, in United States
v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), listed five factors to help guide our analysis
of whether charges have been unreasonably multiplied:
              (1) Did the accused 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?
Id. at 338.

*
 WHETHER APPELLANT’S CONVICTIONS ON THE SIX SPECIFICATIONS OF
CHARGE II ARE THE RESULT OF UNREASONABLE MUTIPLICATION OF
CHARGES.

                                           2
MYERS – ARMY 20120575

       In regards to the first Quiroz factor, appellant did not raise this issue at trial.
However, we are still permitted to consider this matter on appeal. See United States
v. Gilchrist, 61 M.J. 785, 789 (Army Ct. Crim. App. 2005). We do not find in
appellant’s favor in regards to the fourth Quiroz factor. At trial, government
counsel conceded Specifications 1, 3, and 5, should be merged with Specifications 2,
4, and 6, for sentencing purposes because the charges comprised three sets of
“unitary offenses.” Appellant’s trial defense counsel did not object and the military
judge accepted the government’s position. Accordingly, he combined the
specifications to determine the maximum available sentence to confinement. As
such, appellant’s punitive exposure was not unreasonably increased by the number of
specifications in Charge II. Regarding the fifth Quiroz factor, we do not find in
appellant’s favor because there is no evidence of prosecutorial overreaching or
abuse. The specifications in question were directed at different o ffenses, namely the
attempted wrongful viewing of child pornography as well as the attempted wrongful
production of child pornography. Evidently, these offenses were charged in the
alternative.

       In regards to the remaining two Quiroz factors, however, we find in favor of
the appellant. Appellant’s criminal act, requesting via webcam and chat messaging
that children on the other end of the transmission engage in sexually explicit
conduct, was intended to produce child pornography for the sole purpos e of his
viewing these illegal images in real-time. The stipulation of fact and appellant’s
providence inquiry reveal that appellant’s identical criminal acts form the basis for
the three sets of specifications. As conceded by the government, based on the facts
of this case, “appellant’s ‘production’ of child pornography . . . for the purpose of
[his] real-time viewing amounts to, in essence, a single transaction.”

      We therefore hold, pursuant to the second and third Quiroz factors, that
appellant’s attempted production and attempted viewing were not aimed at distinctly
separate criminal acts and the addition of these specifications does misrepresent or
exaggerate the appellant’s criminality. As such, w e will take appropriate action in
our decretal paragraph to remedy this issue.

                                    CONCLUSION

      On consideration of the entire record, the error noted, and those matters
personally raised by appellant pursuant to Grostefon, the findings of guilty of
Specifications 2, 4, and 6, Charge II, the wrongful attempted production of child
pornography offenses, are set aside. The remaining findings of guilty are
AFFIRMED.

       Reassessing the sentence based on the dismissal of Specifications 2, 4, and 6,
of Charge II, the entire record, and in accordance with the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40


                                            3
MYERS – ARMY 20120575

(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms the sentence as approved by the convening
authority.

      Judge CAMPANELLA and Judge HAIGHT concur.

                                       FOR
                                      FOR THETHE COURT:
                                              COURT:




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




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