UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                    Private First Class PAUL BEARDEN, JR.
                         United States Army, Appellant

                                   ARMY 20110754

                               Headquarters, V Corps
          Christopher T. Fredrikson and Wendy P. Daknis, Military Judges
     Lieutenant Colonel Matthew Miller, Acting Staff Judge Advocate (pretrial)
            Colonel Mark D. Maxwell, Staff Judge Advocate (post -trial)

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Richard E. Gorini,
JA; Captain James P. Curtain, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Kenneth W. Borgnino, JA (on brief).


                                   31 October 2013
                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

Per curiam:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of conspiracy to commit assault consummated by battery and
of assault with a means likely to produce death or grievous bodily harm, in violation
of Articles 81 and 128, Uniform Code of Military Justice. 10 U.S.C. § § 881, 928
(2006) [hereinafter UCMJ]. Contrary to appellant’s pleas, the mil itary judge
convicted appellant of attempted premeditated murder and assault with a dangerous
weapon, in violation of Articles 80 and 128, UCMJ. The military judge sentenced
appellant to a dishonorable discharge, twelve years of confinement, forfeiture of all
pay and allowances, and reduction to E-1. The convening authority approved
confinement for eleven years and otherwis e approved the sentence. 1

      This case is before this court for review pursuant to Article 66, UCMJ.
Appellant alleges that his two assault convictions (assault with a means likely to

1
 Appellant was credited with 211 days of confinement credit against the sentence to
confinement.
BEARDEN, JR. — ARMY 20110754

produce death or grievous bodily harm and assault with a dangerous weapon) are
multiplicious with his conviction for attempted premeditated murder. Alternatively,
appellant alleges that these assault offense s constitute an unreasonable
multiplication of charges. Without reaching the multiplicity issue, we grant relief
for an unreasonable multiplication of charges. The matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) do not
merit discussion or relief.

                                  BACKGROUND

      Appellant was charged with and found guilty of, inter alia, the following
offenses:

      CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 80.

             SPECIFICATION: In that [appellant], U.S. Army, did, at or near
             Ruschberg, Germany on or about 02 February 2011, attempt to
             murder Mr. [AG] with premeditation by striking Mr. [AG] in the
             head with a hammer and stabbing him with a knife.

      CHARGE III: VIOLATION OF THE UCMJ, ARTICLE 128

             SPECIFICATION 1: In that [appellant], U.S. Army, did, at or
             near Ruschberg, Germany on or about 02 February 2011, commit
             an assault upon Mr. [AG] by striking him on the head with a
             means likely to produce death or grievous bodily harm, to wit: a
             hammer.

             SPECIFICATION 2: In that [appellant], U.S. Army, did, at or
             near Ruschberg, Germany on or about 02 February 2011, commit
             an assault upon Mr. [AG] by stabbing him in the back with a
             dangerous weapon, to wit: a knife.

Before trial, appellant made a motion requesting the military judge “merge
[S]pecifications 1 and 2 of Charge III into one offense for the purposes of
sentencing, should [appellant] be convicted of both offenses. In response, the
government asked the military judge to defer ruling on the motion until after the
announcement of findings. The defense had no objection to the government’s
request, and the military judge invited the defense to re -raise the motion after
findings. After announcing the findings, the military judge again addressed this
motion. At that point, the defense asked that the military judge “merge
Specifications 1 and 2 of Charge III into [t]he Specification of Charge I” for




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BEARDEN, JR. — ARMY 20110754

sentencing purposes. The government did not object, a nd the military judge agreed
to do so. 2

                               LAW AND DISCUSSION

       Appellant’s assault convictions are predicated upon the same criminal acts as
his attempted premeditated murder conviction: striking Mr. [AG] in the head with a
hammer and stabbing him with a knife. “What is substantially one transaction
should not be made the basis for an unreasonable multiplication of charges against
one person.” Rule for Courts-Martial 307(c)(4). We consider five factors to
determine 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?

United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”).

       Under the facts of this case, the Quiroz factors balance in favor of appellant ,
requiring that we set aside appellant’s assault convictions . The two assault
convictions ultimately exaggerate appellant’s criminality. Furthermore, the facts
supporting appellant’s attempted premeditated murder conviction are the same facts
that support his assault convictions. This single transaction unreasonably resulted in



2
  It is clear from the record that the parties and military judge were relying on the
grounds of multiplicity for sentencing for relief. We note this case was decided
before United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2013), where our
superior court clarified that “there is only one form of multiplicity . . . if an offense
is multiplicious for sentencing it must necessarily be multiplicious for findings as
well.” Consequently, we will consider the military judge’s ruling as one finding an
unreasonable multiplication of charges for sentencing.
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BEARDEN, JR. — ARMY 20110754

three convictions. 3 Accordingly, we set aside appellant’s assault convictions. See
Campbell, 71 M.J. at 23 (noting one or more factors may be sufficiently compelling,
without more, to warrant relief). These factors outweigh appellant’s lack of
objection at trial, the fact that the assault convictions do not increase appellant’s
punitive exposure, and the lack of evidence regarding prosecutorial overreach or
abuse in drafting the charges. Because we grant relief through unreasonable
multiplication of charges, we do not reach the constitutional issue of multiplicity.
Cf. United States v. Serianne, 69 M.J. 8, 10-11 (C.A.A.F. 2010) (deciding issue on a
nonconstitutional regulatory ground without reaching constitutional questions ).

       Having determined that setting aside the findings of guilty of appellant’s
assault convictions is warranted, we now turn to appellant’s sentence in light of the
modified findings. We are “reasonably certain as to the severity of the sentence that
would have resulted in the absence of the error,” United States v. Sales, 22 M.J. 305,
307 n.3 (C.M.A. 1986), and, thus, we will reassess the sentence at our level. As a
threshold matter, the maximum punishment remains unchanged , and the military
judge treated the offenses at issue as one for sentencing purposes . Second, our
decision does not alter the aggravation evidence properly before the sentencing
authority. Third, appellant also elected trial by judge alone and we are “more likely
to be certain of what a military judge alone would have done than what a panel of
members would have done.” United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F.
2006) (Baker, J., concurring in result). As a result, we affirm the approved
sentence.

                                   CONCLUSION

       Upon consideration of the entire record, the findings of guilty of
Specifications 1 and 2 of Charge III and Charge III are set aside. The remaining
findings are AFFIRMED. Reassessing the sentence on the basis of the error noted,
the entire record, and in accordance with the principles of Sales and Moffeit, to
include the factors identified by Judge Baker in his concurring opinion in Moffeit,
the approved sentence is AFFIRMED. All rights, privileges, and property, of which
appellant has been deprived by virtue of that portion of the findings set aside by this
decision, are ordered restored.




3
 Nothing in this decision limits the government’s ability to account f or exigencies
of proof through pleading and attempting to prove alternative theories of liability.
However, after these exigencies of proof were met, appellant suffered an
unreasonable multiplication of charges.

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BEARDEN, JR. — ARMY 20110754


                                            FOR THE COURT:


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




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