UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                             TOZZI, MORAN, and KRAUSS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Private E2 ERIC T. RYANT
                          United States Army, Appellant

                                  ARMY 20120204

                       Headquarters, 82d Airborne Division
                      Reynold P. Masterton, Military Judge
              Colonel Lorianne M. Campanella, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief).


                                     30 July 2014
                              ---------------------------------
                              SUMMARY DISPOSITION
                              ---------------------------------
Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of assault consummated by a battery, housebreaking, and
breaking restriction, in violation of Articles 128, 130, and 134, Uniform Code of
Military Justice, 10 U.S.C. 928, 930, 934 (2006) [hereinafter UCMJ]. The military
judge convicted appellant, contrary to his pleas, of attempted rape, indecent act,
assault consummated by a battery, and assault with intent to commit rape, in
violation of Articles 80, 120, 128, and 134, UCMJ. The military judge sentenced
appellant to a dishonorable discharge, confinement for ten years, total forfeitures,
and reduction to the grade of E-1. The convening authority approved confinement
for seven years and eleven months and otherwise approved the sentence. The
convening authority also credited appellant with 203 days confinement credit against
the sentence to confinement.

       This case is before us for review under Article 66, UCMJ. Appellant’s sole
assignment of error warrants discussion and relief. In particular, appellant argues
that the military judge abused his discretion by denying appellant’s motion to
RYANT—ARMY 20120204

dismiss on the grounds of an unreasonable multiplication of charges. The
government concedes this issue. We agree and grant relief in our decretal
paragraph. * Appellant’s personal submissions pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982) do not warrant relief.

      Appellant was charged, inter alia, with the following violations of the UCMJ:

             CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 80

             THE SPECIFICATION: In that [appellant], U.S. Army,
             did, at or near Camp Roberts, Kandahar Airfield,
             Afghanistan, on or about 22 August 2011, attempt to cause
             [PFC EV] to engage in a sexual act, to wit: penetrating her
             vulva with his penis, by forcibly leaping on top of her,
             straddling her legs with his knees, grabbing both of her
             wrists with his hand, and pulling down her pants.

             CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

             THE SPECIFICATION: In that [appellant], U.S. Army,
             did, at or near Camp Roberts, Kandahar Airfield,
             Afghanistan, on or about 22 August 2011, unlawfully
             strike [PFC EV] in the face with his hand, unlawfully
             cover her face and mouth with his hand, and unlawfully
             grab her wrists with his hands and shove her backwards.

             ADDITIONAL CHARGE II: VIOLATION OF THE UCMJ,
             ARTICLE 120

             THE SPECIFICATION: In that [appellant], U.S. Army,
             did, at or near Camp Roberts, Kandahar Airfield,
             Afghanistan, on or about 22 August 2011, wrongfully
             commit indecent conduct, to wit: intentionally pulling
             down on the pants of [PFC EV] without the consent of
             [PFC EV].

*
  We note that appellant’s pleaded guilty by exceptions and substitutions to
housebreaking under Article 130, UCMJ. In particular, he was charged with
housebreaking with the intent to commit assault and rape of a female soldier
sleeping therein. Appellant pleaded guilty, except for the words “assault and rape”
and substituted the words “an indecent act in the presence.” However, the military
judge found appellant guilty of the housebreaking as charged. As a remedy, we will
amend and affirm the specification in accordance with appellant’s provident pleas of
guilty.


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RYANT—ARMY 20120204

             ADDITIONAL CHARGE III: VIOLATION OF THE
             UCMJ, ARTICLE 128

             SPECIFICATION 1: In that [appellant], U.S. Army, did, at
             or near Camp Roberts, Kandahar Airfield, Afghanistan, on
             or about 22 August 2011, unlawfully pull down the pants
             worn by [PFC EV] with his hand.

             ADDITIONAL CHARGE V: VIOLATION OF THE UCMJ,
             ARTICLE 134

             SPECIFICATION 1: In that [appellant], U.S. Army, did, at
             or near Camp Roberts, Kandahar Airfield, Afghanistan, on
             or about 22 August 2011, with the intent to commit rape,
             commit an assault upon [PFC EV] by unlawfully striking
             [PFC EV] in the face with his hand, unlawfully covering
             her face and mouth with his hand, and unlawfully grabbing
             her wrists with his hands and shoving her backwards, that
             action being prejudicial to good order and discipline in the
             armed forces.

Appellant moved to dismiss these and other offenses on multiplicity and
unreasonable multiplication of charges grounds. The government responded by
noting that they charged appellant on alternative theories of liability. The military
judge ultimately denied appellant’s motion, found appellant guilty of the above
specifications, and agreed to treat them as a single offense for the purpose of
sentencing.

      “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?;



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RYANT—ARMY 20120204

             (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”). Here, the Quiroz factors on
balance weigh in favor of appellant. It is clear that appellant attempted to rape the
victim, PFC EV. It is also clear that the other specifications at issue were charged
as alternative theories of liability to account for exigencies of proof. When a fact
finder “return[s] guilty findings for [multiple] 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. Elespuru, __ M.J. ___, slip
op. at 10 (C.A.A.F. July 15, 2014) (quoting United States v. Mayberry, 72 M.J. 467,
467-68 (C.A.A.F. 2013) (summ. disp.) (internal quotation marks omitted).

        Although we dismiss several findings of guilty, this action does not affect the
sentence. The factors announced in United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), all weigh in favor of reassessing and affirming the sentence.
First, the penalty landscape has not changed. Although some specifications
described appellant’s misconduct differently, the res gestae of appellant’s criminal
conduct has not changed and is admissible aggravation evidence. A military judge
sentenced appellant, and we are sufficiently familiar with the remaining offenses to
reassess. Most importantly, the military judge treated the offenses at issue as one
for sentencing purposes.

                                   CONCLUSION

      On consideration of the entire record, the matters submitted pursuant to
Grostefon, and the assigned error, the findings of guilty of Charge II and its
Specification, Additional Charge II and its Specification, Specification 1 of
Additional Charge III, and Specification 1 of Additional Charge V are set aside.
Those charges and specifications are dismissed. The Specification of Charge III is
amended as follows:

             In that [appellant], U.S. Army, did, at or near Camp
             Roberts, Kandahar Airfield, Afghanistan, on or about 22
             August 2011, unlawfully enter tent G-1, a female transient
             tent, the property of the Government of the United
             Kingdom, with intent to commit a criminal offense
             therein: an indecent act in the presence of the female
             soldier sleeping, therein.

That specification as amended is AFFIRMED. The remaining findings of guilty are
AFFIRMED. Reassessing the sentence on the basis of the errors noted and the



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RYANT—ARMY 20120204

principles of Winckelmann, the 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.


                                     FOR
                                     FOR THE
                                         THE COURT:
                                             COURT:



                                     ANTHONY
                                     ANTHONYO.O.   POTTINGER
                                                      POTTINGER
                                     Chief Deputy Clerk
                                     Chief Deputy Clerk of Court
                                                           of Court




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