UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            MULLIGAN, HERRING, and BURTON
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                      First Lieutenant LARRY D. BARTELLE,
                            United States Army, Appellant

                                      ARMY 20130420

            Headquarters, Joint Readiness Training Center and Fort Polk
                           Patricia Lewis, Military Judge
                Colonel Samuel A. Schubert, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Yolanda McCray Jones, JA; Captain
Brian D. Andes, JA (on brief).

For Appellee: Major A.G. Courie III, JA; Major John K. Choike, JA; Captain Robyn
M. Chatwood, JA (on brief).


                                     12 November 2015


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                                    MEMORANDUM OPINION
                                 ----------------------------------


  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

MULLIGAN, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of making a false official statement and
one specification of willful damage of personal property in violation of Articles 107
and 109, Uniform Code of Military Justice, 10 U.S.C. §§ 907 and 909 (2006)
[hereinafter UCMJ]. The military judge convicted appellant, contrary to his pleas,
of willfully disobeying the lawful order of a superior commissioned officer; three
specifications of making a false official statement; two specifications of willful
damage of personal property; three specifications of assault consummated by a
battery; and communicating a threat in violation of Articles 90, 107, 109, 128, and
BARTELLE — ARMY 20130420

134, UCMJ. 1 The military judge sentenced appellant to a dismissal and four years’
confinement. The convening authority approved the sentence as adjudged and also
waived automatic forfeitures of all pay and allowances for a period of six months
with the direction they be paid to appellant’s dependents. The accused was credited
with 652 days toward confinement.

       This case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error, two of which merit discussion and one of which
merits relief. 2 Finally, although not raised by appellant, we find the evidence
supporting his conviction for willfully disobeying the lawful order of a superior
commissioned officer is not factually sufficient and we will set it aside in our
decretal paragraph.

                                       FACTS

       Appellant and Staff Sergeant (SSG) R.A.S. engaged in a brief relationship that
became abusive once SSG S discovered she was pregnant. During an argument with
SSG S, appellant hit and damaged a light fixture owned by SSG S. The light fixture
cut appellant’s finger, requiring him to seek medical treatment at an on post medical
facility. Appellant informed the intake nurse that he cut his finger with a knife. He
told his treating physician that he cut the finger on a lawn mower blade. Based on
these facts, appellant pled guilty to two specifications of making a false official
statement.

       After learning of appellant’s abuse of SSG S, appellant’s company
commander gave him an order to not contact SSG S for any reason via any means of
communication. At trial, the company commander testified he learned of appellant’s
breach of the no-contact order from trial counsel. SSG S testified appellant had
contacted her after he received the no-contact order. Neither the company
commander nor SSG S provided any further details about when or where the contact
was made, in what form the contact was made, or the nature of the contact made. In
addition, the company commander apparently had no personal knowledge of the
contact, only the assurances of the trial counsel that appellant had, in fact, violated
his no-contact order.



1
 The military judge acquitted the appellant of one specification of willfully
disobeying the lawful order of a superior commissioned officer, two specifications
of causing death or injury of an unborn child, one specification of rape, two
specifications of stalking, six specifications of assault consummated by battery,
three specifications of kidnapping, and one specification of communicating a threat
(Article 90, 199a, 120, 120a, 128, and 134, UCMJ).
2
 Appellant also raises several issues pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), none of which merit discussion or relief.
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       During an interview with a military police investigator, appellant answered
"No," or words to that effect, when asked whether he had a sexual relationship with
SSG S; if he knew who SSG S was pregnant by; and if he had ever threatened to kill
or hit SSG S during any of their arguments.

                             LAW AND DISCUSSION

     1. Providency of Appellant’s Guilty Plea to making False Official Statements

       Appellant avers that the military judge abused her discretion by accepting his
plea to making false official statements. He asserts that these statements were not
“official” within the meaning of Article 107 because the intake nurse and the
treating physician “were not acting in conjunction with or on behalf of military
authorities at the time appellant made his statements.”

       “We review a military judge’s decision to accept a guilty plea for an abuse of
discretion and questions of law arising from the guilty plea de novo.” United States
v. Murphy, 74 M.J. 302, 305 (C.A.A.F. 2015) (quoting United States v. Inabinette,
66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will only be set aside if we find a
substantial basis in law or fact to question the plea. Id. The court applies this
“substantial basis” test by determining whether the record raises a substantial
question about the factual basis of appellant's guilty plea or the law underpinning the
plea. Inabinette, 66 M.J. at 322.

       In United States v. Spicer, 71 M.J. 470 (C.A.A.F. 2013), our superior court
interpreted Article 107, UCMJ “as applying to statements affecting military
functions.” Spicer, 71 M.J. at 473, (citing United States v. Rodgers, 466 U.S. 475,
478-79 (1984)). This includes statements based on the speakers’ position, either
while in the “line of duty” or relating to the speaker’s official military duties.
Spicer, 71 M.J. at 473. It also includes statements based on the position of the
hearer, when the hearer is a military member carrying out military duties or “a
civilian necessarily performing a military function when the statement is made.” Id.

       During the providence inquiry appellant admitted he was in a medical facility
“on post” at Fort Jackson, South Carolina when he made the false statements and
that the “military nurse” was “in the discharge of her functions regarding her job as
a nurse.” Appellant also admitted that the doctor was “in the official discharge of
his duties when [appellant] spoke with him.” Based on these admissions, we find no
substantial basis in law or fact to question appellant’s plea to making an “official”
statement. Inabinette, 66 M.J. at 322; see United States v. Day, 66 M.J. 172, 175
(C.A.A.F. 2008) (statements made to civilian personnel who were members of a base
fire department charged with performing an on-base military function were held to
be official.). Accordingly, we find that the military judge did not abuse her
discretion in accepting appellant’s plea of guilt. Murphy, 74 M.J. at 305.



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                     2. Unreasonable Multiplication of Charges

       Contrary to his pleas, appellant was charged with three additional
specifications of making a false official statement, all three of which occurred
during a single interview by the military police investigator. Specifications 1, 2,
and 3 of Charge VIII were based on these answers.

       We review claims of unreasonable multiplication of charges under an abuse of
discretion standard. United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012)
(citing United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004)). “What is
substantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” Rule for Courts-Martial (R.C.M.)
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, 338-89 (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”).

       On balance, we find the Quiroz factors weigh in appellant's favor. First,
appellant did object to the unreasonable multiplication of these specifications during
trial. Second, considering appellant's false statements were made during a single
interview with the same investigator regarding appellant’s relationship with SSG S.,
the first three specifications of Charge VIII are not three distinctly separate criminal
acts. Rather, appellant's three 'exculpatory no' answers comprise one false official
statement offense. Further, convicting appellant three times for what was a single
offense exaggerates his criminality. Although the military judge merged the three
specifications in Charge VIII for purposes of sentencing, thereby preventing
appellant from being unfairly subjected to an increase in punitive exposure and

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although we find no prosecutorial overreaching or abuse in drafting charges, we
conclude there was an unreasonable multiplication of specifications for findings, as
well as sentencing, in this case. See Campbell, 71 M.J. at 23 (noting one or more
factors may be sufficiently compelling, without more, to warrant relief); see also
United States v. Wright, 44 M.J. 739, 741 (Army Ct. Crim. App. 1996) (“The
government’s election to charge each of the four ‘particulars’ in the appellant's two
false official statements as a separate specification was an unreasonable
multiplication of charges which must be corrected.”) (citations omitted). We will
consolidate these specifications in our decretal paragraph below.

                          3. Factual and Legal Sufficiency

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324, 324-35 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319; United
States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The test for factual
sufficiency is “whether, after weighing the evidence in the record of trial and
making allowances for not having personally observed the witnesses, [we] are
[ourselves] convinced of the accused's guilt beyond a reasonable doubt.” Turner, 25
M.J. at 325.

       In this case, having completed our review and in consideration of the entire
record, we find that appellant’s conviction for disobeying his company commander’s
no-contact order is not factually sufficient. There is some evidence that appellant
and SSG S did have some contact after appellant received the order. According to
SSG S, she contacted appellant regarding a tax issue they had previously discussed
and medical questions that were pertinent to her pregnancy. In neither situation did
SSG S indicate that appellant willfully contacted her or communicated with her in
violation of the order, only that she contacted him to discuss these matters and he
presumably responded to her. In addition, the company commander testified that on
at least one occasion, and possibly more, appellant properly informed him that he
had had some contact with SSG S.

      Based on the evidence contained in the record, even making allowances for
not having personally observed the witnesses, we are not convinced beyond a
reasonable doubt that appellant is guilty of willfully disobeying the no-contact order
his company commander gave him. Turner, 25 M.J. at 325.




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                                  CONCLUSION

      Upon consideration of the entire record, submission by the parties, and those
matters personally raised by appellant pursuant to Grostefon, Specifications 1, 2,
and 3 of Charge VIII are consolidated into a single amended Specification, to read as
follows:

             In that [appellant], U.S. Army, did, at or near Ft. Jackson,
             South Carolina, on or about 5 May 2012, with intent to
             deceive, make to Investigator P.S.M., official statements,
             to wit: "no," or words to that effect in response to
             Investigator M’s question whether [appellant] had a sexual
             relationship with Staff Sergeant R.A.S.; Investigator M’s
             question whether [appellant] knew who Staff Sergeant
             R.A.S. was pregnant by; and " Investigator M’s question
             whether [appellant] had ever threatened to kill or hit Staff
             Sergeant R.A.S. during any of their arguments, which
             statements were totally false, and were then known by the
             said [appellant] to be so false.

       The findings of guilty to Specification 1 of Charge VII and Specifications 2
and 3 of Charge VIII are set aside and those specifications are DISMISSED. The
finding of guilty to Specification 1 of Charge VIII, as so amended, is AFFIRMED.
The remaining findings of guilty are 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.

      Applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013), we conclude that we can confidently reassess appellant’s sentence
without returning this case for a sentence rehearing

      In evaluating the Winckelmann factors, our decision does not result in a
dramatic change in the penalty landscape despite the fact that appellant’s maximum
exposure to confinement is reduced by five years. Winckelmann, 73 M.J. at 15-16.
Because appellant was sentenced by a military judge as opposed to members, we are
more likely to be certain of how the military judge would have sentenced appellant
had she acquitted him of violating the no contact order. Winckelmann, 73 M.J. at
16. In addition, this court reviews the records of a substantial number of courts-
martial involving domestic abuse and we have extensive experience with the level of
sentences imposed for similar offenses to those committed by appellant. Id.

      Finally, the remaining offenses still capture the gravamen of appellant’s
criminal conduct. Id. Appellant remains convicted of assaulting SSG S on several
occasions, damaging her property, threatening her and then making false statements
about circumstances surrounding their relationship. Based on the record, any

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contact between appellant and SSG S that the military judge may have found to
occur after the no-contact order was given was not the primary source of the fears
and concerns SSG S expressed during her sentencing testimony and likely was not
the primary basis for the military judge’s sentence. Based on the entire record and
appellant's course of conduct, we can conclude the military judge would have
imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.

      Judge HERRING and Judge BURTON concur.

                                      FOR THE COURT:
                                      FOR THE COURT:



                                      JOHN P. TAITT
                                       JOHNClerk
                                      Acting P. TAITT
                                                  of Court
                                       Acting Clerk of Court




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