UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           TOZZI, SALADINO, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                           Sergeant ROBERT J. CARR
                          United States Army, Appellant

                                  ARMY 20150529

       Headquarters, U.S. Army Cyber Center of Excellence and Fort Gordon
        John T. Rothwell, Military Judge (arraignment & motions hearing)
                       John S. Irgens, Military Judge (trial)
              Colonel Scott F. Young, Staff Judge Advocate (pretrial)
       Lieutenant Colonel John A. Hamner, Staff Judge Advocate (post-trial)

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Matthew D. Bernstein, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA (on brief).


                                     7 April 2017

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                              SUMMARY DISPOSITION
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TOZZI, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of rape, one specification of assault
consummated by a battery, and one specification of communicating a threat, in
violation of Articles 120, 128, and 134, Uniform Code of Military Justice, 10 U.S.C.
§§ 920, 928, 934 (2012 & Supp. I 2014) [hereinafter UCMJ]. The military judge
convicted appellant, pursuant to his plea, of one specification of assault
consummated by a battery in violation of Article 128 UCMJ. The military judge
sentenced appellant to a bad-conduct discharge, confinement for nine years, and a
reduction to the grade of E-1. The convening authority approved the sentence as
adjudged and waived automatic forfeitures. Appellant was credited with nine days
against the sentence to confinement.
CARR—ARMY 20150529

       We now review appellant’s case under Article 66, UCMJ. Appellant raises
five assignments of error, one of which merits discussion and relief. Appellant
alleges the military judge abused his discretion by failing to merge the Specification
of Charge I (rape) and Specification 1 of Charge II (assault consummated by a
battery) into one specification because they allege the same course of conduct. We
hold the military judge should have excepted the duplicative language from one of
these two specifications, and provide relief in our decretal paragraph. We have
considered appellant’s personal submissions pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), and conclude they do not warrant relief.

                             LAW AND DISCUSSION

    Appellant was found guilty, inter alia, of the following violations of the
UCMJ:

             CHARGE I: Violation of the UCMJ, Article 120 (After
             28 June 2012)

             [THE SPECIFICATION]: In that [appellant], U.S. Army,
             did, at or near Augusta, Georgia, on or about 11 March
             2014, commit a sexual act upon Mrs. [LC], by penetrating
             the vulva of Mrs. [LC] with his fingers by using unlawful
             force to wit: pinning Mrs. [LC] to the couch with his
             knees and hands, with an intent to abuse, humiliate, and
             degrade Mrs. [LC].

             [CHARGE II]: Violation of the UCMJ, Article 128

             [SPECIFICATION 1]: In that [appellant], U.S. Army, did,
             at or near Augusta, Georgia, on or about 11 March 2014,
             unlawfully pin Mrs. [LC] to the couch with his hands,
             arms, and knees and punch Mrs. [LC] on the head, face
             and torso with his fists.

                      Unreasonable Multiplication of Charges

       Appellant was found guilty of the two specifications delineated above. These
specifications stem from appellant’s conduct on the night of 11 March 2014 when he
raped, physically assaulted, and threatened his wife, Mrs. LC. Appellant’s conduct
on 11 March 2014 included, inter alia, pinning Mrs. LC to the couch with his hands,
arms, and knees, punching Mrs. LC on the head, face, and torso with his fists, and
raping Mrs. LC by inserting his fingers into her vagina. The unlawful force used to
rape Mrs. LC was appellant pinning her to the couch with his knees and hands. This
is part of the same conduct charged as an assault consummated by a battery in


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CARR—ARMY 20150529

Specification 1 of Charge II, where he was charged with assaulting Mrs. LC by
“unlawfully pin[ning] Mrs. [LC] to the couch with his hands, arms, and knees . . . .”

      “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?; and

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

United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) (internal quotation
marks omitted) (quoting United States v. Quiroz, 53 M.J. 600, 607 (N.M. Ct. Crim.
App. 2000)). 1

      Here, the Quiroz factors on balance weigh in favor of appellant. First,
defense counsel did not object at trial that the specifications constituted an
unreasonable multiplication of charges. This factor weighs in favor of the
government. Regarding the second Quiroz factor, it appears the Specification of
Charge I and Specification 1 of Charge II were aimed at the same criminal act,
appellant’s pinning Mrs. LC to the couch with his knees, arms, and hands. 2 This


1
  The bracketed alteration in the quotation reflects the holding of our superior court
that “unreasonably” should be used instead of “unfairly.” Quiroz, 55 M.J. at 338-39.
2
  We note the Specification of Charge I uses the terms “knees and hands” and
Specification 1 of Charge II uses the terms “hands, arms, and knees . . . .” As we
hold appellant’s course of conduct in pinning Mrs. LC to the couch was charged in
both specifications, we except the language in Specification 1 of Charge II, to
include the term “arms.”

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CARR—ARMY 20150529

factor weighs in favor of appellant. Regarding the third factor, findings of guilty
against appellant for all of the language in the specifications delineated above
exaggerates appellant’s criminality. This factor weighs in favor of appellant.
Regarding the fourth factor, appellant’s punitive exposure is not unreasonably
increased because the appellant remains convicted of sexual assault, assault
consummated by a battery minus the duplicative language, communicating threats to
Mrs. LC, and a separate assault consummated by a battery against Mrs. LC. This
factor weighs in favor of the government. Finally, because there is no evidence of
prosecutorial overreaching or abuse in the drafting of the charges, the fifth factor
weighs in favor of the government. On balance, we find the Quiroz factors weigh
slightly in favor of appellant. Accordingly, Specification 1 of Charge II will be
amended.

                                   CONCLUSION

       After consideration of the entire record of trial and appellant’s assignments of
error, we AFFIRM only so much of Specification 1 of Charge II as finds:

             In that [appellant], U.S. Army, did, at or near Augusta,
             Georgia, on or about 11 March 2014, unlawfully punch
             Mrs. [LC] on the head, face, and torso with his fists.

The remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), we AFFIRM the sentence. 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. See UCMJ arts. 58a(b), 58b(c), 75(a).

      Judge SALADINO and Judge BURTON concur.

                                           FOR THE COURT:




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




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