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

                           UNITED STATES, Appellee
                                        v.
                         Specialist JOSHUA L. SUDBURY
                          United States Army, Appellant

                                  ARMY 20120600

                            Headquarters, Fort Stewart
        Tiernan P. Dolan, Military Judge (arraignment and motions hearing)
                     Steven E. Castlen, Military Judge (trial)
            Colonel Randall J. Bagwell, Staff Judge Advocate (pretrial)
            Colonel Francisco A. Vila, Staff Judge Advocate (post-trial)
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Jacob D. Bashore, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major John K. Choike, JA; Major Matthew T. Grady, JA (on brief).



                                 30 September 2014
                              ---------------------------------
                              MEMORANDUM OPINION
                              ---------------------------------

TELLITOCCI, Judge:

       A panel consisting of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of two specifications of willfully
disobeying the order of a superior commissioned officer, two specifications of
abusive sexual contact, one specification of forcible sodomy, and one specification
of sodomy, in violation of Articles 90, 120, and 125, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 890, 920, and 925 (2006 & Supp. IV). The
panel sentenced appellant to a bad-conduct discharge and confinement for three
years. The convening authority approved the adjudged sentence.
SUDBURY—ARMY 20120600

       This case is before us pursuant to Article 66, UCMJ. Appellant raises
numerous assignments of error, four of which merit discussion and two of which
merit relief. 1


                                  BACKGROUND

        In November 2011, appellant attended a barracks party along with numerous
other soldiers, including Private First Class (PFC) AB, a female, and Specialist
(SPC) SJ, a male. After consuming sufficient alcohol such that they were “drunk,”
appellant and SPC SJ accompanied PFC AB to AB’s barracks room. Both SJ and AB
testified that their memories of the remainder of the night were intermittent, but that
they, along with appellant, were the only three people in the room.

       At trial, SJ recalled sitting in a chair while appellant kneeled between SJ’s
knees and manually masturbated him. Private AP, another soldier, testified that at
some time during the night in question, he knocked on AB’s door and when
appellant opened the door to let him in, appellant told AP he had “just sucked [SJ]’s
dick.” This conduct was the basis for the conviction of abusive sexual contact
(manual masturbation) and forcible sodomy involving SJ and one of the
specifications of willful disobedience of a “safe-sex” order.

       Private First Class AB testified that she remembered walking back to her
room and then recalled being naked in the bathtub with appellant next to her in the
bathroom. She also recalled at some point being partially undressed wearing only a
white tank top and stated that she found the clothes she was wearing the previous
evening in her hamper the next day. Specialist SJ testified that he observed
appellant near AB while she lay on the bed crying and that at one point appellant
touched AB’s leg while saying “everything is going to be okay.”

       The next day appellant sent AB multiple texts, including one in which
appellant stated that he was “worried that he lost his friends because of what
happened last night” and that he could not believe that he “went down on a girl.” 2
This conduct was the basis for the conviction of abusive sexual contact and non-
forcible sodomy with AB and the other specification of willful disobedience.



1
 Appellant also personally raises multiple issues pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which merits discussion or relief.
2
 The presumed basis for appellant’s surprise in engaging in such behavior is that the
record indicates appellant is openly homosexual.




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      During a criminal investigation, appellant admitted to Criminal Investigation
Command (CID) Special Agent ED that he had engaged in oral-genital contact with
both PFC AB and SPC SJ.

                              LAW AND DISCUSSION

                                1. Appellant’s Admissions

      Appellant’s first assignment of error alleges that:

             THE MILITARY JUDGE COMMITTED PLAIN ERROR
             IN ADMITTING [APPELLANT’S] ADMISSIONS THAT
             HE ENGAGED IN ORAL SEX WITH PRIVATE FIRST
             CLASS AB BECAUSE THE GOVERNMENT FAILED TO
             CORROBORATE THE ESSENTIAL FACTS
             CONTAINED IN HIS ADMISSIONS, THE SOLE
             EVIDENCE THAT ANY SEXUAL CONTACT
             OCCURRED, IN ACCORDANCE WITH MILITARY
             RULE OF EVIDENCE 304(g).

       The second assignment of error is closely related in that it alleges appellant’s
trial defense counsel was ineffective for failing to object to the “uncorroborated”
admissions.

      Appellant made numerous statements relevant to acts with PFC AB which
were admitted into evidence. During an interview with a criminal investigator,
Special Agent (SA) ED, appellant confessed that he clearly remembered that he
“went down on” AB and that AB was straddled over his face.

       Confessions must be corroborated by “independent evidence, either direct or
circumstantial . . . that corroborates the essential facts admitted to justify
sufficiently an inference of their truth.” Military Rule of Evidence [hereinafter Mil.
R. Evid.] 304(g). Here, the military judge admitted appellant’s confession into
evidence without objection. When the “defense fails to object to admission of
specific evidence, the issue is waived, absent plain error.” United States v.
Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (citing United States v. Hardison, 64
M.J. 279, 281 (C.A.A.F. 2007)); see also Mil. R. Evid. 103, 304(a). An error is
plain only if that error is “clear or obvious.” United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014). Admitting a confession without any corroboration whatsoever
would be plain error under Mil. R. Evid. 304(g). But in this case there was
corroboration as discussed herein, namely, PFC AB’s and SPC SJ’s testimony.
Although appellant now argues this evidence was not enough to corroborate his
confession under the low standard of Mil. R. Evid. 304(g)(1), we cannot say that this




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alleged insufficiency was error, let alone “clear or obvious.” Therefore, the military
judge did not commit plain error by admitting appellant’s confession into evidence.

      We note that our review of the factual and legal sufficiency of appellant’s
convictions for offenses against AB turns upon consideration of appellant’s
admissions and upon their corroboration. Mil. R. Evid. 304(g).

      With respect to Mil. R. Evid. 304(g), our superior court has provided:

             The corroboration requirement for admission of a
             confession at court-martial does not necessitate independent
             evidence of all the elements of an offense or even of the
             corpus delicti of the offense. Rather, the corroborating
             evidence must raise only an inference of truth as to the
             essential facts admitted. Moreover, while the reliability of
             the essential facts must be established, it need not be done
             beyond a reasonable doubt or by a preponderance of the
             evidence.

United States v. Seay, 60 M.J. 73, 79 (C.A.A.F. 2004) (citing United States v.
Cottrill, 45 M.J. 485, 489 (C.A.A.F. 1997)). In addition, “[b]oth [Mil. R. Evid.]
304(g) and Cottrill set forth a very low standard,” Seay, 60 M.J. at 80, and “it is
settled military law that the quantum of evidence needed to corroborate [a
confession] ‘may be very slight.’” United States v. Grant, 56 M.J. 410, 416
(C.A.A.F. 2002) (citing United States v. Melvin, 26 M.J. 145, 146 (C.M.A. 1988)).
Generally speaking, the corroboration need only establish the confession is
trustworthy. See United States v. Rounds, 30 M.J. 76, 80 (C.M.A. 1990) (citing
Opper v. United States, 348 U.S. 84, 93 (1954)).

      Here, appellant’s admissions, contained in both the text to AB 3 and the
statements to SA ED, are corroborated by the surrounding circumstances. Other
evidence showed appellant was in close proximity to her when she was naked in the
bathtub and then later when she was only wearing a tank top. Appellant was
witnessed near her on the bed touching her leg while telling her everything would be
okay.



3
  We note the text messages were voluntary and not subject to the concerns of
coercion and improper influence as would statements taken by law enforcement
personnel. This does not, however, obviate the corroboration requirement or indicate
that we use one statement by appellant to corroborate another inculpatory statement
also made by appellant. See Mil. R. Evid. 304(g).




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       Appellant admitted to his misconduct. Those admissions were adequately
corroborated by independent evidence, properly admitted into evidence, and
appropriately considered. Moreover, the findings of guilty are factually and legally
sufficient. As a result, any failure to object on the part of trial defense counsel was
harmless.

                                2. Consensual Sodomy

      In his third assigned error, appellant alleges:

             TO CONVICT ON A CHARGE OF NON-FORCIBLE
             SODOMY, AGGRAVATING FACTORS MUST BE PLED,
             INSTRUCTED UPON TO THE MEMBERS, AND
             DETERMINED BY THE TRIER OF FACT. UNITED
             STATES V. CASTELLANO, 72 M.J. 217 (C.A.A.F. 2013).
             IN THE CHARGE OF SODOMY, THE GOVERNMENT
             DID NOT ALLEGE AGGRAVATING FACTORS, THE
             MILITARY JUDGE DID NOT INSTRUCT THE
             MEMBERS ON ANY AGGRAVATING FACTORS, AND
             THE MEMBERS DID NOT MAKE A DETERMINATION
             THAT ANY AGGRAVATING FACTOR EXISTED.
             MUST SPECIFICATION 2 OF CHARGE III BE
             DISMISSED?

      We answer the question in the affirmative.

        Appellant was charged, inter alia, with sodomy involving AB. The military
judge made a determination that, as a matter of law, the conduct subject to this
specification was outside the protected liberty interest established in Lawrence v.
Texas, 539 U.S. 558, 578 (2003). This determination is a matter of fact and must be
properly pled and placed before the fact finder. United States v. Castellano, 72 M.J.
217, 223 (C.A.A.F. 2013). Here, just as in Castellano, “the members were
instructed that they could convict the Appellant of sodomy if they found nothing
more than that the physical act had occurred.” Id. at 219. And, as in Castellano, this
failure to instruct about the Lawrence protected liberty interest was prejudicial error.
Id. at 223. We will take appropriate action in our decretal paragraph.




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SUDBURY—ARMY 20120600

                     3. Unreasonable Multiplication of Charges

       At trial, appellant failed to litigate the issue of whether his convictions for
abusive sexual contact and forcible sodomy against SJ were an unreasonable
multiplication of charges for findings. 4 However, this issue was not expressly
waived and we will therefore review using the plain error standard. United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009). Appellant must demonstrate that:
“(1) there was error; (2) the error was plain or obvious; and (3) the error materially
prejudiced a substantial right” of the appellant.” United States v. Harcrow, 66 M.J.
154, 158 (C.A.A.F. 2008).

       Appellant stands convicted of abusive sexual contact with SPC SJ by manual
masturbation and forcible sodomy with SPC SJ by oral-genital contact. These two
sexual acts occurred either simultaneously or nearly so. The military judge found
these two specifications were an unreasonable multiplication for the purposes of
sentencing as they were each part of what was essentially one continuous act. The
military judge also determined that the convictions of abusive sexual contact and
sodomy with PFC AB were an unreasonable multiplication of charges for sentencing,
but this issue is moot because the sodomy charge regarding PFC AB will be
dismissed as a result of the error discussed in section 2 above.

      “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
 The defense filed a motion raising unreasonable multiplication of charges, then
after the close of the evidence and after being asked by the military judge if the
defense desired to present argument on the issue, the motion was withdrawn. There
was no discussion with the appellant on the record about this withdrawal.




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SUDBURY—ARMY 20120600

             (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 (C.A.A.F. 2001) (internal quotation marks
omitted).

      Two convictions for the same course of criminal conduct involving SJ
unreasonably exaggerate appellant’s criminality. Here, we find the second and third
Quiroz factors balance in favor of appellant to such a degree that we will dismiss
one of the specifications. See United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F.
2012) (noting one or more factors may be sufficiently compelling, without more, to
warrant relief). Therefore, we will dismiss the specification of abusive sexual
contact, Specification 1 of Charge II.

                                   CONCLUSION
 
      Accordingly, the findings of guilty of Specification 1 of Charge II and
Specification 2 of Charge III are set aside and those specifications are dismissed.
The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Because the military judge instructed the members that the specifications
dismissed herein were to be treated as part of the remaining offenses, the sentencing
landscape is almost completely unchanged. Second, although appellant was
sentenced by members, this factor carries less weight here because the remaining
offenses do not “address service custom, service discrediting conduct or conduct
unbecoming.” Winckelmann, 73 M.J. at 16. Third, we find the nature of the
remaining offenses still captures the gravamen of the original specifications.
Finally, based on our experience, we are familiar with the remaining offenses such
that we may reliably determine what sentence would have been imposed at trial.

     In reassessing the sentence, based on the noted error and the entire record, we
AFFIRM the approved sentence. We find this reassessed sentence is not only purged


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SUDBURY—ARMY 20120600

of any error but is also appropriate. 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. 58b(c) and 75(a).

Senior Judge COOK and Judge HAIGHT concur.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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