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

                           UNITED STATES, Appellee
                                        v.
                       Private E1 DAVUALE B. WILLIAMS
                          United States Army, Appellant

                                   ARMY 20110227

                        Headquarters, 82d Airborne Division
                        Karin G. Tackaberry, Military Judge
               Colonel Lorianne M. Campanella, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Richard E. Gorini, JA; Captain
James P. Curtin, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Major Alison L. Gregoire, JA (on brief).


                                      30 April 2013

                              -----------------------------------
                               SUMMARY DISPOSITION
                              -----------------------------------

HAIGHT, Judge:

       A general court-martial composed of officer members convicted appellant in
absentia, contrary to his pleas, of one specification of aggravated sexual assault of a
child, two specifications of abusive sexual contact with a child, one specification of
indecent acts, and one specification of sodomy with a child, in violation of Articles
120(d), 120(i), 120(k), and 125, Uniform Code of Military Justice, 10 U.S.C.
§§ 920(d), 920(i), 920(k), 925 (2006 & Supp. III 2009) [hereinafter UCMJ],
respectively. The convening authority approved the adjudged sentence to a
dishonorable discharge, confinement for three years, and forfeiture of all pay and
allowances.

       Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant argues, inter alia, that both of his convictions for abusive sexual contact
with a child are multiplicious and represent an unreasonable multiplication of
charges. The government concedes that these specifications must be set aside, but
WILLIAMS—ARMY 20110227

only on the basis that they are an unreasonable multiplication of charges. We agree
with the parties that both specifications must be set aside, but find that one
specification is multiplicious, while the other represents an unreasonable
multiplication of charges. 1

                             LAW AND DISCUSSION

                                    Multiplicity

       One of appellant’s abusive sexual contact convictions is predicated upon the
identical criminal act as his aggravated sexual assault conviction: penetrating the
victim’s vagina with his penis. “The Fifth Amendment protection against double
jeopardy provides that an accused cannot be convicted of both an offense and a
lesser-included offense. See Article 44(a), UCMJ, 10 U.S.C. § 844(a) (2000);
Blockburger v. United States, 284 U.S. 299 (1932); United States v. Teters, 37 M.J.
370 (C.M.A. 1993). Charges reflecting both an offense and a lesser-included
offense are impermissibly multiplicious.” United States v. Hudson, 59 M.J. 357, 358
(C.A.A.F. 2004), overruled on other grounds by United States v. Jones, 68 M.J. 465
(C.A.A.F. 2010). An offense is a lesser-included offense if its elements are the same
or a subset of the charged offense. Schmuck v. United States, 489 U.S. 705, 716
(1989); United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).

      Specification 1 of Charge I alleges appellant:

             did, at or near Fort Bragg, North Carolina, on or about 25
             July 2010, engage in sexual acts, to wit: placing his penis
             into the vagina of [JL], with [JL], who had attained the
             age of 12 years, but had not attained the age of 16 years.

1
  We reviewed appellant’s allegation that his post-trial matters asserted legal error
to which the staff judge advocate (SJA) was required to respond and find it lacks
merit. Assuming arguendo that the SJA’s addendum did not meet the minimal
response requirement of Rule for Courts-Martial 1106(d)(4), see United States v.
Catrett, 55 M.J. 400, 408 (C.A.A.F. 2001), we find any such error was not
prejudicial. We are “free to affirm when a defense allegation of legal error would
not foreseeably have led to a favorable recommendation by the [SJA] or to
corrective action by the convening authority.” United States v. Hill, 27 M.J. 293,
297 (C.M.A. 1988); United States v. Welker, 44 M.J. 85, 89 (C.A.A.F. 1996). Based
on the record before us, we find any legal errors raised in appellant’s post-trial
matters, although couched as clemency requests, lack merit and would not have
resulted in a favorable recommendation by the SJA or any corrective action by the
convening authority.




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WILLIAMS—ARMY 20110227


      Specification 3 of Charge I alleges appellant:

             did, at or near Fort Bragg, North Carolina, on or about 25
             July 2010, engage in sexual contacts, to wit: placing his
             penis into the vagina of [JL], with [JL], a child under the
             age of 16 years.

       We have no trouble concluding that the charged abusive sexual contact with a
child in violation of Article 120(i), UCMJ (Specification 3 of Charge I), is a lesser-
included offense of the separately charged aggravated sexual assault of a child in
violation of Article 120(d), UCMJ (Specification 1 of Charge I). Abusive sexual
contact with a child, by its very language, is applicable when the misconduct falls
short of the greater crime of aggravated sexual assault of a child:

         Any person subject to this chapter who engages in or causes
         sexual contact with or by another person, if to do so would violate
         subsection (d) (aggravated sexual assault of a child) had the
         sexual contact been a sexual act, is guilty of abusive sexual
         contact with a child . . . .

UCMJ art. 120(i). As defined by the statute, the lesser offense mirrors the elements
of the greater, but substitutes the less egregious sexual contact for a sexual act. 2
Here, the specifications allege the same factual conduct for both the sexual act and
the sexual contact, i.e., penile penetration of the victim’s vagina. Therefore, we
conclude the offenses charged in this case stand in the relationship of lesser and
greater. Accordingly, appellant’s conviction for the facially duplicative, lesser-
included offense is multiplicious and must be set aside.

                      Unreasonable Multiplication of Charges

       Appellant’s second conviction for abusive sexual contact with a child is
predicated upon the same criminal act as his sodomy conviction: placing his penis
in the victim’s mouth. “What is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one person.” Rule for
Courts-Martial [hereinafter R.C.M.] 307(c)(4). We consider five factors to
determine whether charges have been unreasonably multiplied:



2
  Not only does this statutory provision establish a relationship of necessary
inclusion, it also evidences a congressional intent that these offenses not be made
the basis for multiple convictions or punishments. See Teters, 37 M.J. at 373.




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WILLIAMS—ARMY 20110227

             (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”).

       On balance, we find the Quiroz factors weigh in appellant’s favor. Appellant
raised this issue at trial, and in light of appellant’s objection, the military judge
treated the offenses as merged for sentencing. Although the military judge’s ruling
prevented appellant from being unfairly subjected to an increase in punishment,
appellant’s additional conviction ultimately exaggerates his criminality. Moreover,
the abusive sexual contact specification is not aimed at a distinct, criminal act. In
fact, as the government explained to the military judge at trial, the abusive-sexual-
contact specification is aimed at reaching the same conduct, in the alternative, as
that charged in the sodomy specification. Due to the government’s decision to plead
these offenses in the alternative, we do not find evidence of prosecutorial
overreaching or abuse. Nevertheless, we conclude, and the government concedes,
there was an unreasonable multiplication of charges in this case. 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).

                                   CONCLUSION

       The finding of guilty of Specification 2 of Charge I is set aside. The finding
of guilty of Specification 3 of Charge I is set aside and that specification is
dismissed. 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 United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit,



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WILLIAMS—ARMY 20110227

63 M.J. 40 (C.A.A.F. 2006), 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. See UCMJ
art. 75(a).

      Senior Judge COOK and Judge GALLAGHER concur.




                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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