UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Specialist STEPHAN G. KURDILLA
                         United States Army, Appellant

                                   ARMY 20140964

             Headquarters, 82d Airborne Division (Rear) (Provisional)
                        Deidra J. Fleming, Military Judge
            Lieutenant Colonel Dean L. Whitford, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major John K. Choike, JA; Major Diara Z. Andrews, JA (on brief).


                                      19 May 2016

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

TOZZI, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of failure to obey a general order, two
specifications of indecent acts with a child, and four specifications of
communicating indecent language to a child, in violation of Articles 92, 120, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920, and 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, five months confinement, and to be reduced to the grade of E-1. The
convening authority approved only so much of the sentence as provides for a bad-
conduct discharge, four months confinement, and a reduction to E-1.

       We now review appellant’s case under Article 66, UCMJ. Appellant raises
one assignment of error meriting discussion and relief. We find the matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), do not warrant relief. In his sole assignment of error, appellant
alleges the military judge abused her discretion in merging Specifications 1 and 2 of
KURDILLA—ARMY 20140964

Charge II for sentencing rather than for findings where the charged misconduct was
based on substantially one transaction and were part of the same impulse. We agree
and find Specifications 1 and 2 of Charge II are unreasonably multiplied. We
provide relief in our decretal paragraph.

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

             CHARGE II: Violation of the UCMJ, Article 120

             SPECIFICATION 1: In that [appellant], U.S. Army, did,
             at or near Forward Operating Base Fenty, Afghanistan, on
             or about 1 June 2012, wrongfully commit indecent
             conduct, to wit: electronically send a photograph of an
             unknown woman with her vagina exposed with her
             genitalia enclosed in an unknown metal device, a
             photograph of an unknown woman standing above an
             unknown woman exposing her genitalia, and a photograph
             of an unknown nude woman posing with an unknown nude
             woman to Miss A.H., a child under the age of 16 years.

             SPECIFICATION 2: In that [appellant], U.S. Army, did,
             at or near Forward Operating Base Fenty, Afghanistan, on
             or about 1 June 2012, wrongfully commit indecent
             conduct, to wit: electronically send a photograph of an
             unknown woman engaging in sexual intercourse with an
             unknown man, to Miss A.H., a child under the age of 16
             years.

                   Unreasonable Multiplication of Charges

       Appellant pleaded guilty to the two specifications of indecent acts with a
child delineated above. These specifications stem from appellant sending
photographs to A.H., a child under the age of 16 years, from Afghanistan on the
same date at about the same time. The government attempts to distinguish the
photograph in Specification 2 of Charge II from the photographs in Specification 1
of Charge II by averring the photographs were all sent close in time but the
transmission of each constituted a distinctly separate criminal act. The government
argues the four photographs were sent at four distinct times during one online
conversation. The government also states the photograph in Specification 2 of
Charge II depicted a sexual act of a man and woman having sexual intercourse, such
photograph tending to sexually excite or deprave the morals of the minor child,
distinguishing it from the photographs in Specification 1 of Charge II depicting nude
women only. We fail to see a meaningful distinction in these photographs.



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KURDILLA—ARMY 20140964


      “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?;

             (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 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. First,
defense counsel did inquire before trial about merging Specifications 1 and 2 of
Charge II for sentencing purposes. Although there is no mention of merging these
offenses for findings on the record, this factor weighs slightly in favor of appellant.
Regarding the second Quiroz factor, it appears the transmission of these photographs
occurred during the same online session with A.H. at substantially the same time.
These specifications are aimed at the same criminal act. This factor weighs in favor
of appellant. Regarding the third factor, findings of guilty against appellant for two
specifications of indecent acts with a child under these facts exaggerates appellant’s
criminality. This factor weighs in favor of appellant. Regarding the fourth factor,
appellant’s punitive exposure is not unreasonably increased for this conduct because
the military judge merged them for sentencing purposes. This factor weighs in favor
of the government. Finally, there is no evidence of prosecution overreaching or
abuse in the drafting of the charges, so the fifth factor weighs in favor of the
government. On balance, we find the Quiroz factors weigh in favor of appellant.
Accordingly, Specifications 1 and 2 of Charge II will be merged.



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KURDILLA—ARMY 20140964


                                   CONCLUSION

       After consideration of the entire record of trial, appellant’s assignment of
error, and the matters personally raised by appellant pursuant to Grostefon,
Specifications 1 and 2 of Charge II are consolidated into a single specification,
denominated the Specification of Charge II, to read as follows:

             In that [appellant], U.S. Army, did, at or near Forward
             Operating Base Fenty, Afghanistan, on or about 1 June
             2012, wrongfully commit indecent conduct, to wit:
             electronically send a photograph of an unknown woman
             with her vagina exposed with her genitalia enclosed in an
             unknown metal device, a photograph of an unknown
             woman standing above an unknown woman exposing her
             genitalia, a photograph of an unknown nude woman posing
             with an unknown nude woman, and a photograph of an
             unknown woman engaging in sexual intercourse with an
             unknown man, to Miss A.H., a child under the age of 16
             years.

The finding of guilty of Specification 2 of Charge II is set aside and is DISMISSED.
The finding of guilty of Charge II and its Specification, as so amended, is
AFFIRMED. 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.

      Judge CAMPANELLA and Judge CELTNIEKS concur.

                                        FOR THE COURT:
                                        FOR THE COURT:



                                        JOHN P. TAITT
                                        JOHN
                                        Deputy P. TAITT
                                               Clerk of Court 
                                        Deputy Clerk of Court




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