UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          KERN, ALDYKIEWICZ, and MARTIN
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                          Sergeant TIMOTHY J. GARCIA
                           United States Army, Appellant

                                    ARMY 20110432

                             Headquarters, Fort Bliss
                        David H. Robertson, Military Judge
                   Colonel Francis P. King, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Kristin McGrory, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief).


                                      30 April 2014

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

Per Curium:

       A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of indecent liberties with a child, indecent
acts, and assault with intent to commit rape of a child, in violation of Articles 120
and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (2006 and Supp I
2008), amended by 10 U.S.C. § 920 (2012) [hereinafter UCMJ]. 1 The panel



1
  Appellant was found not guilty in accordance with his pleas to attempted sodomy,
assault consummated by a battery (two specifications), rape of a child (two
specifications), aggravated sexual contact with a child (two specifications), indecent
liberties with a child, and communication of threat, in violation of Articles 80, 128,
120, and 134, UCMJ. In addition, two specifications of assault and one specification

                                                                        (continued . . .)
GARCIA—ARMY 20110432

sentenced appellant to a dishonorable discharge, confinement for ten years,
forfeiture of all pay and allowances, and reduction to E-1. At action, the convening
authority dismissed the assault with intent to commit rape specification under
Article 134, UCMJ and approved only nine years of confinement and the remainder
of the adjudged sentence. 2

       We now review appellant’s case under Article 66, UCMJ. Appellant raises
four assignments of error, two of which merit discussion and relief. 3 Appellant first
alleges that the military judge erred by not dismissing Specification 2 of Additional
Charge II (indecent acts) as multiplicious with Specification 5 of The Charge
(indecent liberties with a child). Appellant’s second allegation is that his sentence
was not properly reassessed after the convening authority disapproved a finding of
guilty to the most egregious offense, Specification 3 of Additional Charge IV
(assault with intent to commit rape).

                                  MULTIPLICITY

        We review multiplicity claims de novo. United States v. Roderick, 62 M.J.
425, 431 (C.A.A.F. 2006). We will find multiplicity if two specifications are
facially duplicative. United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F. 2004). To
determine whether specifications are duplicative, we review both the language of the
specifications and the facts in the record. United States v. Heryford, 52 MJ 265, 266
(C.A.A.F. 2000) (citations omitted). Here, appellant was convicted in Specification
5 of The Charge of indecent liberties with a child, to wit: between on or about 1
November 2008 and on or about 7 March 2010, on divers occasions, at or near Fort
Bliss, Texas, taking indecent liberties in the physical presence of S.G., a child under
16 years of age, by masturbating in her presence, and by exposing S.G. to
pornography with intent to gratify the sexual desire of the accused. Appellant was
also convicted in Specification 2 of Additional Charge II, of committing an indecent
act, to wit: between on or about 1 November 2008 and 7 March 2010, at or near Fort


(. . . continued)
of indecent language, in violation of Articles 128 and 134 UCMJ to which appellant
pleaded not guilty were dismissed by the military judge.
2
  The convening authority dismissed this specification in his action upon advice
from the staff judge advocate that this specification failed to state an offense
pursuant to United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
3
 We do not address appellant’s other two assignments of error concerning an
unreasonable multiplication of charges and ineffective assistance of counsel during
presentencing because the relief we grant renders those issues moot.




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GARCIA—ARMY 20110432

Bliss, Texas, the accused did, wrongfully commit indecent conduct by exposing in
an indecent manner his genitalia and ejaculating in the presence of S.G. 4

       We first note that the time periods for both offenses are identical and the
indecent liberties specification also includes divers occasions. In addition, the
evidence in the record from appellant’s statement to CID was that every exposure of
appellant’s genitalia to S.G. was accompanied by masturbation and ejaculation.
There is no further clarification from any other witness or evidence, including S.G.’s
testimony, that appellant’s exposures and ejaculations did not include masturbation
in her presence. Given that the time periods in the specifications are identical, and
our review of the evidence in the record, it is apparent that the same conduct is
covered by both specifications. Moreover, the following colloquy from the record
indicates that the government, at trial, agreed that the indecent act is included in the
indecent liberties charge:

                    MJ: Well, government these [specifications]
                    cover the exact same time period. One is
                    exposing her to pornography and
                    masturbating and the other one is exposing
                    himself and essentially masturbating,
                    correct?

                    ATC: Yes, Your Honor. It does cover the
                    same time period.

                    MJ: So the same time period in Specification
                    2 of [Additional] Charge II. Since it covers
                    the conduct as Specification 5 of The Charge,
                    in that it is – that would deal solely with
                    masturbating and exposing oneself, which
                    you would obviously factually have to do
                    before masturbating.

4
  We disagree with the government’s argument that appellant affirmatively waived
this claim at trial. Appellant raised a multiplicity claim before entry of pleas, but
the military judge deferred his ruling. As noted below, the military judge declared
the offenses multiplicious for sentencing. We need not decide whether appellant
preserved or forfeited his multiplicity claim because appellant’s multiplicity claim
warrants relief under the more stringent plain error review of whether the offenses
are facially duplicative. Cf. Heryford, 52 M.J. at 266 (“An appellant may show plain
error and overcome waiver by showing that the specifications are “‘facially
duplicative,’ that is, factually the same.”).




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GARCIA—ARMY 20110432

                    ATC: That is correct, Your Honor.

       After this colloquy, the military judge found the two specifications
mulitplicious only for sentencing. Based on the facts in the record, we find this to
be error by the military judge because Specification 2 of Additional Charge II is
facially duplicative with Specification 5 of The Charge. Therefore the proper
remedy is to dismiss the duplicative specification and we will take corrective action
in our decretal paragraph. Rule for Court-Martial 907(b)(3)(B).

                           REASSESSMENT AT ACTION

        In his addendum to the post-trial staff judge advocate recommendation, the
staff judge advocate agreed with a defense counsel assertion of legal error that
Specification 3 of Additional Charge IV (assault with intent to commit rape) failed
to state an offense pursuant to United States v. Fosler. As a result of the legal error,
the staff judge advocate recommended that the convening authority disapprove the
specification and reassess the sentence by approving only 9 years of the 10 year
sentence to confinement. The convening authority took action consistent with the
staff judge advocate’s recommendation in the addendum. Citing United States v.
Reed, 33 M.J. 98, 99-100 (C.M.A. 1990), appellant alleges on appeal that the
convening authority’s action needs to be set aside because the staff judge advocate
failed to furnish the convening authority with any analytical method concerning how
to adjust the sentence in light of the error. In response, the government provided an
after-the-fact affidavit from the staff judge advocate detailing the substance of the
legal advice he provided the convening authority prior to his taking action.

       Without resolving whether or not the staff judge advocate’s affidavit
establishes that the convening authority was properly advised on reassessment in
accordance with Reed, we have serious doubts as to whether it was even possible at
the time of the original action to reassess the sentence with the dismissal of
Specification 3 of Additional Charge IV. The full text of the dismissed offense read:

                    In that Sergeant Timothy Garcia, U.S. Army,
                    did, at or near Fort Bliss, Texas, on divers
                    occasions, between on or about 1 November
                    2008 and 7 March 2010, with intent to
                    commit rape, commit an assault upon S.G. by
                    holding her down while he attempted to place
                    his penis into S.G.’s vagina.

Clearly this was the gravamen offense for which appellant was sentenced by the
panel as it was the only conviction involving a physical assault upon the child
victim, and it included multiple instances. Moreover, this offense had a significant
impact on the sentencing landscape as it carried the greatest maximum sentence of



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GARCIA—ARMY 20110432

any of the offenses of which appellant was convicted. See United States v.
Winckelmann, 73 M.J. 11 (C.A.A.F. 2013). Although we would normally cure a
defective post-trial staff judge advocate recommendation by sending it back for a
new recommendation and action, we will not do so in this case. When we combine
the above listed concerns for whether this case could be reassessed by the convening
authority with our dismissal of the indecent acts offense in this decision, under the
unique circumstances of this case, we are not “convinced that . . . [appellant’s]
sentence would have been at least of a certain magnitude.” United States v. Sales,
22 M.J. 305, 307 (C.M.A. 1986).

                                  CONCLUSION

      On consideration of the entire record, including the assigned errors, and
matters personally submitted by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), the findings of guilty of Specification 2 of Additional
Charge II and Additional Charge II are set aside. Specification 2 of Additional
Charge II and Additional Charge II are dismissed. We AFFIRM the remaining
findings of guilty. After analyzing the totality of circumstances presented by
appellant’s case in accordance with the principles and factors articulated by our
superior court in Winckelmann, we set aside the sentence. A rehearing on the
sentence may be ordered by the same or a different convening authority, and
appellant will be provided representation from a different military defense counsel.


                                      FOR THE
                                      FOR THE COURT:
                                              COURT:




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




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