UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                             LIND, KRAUSS, and PENLAND
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                             Sergeant JOEL T. SHARP
                           United States Army, Appellant

                                    ARMY 20130998

                             Headquarters, Fort Knox
                  Tyesha L. Smith, Military Judge (arraignment)
                     Steven E. Walburn, Military Judge (trial)
              Colonel Christopher T. Fredrikson, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Vincent T. Shuler, JA; Captain Patrick J. Scudieri, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Daniel D. Derner, JA; Captain Daniel H. Karna, JA (on brief).


                                   25 November 2014
                               ----------------------------------
                                SUMMARY DISPOSITION
                               ----------------------------------

LIND, Senior Judge:
       A military judge sitting as a special court-martial convicted appellant,
pursuant to his pleas, of one specification of damage to non-military property of a
value of more than $500.00, one specification of damage to non-military property of
a value of less than $500.00, one specification of larceny of property of a value of
more than $500.00, and one specification of larceny of property of a value of less
than $500.00, in violation of Articles 109 and 121, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 909, 921 (2012). The convening authority
approved the adjudged sentence of a bad-conduct discharge, four months
confinement, forfeiture of $500.00 pay per month for four months, and reduction to
the grade of E-1.
       This case is before the court for review pursuant to Article 66, UCMJ.
Appellant argues that Specification 1 of Charge I (larceny of a trailer) constitutes an
unreasonable multiplication of charges for findings with Specification 2 of Charge I
(larceny of tools located inside of the trailer). Appellant asks this court to dismiss
SHARP—ARMY 20130998

Specification 2 of Charge I. The government concedes that there is an unreasonable
multiplication of charges for findings because appellant stole the trailer and the
tools at the same time and place. The government does not object to appellant’s
requested remedy of dismissal of Specification 2 of Charge I. While we agree that
Specifications 1 and 2 of Charge I are unreasonably multiplied, we hold that
consolidation of the two specifications, rather than dismissal of Specification 2 of
Charge I, is the appropriate remedy.

        Appellant pled guilty to stealing a trailer of a value of more than $500.00 on 7
May 2013, the property of MPS, Geothermal, LLC [hereinafter MPS] (Specification
1 of Charge II). He also pled guilty to stealing 29 tools, each of a value of less than
$500.00 on 7 May 2013, the property of MPS (Specification 2 of Charge I). The
providence inquiry and the stipulation of fact establish that appellant intended to
steal the trailer to move his wife from Fort Knox, Kentucky, to Ohio. One of
appellant’s friends, SPC WP, agreed to let appellant store the trailer in his barn. On
7 May 2013, appellant hooked the trailer to his truck and drove the trailer to SPC
WP’s barn. Once in the barn, appellant wanted to see what was inside the trailer.
He cut the pad locks off the trailer doors with bolt cutters, looked inside of the
trailer, and found the tools that formed the larceny charged in Specification 2 of
Charge I. Appellant took the tools out of the trailer and left them in SPC WP’s barn,
fearing if he returned the tools to MPS, he might be caught. *

       “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). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to help guide our analysis of
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?;


                                                            
*
 SPC WP found the tools and tried to sell them to Mr. PP, an MPS supplier. Mr. PP
became suspicious and called MPS and the Kentucky State police.

                                                               2
SHARP—ARMY 20130998

              (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?

55 M.J. at 338-39.

       A larceny of “several articles. . . committed at substantially the same time and
place . . . is a single larceny . . . .” Manual for Courts-Martial, United States
(2012 ed.), pt. IV, ¶ 46.c(1)(i)(ii). “It is also the general rule that only a single theft
is committed when the thief takes one article which contains other articles within it,
as in the case of a purse containing a wallet, which in turn contains a sum of
money.” United States v. Dicario, 8 U.S.C.M.A. 353, 361, 24 C.M.R. 163, 171
(1957). The moment appellant stole the trailer, he came into unlawful possession of
the tools inside of the trailer. Although appellant did not know what specifically
was in the trailer at the time he stole it, he knew something might be in the trailer
and wanted to see what was inside; when appellant arrived at SPC WP’s barn, he
immediately broke open the trailer doors and discovered the tools inside.
Application of the Quiroz factors to the facts of this case lead us to conclude that
Specifications 1 and 2 of Charge I were unreasonably multiplied for findings. See
Campbell, 71 M.J. at 23 (noting that “one or more [Quiroz] factors may be
sufficiently compelling, without more, to warrant relief on unreasonable
multiplication of charges . . . .”).

      Appellant, with no government objection, asks that we dismiss Specification 2
of Charge I as a remedy for the unreasonably multiplied charges. While dismissal is
an available remedy for unreasonable multiplication of charges, see United States v.
Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006), dismissal of appellant’s conviction for
larceny of the tools would provide appellant with a windfall under the facts of this
case. The proper remedy to cure the unreasonable multiplication for findings is to
consolidate Specifications 1 and 2 of Charge I.

                                     CONCLUSION

      Specifications 1 and 2 of Charge I are consolidated into a single specification,
the Specification of Charge I, to read as follows:

              In that Sergeant (E-5) Joel T. Sharp, U.S. Army, did, at or
              near Fort Knox, Kentucky, on or about 7 May 2013, steal a
              Lark trailer and 29 tools, of a value of more than $500.00,
              the property of MPS, Geothermal, LLC.




                                             3
SHARP—ARMY 20130998

The finding of guilty of the Specification of Charge I, as amended, is AFFIRMED.
The finding of guilty of Specification 2 of Charge I is set aside and that
specification is dismissed. 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) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A.
1986), the 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.

      Judge KRAUSS and Judge PENLAND concur.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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