                        UNITED STATES, Appellee

                                    v.

              Nicholas R. ELESPURU, Airman First Class
                      U.S. Air Force, Appellant

                               No. 14-0012

                          Crim. App. No. 38055

       United States Court of Appeals for the Armed Forces

                        Argued January 13, 2014

                         Decided July 15, 2014

RYAN, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY, and OHLSON, JJ., joined. BAKER, C.J., filed a separate
opinion concurring in part and dissenting in part.



                                 Counsel

For Appellant:    Captain Isaac C. Kennen (argued).

For Appellee: Major Daniel J. Breen (argued); Captain Matthew
J. Neil and Gerald R. Bruce, Esq. (on brief); Colonel Don M.
Christensen.



Military Judge:    Vance H. Spath



     THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Elespuru, 14-0012/AF


     Judge RYAN delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of Charge I,

Specification 2, divers occasions of abusive sexual contact, in

violation of Article 120, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 920 (2006) (amended by National Defense

Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163,

§ 552, 119 Stat. 3136 (2006)); Charge I, Specification 3, divers

occasions of wrongful sexual contact, in violation of Article

120, UCMJ; and Charge II, Specification 1, assault consummated

by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928

(2006).   Consistent with his pleas, Appellant was found not

guilty of two specifications:   aggravated sexual assault and

assault consummated by a battery.    The adjudged and approved

sentence provided for a reduction to E-1, thirty-six months of

confinement, and a dishonorable discharge.

     The United States Air Force Court of Criminal Appeals

(AFCCA) affirmed the findings and sentence as approved by the

convening authority.   United States v. Elespuru, No. ACM 38055,

2013 CCA LEXIS 644, at *14, 2013 WL 3969545, at *4 (A.F. Ct.

Crim. App. July 9, 2013) (per curiam).    We granted Appellant’s

petition to review the following issue:

     WHETHER SPECIFICATIONS 2 [ABUSIVE SEXUAL CONTACT] AND
     3 [WRONGFUL SEXUAL CONTACT] OF CHARGE I ARE
     MULTIPLICIOUS.

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United States v. Elespuru, 14-0012/AF


     Appellant knowingly waived his multiplicity claim.

However, we set aside the wrongful sexual contact conviction --

Charge I, Specification 3 -- because the Government charged

these specifications in the alternative for exigencies of proof

and he remains convicted of both offenses.

                               I.    FACTS

     One evening in August 2010, AEL consumed a number of

alcoholic beverages, including a beer at a bowling alley

followed by “a vodka cranberry, a Jell-O shot, and [a mini-

bottle]” at another location.       Later that night, she went to

Appellant’s apartment where she ingested prescription medication

that made it difficult for her to stay awake, and she fell

asleep on Appellant’s couch.    Appellant then proceeded to touch

AEL on four distinct occasions –– each occasion separated by AEL

awaking, telling Appellant to stop, and Appellant complying

until after AEL fell back asleep.        On the first occasion, she

awoke to his hand touching her breast on the outside of her

shirt.   On the second, she awoke to Appellant touching her

breast inside her shirt.   On the third, she woke up to his hands

touching her vaginal area over her shorts.        On the fourth, she

awoke to Appellant’s hands inside her underwear in the vaginal

area.

     Based on this conduct, Appellant was charged with both

abusive sexual contact and wrongful sexual contact.        Appellant

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United States v. Elespuru, 14-0012/AF


submitted a Motion for Unreasonable Multiplication of Charges

for Findings or Finding Charges Multiplicious for Sentencing.

While discussing this motion, defense counsel conceded that the

elements test for lesser included offenses was not met and that

Appellant’s charge of wrongful sexual contact was not a lesser

included offense of abusive sexual contact.   The trial counsel

and military judge agreed.

     In response to Appellant’s argument that there was an

unreasonable multiplication of charges, the Government stated

that the offenses were charged not as lesser included offenses,

but in the alternative for exigencies of proof.   The Government

stated that it included the wrongful sexual contact

specification because this specification was easier to prove

than abusive sexual contact, given the inherent difficulties of

establishing an individual’s incapacitation through the

testimony of someone who was incapacitated at the time of the

alleged offense.   Trial counsel therefore agreed that, “In the

event [Appellant] is found guilty of Charge I Specification 2

[abusive sexual contact] and Charge I Specification 3 [wrongful

sexual contact] this Court should merge the offenses for

calculation of maximum punishment.”   The military judge denied

Appellant’s motion with respect to the unreasonable

multiplication of charges but stated that if Appellant was




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United States v. Elespuru, 14-0012/AF


convicted on both charges that they would be merged for

sentencing.

     After the members found Appellant guilty of both abusive

sexual contact and wrongful sexual contact, the military judge

reduced the maximum sentence of eight-and-one-half years to

seven and one-half years as a result of the merger of these

specifications for sentencing, while including time for the

assault charge.   See Manual for Courts-Martial, United States

Maximum Punishment Chart app. 12 at A12-4, A12-5 (2008 ed.)

(MCM).

                        II.   AFCCA DECISION

     On appeal to the AFCCA, Appellant asserted, among other

things, that the specifications for abusive sexual contact and

wrongful sexual contact were multiplicious.    Brief for Appellant

at 10, Elespuru, No. ACM 38055, 2013 CCA LEXIS 644, 2013 WL

3969545 (A.F. Ct. Crim. App. Oct. 5, 2012).    The AFCCA

characterized the issue as one of unreasonable multiplication of

charges and found no such unreasonable multiplication. 1

Elespuru, 2013 CCA LEXIS 644, at *9-*10, 2013 WL 3969545, at *3.



1
  Appellant’s AFCCA brief and the AFCCA’s decision are a reminder
for counsel and military judges alike to distinguish accurately
between multiplicity and an unreasonable multiplication of
charges. See United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2012). Whereas multiplicity addresses double jeopardy
principles, unreasonable multiplication is aimed at preventing
“prosecutorial overreaching.” Id.

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United States v. Elespuru, 14-0012/AF


                           III.   DISCUSSION

                                   A.

     Contrary to his position at trial, Appellant now argues

that the Blockburger v. United States elements test requires

that this Court dismiss his wrongful sexual contact conviction

-- Charge I, Specification 3 -- as a lesser included offense of

his abusive sexual contact conviction -- Charge I, Specification

2.   See 284 U.S. 299, 304 (1932).      “‘The prohibition against

multiplicity is necessary to ensure compliance with the

constitutional and statutory restrictions against Double

Jeopardy . . . .’”    Campbell, 71 M.J. at 23 (quoting United

States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001)).       “Offenses

are multiplicious if one is a lesser-included offense of the

other.”   United States v. Leak, 61 M.J. 234, 248 (C.A.A.F. 2005)

(internal quotation marks omitted).       That determination is made

by utilizing the elements test.     United States v. Jones, 68 M.J.

465, 470 (C.A.A.F. 2010).

     “A waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege.”       Johnson v. Zerbst,

304 U.S. 458, 464 (1938).    “There is a presumption against the

waiver of constitutional rights,” Brookhart v. Janis, 384 U.S.

1, 4 (1966), although “[n]o magic words are required to

establish a waiver.”    United States v. Smith, 50 M.J. 451, 456

(C.A.A.F. 1999).     “The determination of whether there has been

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United States v. Elespuru, 14-0012/AF


an intelligent waiver . . . must depend, in each case, upon the

particular facts and circumstances surrounding that

case . . . .”    Johnson, 304 U.S. at 464.

     At trial, Appellant asserted that there was an unreasonable

multiplication of charges for findings.      Since at least Quiroz,

a primary factor to be considered in ruling on such a motion is

“whether each charge and specification is aimed at distinctly

separate criminal acts.”   Campbell, 71 M.J. at 24 (discussing

Quiroz, 55 M.J. at 338).   Thus, while addressing the claim of

unreasonable multiplication of charges, the military judge and

defense counsel expressly considered whether the two offenses

were separate criminal acts by discussing whether wrongful

sexual contact is a lesser included offense of abusive sexual

contact.   This inquiry, in turn, expressly referenced the

elements test.

     Indeed, defense counsel acknowledged that “[t]he elements

test [was] not met in this case.”     Additionally, in response to

the military judge’s question, “is the specification of wrongful

sexual contact [a lesser included offense] of abusive sexual

contact?,” the defense counsel stated, “I would argue, no.”

Moreover, Appellant does not contend that the relevant law has

changed since trial.   Cf. United States v. Henry, 472 F.3d 910,

914 (D.C. Cir. 2007) (recognizing that an intervening change in

the law can create an “exceptional circumstance” that overcomes

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United States v. Elespuru, 14-0012/AF


waiver).    It is thus apparent, under the particular facts of

this case, that “‘counsel consciously and intentionally failed

to save the point and led the trial judge to understand that

counsel was satisfied.’”    United States v. Mundy, 2 C.M.A. 500,

503, 9 C.M.R. 130, 133 (1953).    Accordingly, we find that

Appellant knowingly waived his right to assert a multiplicity

claim on appeal.

                                 B.

       While Appellant waived his multiplicity claim, a problem

remains.    The Government charged and tried the abusive sexual

contact and wrongful sexual contact offenses in the alternative

for exigencies of proof, 2 but nonetheless argues on appeal that

both convictions should stand.    While the Government’s charging

strategy was appropriate, we disagree that both convictions may

stand.


2
    Specification 2 of Charge I asserted that Appellant did,

       on divers occasions engage in sexual contact, to wit:
       touching with his hands the genitalia and the breast, of
       [the victim] while she was substantially incapable of
       declining participation in the sexual contact or
       communicating unwillingness to engage in the sexual
       contact.

Specification 3 of Charge I alleged that Appellant did,

       on divers occasions engage in sexual contact with [the
       victim], to wit: touching with his hands her genitalia and
       breast, and such sexual contact was without legal
       justification or lawful authorization and without the
       permission of [the victim].

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United States v. Elespuru, 14-0012/AF


     For although the evidence adduced both supports a finding

that AEL was substantially incapable of declining participation

or communicating unwillingness to engage in the sexual contact,

and that, when she had moments of consciousness and lucidity,

she made clear that she did not give permission, that was not

the Government’s theory at trial, although it was the basis upon

which the AFCCA affirmed both specifications.    Thus, under the

facts of this case we disapprove the finding of guilty for

wrongful sexual contact.

     As was clear from the colloquy with the military judge

during the motion on unreasonable multiplication of charges, the

Government charged these offenses in the alternative for

exigencies of proof because they believed the abusive sexual

contact specification was more difficult to prove.    See

discussion supra p. 4.     The Government’s appellate counsel

acknowledged this strategy, explaining, “the existence of

remaining exigencies of proof necessarily required multiple

specifications.”   See Brief for the Government at 2, United

States v. Elespuru, No. 14-0012 (C.A.A.F. Dec. 12, 2014).       This

was a reasonable decision on the Government’s part:

     It is the Government’s responsibility to determine
     what offense to bring against an accused. Aware of
     the evidence in its possession, the Government is
     presumably cognizant of which offenses are supported
     by the evidence and which are not. In some instances
     there may be a genuine question as to whether one
     offense as opposed to another is sustainable. In such

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United States v. Elespuru, 14-0012/AF


     a case, the prosecution may properly charge both
     offenses for exigencies of proof, a long accepted
     practice in military law. In cases where offenses are
     pleaded for exigencies of proof, depending on what the
     plea inquiry reveals or of which offense the accused
     is ultimately found guilty, the military judge may
     properly accept the plea and dismiss the
     remaining offense.

United States v. Morton, 69 M.J. 12, 16 (C.A.A.F. 2010)

(citations omitted).

     We have held before that when a “panel return[s] guilty

findings for both specifications and it was agreed that these

specifications were charged for exigencies of proof, it [is]

incumbent” either to consolidate or dismiss a specification.

United States v. Mayberry, 72 M.J. 467, 467-68 (C.A.A.F. 2013);

accord United States v. Wickware, 73 M.J. __, __ (C.A.A.F. 2014)

(order granting review and reversing in part).   Dismissal of

specifications charged for exigencies of proof is particularly

appropriate given the nuances and complexity of Article 120,

UCMJ, which make charging in the alternative an unexceptional

and often prudent decision.

     Although we set aside the wrongful sexual contact

specification, Appellant remains convicted of abusive sexual

contact, a crime carrying a higher sentence.   MCM Maximum

Punishment Chart app. 12 at A12-4.   Because the military judge

merged these specifications for sentencing purposes, we find

that, under the facts of this case, Appellant was not prejudiced



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United States v. Elespuru, 14-0012/AF


with regard to his sentence.       See Elespuru, 2013 CCA LEXIS 644,

at *11, 2013 WL 3969545, at *3.

                             IV.    DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Specification 3 of Charge I,

but is otherwise affirmed.    The finding of guilty as to Charge

I, Specification 3, is set aside and that specification is

dismissed.




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United States v. Elespuru, 14-0012/AF


     BAKER, Chief Judge (concurring in part and dissenting in

part):

     I join Part III.B. of the majority’s opinion.    As drafted,

the specifications charge the same conduct, especially since the

Government chose to allege the conduct as having occurred on

“divers occasions.”   That means that the Government was not

charging separate and discrete acts as the lower court

concluded, but instead incorporated all the acts in question

into each specification.   In short, as the majority opinion

concludes, these two offenses were charged for contingencies of

proof.   As a result, I agree with the decision to set aside the

wrongful sexual contact specification.

     However, the Court having set aside the specification at

issue, there seems no need to address waiver or to determine

whether in this case, wrongful sexual contact was a lesser

included offense of abusive sexual contact.    Given the legal

uncertainty created by our lesser included offense jurisprudence

at the time of Appellant’s trial, I would not hold in this

circumstance that defense counsel knowingly waived the issue of

multiplicity.   First, there is a presumption against

constitutional waiver, which applies in the case of multiplicity

founded as it is on double jeopardy.    Second, a succession of

cases leading up to the time of Appellant’s trial provided

anything but clarity as to whether or not wrongful sexual
United States v. Elespuru, 14-0012/AF


contact was a lesser included offense of abusive sexual contact.

See United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011)

(housebreaking under Article 130, UCMJ, is lesser included

offense of burglary under Article 129, UCMJ); United States v.

McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (negligent homicide

under Article 134, UCMJ, is not lesser included offense of

involuntary manslaughter under Article 119, UCMJ); United States

v. Girouard, 70 M.J. 5, 9 (C.A.A.F. 2011) (negligent homicide

under Article 134, UCMJ, is not lesser included offense of

premeditated murder under Article 118, UCMJ); United States v.

Alston, 69 M.J. 214, 216 (C.A.A.F. 2010) (aggravated sexual

assault under Article 120, UCMJ, is lesser included offense of

rape by force under Article 120, UCMJ); United States v.

Yammine, 69 M.J. 70, 76-77 (C.A.A.F. 2010) (indecent acts with a

child under Article 134, UCMJ, is not lesser included offense of

forcible sodomy under Article 125, UCMJ); United States v.

Jones, 68 M.J. 465, 473 (C.A.A.F. 2010) (indecent acts under

Article 134, UCMJ, is not lesser included offense of rape under

Article 120, UCMJ).   In such circumstance, it is hard to

conclude that any waiver would be knowing even if there had been

an affirmative waiver -- but there was not.   Finally, the

military judge implied that the issue was preserved when he told

counsel, “it is reasonable that if there’s a conviction on both,

both should go up to the Appellate Court to deal with given the

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United States v. Elespuru, 14-0012/AF


state of the law with Article 120 that we’ve discussed here.”

It is, therefore, little wonder why the parties at trial and the

military judge seemed confused about the issue.

     Under the circumstances, it is not clear why the majority

is reaching so hard to find waiver in a case in which the

Court’s unanimous decision renders the issue moot.




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