UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                        CAMPANELLA, PENLAND, and BURTON
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Private E2 DAVID MONTOYA
                          United States Army, Appellant

                                   ARMY 20150211

                            Headquarters, Fort Knox
                 Steven E. Walburn, Military Judge (arraignment)
                   James W. Herring, Jr., Military Judge (trial)
               Colonel E. Edmond Bowen, Jr., Staff Judge Advocate

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

For Appellee: Colonel Mark H. Sydenham, JA; Major Anne C. Hsieh, JA; Major
Lionel C. Martin, JA (on brief).


                                  29 November 2016
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                               SUMMARY DISPOSITION
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PENLAND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of willfully disobeying a superior
commissioned officer, two specifications of sexual assault, and two specifications of
abusive sexual contact, in violation of Articles 90 and 120 of the Uniform Code of
Military Justice, 10 U.S.C. §§ 890, 920 [hereinafter UCMJ]. The convening
authority approved the adjudged sentence of a dishonorable discharge, confinement
for thirty-three months, and reduction to the grade of E-1. The military judge and
convening authority credited appellant with 100 days of confinement credit against
his sentence to confinement.

      We review this case under Article 66, UCMJ. Appellant raises one issue,
which merits brief discussion but no relief. We have considered the matters
personally submitted by appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982); they lack merit.
MONTOYA—ARMY 20150211

                                  BACKGROUND

       The charged offenses arose from appellant’s sexual assault of and contact
with Private First Class (PFC) CM. While PFC CM was sleeping in her barracks
room after having taken a sleep aid, appellant touched her stomach and breasts. She
woke up, and thinking it was someone else, nudged away the hand that was touching
her breasts. Appellant touched her breasts again with his hand and she verbally
objected to the touching. Appellant stopped and she went to sleep again. Private
First Class CM was awakened by appellant’s finger penetrating her vulva. She tried
to move away and said “no,” but the digital penetration continued and progressed to
appellant penetrating her vulva with his penis while PFC CM continued to protest.

       For this conduct, the government charged appellant with abusive sexual
contact for touching PFC CM’s stomach, breasts, and vulva while she was asleep
(Specification 1 of The Additional Charge), abusive sexual contact by bodily harm
for touching her stomach and breasts (Specification 4 1 of Charge II), sexual assault
by bodily harm for penetrating her vulva with his finger (Specification 3 of Charge
II), and sexual assault by bodily harm for penetrating her vulva with his penis
(Specification 2 of Charge II).

       At trial, the military judge sua sponte stated he would merge Specification 4
of Charge II and Specification 1 of The Additional Charge for sentencing and asked
if either party saw “any further issue as to merger?” Defense counsel took a moment
and asked the military judge to merge all of the Article 120 specifications because it
“was all one continuous act or very close in time.” The military judge disagreed.
Appellant now asserts Specification 4 of Charge II and Specification 1 of The
Additional Charge are unreasonably multiplied.

                             LAW AND DISCUSSION

                     A. Unreasonable Multiplication of Charges

       “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). The prohibition against unreasonable multiplication
of charges (UMC) “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)).



1
 The specifications of Charge II were renumbered following the dismissal of some
of the specifications prior to arraignment.

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MONTOYA—ARMY 20150211

      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?
             (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?

55 M.J. at 338 (citation and quotation marks omitted; internal alteration reflects
Quiroz’s holding that “unreasonably” will be used rather than “unfairly.” Id. at
339).

       We find the Quiroz factors in this case weigh against appellant. First, while
parties focus on whether defense counsel raised the issue of UMC before the military
judge did so, it is relevant that after the military judge raised the issue of merger,
defense counsel did request the merger of all four Article 120 specifications.

       Second, the two specifications were aimed at distinctly separate criminal acts.
Specification 1 of The Additional Charge was for the touching that occurred while
PFC CM was asleep and caused her to wake up. Once awake, it is clear that PFC
CM knew what was happening to her and physically and verbally resisted appellant.
She was no longer “incapacitated.” See MCM, 2008, pt. IV, ¶ 45.a. (c)(2); ¶
45.a.(t)(14). For continuing to touch PFC CM after she woke up and pushed his
hand away from her breast and said no, appellant was convicted of Specification 4 of
Charge II. 2 In short, our read of the evidence is that the abusive sexual contact
while she was asleep ended when she woke up, and the abusive sexual contact by
bodily harm occurred when he touched her after she demonstrated her lack of
consent to the touching. There was no point in time when appellant was committing
both offenses simultaneously. Therefore, under the facts of this case, we find the
two specifications address separate acts. See United States v. Marsh, ARMY
20120572, 2016 CCA LEXIS 362, at *22 (Army Ct. Crim. App. 31 May 2016).

      Third, the number of specifications does not misrepresent or exaggerate
appellant’s criminality. Instead, it would be a misrepresentation of appellant’s
criminality were we to dismiss one of the specifications. Appellant committed two

2
  Appellant said he remembered touching PFC CM’s stomach, but PFC CM only
testified that he touched her breasts. We address this below.
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MONTOYA—ARMY 20150211

distinct abusive sexual contacts. To hold appellant accountable for his conduct
requires affirming both specifications.

       Fourth, the offenses were treated as one for sentencing, which means that
there was no unreasonable increase in appellant’s punitive exposure.

       Fifth, the record is devoid of any evidence of prosecutorial overreach or abuse
in drafting the charges.

      Accordingly, we do not find an unreasonable multiplication of charges.

                                B. Factual Sufficiency

        We have the independent duty to review the record to determine whether it is
correct in law and fact. UCMJ art. 66(c). The test for factual sufficiency, “involves
a fresh, impartial look at the evidence, giving no deference to the decision of the
trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to
take into account the fact that the trial court saw and heard the witnesses.” United
States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002); see also Unites States v.
Jimenez-Victoria, 75 M.J. 768, 770-71 (Army Ct. Crim. App. 2016). In exercising
this authority this court gives no deference to the decisions of the trial court (such as
a finding of guilty), but does recognize the trial court’s superior ability to see and
hear the witnesses. Id. In reviewing for factual sufficiency we are limited to the
facts introduced at trial and considered by the court-martial. United States v. Beatty,
64 M.J. 456 (C.A.A.F. 2007).

       While appellant told a Criminal Investigation Command (CID) agent he
remembered touching PFC CM’s stomach, PFC CM herself did not testify to this;
therefore we find the portion of Specification 4 of Charge II that refers to touching
her stomach is factually insufficient.

                                    CONCLUSION

      The court affirms only so much of the finding of guilty of Specification 4 of
Charge II as finds that appellant:

             Did, at or near Fort Knox, Kentucky, between on or about
             25 April 2014 and on or about 26 April 2014, commit
             sexual contact upon Private First Class C.M., to wit:
             touching her breasts with an intent to arouse or gratify his
             sexual desires, without her consent, by causing bodily
             harm.

The remaining findings of guilty and the sentence are AFFIRMED.

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MONTOYA—ARMY 20150211

    Senior Judge CAMPANELLA and Judge BURTON concur.

                              FOR THE
                              FOR THE COURT:
                                      COURT:




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




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