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

                           UNITED STATES, Appellee
                                        v.
                        Specialist* PATRICK A. WRIGHT
                          United States Army, Appellant

                                   ARMY 20121075

          Headquarters, United States Army Maneuver Center of Excellence
                         Stephen E. Castlen, Military Judge
                  Colonel James F. Garrett, Staff Judge Advocate

For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E.
Gorini, JA; Captain Robert N. Michaels, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine Brantley, JA; Captain Daniel M. Goldberg, JA (on brief).


                                  16 December 2013
                              ----------------------------------
                               SUMMARY DISPOSITION
                              ----------------------------------

Per curiam:
       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of two specifications of aggravated sexual assault, and one
specification of providing alcohol to a minor, in violation of Articles 120 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (Supp. III 2010)
[hereinafter UCMJ]. The military judge sentenced appellant to fifteen months of
confinement, forfeiture of all pay and allowances, reduction to E-1, and a
bad-conduct discharge. The convening authority approved the adjudged sentence.
        This case is before this court for review pursuant to Article 66, UCMJ.
Appellant alleges that his conviction for two specifications of aggravated sexual
assault constitute an unreasonable multiplication of charges. The government
concedes that both specifications arise from one transaction. We agree and grant
relief for an unreasonable multiplication of charges in our decretal paragraph. The
matters personally raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) do not merit discussion or relief.
* Corrected
WRIGHT — ARMY 20121075

                                  BACKGROUND

       Appellant and the victim, SPC TL, were both attending Advanced Individual
Training (AIT), at Fort Huachuca, Arizona. During AIT, appellant and SPC TL
became friends. One evening, they went out, as friends, to dinner and later went to a
club to dance. Appellant, who was 21 years old, pr ovided several alcoholic drinks to
SPC TL. Specialist TL was not of legal age to drink. Specialist TL became
intoxicated and went to a hotel room and went to sleep. A little while later,
appellant arrived at the hotel room and found SPC TL asleep. He r emoved his
clothes, her clothes, spread her legs, and inserted his penis into her vagina.

    Appellant was charged with and pled guilty to the following Article 120,
UCMJ specifications:

      SPECIFICATION 1: In that [appellant], U.S. Army, did, at or near
      Sierra Vista, Arizona, between on or about 1 July 2010 and on or about
      1 October 2010, engage in a sexual act, to wit: penetrate with his penis,
      the vulva of [SPC TL], who was substantially incapacitated.

      SPECIFICATION 2: In that [appellant], U.S. Army, did, at or near
      Sierra Vista, Arizona, between one or about 1 July 2010 and on or
      about 1 October 2010, cause [SPC TL] to engage in a sexual act, to wit:
      penetration, with his penis, the vulva of [SPC TL] by causing bodily
      harm upon her to wit: spreading her legs open.

At trial, the military judge announced that he would consider both specifications as
one offense for purposes of sentencing. Neither party objected to the court’s ruling.
The defense never made a motion for unreasonable multiplication of charge s for
sentencing or findings.

                              LAW AND DISCUSSION

       We review issues of unreasonable multiplication of charges for an abuse of
discretion. United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004). Although
appellant failed to raise the issue at trial, the issue was not expressly waived and we
review using the plain error standard. United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009). The appellant must demonstrate that : (1) there was error; (2) the
error was plain or obvious; and (3) the error materially prejudiced a substantial right
of the appellant. United States v. Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008).

       Appellant’s aggravated sexual assault convictions arise from the same
transaction. Appellant spread SPC TL’s legs apart in order to have sexual
intercourse with her. He was able to accomplish these actions because SPC TL was
substantially incapacitated. Thus, the offenses are necessarily intertwined. “What is
substantially one transaction should not be made t he basis for an unreasonable
multiplication of charges against one person.” Rule for Courts -Martial 307(c)(4).

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WRIGHT — ARMY 20121075

We consider five factors to determine whether charges have been unreasonably
multiplied:

             (1) Did the accused object at trial that there was an unr easonable
                 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?; and

             (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 (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”).

       Under the facts of this case, the Quiroz factors balance in favor of appellant,
requiring that we set aside the findings of guilt of one of the specifications of
aggravated sexual assault. See United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F.
2012) (noting one or more factors may be sufficiently compelling, without more, to
warrant relief). These two convictions unreasonably exaggerate appellant’s
criminality. Accordingly, we set aside the finding of guilty for the specification of
aggravated sexual assault where the victim was substantially incapacitated, that is,
Specification 1 of Charge I.

       We now turn to appellant’s sentence in light of the modified findings. We are
“reasonably certain as to the severity of the sentence that would have resulted in the
absence of the error,” United States v. Sales, 22 M.J. 305, 307 n.3 (C.M.A. 1986),
and, thus, we will reassess the sentence at our level. As a threshold matter, the
maximum punishment remains unchanged, and the military judge treated the
offenses at issue as one for sentencing purposes . Second, our decision does not alter
the aggravation evidence properly before the sentencing authority. Third, a ppellant
also elected trial by judge alone and we are “more likely to be certain of what a
military judge alone would have done than what a panel of members would have
done.” United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006) (Baker, J.,
concurring in result). As a result, we affirm the approved sentence.




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WRIGHT — ARMY 20121075

                                   CONCLUSION

       Upon consideration of the entire record, including the matters personally
submitted by appellant pursuant to Grostefon, the finding of guilty for Specification
1 of Charge I is set aside. The remaining findings are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the entire record, and in accordance with the
principles of Sales and Moffeit, to include the factors identified by Judge Baker in
his concurring opinion in Moffeit, the approved 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 thi s decision, are ordered restored.

                                        FOR THE COURT:
                                        FOR THE COURT:



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




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