UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                              TOZZI, FEBBO, and BURTON
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                         Private E1 ANTHONY C. TONEY
                          United States Army, Appellant

                                    ARMY 20150565

                           Headquarters, Fort Campbell
                 James W. Herring, Jr., Military Judge (arraignment)
                     Matthew A. Calarco, Military Judge (trial)
                   Colonel Susan K. Arnold, Staff Judge Advocate


For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Heather
Tregle, JA; Captain Michael A. Gold, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Anne C. Hsieh, JA; Major Edward J. Whitford, JA (on brief).


                                     3 January 2017

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                                SUMMARY DISPOSITION
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BURTON, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of sexual assault in violation of Article
120, Uniform Code of Military Justice, 10 U.S.C. §920 (2012 & Supp. I 2014)
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge and confinement for four years. The convening authority approved the
findings and sentence as adjudged.

       We now review appellant’s case under Article 66, UCMJ. In his sole
assignment of error, appellant alleges the military judge committed plain error by
failing to find Specification 1 and 2 of The Charge were an unreasonable
multiplication of charges for purposes of findings. We agree and provide relief in
our decretal paragraph. Appellant personally raised matters pursuant to United
TONEY—ARMY 20150565

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) which we find, after due
consideration, to be without merit. 

                              LAW AND DISCUSSION

      Appellant was found guilty, of the following violations of Article 120, UCMJ:

             Specification 1 (Sexual Assault): In that [appellant], U.S.
             Army, did, at or near Fort Campbell, Kentucky, on or
             about 29 August 2014, commit a sexual act upon [PFC
             D.S.W.], to wit: penetrating her vulva with his penis,


  In his personally assigned errors, appellant asserts his trial defense counsel were
ineffective because they admitted a stipulation of expected testimony, incorrectly
relied on appellant’s voluntary intoxication as a defense, failed to impeach the
victim with her Article 32 testimony that she remembered having sex with appellant,
and failed to impeach the victim’s sentencing testimony with evidence that she
engaged in drunken sexual intercourse with another individual the very next
evening. Appellant submitted no additional affidavits, unsworn declarations made
under penalty of perjury, or any signed statements directly supporting his specific
claim of ineffective assistance. See United States v. Axtell, 72 M.J. 662, 665-66
(Army Ct. Crim. App. 2013). See also United States v. Gunderman, 67 M.J. 683
(Army Ct. Crim. App. 2009), and United States v. Ellis, 47 M.J. 20, 22 (C.A.A.F.
1997). In reference to the stipulation of expected testimony, appellant signed the
stipulation. Appellant acknowledged that he had read through the stipulation,
understood the contents, and agreed with the contents. Further appellant stated that
his defense counsel explained the stipulation to him before he signed it, he
understood he had an absolute right to refuse to stipulate, and that he had entered the
stipulation because he believed it was in his best interest to do so. After the military
judge explained how the stipulation would be used, appellant indicated that he still
desired to enter into the stipulation. His remaining allegation relates to trial tactics.
As a general matter we “‘will not second guess the strategic or tactical decisions
made at trial by defense counsel.’” United States v. Anderson, 55 M.J. 198, 202
(C.A.A.F. 2001) (quoting United States v. Morgan, 37 M.J. 407, 410 (C.M.A. 1993).
Under the circumstances of this case, we see no need to order affidavits from
counsel or a fact-finding hearing pursuant to United States v. DuBay, 17 U.S.C.M.A.
147, 37 C.M.R. 411 (1967). The facts in appellant’s allegations—even if true—
“would not result in relief.” United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F.
1997). Furthermore, “the appellate filings and the record as a whole ‘compellingly
demonstrate’ the improbability of [appellant’s allegations].” Id. Applying the first,
fourth and fifth Ginn principles to appellant’s unsworn submission, we reject
appellant’s ineffective assistance claim.


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            when she was incapable of consenting to the sexual act
            due to impairment by an intoxicant, and that condition was
            known or reasonably should have been known by the
            [appellant].

            Specification 2 [Sexual Assault]: In that [appellant], U.S.
            Army, did, at or near Fort Campbell, Kentucky, on or
            about 29 August 2014, commit a sexual act upon [PFC
            D.S.W.], to wit: penetrating her vulva with his penis,
            when [appellant] knew or reasonably should have known
            that she was asleep and unconscious.

                     Unreasonable Multiplication of Charges

       Appellant was found guilty of the Specifications of The Charge delineated
above. These specifications stem from appellant attending a party in the barracks
where alcohol was consumed. Witnesses testified that Private First Class (PFC)
D.S.W. was drunk, she was slurring her words, could not walk without assistance
and was much louder than normal. Appellant was with the group of soldiers that
carried PFC D.S.W. to her barracks room and put her to bed. At some point after
PFC D.S.W. was in bed appellant engaged in one act of sexual intercourse with her.

      “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). We consider five factors to determine 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?

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United States v. Quiroz, 55 M.J. 334, 338-39 (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”).

       Here, the Quiroz factors on balance weigh in favor of appellant. First,
defense counsel did not object at trial that the specifications constituted an
unreasonable multiplication of charges. This factor weighs in favor of the
government. Regarding the second Quiroz factor, Specifications 1 and 2 of The
Charge were aimed at the same criminal act, appellant’s sexual intercourse with PFC
D.S.W. on 29 August 2014. This factor weighs in favor of appellant. Regarding the
third factor, findings of guilty against appellant for both of the specifications
delineated above exaggerates appellant’s criminality. This factor weighs in favor of
appellant. Regarding the fourth factor, appellant’s punitive exposure is not
unreasonably increased for this conduct because the military judge merged the
specifications in question for sentencing. This factor weighs in favor of the
government. Finally, there is no evidence of prosecution overreaching or abuse in
the drafting of the charges, so the fifth factor weighs in favor of the government.
On balance, we find the Quiroz factors weigh slightly in favor of appellant.
Accordingly, Specifications 1 and 2 of The Charge will be merged.

                                   CONCLUSION

       After consideration of the entire record of trial and appellant’s assignment of
error, Specifications 1 and 2 of The Charge are consolidated into a single
specification, the Specification of The Charge, to read as follows:

             In that [appellant], U.S. Army, did, at or near Fort
             Campbell, Kentucky, on or about 29 August 2014, commit
             a sexual act upon PFC D.S.W., to wit: penetrating her
             vulva with his penis, when [appellant] knew or reasonably
             should have known that she was asleep and unconscious
             and she was incapable of consenting to the sexual act due
             to impairment by an intoxicant, and that condition was
             known or reasonably should have been known by
             [appellant].

The finding of guilty of Specification 2 of The Charge is set aside and is
DISMISSED. The finding of guilty of the Specification of The Charge, as so
amended, is 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), we AFFIRM the sentence. All rights, privileges, and property,


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TONEY—ARMY 20150565

of which appellant has been deprived by virtue of that portion of the findings set
aside by this decision, are ordered restored.

      Senior Judge TOZZI and Judge FEBBO concur.

                                        FOR THE COURT:
                                         FOR THE COURT:




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




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