              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
            F.D. MITCHELL, J.A. FISCHER, K.M. MCDONALD
                       Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                      BRANDON T. YARBROUGH
                HOSPITALMAN RECRUIT (E-2), U.S. NAVY

                           NMCCA 201300436
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 9 August 2013.
Military Judge: CAPT Robert Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N. O. Evans,
JAGC, USN.
For Appellant: Capt David Peters, USMC; LT Jared A.
Hernandez, JAGC, USN.
For Appellee: CDR Christopher J. Geis, JAGC, USN; Maj Paul
M. Ervasti, USMC; LT James Belforti, JAGC, USN.

                            22 January 2015

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     At a general court-martial, a military judge convicted the
appellant, consistent with his pleas, of one specification of
larceny and one specification of breaking restriction in
violation of Articles 121 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 921, and 934. An officer and enlisted
members panel convicted the appellant, contrary to his pleas, of
one specification of abusive sexual contact and two
specifications of committing an indecent act in violation of
Article 120, UCMJ, 10 U.S.C. § 920. 1 The members sentenced the
appellant to four years confinement, total forfeiture of pay and
allowances, and a dishonorable discharge. The convening
authority approved the sentence as adjudged, and, except for the
punitive discharge, ordered the sentence executed.

      The appellant raises the following four assignments of
error (AOE): (1) his conviction for abusive sexual contact is
factually and legally insufficient, (2) trial counsel violated
RULE FOR COURTS-MARTIAL 1001, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.) by arguing improper uncharged misconduct in sentencing, 2 (3)
Article 120(k), UCMJ, is unconstitutionally vague on its face,
and (4) the Government violated the Sixth Amendment when it
denied appellate defense counsel the ability to represent him at
a general court-martial linked to this case. Additionally, we
specified an issue regarding unreasonable multiplication of
charges. 3 We address the appellant’s first and third AOEs and
the specified issue and find the remaining AOEs to be without
merit. United States v. Clifton, 35 M.J. 79, 81-82 (C.M.A.
1992).



1
  The members acquitted the appellant of four specifications of aggravated
sexual assault, one specification of abusive sexual contact, and one
specification of committing an indecent act.
2
  In AOE II, the appellant claims that the trial counsel violated R.C.M.
1001(b)(4) when he mentioned MILITARY RULE OF EVIDENCE 413, MANUAL FOR COURTS-MARTIAL
(2012 ed.) evidence that had been presented on the merits in his sentencing
argument. He does not argue this evidence was improperly admitted on the
merits. We find this AOE to be without merit. See R.C.M. 1001(f)(2)
(stating members may consider “Any evidence properly introduced on the merits
before findings, including: (A) Evidence of other offenses or acts of
misconduct even if introduced for a limited purpose”); see also United States
v. Tanner, 63 M.J. 445, 448-49 (C.A.A.F. 2006) (noting that MIL. R. EVID. 414
and MIL. R. EVID. 413 establish “a presumption in favor of admissibility” and
finding that evidence of uncharged sexual misconduct involving a minor
originally admitted in sentencing as a prior conviction under R.C.M.
1001(b)(3) would have still been admissible under R.C.M. 1001(b)(4) and M IL.
R. EVID. 414 when the conviction was subsequently reversed).
3
  We specified the following issue: DO THE CHARGES FOR INDECENT ACTS
(SPECIFICATION 8 UNDER THE CHARGE) AND ABUSIVE SEXUAL CONTACT (SPECIFICATION
6 UNDER THE CHARGE) CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES WHEN
THE THIRD PARTY IN THE INDECENT ACTS SPECIFICATION WAS INVOLVED IN THE
CONDUCT GIVING RISE TO THE ABUSIVE SEXUAL CONTACT?


                                          2
     After carefully considering the record of trial, the
parties’ pleadings, including their responses to the specified
issue, and the appellant’s assignments of error, we conclude
that the appellant’s conviction for Specification 8 of the
Charge is an unreasonable multiplication of charges with
Specification 6 of the Charge. After the corrective action set
forth in our decretal paragraph, we conclude the remaining
findings and the reassessed sentence are correct in law and fact
and that no error materially prejudicial to the substantial
rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     On 31 March 2012, the appellant and Hospitalman (HN) TK
engaged in a group sexual encounter with two other male service
members. The appellant and HN TK then engaged in sexual
intercourse while the two other service members watched. 4

     On the evening of 2 June 2012, two female service members,
Airman First Class (A1C) MR, USAF, and Airman (AMN) DA, USAF,
went to a hotel room after an evening of partying and drinking.
The appellant, who was dating AMN DA at that time, was in the
room when they arrived. A1C MR testified that when she got to
the room she felt intoxicated and tired and despite her and AMN
DA’s plan to go to another club, she lay down in an empty bed to
rest. A1C MR was fully clothed at this point and fell asleep
shortly thereafter. A1C MR testified that she awoke to AMN DA
pulling off her shirt and bra and the appellant pulling her
pants and underwear down her legs. A1C MR stated that the
appellant and AMN DA, who were both naked, then lay down on
either side of her in the bed. A1C MR testified that the
appellant then touched her breasts, pubic area, buttocks, and
genitalia. A1C MR indicated that she told the appellant no and
attempted to cover herself, but that she was still affected by
the alcohol and “couldn’t think straight”. A1C MR further
testified that she could not get away because she was blocked by
AMN DA. A1C MR testified that the appellant stopped touching
her when she hit him in the groin while trying to push him away.




4
  HN TK testified that she did not want to have sex with the appellant at that
time and was “disgusted” to have sex in front of the other two service
members. Record at 706, 708. The appellant was acquitted of rape and sexual
assault specifications concerning this incident.


                                      3
             Unreasonable Multiplication of Charges

     Based on the incident involving A1C MR, the appellant was
found guilty of the following specifications:

     In that [the appellant], on active duty, did at or
     near San Antonio, Texas, on or about 2 June 2012,
     engage in sexual contact, to wit: intentionally
     touching the breasts, groin, buttocks, and genitalia
     of [A1C MR], by causing bodily harm upon [A1C MR], to
     wit: forcefully removing her pants and underwear
     without her permission.

     In that [the appellant], on active duty, did at or
     near San Antonio, Texas, on or about 2 June 2012,
     wrongfully commit indecent conduct, to wit:
     intentionally touching the breasts, groin, buttocks,
     and vagina of [A1C MR] in the presence of another
     person.

     We find that the appellant’s conviction for both
specifications constitutes an unreasonable multiplication of
charges.

     The prohibition against unreasonable multiplication of
charges allows this court to address prosecutorial overreaching
by imposing a standard of reasonableness. United States v.
Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007); United States v.
Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006). In addressing
whether the Government has unreasonably multiplied charges, we
apply a five-part test: (1) did the accused object at trial;
(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). When
conducting a Quiroz analysis, we are mindful that “[w]hat is
substantially one transaction should not be made the basis for
an unreasonable multiplication of charges against one person.”
R.C.M. 307(c)(4).

     At trial, the appellant did not object to the charges as
being unreasonably multiplied. This factor weighs in favor of
the Government. We find the second and third criteria favor the

                                4
appellant. The abusive sexual contact and indecent act
specifications deal with the same sexual acts, at the same
place, and at the same time and date. Here, what was one
transaction became the basis of two separate charges. The
appellant also satisfies the fourth criterion: he faced five
additional years of confinement once convicted of the indecent
act offense. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), App.
28, at A28-11.

     Finally, we find the last factor also favors the appellant.
While the elements of the two subject specifications differ,
suggesting no prosecutorial overreaching or abuse, this one
transaction was parsed into two offenses resulting in multiple
convictions based solely on the fact that AMN DA assisted the
appellant in committing the abusive sexual contact. 5 The
Government maintains that AMN DA’s involvement triggered a
separate societal interest against “sex that is open and
notorious” under Article 120(k). 6 Under the facts before us we
disagree and find the appellant’s multiple convictions for his
single act to be improper.

     Accordingly, Specification 8 of the Charge is dismissed as
an unreasonable multiplication of charges with Specification 6
of the Charge. See United States v. Elespuru, 73 M.J. 326, 329
(C.A.A.F. 2014) (dismissing wrongful sexual contact charge
because unreasonable multiplication of charges with abusive
sexual contact charge encompassing the same touching where both
were charged for exigencies of proof); United States v.
Hohenstein, __ M.J. __, No. 14-0003/AF, 2014 CAAF LEXIS 910,
(C.A.A.F. Sep. 5, 2014) (summary disposition) (dismissing
wrongful sexual contact charge as unreasonable multiplication of
charges with rape charge).

    Legal and Factual Sufficiency of Abusive Sexual Contact Charge

     In his first AOE, the appellant argues his conviction for
abusive sexual contact of A1C MR is legally and factually
insufficient because the government did not produce evidence of
the appellant’s specific intent. We disagree.

     We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.

5
  AMN DA received nonjudicial punishment for assault consummated by a battery
for unlawfully removing A1C MR’s shoes, shirt, and bra from her body.
Appellant’s Brief of 24 Apr 2014 at 41.
6
    Appellee’s Answer of 5 Dec 2014 at 8.
                                        5
2002). We review the legal sufficiency of the evidence by
determining “whether, considering the evidence in the light most
favorable to the prosecution, any reasonable fact-finder could
have found all the essential elements beyond a reasonable
doubt.” United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F.
2008) (citing United States v. Turner, 25 M.J. 324, 324 (C.M.A.
1987)). “The test for factual sufficiency is whether, after
weighing all the evidence in the record of trial and recognizing
that we did not see or hear the witnesses as did the trial
court, this court is convinced of the appellant's guilt beyond a
reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557
(N.M.Ct.Crim.App. 2006) (citing Turner, 25 M.J. at 325 and Art.
66(c), UCMJ), aff'd, 64 M.J. 348 (C.A.A.F. 2007). Beyond a
reasonable doubt, however, does not mean that the evidence must
be free from conflict. Id. The Government may prove an
appellant’s intent with circumstantial evidence. United States
v. Kearns, 73 M.J. 177, 182 (C.A.A.F. 2014); United States v.
Vela, 71 M.J. 283, 286 (C.A.A.F. 2012).

     Here, there was legally and factually sufficient evidence
of the appellant’s guilt. Although the appellant asserts his
actions toward A1C MR were intended as a “joke,” A1C MR’s
testimony clearly indicates otherwise. A1C MR testified that
the appellant undressed her while she awoke in an alcohol
induced fog and then inappropriately touched her intimate areas
while she lay between the appellant and AMN DA. Moreover, the
Government introduced admissions from the appellant indicating
that he was interested in group sexual encounters. Given these
facts, we find more than sufficient evidence to conclude that
the appellant intended to gratify his sexual desire when he
touched A1C MR.

     After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
prosecution, we are convinced that a reasonable fact-finder
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having
personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant's guilt.

           Constitutional Challenge to Article 120(k)

     In AOE III, the appellant, for the first time on appeal,
makes a void-for-vagueness constitutional attack on Article



                                6
120(k), UCMJ. 7 We find this claim to be without merit under the
same analysis outlined in United States v. Miles, No. 201300272,
2014 CCA LEXIS 601 at *34-35, unpublished op. (N.M.Ct.Crim.App.
21 Aug 2014) (finding the appellant’s conduct was committed in
an “open and notorious” manner based on the presence of a third
party who observed the appellant’s sexual activity).

                          Sentence Reassessment

     Having dismissed Specification 8 of the Charge, we must
determine whether we are able to reassess the sentence. Applying
the analysis set forth in United States v. Sales, 22 M.J. 305
(C.M.A. 1986), United States v. Moffeit, 63 M.J. 40 (C.A.A.F.
2006), and United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006),
and carefully considering the entire record, we conclude that
there has not been a “dramatic change in the ‘penalty
landscape.’” United States v. Riley, 58 M.J. 305, 312 (C.A.A.F.
2003). Our dismissal of one indecent act conviction alters the
sentencing landscape from a maximum of 17 years and 7 months of
confinement to 12 years and 7 months of confinement. Because
this change is not dramatic, we are confident in our ability to
reassess the sentence.

                                 Conclusion

     The finding of guilty to Specification 8 of the Charge is
set aside and that specification is dismissed with prejudice.
The remaining guilty findings are affirmed. We affirm only so
much of the approved sentence as provides for confinement for
three years, forfeiture of all pay and allowances, and a
dishonorable discharge. We conclude that such a sentence is no
greater than that which would have been awarded by the members
for the charges and specifications that we affirm and is
appropriate under the circumstances of this case.

                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court

7
  Although the appellant addresses this AOE to both indecent act convictions
(Specifications 7 and 8 under the Charge), we set aside Specification 8 of
the Charge on other grounds and therefore solely consider Specification 7 of
the Charge in this AOE.


                                      7
