UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           MULLIGAN, FEBBO, and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Staff Sergeant ISAAC L. BOYKIN
                          United States Army, Appellant

                                  ARMY 20160136

         Headquarters, U.S. Army Maneuver Support Center of Excellence
               Rebecca K. Connally, Military Judge (arraignment)
                     Jeffery R. Nance, Military Judge (trial)
             Colonel Charles T. Kirschmaier, Staff Judge Advocate


For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Patrick J. Scudieri, JA (on brief); Captain Joshua B. Fix, JA.

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Tara O’Brien Goble, JA (on brief).


                                     12 June 2017
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                              SUMMARY DISPOSITION
                             ----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of sexual assault, one specification of
abusive sexual contact, and four specifications of assault consummated by a battery,
in violation of Articles 120 and 128 of the Uniform Code of Military Justice, 10
U.S.C. §§ 920, 928 (2012 & Supp. I 2014) [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge and confinement for five years. The
convening authority approved the sentence as adjudged.
BOYKIN—ARMY 20160136

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one issue that merits discussion, but no relief. 1 We have also considered the
matters personally asserted by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982) and conclude they do not warrant relief.

                                  BACKGROUND

       The charged offenses arose from appellant assaulting his spouse on two
different days. Appellant asserts Specifications 1 and 3 of Charge II and
Specifications 4 and 5 of Charge II constitute an unreasonable multiplication of
charges as they were based on the same acts arising from assault of his spouse.

       Specifications 1 and 3 of Charge II arise from an argument in April 2014
between appellant and his spouse. Appellant dragged his spouse into their bedroom
by her legs. Inside the bedroom, appellant struck his spouse in the face, straddled
her, and proceeded to strangle her.

       Specifications 4 and 5 of Charge II arise from another argument in September
2014 between appellant and his spouse. Appellant struck his spouse’s head on the
ground and carried his spouse into their house. Inside, he dragged his spouse down
steps by the hair and strangled her.

              Military Judge’s Ruling on Motion to Dismiss for Unreasonable
                             Multiplication of Charges

      Appellant preserved the issue on appeal by filing a motion for unreasonable
multiplication of charges. The military judge merged Specifications 1 and 3 and 4
and 5 of Charge II for sentencing.

       On appeal, appellant asserts the military judge also merged Specifications 4
and 5 for findings and the promulgating order is incorrect. Appellant requests the
court correct the record by merging Specifications 4 and 5 and dismissing

1
  Appellant withdrew an assignment of error asserting appellant was denied his
constitutional right to counsel. After extensive briefing by the parties and the court
scheduling oral argument on the issue, the court granted the government’s motion to
attach documents missing from the record of trial. The documents included a scope
of representation form signed by appellant that explained the attorney-client
relationship could be terminated by the defense attorney’s demobilization from
active duty. Although they were referenced as an enclosure to the detailed Trial
Defense Attorney’s (TDS) motion to withdraw, they were not actually included in
the record or trial. Appellant subsequently withdrew this assignment of error and
request for oral argument, and we granted both motions.

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BOYKIN—ARMY 20160136

Specification 5. The record provides some support for appellant’s argument. The
military judge stated:

             With respect to Charge II, Specifications 1 through 3
             being multiplicious with each other I denied that.
             Alternatively, as being an unreasonable multiplication of
             charges for sentencing, I granted that with the stipulation
             that, obviously, if we do not get to a sentencing phase on
             that or any other charges or specifications, then,
             obviously, that does not apply. (emphasis added)

             With respect to Charge II, Specification 4 being
             multiplicious with Charge II, Specification 5, I denied
             that. And alternatively, as being an unreasonable
             multiplication of charges for findings, I granted that with
             the same proviso as previously stated. (emphasis added)

      The government argues that the military judge misspoke when he said the
specifications would be merged for “findings” versus “sentencing.” We considered
ordering a copy of the actual trial recording for the parties to determine if the
military judge actually said “findings” or “sentencing.” However, a review of the
record clarifies the military judge’s ruling that the Specifications were not merged
for findings. We find the government’s argument persuasive for several reasons.

      First, the military judge made this ruling prior to announcing findings. It
makes little sense to merge specifications for findings prior to determining guilt.

       Second, it is difficult to see how, pre-findings, an assault consummated by a
battery offense and an aggravated assault could be merged into a coherent
specification.

       Third, when considering the military judge’s ruling in relation to his ruling on
Specifications 1 and 3, it is clear the “proviso” he was referring to only involved
sentencing. The military judge ruled that Specification 4 and 5 were not
multiplicious. See United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012)
(discussing the terms “multiplicity” versus “unreasonable multiplication of
charges”). A review of the record further supports the parties understood the
military judge’s ruling at the time.

      Fourth, it appears even the parties did not view the offenses as merged.
During closing arguments, defense counsel argued the evidence and offenses
separately for Specifications 4 and 5:



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BOYKIN—ARMY 20160136

             Then we move to the first of what I will describe is her
             allegations of two very violent incidences, Specification 5
             of Charge II , what I 'll describe as the kitchen sink
             Charge. . . And then we get to Specifications 1 and 4, the
             strangulations.

      Finally, the military judge never, in fact, merged the specifications on the
record. When the military judge announced the findings, he did not merge
Specification 4 and 5, and in fact announced separate findings for both offenses.
See generally United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010). Appellant did
not raise any objections to the findings and did not request for the military judge to
merge Specifications 4 and 5. When appellant filed his Rule for Courts-Martial
[hereinafter R.C.M.] 1105 and 1105 post-trial matters, he did not assert any legal
error in the announced findings by the military judge.

      Considering the entire record, it is clear that the military judge did not merge
Specifications 1 and 3 and Specifications 4 and 5 of Charge II for findings. As such,
we will determine if the military judge erred in this ruling.

                              LAW AND DISCUSSION

      A military judge's decision to deny relief for unreasonable multiplication of
charges is reviewed for an abuse of discretion. United States v. Pauling, 60 M.J. 91,
95 (C.A.A.F. 2004); see also United States v. Quiroz, 55 M.J. 334, 338-39 (C.A.A.F.
2001). After reviewing the entire record, we do not find an abuse of discretion in
denying appellant’s motion to dismiss or merge Specifications 1 and 3 and
Specifications 4 and 5 of Charge II for findings. We find no error that materially
prejudiced a substantial right of the appellant. See UCMJ art. 59(a).

       “What 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). The
prohibition against unreasonable multiplication of charges “addresses those features
of military law that increase the potential for overreaching in the exercise of
prosecutorial discretion.” Campbell, 71 M.J. at 23 (quoting United States v. Quiroz,
55 M.J. 334, 337 (C.A.A.F. 2001)). Generally, the unit of prosecution for assaults
incorporates “an interrupted attack compromising touching united in time,
circumstances, and impulse.” United States v. Clarke, 74 M.J. 627, 628 (Army Ct.
Crim. App. 2015) (citing United States v. Rushing, 11 M.J. 95, 98 (C.M.A. 1981).

        In Quiroz, our superior court listed five factors to help guide our analysis of
whether charges have been unreasonably multiplied. In applying the Quiroz factors
in this case, they do not balance in favor of appellant. Appellant has satisfied the
first factor since he raised the issue of unreasonable multiplication of charges at
trial.
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BOYKIN—ARMY 20160136


       Second, the specifications alleging assaults with force likely to produce
grievous bodily harm (the military judge found appellant guilty of the lesser-
included offense of assault consummated by a battery) and the assaults consummated
by battery (as charged) do not constitute an unreasonable multiplication of charges
because they involve distinctly separate criminal acts. United States v. Paxton, 64
M.J. 484, 491 (C.A.A.F. 2007). Although they occurred close in time and proximity,
the gravamen of the aggravated assault specifications was the strangulation of his
spouse. 2 The gravamen of the assaults consummated by a battery specifications
included appellant banging his spouse’s head on the ground, shaking her, striking
her in the face, and dragging her by the hair.

       Regarding the last three factors, given the extent of appellant’s criminal
conduct and the military judge merging the specifications for sentencing—thus
limiting appellant’s punitive exposure—the number of charges and specifications
neither misrepresents nor exaggerates his criminality nor unreasonably increases his
punitive exposure. We see no evidence of prosecutorial overreaching or abuse in the
drafting of the charges because the government simply charged appellant based on
each separate, distinct criminal act he committed. The charges as drafted separated
the aggravated assaults from the other assault consummated by a battery offenses.

      Under these facts, we find that Specifications 1 and 3 and Specifications 4 and
5 of Charge II do not constitute an unreasonable multiplication of charges.

                                  CONCLUSION

     The findings of guilty and sentence are correct in law and fact and are
AFFIRMED.


                                       FOR THE COURT:




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



2
 The military judge excepted the language “strangulation” and “likely to produce
grievous bodily” harm but found appellant guilty of the underlying battery of
“grabbing her around the neck with his hands.”

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