UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            COOK, CAMPANELLA, and HAIGHT
                                Appellate Military Judges

                            UNITED STATES, Appellee
                                          v.
                      Private First Class TEAKELL D. SMITH
                           United States Army, Appellant

                                      ARMY 20110401

     Headquarters, Seventh U.S. Army Joint Multinational Training Command
                   Jeffery Nance, Military Judge (arraignment)
                       Wendy Daknis, Military Judge (trial)
          Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Captain Robert H. Meek, III, JA (argued); Colonel Patricia A. Ham,
JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA;
Captain James P. Curtin, JA (on brief).

For Appellee: Captain Daniel H. Karna, JA (argued); Colonel John P. Carrell, JA;
Major Elisabeth A. Claus, JA; Major Robert A. Rodrigues, JA; Captain Daniel H.
Karna, JA (on brief).


                                     26 December 2013

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Senior Judge:

       A panel of officer and enlisted members sitting as a general court-martial
convicted appellant, contrary to his pleas, of one specification of rape by force, one
specification of wrongful sexual contact, one specification of indecent acts, and one
specification of assault consummated by a battery in violation of Articles 120 and
128, Uniform Code of Military Justice, 10 U.S.C. § § 920, 928 (2006 & Supp. III
2010) [hereinafter UCMJ]. The panel sentenced appellant to a dishonorable
discharge, confinement for seven years, and reduction to the grade of E -1. The
convening authority approved the adjudged sentence.
SMITH — ARMY 20110401

        This case is before the court for review under Article 66, UCMJ. Appellant
alleges, inter alia, that his convictions for wrongful sexual contact, indecent acts,
and assault consummated by a battery constitute an unreasonable multiplication of
charges for findings and should be dismissed. Upon consideration of the entire
record of trial, the parties’ pleadings , and oral argument, we agree and will grant
relief in our decretal paragraph. Appellant’s remaining assignments of error and
those matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), merit neither discussion nor relief.

                                  BACKGROUND

       In the early morning hours of 7 February 2010, appellant and a fellow soldier
offered to share a cab ride home with CZK as they were all leaving a night club in
Garmisch, Germany. CZK was a German-national who was married to a U.S. soldier
and had given birth six weeks earlier. Due to CZK’s level of intoxication, she fell
asleep in the cab. She awoke upon the cab’s arrival at the Edelweiss hotel, where
appellant and his friend were staying. Appellant and his friend invited CZK into the
hotel to have another drink, but CZK was unable to enter the U.S. military hotel
because she did not have proper identification on her person.

       CZK was familiar with the town and decided to walk home. Appellant
followed her despite CZK’s protests. CZK had trouble walking because it was
snowing and her shoes provided no traction. After CZK rejected appellant’s request
for oral sex, appellant grabbed CZK by her arm and shoulder, dragged her to a
parked car that was covered in snow, bent her over face-down on the car, and after
removing her nylons and underwear, put his penis into her vagina. CZK attempted
to fight appellant off, but was unable to escape because he was forcefully pinning
her to the car. Appellant eventually stopped raping CZK and walked off. CZK
pulled her clothes back up and called her husband. CZK’s husband immediately
took CZK to a local hospital and German police were contacted .

      At trial, appellant was convicted of the following offenses:

      CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 120

             SPECIFICATION 1: In that [appellant], U.S. Army, did, at
             or near Garmisch, Germany, on or about 7 February 2010,
             cause [CZK] to engage in a sexual act, to wit: penetrate
             her vulva with his penis by using physical violence,
             strength and power sufficient that she could not avoid or
             escape the sexual conduct.




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SMITH — ARMY 20110401

             SPECIFICATION 2 1: In that [appellant], U.S. Army, did,
             at or near Garmisch, Germany, on or about 7 February
             2010, engage in sexual contact with [CZK], to wit: touch
             with his hands the buttocks, and such sexual contact was
             without legal justification or lawful authorization and
             without the permission of [CZK].

             SPECIFICATION 3 2: In that [appellant], U.S. Army, did,
             at or near Garmisch, Germany, on or about 7 February
             2010, wrongfully commit indecent conduct, to wit:
             engage in a sex act with [CZK] in public view.

      CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

             THE SPECIFICATION: In that [appellant], U.S. Army,
             did, at or near Garmisch, Germany, on or about 7 February
             2010, unlawfully touch [CZK] on the arms, hips and legs
             with his hands. 3

      After findings, the military judge asked both government and defense co unsel
what their positions were on considering all charges and specifications “as one for
sentencing.” Both counsel agreed that for sentencing, all charges and specifications
should be merged. The military judge merged all charges and specifications for
sentencing and instructed the panel accordingly.

                               LAW AND ANALYSIS

       “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). 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. ” 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)). In United States v. Quiroz, our superior court listed five factors to help
guide our analysis of whether charges have been unreasonably multiplied:



1
  Originally Specification 4, re-numbered as Specification 2.
2
  Originally Specification 5, re-numbered as Specification 3.
3
  Based on our review of the record, we note there is insufficient evidence that
appellant assaulted CZK on the legs with his hands. However, this issue is rendered
moot by our decision in this case.



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SMITH — ARMY 20110401

               (1) Did the accused object at trial that there was an
               unreasonable multiplication of charges and/or
               specifications? 4

               (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 338-39. In United States v. Campbell, our superior court further clarified
that:

               [T]he concept of unreasonable multiplication of charges
               may apply differently to findings than to sentencing. For
               example, the charging scheme may not implicate the
               Quiroz factors in the same way that the sent encing
               exposure does. In such a case, and as recognized in
               Quiroz, “the nature of the harm requires a remedy that
               focuses more appropriately on punishment than on
               findings.”

    71 M.J. at 23 (quoting Quiroz, 55 M.J. at 339).



4
  This court may grant relief under our Article 66(c), UCMJ, powers to affirm “only
such findings of guilty and the sentence or such part or amount of the s entence, as
[we] find[] correct in law and fact and determine[], on the basis of the entire record,
should be approved.” Quiroz, 55 M.J. at 338 (quoting UCMJ art. 66(c)). This
“awesome, plenary, de novo power” provides us with the authority to consider all
claims of unreasonable multiplication of charges, even if raised for the first time on
appeal. Id. (quoting United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). See
also United States v. Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010) (“[A]pplication of
the Quiroz factors involves a reasonableness determination, much like sentence
appropriateness, and is a matter well within the discretion of the CCA in th e exercise
of its Article 66(c), UCMJ, . . . powers.”).



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SMITH — ARMY 20110401

       Application of the Quiroz factors in this case balance in favor of appellant
and require a finding of unreasonable multiplication of charges for findings. See id.
(noting that one or more factors may be sufficiently compelling, without more, to
warrant relief).

       The convictions for wrongful sexual contact and assault consummated by a
battery exaggerate appellant’s criminality because the facts supporting each
conviction were not aimed at distinct, separate, criminal acts, but rather, were part
of the single transaction of appellant’s rape of CZK. This is further supported by
government counsel’s response to the military judge’s question of whether to merge
all charges and specifications for sentencing: “the government believes that for
sentencing, [the maximum punishment] shoul d be only [for] the greater offense of
rape and that everything else is subsumed within the same actus rea [sic]. . . .” As a
result of the government’s attempt to parse out what was essentially one act of
forcible rape, the “piling-on” of these two additional charges against appellant
constitutes an unreasonable multiplication of charges for findings.

       Similarly, appellant’s conviction for indecent acts is also unreasonably
multiplied for findings under the facts of this case. It is important to note that our
superior court reiterated in Campbell “the fact that these [Quiroz] factors are not
‘all-inclusive’” and serve merely as a guide to both military judges and service
courts of appeals. 71 M.J. at 23 (quoting Quiroz, 55 M.J. at 338-39).

        The indecent acts conviction misrepresents appellant’s criminality for several
reasons. First, the indecent act was based on the same sex act with CZK that was
charged in the forcible rape specification . Second, while it is arguable that the
offense of indecently having sex in public protects a different victim—the public—
and as such is aimed at a distinct criminal purpose, the government never argued at
trial that the interest it was protecting by charging indecent acts was a soci etal
purpose. That is, instead of arguing that the indecent acts specification should not
be merged for sentencing due to its protection of a distinct societal interest, the
government argued that all of the offenses, including indecent acts, should be
merged for sentencing because it was “subsumed within the same actus rea
[sic]. . . .” More importantly, in response to one of appellant’s pretrial motions, the
government argued at trial the sole reason it charged appellant with indecent acts
was “in the alternative” to the rape specification. S pecifically, government counsel
stated in the motion: “assuming the panel cannot agree with the prosecution that a
sexual act . . . between the Accused and the Victim was nonconsensual, then they are
asked in this charging scheme to determine whether the incident described to the
them was indecent conduct.”

       The tactic of charging in the alternative is permissible and often wise, but it
also has consequences. See generally United States v. Jones, 68 M.J. 465, 472-73
(C.A.A.F. 2010) (“[T]he government is always free to plead in the alternative .”).

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SMITH — ARMY 20110401

Therefore, although we find no abuse in the drafting of the charges under the fifth
Quiroz factor, where the government explicitly informed appellant and the trial court
of their strategy to charge indecent acts in the alternative as a theory of consent
versus nonconsent of the same sex act, coupled with the government’s concession in
the record that all charges and specifications are based on the “same actus rea [sic]”
and should be merged for sentencing, the government is not free to argue on appeal
that it intended to pursue convictions under both theories. The facts and
circumstances of this case compel us to merely give effect to the government’s
intent and plan all along—to secure but one conviction out of the two charges of
rape and indecent acts. So, we find appellant’s conviction for indecent acts
constituted an unreasonable multiplication of charges for findings .

                                     CONCLUSION

      The findings of guilty of Specifications 2 and 3 of Charge I and the
Specification of Charge II and Charge II are set aside. Specifications 2 and 3 of
Charge I, the Specification of Charge II, and Charge II are dismissed. The
remaining findings of guilty are AFFIRMED.

        In United States v. Sales, our superior court set forth the standard for sentence
reassessment: “if the [service] court can determine to its satisfaction that, absent
any error, the sentence adjudged would have been of at least a certain severity, then
a sentence of that severity or less will be free of the prejudicial effects of
error . . . .” 22 M.J. 305, 308 (C.M.A. 1986). After conducting a thorough analysis
on the basis of the entire record and in accordance with the principles articulated in
United States v. Sales, id., and United States v. Winckelmann,        M.J.     , slip op. at
12-13 (C.A.A.F. 18 Dec. 2013), we are confident in our ability to reassess
appellant’s sentence without the need for a rehearing.

      In evaluating the Winckelmann factors, we find there is no dramatic change in
the penalty landscape or significant decrease in sentencing exposure because
appellant’s conviction for rape by itself carried a maximum punishment of life
without the possibility of parole, and the military judge instructed the pane l
members to consider all of the offenses “as one for sentencing .” Appellant’s
adjudged sentence was also well-below the maximum. The gravamen of appellant’s
misconduct remains the rape of CZK—a German-national—in Germany, and the
same evidence supporting the dismissed convictions would have still been
admissible as aggravation evidence. Finally, this court reviews the records of a
substantial number of courts-martial involving sexual misconduct and we have
extensive experience with the level of sentences imposed for such offenses under
various circumstances.

      After our review of the record, we are confident that the panel would have
adjudged the same sentence absent the errors noted. We also conclude, pursuant to

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SMITH — ARMY 20110401

Article 66, UCMJ, that such a sentence is appropriate for the remaining guilty
finding of rape.

       The 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 this
decision, are ordered restored.

      Judge CAMPANELLA and Judge HAIGHT concur.




                                                 FOR THE COURT:



                                                 ANTHONY O. POTTINGER
                                                 Chief Deputy Clerk of Court




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