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

                            UNITED STATES, Appellee
                                        v.
                        Sergeant ROBERTO L. QUINONEZ
                          United States Army, Appellant

                                   ARMY 20110211

                              Headquarters, Fort Bliss
              David H. Robertson and Patrick J. Parrish, Military Judges
                   Colonel Francis P. King, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain
Kristin McGrory, JA (on brief).

For Appellee: Major Robert A. Rodrigues, JA; Major Katherine S. Gowel, JA;
Captain Sean P. Fitzgibbon, JA (on brief).


                                      14 June 2013

                              -----------------------------------
                               SUMMARY DISPOSITION
                              -----------------------------------

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of maltreatment, wrongful sexual contact (two specifications),
assault consummated by a battery (two specifications), and unlawful entry, in
violation of Articles 93, 120(m), 128, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 893, 920(m), 928, 934 (2006 & Supp III 2009),
amended by 10 U.S.C. § 920 (2012). See Manual for Courts-Martial, United States
(2012 ed.), pt. IV, ¶ 111.b. Pursuant to his pleas, appellant was also convicted of
dereliction of duty in violation of Article 92, UCMJ. The military judge sentenced
appellant to a bad-conduct discharge, confinement for two years, and reduction to
QUINONEZ —ARMY 20110211

the grade of E-1. The convening authority reduced appellant’s sentence to
confinement by one month and approved the remainder of the adjudged sentence. 1

       Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises three assignments of error, two of which merit discussion and one
of which merits relief. 2 Appellant argues, inter alia, his convictions for assault
consummated by a battery are multiplicious and his convictions for wrongful sexual
contact represent an unreasonable multiplication of charges. The government
concedes, and we agree, that the assault convictions are multiplicious and must be
set aside. However, we conclude appellant’s remaining convictions for wrongful
sexual contact do not constitute an unreasonable multiplication of charges.

       Appellant’s assault consummated by a battery convictions are based on the
same criminal conduct as his wrongful sexual contact convictions. In United States
v. Bonner, 70 M.J. 1, 3 (C.A.A.F. 2011), our superior court held that assault
consummated by a battery is a lesser-included offense of wrongful sexual contact.
“The Fifth Amendment protection against double jeopardy provides that an accused
cannot be convicted of both an offense and a lesser-included offense. See Article
44(a), UCMJ, 10 U.S.C. § 844(a) (2000); Blockburger v. United States, 284 U.S. 299
(1932); United States v. Teters, 37 M.J. 370 (C.M.A. 1993). Charges reflecting both
an offense and a lesser-included offense are impermissibly multiplicious.” United
States v. Hudson, 59 M.J. 357, 358 (C.A.A.F. 2004), overruled on other grounds by
United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). Accordingly, appellant’s
convictions for assault consummated by a battery are multiplicious and must be set
aside.

       However, we conclude appellant’s remaining convictions for wrongful sexual
contact do not represent an unreasonable multiplication of charges. “What is
substantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” Rule for Courts-Martial [hereinafter
R.C.M.] 307(c)(4). See United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)
(creating a five-part test to determine whether charges have been unreasonably
multiplied). On balance, we find the Quiroz factors do not weigh in appellant’s
favor. Appellant’s wrongful sexual contact convictions are aimed at distinct

1
  The convening authority waived the automatic forfeitures required by Article 58b,
UCMJ, from the effective date of the sentence until 15 April 2011, with direction
that those funds be paid to appellant’s spouse.
2
 We have reviewed appellant’s final assignment of error and conclude that it lacks
merit. See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v.
Goings, 72 M.J. 202 (C.A.A.F. 2013).




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QUINONEZ —ARMY 20110211

criminal acts, and therefore do not exaggerate his criminality or unfairly subject him
to an increase in punishment. Accordingly, we conclude appellant’s wrongful sexual
contact convictions do not constitute an unreasonable multiplication of charges. See
United States v. Campbell, 71 M.J. 19, 24–5 (C.A.A.F. 2012) (noting that when each
act “implicated multiple and significant criminal law interests, none necessarily
dependent on the others,” charging the acts separately did not constitute an
unreasonable multiplication of charges).

                                   CONCLUSION

       The findings of guilty of Specifications 1 and 2 of Charge IV, and Charge IV,
are set aside and that charge and its specifications are dismissed. On consideration
of the entire record, the assigned errors, and the matters personally raised by
appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), 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 United States
v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), 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 this decision, are hereby ordered restored. See UCMJ art. 75(a).


                                       FOR THE COURT:




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




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