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

                                 Before
                K.J. BRUBAKER, A.Y. MARKS, A.C. RUGH
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                        TYLER G. STOKES
              LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201500083
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 31 October 2014.
Military Judge: Col D.J. Daugherty, USMC.
Convening Authority: Commanding General, Marine Corps
Installations Pacific, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Col P.S. Rubin,
USMC.
For Appellant: Maj John J. Stephens, USMC; Maj M. Brian
Magee, USMC.
For Appellee: CAPT Dale O. Harris, JAGC, USN; Maj Suzanne
M. Dempsey, USMC.

                            27 October 2015

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                     OPINION OF THE COURT
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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:

     Pursuant to his pleas, a military judge convicted the
appellant of one specification of sexual assault and two
specifications of abusive sexual contact, in violation of
Article 120, Uniform of Military Justice, 10 U.S.C. § 920. A
general court-martial consisting of officer members convicted
the appellant, contrary to his pleas, of one specification of
indecent exposure and one specification of assault consummated
by battery, in violation of Articles 120c and 128, UCMJ, 10
U.S.C. §§ 920c 1 and 928. The members sentenced the appellant to
three years’ confinement, reduction to pay grade E-1, total
forfeitures, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged.

     The appellant now alleges two assignments of error, that
the military judge abused his discretion in denying a motion for
unreasonable multiplication of charges and that his sentence was
inappropriately severe. We disagree.

                                Background

     The appellant and Lance Corporal (LCpl) SAB were best
friends, a close bond that the appellant confused for something
more significant:

       It’s accurate to say that I hoped things between LCpl
       [SAB] and I might move in the direction of a romantic
       involvement at some point, but that we had never
       spoken any words to each other about that. The only
       words were that he was straight and that nothing like
       that was going to happen between us. 2

Eventually, this personal turmoil would surface as criminal
conduct. On 10 November 2013, during the early morning hours
after the Marine Corps Ball, the appellant and LCpl SAB returned
to the appellant’s barracks room to sleep. The appellant, only
moderately drunk, helped his extremely intoxicated friend
undress and climb into bed.

     Once in bed, the appellant watched pornography, masturbated
next to LCpl SAB, and ejaculated onto LCpl SAB’s arm. Instead
of then going to sleep, the appellant engaged in sexual conduct
with the semi-conscious victim, touching LCpl SAB’s penis using
LCpl SAB’s own hand, rubbing against and touching LCpl SAB
through his boxer shorts, and straddling him.

     During this contact the appellant touched LCpl SAB’s face,
hooking his finger into LCpl SAB’s mouth. This act was the sole
basis of his conviction of sexual assault.

1
   Repeatedly at trial, the offense of indecent conduct was incorrectly
identified as a violation of Article 120, UCMJ, 10 U.S.C. § 920. We address
this error below.
2
    Defense Exhibit MM at 2.
                                     2
     Between each of these acts, the appellant paused-struggling
internally over his conduct-before reengaging with his sleeping
victim.

                     Unreasonable Multiplication of Charges

     Prior to testimony on the merits, the appellant objected to
each of the charges as an unreasonable multiplication. In
resolving the objection the military judge relied upon the
pretrial statements of the appellant and LCpl SAB and applied
United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) to
determine that “the charging scheme set forth by the government”
was reasonable. 3 In reaching this conclusion, the military judge
relied on multiple “breaks in the action” during the course of
the assault. 4

     After the findings were announced, the appellant again
raised an objection to the unreasonable multiplication of
charges for sentencing. The military judge denied the oral
motion referring by implication to his original findings and
conclusions of law. 5

                                    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), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2012 ed.).

     We consider five non-exclusive factors to determine whether
there is an unreasonable multiplication of charges:

        (1) Whether the appellant objected at trial;

        (2) Whether each charge and specification is aimed at
        distinctly separate criminal acts;




3
    Record at 70.
4
    Id. at 65, 67.
5
  Id. at 477. Of note, while it may be good practice for the military judge
to reexamine this matter after findings are returned, it is not a requirement
to do so. See United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012)
(noting that “the charging scheme may not implicate the Quiroz factors in the
same way that the sentencing exposure does”).
                                       3
     (3) Whether the number of charges and specifications
     misrepresents or exaggerates the appellant’s
     criminality;

     (4) Whether the number of charges and specifications
     unreasonably increases the appellant’s punitive
     exposure; and,

     (5) Whether there is any evidence of prosecutorial
     overreaching or abuse in the drafting of the charges.

Quiroz, 55 M.J. at 338-39. No one factor is a prerequisite.
Instead, these factors are weighed together, and “one or more
. . . may be sufficiently compelling[.]” United States v.
Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012).

     Charges may constitute unreasonable multiplication either
as applied to findings or as applied to sentencing. Id.

     We review a military judge’s ruling for an abuse of
discretion. Id. at 22. “[T]he abuse of discretion standard of
review recognizes that a judge has a range of choices and will
not be reversed so long as the decision remains within that
range.” United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004)
(citing United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C.
Cir. 1992)). This standard is “a strict one, calling for more
than a mere difference of opinion.” United States v. Lloyd, 69
M.J. 95, 99 (C.A.A.F. 2010). To be overturned, the military
judge’s action must be “‘arbitrary, fanciful, clearly
unreasonable,’ or ‘clearly erroneous.’” United States v.
McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (quoting United
States v. Miller, 46 M.J. 63, 65 (C.A.A.F. 1997)).

     Solely on these facts and mindful of the standard of
review, the military judge did not abuse his discretion in this
case.

     First, the appellant objected at trial.

     Next, it was within the military judge’s discretion to
conclude that each offense “implicated multiple and significant
criminal law interests, none necessarily dependent on the
others.” Campbell, 71 M.J. at 24. The numerous “breaks in the
action” between the initial indecent exposure and the
ejaculation; between ejaculation when the appellant cleaned
himself and reengaging in sexual conduct with the victim; and
between touching the victim’s penis with the victim’s own hand

                                4
and rubbing against the victim are sufficient facts from which
to conclude that the Government’s charging scheme did not
unreasonably exaggerate the appellant’s criminality.

     Likewise, the charging scheme didn’t unreasonably increase
the maximum punishment. The maximum punishment for the greatest
offense, the sexual assault, includes thirty years’ confinement.
The maximum punishment for conviction on specification 5 of
Charge I, an offense which included various sexual contacts
including touching the victim’s buttocks, touching the victim’s
penis and rubbing the victim’s penis against the appellant’s
buttocks through the clothing, includes an additional five
years’ confinement. The earlier sexual contact of grasping the
victim’s penis with the victim’s own hand and the indecent
exposure each include another five years’ confinement. While
the assault consummated by ejaculating on the victim’s shoulder
includes only six months’ additional confinement.

     Finally, there is no evidence in the record of
prosecutorial overreaching or abuse in the drafting of the
charges.

     For these reasons, we conclude that the military judge did
not abuse his discretion in ruling against the appellant’s
unreasonable multiplication motion.

                    Sentence Appropriateness

     This court reviews sentence appropriateness de novo.
United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Sentence
appropriateness involves the judicial function of assuring that
justice is done and the accused gets the punishment he deserves.
United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). In
accordance with Article 66(c), UCMJ, this court “may affirm only
such findings of guilty and the sentence or such part or amount
of the sentence, as it finds correct in law and fact and
determines . . . should be approved.”

     This determination should be made on the basis of
the “entire record.” Art. 66(c), UCMJ. What constitutes the
“entire record” for review of sentence appropriateness has been
understood to include not only evidence admitted at trial but
also the matters considered by the CA in his action on the
sentence. United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F.
2007);see also United States v. Simon, 64 M.J. 205 (C.A.A.F.
2007) (holding that because a sentence appropriateness analysis
is highly case specific, the details of a servicemember’s post-

                                5
trial situation constitute an important element of a CCA’s
analysis).

     Hewing to this guidance, we must review the matters
considered by the CA when determining sentence appropriateness.

     In reviewing the entire record, we are mindful of the
abhorrent nature of the appellant’s conduct and its effect on
the victim. We recognize the support voiced by members of
appellant’s hometown community provided in lieu of a substantial
service record. 6 Additionally, the record reveals that the
appellant is truly remorseful for his misconduct and took prompt
responsibility for his actions before the victim, investigators,
the military judge, the members, and the CA. We also weigh the
treatment he received from other prisoners while incarcerated
post-trial. 7

     Based on the entire record, we conclude that justice was
served, and the appellant received the punishment he deserved.

                              Defective Specification

     Finally, while not raised on appeal, Specification 8 of
Charge I, indecent exposure, was incorrectly identified on the
charge sheet 8 as a violation of Article 120, UCMJ, 10 U.S.C. §
920, vice Article 120c, UCMJ, 10 U.S.C. § 920c.

     Where defects in a specification are raised for the first
time on appeal, we will review the defect for plain error.
United States v. Humphries, 71 M.J. 209, 213 (C.A.A.F. 2012).
Under a plain error analysis, the appellant “has the burden of
demonstrating that: (1) there was error; (2) the error was plain
or obvious; and, (3) the error materially prejudiced a
substantial right of the accused.” United States v. Tunstall,
72 M.J. 191, 193-94 (C.A.A.F. 2013) (citation and internal
quotation marks omitted).

     A charge and specification are sufficient if they, first,
contain the elements of the offense charged and fairly inform a
defendant of the charge against which he must defend and,

6
   Understandably meager given the age of the appellant who was 19-years-old
at the time of his crimes.
7
   See Detailed Defense Counsel Supplemental Request for Clemency of 20 Feb
2015, Enclosure (1) at 2
8
    Including the cleansed charge sheet, Appellate Exhibit XXXVIII.
                                        6
second, enable the appellant to plead an acquittal or conviction
in bar of future prosecutions for the same offense. United
States v. Norwood, 71 M.J. 204, 206 (C.A.A.F. 2012).

     If the above is met, designation of the statute under which
the Government purported to lay the charge is immaterial.
“‘[The Government] may have conceived the charge under one
statute which would not sustain the indictment but it may
nevertheless come within the terms of another statute.’” United
States v. Rauscher, 71 M.J. 225, 226 n.1 (C.A.A.F. 2012)
(quoting United States v. Hutcheson, 312 U.S. 219, 229 (1941)).

     In this case it was error to allege indecent exposure as a
violation of Article 120, UCMJ, and that error was plain or
obvious. But the specification contained every element of the
intended offense, fairly informed the appellant of what he must
defend against, and enabled the appellant to plead in bar of
future prosecution. Outside the corners of the specification,
the record demonstrates a full understanding by the parties of
the offense alleged including during argument of counsel and
instructions on findings. As a result the error did not
materially prejudice a substantial right of the appellant.

                           Conclusion

     The findings and the sentence as approved by the CA are
affirmed. The supplemental court-martial order shall correctly
reflect Specification 8 of Charge I, as a violation of Article
120c, UCMJ.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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