                                CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Sergeant ALAN A. GALEANA
                          United States Army, Appellant

                                   ARMY 20140799

                              Headquarters, 8th Army
                          Mark A. Bridges, Military Judge
                  Colonel Craig A. Meredith, Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Amanda R. M.
Williams, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A. G. Courie III,
JA; Major Steven J. Collins, JA; Captain Anne C. Hseih, JA (on brief).


                                     25 April 2016

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of violating a lawful general regulation and two specifications
of assault consummated by battery, in violation of Articles 92 and 128 Uniform
Code of Military Justice, 10 U.S.C. §§ 892, 928 (2012) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for three
months, and a reduction to the grade of E-1. The convening authority approved the
findings and sentence as adjudged.
GALEANA—ARMY 20140799

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises five assignments of error, only one which requires discussion and relief. 1
Appellant alleges the military judge erred by failing to dismiss Specification 1 of
Charge II as an unreasonable multiplication of charges with Specification 2 of
Charge II, both alleging an assault consummated by battery. Finding some merit in
this assignment of error, we will grant appropriate relief in our decretal paragraph.

                                  BACKGROUND

      On 24 December 2013, appellant and several junior soldiers from his unit, to
include Specialist (SPC) MB, attended a Christmas party at the off-post apartment of
another soldier. Over the course of the evening, appellant and SPC MB consumed
alcohol.

       Later in the evening or early the next morning, SPC MB retreated to a guest
bedroom in the apartment to sleep. Appellant entered the room soon thereafter and
proceeded to get on top of SPC MB. He then in short order touched her breasts
through her clothing and kissed her face and neck. Appellant did not immediately
comply with SPC MB’s request to get off of her. He finally complied when SPC MB
began to hyperventilate. Appellant then “spooned” SPC MB and slept through the
night.

       Appellant pleaded guilty to Charge II, alleging a violation of Article 128, and
its two specifications, which read: 2

             Specification 1: In that [appellant], U.S. Army, did, at or
             near USAG-Yongsan, Republic of Korea, on or about 25
             December 2013, unlawfully touch [SPC MB] on her
             breasts through her clothes with is hand.

             Specification 2: In that [appellant], U.S. Army, did, at or
             near USAG-Yongsan, Republic of Korea, on or about 25
             December 2013, unlawfully kiss [SPC MB] on her face
             and neck with his mouth.


1
 Appellant personally raised two issues pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), both of which are without merit.
2
  Specifications 1 and 2 of Charge II and Charge II initially alleged abusive sexual
contact in violation of Article 120, UCMJ (2012). Prior to arraignment, the military
judge granted the government’s motion to amend Charge II and the language of the
two specifications to allege a violation of Article 128, UCMJ, consistent with the
terms of a pretrial agreement.


                                          2
GALEANA—ARMY 20140799

Trial defense counsel did not raise an objection at trial that these two specifications
were multiplicious or otherwise represented an unreasonable multiplication of
charges for purposes of findings or sentence. 3

                              LAW AND DISCUSSION

       “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. 2011) (quoting Quiroz, 55 M.J. at 337).

       Applying the factors set forth by our superior court in Quiroz, we conclude
that appellant’s conviction for both specifications of Charge II for assault
consummated by battery represent an unreasonable multiplication of charges as
applied to findings. First, although appellant raises this issue for the first time on
appeal, we may nonetheless exercise our authority to affirm “only such findings of
guilty and the sentence or such part or amount of the sentence, 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)). As to the second
factor, each specification under Charge II is aimed at the same criminal act
involving the unlawful touching of SPC MB. Third, standing convicted of two
separate assault offenses for what was essentially one course of conduct exaggerates
appellant’s criminality. That is, appellant stands convicted of two offenses for what
was essentially a single, unbroken act. An “unauthorized conviction has ‘potential
adverse consequences that may not be ignored,’ and constitutes unauthorized
punishment in and of itself.” United States v. Savage, 50 M.J. 244, 245 (C.A.A.F.
1999) (quoting Ball v. United States, 470 U.S. 856, 865 (1985)). Fourth, a
conviction for both of these specifications, in theory, increased appellant’s punitive
exposure as it increased the maximum punishment that could be imposed by the
court. However, this exposure was limited significantly by virtue of the terms of the
pretrial agreement. Finally, we find no evidence of prosecutorial overreaching given
the facts admitted at appellant’s court-martial could support a finding of guilty to
both specifications. An overall assessment of these factors favor appellant and we
therefore find the specifications of Charge II represent an unreasonable
multiplication of charges.
                                   CONCLUSION

      The findings of guilty as to the specifications 4 of Charge II are merged and
consolidated into a single specification under Charge II which reads as follows:
3
 The offer for pretrial agreement did not contain a common provision to “waive all
waivable motions.”
4
    Corrected

                                           3
GALEANA—ARMY 20140799


                The Specification:

                In that [appellant], U.S. Army, did, at or near USAG-
                Yongsan, Republic of Korea, on or about 25 December
                2013, unlawfully touch [SPC MB] on her breasts through
                her clothes with his hand and unlawfully kiss [SPC MB]
                on her face and neck with his mouth.

      The finding of guilty of Specification 2 of Charge II is set aside and
DISMISSED. The finding of guilty of the Specification of Charge II, as
consolidated, and the remaining findings of guilty, are AFFIRMED. 5

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). In evaluating the Winckelmann
factors, we first find no change in the penalty landscape that might cause us pause in
reassessing appellant’s sentence, as appellant’s exposure remained nonetheless
limited well below the maximum punishment for even a single violation of Article
128 by virtue of the pretrial agreement. Second, we note appellant elected to be
tried by a military judge sitting alone, so we are confident the sentence would not
have changed had the specifications of Charge II been merged at trial. Third, we
find the merged offense captures the gravamen of appellant’s criminal conduct
which, ultimately, stemmed from a single event involving acts closely related in
nature and in time. Finally, based on our experience as judges on this Court, we are
familiar with the remaining offense so that we may reliably determine what sentence
would have been imposed at trial.
       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 ordered restored.
                                        FOR THE COURT:
                                      FOR THE COURT:



                                      JOHN P. TAITT
                                        JOHN
                                      Chief    P. TAITT
                                            Deputy Clerk of Court
                                        Chief Deputy Clerk of Court




5
    Corrected

                                           4
