UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                       BURTON, CELTNIEKS, and SCHASBERGER
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                       Private First Class MICHE C. GIBBS
                          United States Army, Appellant

                                    ARMY 20160325

                        Headquarters, 82d Airborne Division
                          Richard J. Henry, Military Judge
              Colonel Dean L. Whitford, Staff Judge Advocate (pretrial)
              Colonel Travis L. Rogers, Staff judge Advocate (post-trial)

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Matthew L. Jalandoni, JA (on brief)

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Michael E. Korte, JA;
Captain Austin L. Fenwick, JA (on brief)


                                    23 October 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 sexual assault by bodily harm and sexual assault when he
knew or reasonably should have known the victim was asleep or otherwise unaware
in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012
& Supp. I 2014). The military judge sentenced appellant to a dishonorable
discharge, confinement for one year, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence.

         This case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises three assignments of error; one of which warrants discussion and
relief. 1

1
 We have considered those matters personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit.
GIBBS—ARMY 20160325


       Appellant and a group of soldiers and civilians drove to Myrtle Beach to have
some fun. Seven of them planned on sharing a hotel room. After an evening of
drinking alcohol and dancing in nightclubs, the group returned to the hotel. AP and
her husband were given one bed and appellant was assigned to sleep on a pallet at
the foot of the bed. Appellant woke AP and asked if he could sit on the bed to watch
television. AP agreed and went back to sleep. She later woke up and felt
appellant’s hand inside her vagina. The next day, AP told her sister-in-law and
eventually her husband about the incident. The government charged appellant with
two specifications of sexual assault.

      At trial, appellant was convicted of the following specifications:

        Specification 1: In that [appellant], did, at or near Myrtle Beach,
        South Carolina, on or about 17 August 2014, commit a sexual act
        upon Ms. [AP], to wit: penetrating her vulva with his fingers, by
        causing bodily harm to her, to wit: spreading her legs apart with his
        hand.

        Specification 2: In that [appellant], did, at or near Myrtle Beach,
        South Carolina, on or about 17 August 2014, commit a sexual act
        upon Ms. [AP], to wit: penetrating her vulva with his fingers, when
        the [appellant] knew or reasonably should have known that Ms. [AP]
        was asleep and otherwise unaware that the sexual act was occurring.

       Appellant argues these specifications were either charged for exigencies of
proof or constitute an unreasonable multiplication of charges. Based on the facts of
this case, we agree the specifications were charged for exigencies of proof and,
therefore, provide relief in our decretal paragraph.

       The government may properly advance in its charging decision alternative
theories of criminal liability in response to a single act. See 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.”). In the final analysis, however, when an appellant is convicted of
two specifications charged in the alternative for exigencies of proof, both
convictions cannot stand. United States v. Elespuru, 73 M.J. 326, 329-30 (C.A.A.F.
2014) (“Dismissal of specifications charged for exigencies of proof is particularly
appropriate given the nuances and complexity of Article 120, UCMJ, which make
charging in the alternative an unexceptional and often prudent decision.”).

                                   CONCLUSION

       The finding of guilty of Specification 1 of The Charge is set aside and that
specification is dismissed. The remaining findings of guilty are AFFIRMED.



                                           2
GIBBS—ARMY 20160325


       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, 307-08
(C.M.A. 1986), and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F.
2013), we are confident the military judge would have adjudged the same sentence
absent the error since he expressly merged both specifications for sentencing.
Therefore, 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.

                                           FOR THE
                                           FOR THE COURT:
                                                   COURT:




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




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