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

                          UNITED STATES, Appellee
                                        v.
                    Sergeant First Class JESUS HERNANDEZ
                         United States Army, Appellant

                                   ARMY 20110471

           Headquarters, U.S. Army Special Forces Command (Airborne)
                          Tara A. Osborn, Military Judge
            Lieutenant Colonel Alison C. Martin, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Jacob D. Bashore, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Katherine S. Gowel,
JA; Captain T. Campbell Warner, JA (on brief).


                                      22 May 2013

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of attempted forcible sodomy, desertion, assault with intent to
commit forcible sodomy, and indecent exposure, in violation of Articles 80, 85, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 885, 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for twenty-four months, and reduction to the grade of E-1.
Pursuant to a pretrial agreement, the convening authority approved a sentence to a
bad-conduct discharge, confinement for twelve months, and reduction to the grade of
E-1. Appellant was credited with 190 days against his sentence to confinement.

      Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
Appellant argues that his convictions for assault with intent to commit forcible
sodomy and indecent exposure must be set aside because they represent an
HERNANDEZ —ARMY 20110471

unreasonable multiplication of charges for findings. We agree and will take action
in our decretal paragraph. 1

                             LAW AND DISCUSSION

       Appellant’s convictions for assault with intent to commit sodomy and
indecent exposure are predicated upon the same criminal act as his attempted
sodomy conviction: exposing his penis and attempting to place it in the victim’s
mouth. “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). We consider five factors to determine whether
charges have been unreasonably multiplied:

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

             (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?

United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (internal citation and
quotation marks omitted) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”).

      On balance, we find the Quiroz factors weigh in appellant’s favor. At trial,
appellant argued the specifications at issue were multiplicious for sentencing. The



1
  Our action with respect to these findings moots appellant’s second assignment of
error, alleging these Article 134, UCMJ, specifications fail to state an offense. See,
e.g., United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012).




                                           2
HERNANDEZ —ARMY 20110471

military judge agreed and treated the offenses as merged for sentencing. 2 The record
is lacking in any discussion, explicit or otherwise, whether the specifications at
issue constitute an unreasonable multiplication of charges. 3 Although the military
judge’s ruling prevented appellant from being unfairly subjected to an increase in
punishment, appellant’s additional convictions ultimately exaggerate his criminality.
Moreover, the assault with intent to commit sodomy and indecent exposure are not
aimed at distinct, criminal acts. Accordingly, we conclude there was an
unreasonable multiplication of charges in this case. See United States v. Campbell,
71 M.J. 19, 23 (C.A.A.F. 2012) (noting one or more factors may be sufficiently
compelling, without more, to warrant relief).

                                    CONCLUSION

       The findings of guilty of Specifications 1 and 2 of Additional Charge II, and
Additional Charge II, are set aside. 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
ordered restored. See UCMJ art. 75(a).


                                         FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:




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




2
 Appellant’s defense counsel conceded the specifications at issue were not
multiplicious for findings. See Blockburger v. United States, 284 U.S. 299 (1932);
United States v. Teters, 37 M.J. 370 (C.M.A. 1993).
3
  We note this case was decided before United States v. Campbell, 71 M.J. 19, 23
(C.A.A.F. 2013), where our superior court clarified that “there is only one form of
multiplicity . . . if an offense is multiplicious for sentencing it must necessarily be
multiplicious for findings as well.”




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