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

                           UNITED STATES, Appellee
                                        v.
                           Sergeant LESHAN JONES
                          United States Army, Appellant

                                   ARMY 20140925

                             Headquarters, Fort Bragg
               Christopher Fredrikson, Military Judge (arraignment)
                      Tara A. Osborn, Military Judge (trial)
          Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Steven J. Collins, JA; Captain Tara E. O’Brien, JA (on brief).


                                      24 June 2016

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

Per Curiam:

      A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of seven specifications of possession of child pornography and
two specifications of possession of images depicting unnatural carnal copulation
with an animal, in violation of Article 134, Uniform Code of Military Justice, 10
U.S.C. § 934 (2012) [hereinafter UCMJ]. The military judge sentenced appellant to
a bad-conduct discharge, confinement for fifty-two months, and a reduction to the
grade of E-1. The convening authority approved the findings and sentence. 1



1
  Appellant pleaded guilty pursuant to a pretrial agreement that capped confinement
at 8 years, but otherwise allowed the convening authority to approve any other
lawfully imposed sentence.
JONES - ARMY 20140925

       This case is before us for review pursuant to Article 66, UCMJ. Appellant’s
sole assignment of error 2 asserts that the military judge abused her discretion in
failing to merge Specification 8 with Specification 3, and Specification 9 with
Specification 1 of The Charge as an unreasonable multiplication of charges. Finding
some merit in this argument, we grant relief in our decretal paragraph.

                                  BACKGROUND

       Appellant pleaded guilty to a single charge and nine specifications alleging a
violation of Article 134, UCMJ. Specification 1 alleged appellant possessed child
pornography, being 10 videos, stored on a Seagate external hard drive. Specification
9 of The Charge alleged appellant possessed one video of unnatural carnal
copulation with an animal, which was found on the same Seagate hard drive.
Specification 3 alleged appellant possessed child pornography, being ten videos and
fifteen images stored on a WINTEC memory card. Specification 8 alleged
possession of one video of unnatural carnal copulation with an animal found on the
same WINTEC memory card.

       Prior to entry of pleas, the military judge expressed on the record her concern
whether Specifications 8 and 9 stated an offense. After a colloquy with trial and
defense counsel-and with their concurrence-the military judge determined these
specifications met the elements for a general Article 134, UCMJ, offense as conduct
of a nature to bring discredit upon the armed forces. See Manual for Courts-
Martial, ¶ 60c.(3) (2012 ed.). After entry of pleas, the military judge provided
appellant the elements and definitions for possession of child pornography and
disorders and neglects of a nature to bring discredit upon the armed forces, which
appellant acknowledged and understood. The definition of “sexually explicit
conduct,” applicable to the child pornography specifications, included bestiality.
See Dep’t of Army, Pam. 27-17, Legal Services: Military Judges’ Benchbook, para.
3-68b-1.d. n2 (10 Sept. 2014).

       During the providence inquiry as to Specifications 8 and 9, appellant stated
his belief that both videos involved a child engaged in sexual activity with an
animal. In discussing the image alleged Specification 9, appellant acknowledged
that the video at issue would also be child pornography.

                             LAW AND DISCUSSION

      “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” R.C.M. 307(c)(4). The
prohibition against unreasonable multiplication of charges “addresses those features


2
 Appellant personally raised five assignments of error pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), none of which warrant discussion or relief.
                                          2
JONES - ARMY 20140925

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 United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001).

       Applying the factors set forth by our superior court in Quiroz, we conclude
that appellant’s convictions for Specifications 8 and 9 represent an unreasonable
multiplication of charges as to findings with Specifications 3 and 1 of The Charge,
respectively. First, appellant did not raise this issue at trial as to findings; however,
we need not apply waiver. 3 Second, Specifications 3 and 8, as well as Specifications
1 and 9, are based on contraband images and videos stored on the same device.
Third, separating out two videos into two additional specifications serves no purpose
other than to exaggerate appellant’s criminality. At base level, as is clear from the
providence inquiry and stipulation of fact, this case involves possession of child
pornography. 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 increased appellant’s theoretical punitive exposure by twenty years,
although the terms of the pretrial agreement negated the possibility of an increase in
his punishment. Finally, we find no evidence of prosecutorial overreaching, given
the facts admitted at appellant’s court-martial could support a finding of guilty to as
to each of these specifications.

                                    CONCLUSION

      Specification 8 is merged with Specification 3 of The Charge, and
Specification 9 is merged with Specification 1 of The Charge, to read as follows:

             Specification 1: In that [appellant], did, at or near Fort
             Bragg, North Carolina, on or about 9 August 2012,
             knowingly and wrongfully possess child pornography, to
             wit: 11 digital videos of minors, or what appear to be


3
  This court may grant relief under our Article 66(c), UCMJ, powers 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)). This
“awesome, plenary, de novo power” provides us with the authority to consider all
claims of unreasonable multiplication of charges, even if raised for the first time on
appeal. Id. (quoting United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)). See
also United States v. Anderson, 68 M.J. 378, 386 (C.A.A.F. 2010) (“[A]pplication of
the Quiroz factors involves a reasonableness determination, much like sentence
appropriateness, and is a matter well within the discretion of the CCA in the exercise
of its Article 66(c), UCMJ, . . . powers.”).
                                            3
JONES - ARMY 20140925

             minors, engaging in sexually explicit conduct, on a
             Seagate external hard drive, such conduct being of a
             nature to bring discredit upon the armed forces.

             Specification 3: In that [appellant], did, at or near Fort
             Bragg, North Carolina, on or about 9 August 2012,
             knowingly and wrongfully possess child pornography, to
             wit: 11 digital videos and 15 digital images of minors, or
             what appear to be minors, engaging in sexually explicit
             conduct, on a WINTEC filemate microSD memory card,
             such conduct being of a nature to bring discredit upon the
             armed forces.

     Specifications 1 and 3, as merged, and the remaining findings of guilty are
AFFIRMED. Specifications 8 and 9 of The Charge are set aside and DISMISSED.

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), we AFFIRM the sentence. 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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