                                ****CORRECTED COPY – DESTROY ALL OTHERS****



             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                                  Senior Airman CORY J. CALHOUN
                                         United States Air Force

                                                  ACM 38689

                                                7 January 2016

            Sentence adjudged 28 April 2014 by GCM convened at Davis-Monthan Air
            Force Base, Arizona. Military Judge: Christopher M. Schumann (sitting
            alone).

            Approved Sentence: Dishonorable discharge, confinement for 12 years,
            forfeiture of all pay and allowances, and reduction to E-1.

            Appellate Counsel for the Appellant: Daniel Conway (civilian counsel).

            Appellate Counsel for the United States: Major Meredith L. Steer and
            Gerald R. Bruce, Esquire.

                                                     Before

                                ALLRED, TELLER, and ZIMMERMAN
                                     Appellate Military Judges

                                        OPINION OF THE COURT

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



ALLRED, Chief Judge:

       A general court-martial composed of officer and enlisted members convicted
Appellant, contrary to his pleas, of two specifications of aggravated sexual contact with a
child and two specifications of indecent liberties with a child, in violation of Article 120,
UCMJ, 10 U.S.C. § 920.1 The court sentenced him to dishonorable discharge,
1
 Pursuant to Rule for Courts-Martial 917, the military judge granted a defense motion for a finding of not guilty
with regard to one specification of wrongfully possessing child pornography and one specification of wrongfully
possessing child erotica, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The court members also found
confinement for 12 years, forfeiture of all pay and allowances, and reduction to E-1.2
The convening authority approved the sentence as adjudged.

       Before us, Appellant contends: (1) the military judge erred in denying his
challenge for cause against one of the court members, (2) the evidence is factually and
legally insufficient to sustain the findings of guilty, and (3) his two convictions for
indecent liberties with a child (Specification 10 and Specification 13 of Charge I) are
multiplicious or constitute an unreasonable multiplication of charges.

       We find that the convictions for Specification 10 and Specification 13 of Charge I
constitute an unreasonable multiplication of charges. Finding no other error that
materially prejudices a substantial right of Appellant, we affirm the remainder of the
findings and the sentence.

                                                   Background

       In May 2009, Appellant married Ms. AVC, a single mother of two boys. The
older of the boys, JEV, was born in September 2005 and the younger, JAV, was born in
January 2008. In November 2009, Ms. AVC, the two boys, and Appellant moved into
quarters at the base where he was assigned.

       In December 2011—while Appellant was deployed overseas—JEV and JAV
began to fight in their on-base housing. JEV complained to Ms. AVC that his younger
brother had kicked him in the head. When Ms. AVC asked JAV why he had done so, he
replied that JEV had tried to “tickle [his] butt crack.” When Ms. AVC told JEV he
should not be doing such a thing, he began to cry. JEV said, “But Cory [Appellant] does
it to us all the time.” Concerned by this statement, Ms. AVC then talked to her boys
privately in separate rooms. Continuing to cry, JEV demonstrated for his mother the
back and forth motion Appellant used when inserting his fingers into the boys’ buttocks.
JEV told his mother that it hurt when Appellant would “butt tickle” him. Ms. AVC then
spoke privately with JAV, who provided a similar account and description of Appellant’s
penetrating the boys’ buttocks with his hand.

       Ms. AVC reported the alleged abuse to authorities. In the months thereafter, JEV
and JAV made further disclosures regarding Appellant’s repeated molestations of them
while they were living with him. Other details pertinent to this case are discussed below.




Appellant not guilty of seven specifications of aggravated sexual contact with a child, two specifications of indecent
liberties with a child, two specifications of indecent acts with a child, and one specification of sodomy with a child,
in violation of Articles 120 and 125, UCMJ, 10 U.S.C. §§ 920, 925.
2
  The court-martial order (CMO) in this case incorrectly states that the sentence was adjudged by military judge.
We hereby order a corrected CMO reflecting that Appellant was sentenced by officer and enlisted members.


                                                          2                                               ACM 38689
                                  I. Challenge for Cause

       During voir dire a prospective court member, TSgt DM, indicated that a high
school girlfriend of his had been sexually abused by a family member. Based upon this
disclosure and follow-on responses, trial defense counsel challenged TSgt DM for cause.
The military judge denied the challenge, and Appellant now argues the judge erred in
doing so.

        Rule for Courts-Martial (R.C.M.) 912(f)(1)(N) provides that a member shall be
excused for cause whenever it appears that the member “[s]hould not sit as a member in
the interest of having the court-martial free from substantial doubt as to legality, fairness,
and impartiality.” “This rule encompasses challenges based upon both actual and implied
bias.” United States v. Elfayoumi, 66 M.J. 354, 356 (C.A.A.F. 2008) (citing
United States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007)).

       The test for assessing an R.C.M. 912(f)(1)(N) challenge for implied bias is
“objective, viewed through the eyes of the public, focusing on the appearance of
fairness.” United States v. Bagstad, 68 M.J. 460, 462 (C.A.A.F. 2010) (quoting
Clay, 64 M.J. at 276) (internal quotation marks omitted). “The hypothetical ‘public’ is
assumed to be familiar with the military justice system.” Id. (citing United States v.
Downing, 56 M.J. 419, 423 (C.A.A.F. 2002)). We review issues of implied bias “under a
standard less deferential than abuse of discretion but more deferential than de novo.”
United States v. Strand, 59 M.J. 455, 458 (C.A.A.F. 2004) (quoting United States v.
Miles, 58 M.J. 192, 195 (C.A.A.F. 2003)) (internal quotation marks omitted). “[M]ilitary
judges must follow the liberal-grant mandate in ruling on challenges for cause, but we
will not overturn the military judge’s determination not to grant a challenge except for a
clear abuse of discretion in applying the liberal-grant mandate.” United States v. White,
36 M.J. 284, 287 (C.M.A. 1993). “The liberal grant mandate recognizes the unique
nature of military courts-martial panels, particularly that those bodies are detailed by
convening authorities and that the accused has only one peremptory challenge.”
United States v. Moreno, 63 M.J. 129, 134 (C.A.A.F. 2006) (citing United States v.
James, 61 M.J. 132, 139 (C.A.A.F. 2005)).

        In the present case, TSgt DM indicated that the abuse of his high school girlfriend
occurred before they began dating, that their dating relationship ended in 1996, and he
had presently been married to another woman for nearly eleven years. TSgt DM stated
that, although he and the girlfriend now lived far apart, he remained in contact with her
and considered her a close friend. Despite their closeness, however, the girlfriend had
never told TSgt DM the details of her abuse—he knew only that the abuser had been a
family member, perhaps an uncle—and he did not know what impact the abuse had on
her. TSgt DM stated that he was sorry it had happened, but the abuse had otherwise had
no effect upon him personally. TSgt DM stated what happened to his ex-girlfriend was
long ago and he could differentiate between her situation and the present case.


                                              3                                    ACM 38689
       When initially asked by trial defense counsel whether he thought he would be an
appropriate person to sit on the panel, TSgt DM stated it would be for “you guys to
decide,” but the abuse happened years ago. He did not think about the abuse unless the
ex-girlfriend brought it up, and otherwise it did not come to his mind. Trial defense
counsel continued to press the subject, and TSgt DM finally acquiesced that someone
watching the trial “probably wouldn’t” think it fair to Appellant if he was a court member
because his ex-girlfriend was young when she was abused and Appellant’s case involved
a “youngster.” Ultimately, however, TSgt DM expressed a firm that belief that he could
“be fair and impartial.” When asked to search for a reason why being a court member in
this case could be hard, TSgt DM candidly expressed that it was his duty to not let his
emotions get the better of him if he were to think of his own child. He understood the
grave responsibility of being a court member, and that it was his duty to “consider
somebody’s life” and “what happens afterwards [to Appellant].”

       We find that the military judge did not abuse his discretion in denying the
challenge for cause against TSgt DM. The military judge observed TSgt DM’s demeanor
when answering the questions put to him to determine credibility in the case of an actual
bias challenge. The judge then applied an objective test for implied bias, stating his
assessment of the member “in the eyes of the public” and also considering the liberal
grant mandate. This court “does not expect record dissertations” on a judge’s denial of
an implied bias challenge, and here, the military judge’s analysis provided “a clear signal
that the military judge applied the right law.”3 United States v. Peters, 74 M.J. 31, 34
(C.A.A.F. 2015) (internal quotations and brackets omitted). We find no error in denying
the challenge for cause against TSgt DM.

                                   II. Factual and Legal Sufficiency

     Appellant contends the evidence is factually and legally insufficient to prove he
committed any of the four offenses of which he stands convicted.

      We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The test for legal sufficiency of the
evidence is ‘whether, considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found all the essential elements beyond a
reasonable doubt.’” United States v. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002)
3
  TSgt DM conceded that someone watching the trial might question his participation. In ruling upon the challenge
for cause, the trial judge declared that he did not give weight to this concession, because TSgt DM was not in a
position to analyze his responses under the proper legal standard. We, however, in holding that the military judge
did not err in denying the challenge, would note that we have considered the totality of the circumstances in this
case, including TSgt DM’s responses to the military judge and trial defense counsel regarding perceptions and his
ability to serve impartially. See United States v. Peters, 74 M.J. 31, 34 (C.A.A.F. 2015) (holding the public
perception test “may well reflect how members of the armed forces, and indeed the accused, perceive the procedural
fairness of the trial as well”).


                                                        4                                            ACM 38689
(quoting United States v. Turner, 25 M.J. 324 (C.M.A. 1987)). “The test for factual
sufficiency is whether, after weighing the evidence . . . and making allowances for not
having personally observed the witnesses, [we ourselves are] convinced of the
[appellant]’s guilt beyond a reasonable doubt.” United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000) (quoting Turner, 25 M.J. at 325) (internal quotation marks omitted).

       Appellant was convicted of Specifications 7, 8, 10, and 13 of Charge I. With
regard to Specification 7 of Charge I (aggravated sexual contact with a child), the
military judge properly instructed the court members on the elements as follows:

                     One, that at or near Minot, North Dakota, on divers
              occasions between on or about 1 November 2009 and on or
              about 26 December 2011, the accused engaged in sexual
              contact, to wit: inserting his fingers into the anus of [JEV];

                    Two, that at the time, [JEV] had not attained the age of
              12 years.

       With regard to Specification 8 of Charge I (aggravated sexual contact with a
child), the military judge properly instructed the court members on the elements as
follows:

                     One, that at or near Minot, North Dakota,       on divers
              occasions between on or about 1 November 2009          and on or
              about 26 December 2011, the accused engaged            in sexual
              contact, to wit: inserting his fingers into the anus   of [JAV];
              and,

                    Two, that at the time, [JAV] had not attained the age of
              12 years.

       The military judge defined “sexual contact” as the “intentional touching, either
directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks of another person, or intentionally causing another person to touch, either
directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks
of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or
gratify the sexual desire of any person.”

       With regard to Specification 10 of Charge I (indecent liberties with a child), the
military judge properly instructed the court members on the elements as follows:

                     One, that at or near Minot, North Dakota, on divers
              occasions between on or about 1 November 2009 and on or


                                              5                                    ACM 38689
                 about 26 December 20011, the accused committed a certain
                 act by ejaculating in front of [JEV] and then wiping his semen
                 on [JEV’s] penis;

                          Two, that the act was indecent;

                       Three, that the accused committed the act in the
                 physical presence of [JEV];

                         Four, that the accused committed the act with the
                 intent to gratify the sexual desire of the accused; and,

                          Five, that at the time, [JEV] was under 16 years of
                      4
                 age.

       With regard to Specification 13 of Charge I (indecent liberties with a child), the
military judge properly instructed the court members on the elements as follows:

                        One, that at or near Minot, North Dakota, on divers
                 occasions between on or about 1 November 2009 and on or
                 about 26 December 2011, the accused committed a certain act
                 by causing [JEV] to watch the accused touch his own penis;

                          Two, that the act was indecent;

                       Three, that the accused committed the act in the
                 physical presence of [JEV];

                         Four, that the accused committed the act with the
                 intent to gratify the sexual desire of the accused; and,

                          Five, that at the time, [JEV] was under 16 years of age.

        The military judge defined “indecent liberty” as

                 indecent conduct, but physical contact is not required. It
                 includes one who, with the requisite intent, exposes one’s
                 genitalia, anus, buttocks, or female areola or nipple to a child.
                 An indecent liberty may consist of communication of
                 indecent language as long as the communication is made in
4
 The court members found Appellant “of Specification 10 of Charge I: Guilty, excepting the words ‘. . . and then
wiping his semen on [JEV’s] penis’, substituting therefor the words: ‘and then wiping his semen on [JEV’s] body’.
Of the excepted words: Not Guilty; of the substituted and remaining words: Guilty.”


                                                       6                                            ACM 38689
             the physical presence of a child. If words designed to excite
             sexual desire are spoken to a child or a child is exposed to or
             involved in sexual conduct, it is an indecent liberty; the
             child’s consent is not relevant.

       JEV was six years old when he first reported Appellant’s sexual abuse, and he was
eight years old at the time of trial. Using visual aids, JEV described credibly how
Appellant, on more than one occasion, touched his own penis and then ejaculated semen
onto JEV’s body. JEV testified that Appellant would be alone with him on the bed in his
parents’ bedroom, and on those occasions: (1) Appellant would squeeze “white stuff”
from his penis, (2) the white stuff would come out of the same hole Appellant used when
he would “pee,” (3) Appellant would cause the stuff to go onto JEV’s stomach, (4) the
white stuff “felt wet” and smelled “weird,” and (5) JEV did not like it.

       JEV also described credibly how Appellant, on more than one occasion, inserted
his fingers into JEV’s buttocks. JEV testified that: (1) Appellant would insert two of his
fingers into the crack of JEV’s buttocks “where toilet paper goes,” (2) Appellant would
wiggle his fingers back and forth, and (3) this would hurt JEV—but he was too afraid of
Appellant to say so.

        JAV was just under four years old when Appellant’s abuse of him came to light,
and he was six years old at the time of trial. With the assistance of visual aids, JAV
testified that Appellant “butt tickled” him—that is, put his hand into JAV’s buttocks—
more than once. JAV explained that he did not like it when Appellant did this to him,
because “it kind of hurt and it kind of tickled and when [he] . . . said ‘Stop,’ he didn’t
stop.” JAV added, “It just felt like a teeny weenie, weenie bite of a [c]aterpillar.”

       The relative youth of JEV and JAV causes us to consider their testimony with
some caution. There is much in the record, however, to indicate that their accounts were
truthful. These indicators include, but are not limited to, the following:

       (1) Ms. AVC appears to have had no ulterior motive in reporting Appellant’s
misconduct to authorities. By all accounts, the marriage between Ms. AVC and
Appellant was generally stable and happy until his abuse came to light. Upon hearing the
victims’ allegations, Ms. AVC hoped that they were not true, and was then devastated to
realize that they were. Reporting the abuse and supporting her sons during the
investigation and litigation of this case caused Ms. AVC significant hardship. Among
other things, she was required to abandon a nursing program in which she was
progressing well in order to live with parents and siblings in her home state.

       (2) Based upon her nurse’s training, Ms. AVC was careful to speak with her sons
separately, to use non-leading questions, and to avoid suggesting ideas or details as to
what might have occurred.


                                            7                                   ACM 38689
        (3) Both JEV and JAV reported the abuse in close proximity to the time it actually
occurred. In language appropriate to their age, JEV and JAV described unique events
beyond the awareness of children who have not suffered sexual abuse. Each boy’s
account remained consistent over time and, with no evidence of collusion, corroborated
that of his brother.

        (4) Appellant had access to the victims and spent considerable time alone with
them while Ms. AVC was studying for her nursing program, while she was on a week-
long trip to Norway, and on other occasions.

       Ultimately, considering the evidence in the light most favorable to the prosecution,
we are satisfied that a reasonable factfinder could have found all the essential elements of
each offense beyond a reasonable doubt. Moreover, making allowances for not having
personally observed the witnesses, we ourselves are convinced of Appellant’s guilt of all
four specifications beyond a reasonable doubt.

              III. Multiplicity and Unreasonable Multiplication of Charges

       Appellant contends that his two convictions for indecent liberties with a child
(Specifications 10 and 13 of Charge I) are multiplicious and constitute an unreasonable
multiplication of charges.

        We review claims of multiplicity de novo. United States v. Paxton, 64 M.J. 484,
490–91 (C.A.A.F. 2007). Appellant did not move to dismiss either specification at trial.
A claim of multiplicity not raised at trial is forfeited in the absence of plain error. United
States v. Lloyd, 46 M.J. 19, 21-22 (C.A.A.F. 1997). We review claims of unreasonable
multiplication of charges, even when not explicitly raised at trial, under the framework
set out in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001).

       In the context of multiplicity and unreasonable multiplication of charges, three
concepts may arise: multiplicity for purposes of double jeopardy, unreasonable
multiplication of charges as applied to findings, and unreasonable multiplication of
charges as applied to sentencing.

       We first assess whether the failure to dismiss one of the specifications for
multiplicity constituted plain error. Appellant has the burden of persuading us that there
was error, that the error was plain or obvious, and that the error materially prejudiced a
substantial right of the appellant. United States v. Powell, 49 M.J. 460, 464–65 (C.A.A.F.
1998). Appellant may show plain error by showing that the specifications are facially
duplicative. States v. Heryford, 52 M.J. 265, 266 (C.A.A.F. 2000). “Whether
specifications are facially duplicative is determined by reviewing the language of the



                                              8                                    ACM 38689
specifications and ‘facts apparent on the face of the record.’” Id. (quoting United States
v. Lloyd, 46 M.J. 19, 24 (C.A.A.F. 1997)).

       The two specifications together, in light of the facts apparent on the face of the
record and the exceptions and substitutions of the panel, allege that on divers occasions
Appellant caused JEV to watch him while he masturbated himself to orgasm, after which
he wiped his semen on JEV. This course of conduct was charged in two parts: first that
he caused JEV to watch him touch his penis, and second, that he ejaculated “in front of”
JEV and wiped his semen on JEV. “Specifications are not facially duplicative if each
requires proof of a fact not required to prove the others.” United States v. Parker, 73
M.J. 914, 917 (A.F. Ct. Crim. App. 2014) (citing United States v. Campbell, 68 M.J. 217,
220 (C.A.A.F. 2009)). Specification 10, alleging Appellant wiped semen on JEV, would
require proof of that fact when Specification 13 would not. However, it is much less
clear whether the allegation that Appellant caused JEV to watch Appellant touch his
penis requires proof of a fact, in the context of the face of the record, that masturbating
“in front of” JEV does not. Rather than relying on such a narrow question of
interpretation, we instead proceed to the unreasonable multiplication of charges analysis,
since relief on that basis would negate any prejudice suffered by Appellant. See United
States v. Marko, 60 M.J. 421, 422 (C.A.A.F. 2004) (Daily Journal).

       Even if charged offenses are not multiplicious, courts may apply the doctrine of
unreasonable multiplication of charges to dismiss certain charges and specifications.
Rule for Courts-Martial 307(c)(4) summarizes this principle as follows: “What is
substantially one transaction should not be made the basis for an unreasonable
multiplication of charges against one person.” The principle provides that the
Government may not needlessly “pile on” charges against an accused. United States v.
Foster, 40 M.J. 140, 144 n.4 (C.M.A. 1994). Our superior court has endorsed the
following non-exhaustive list of factors in determining whether unreasonable
multiplication of charges has occurred:

             (1) Did the [appellant] 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?




                                             9                                   ACM 38689
              (5) Is there any evidence of prosecutorial overreaching or
              abuse in the drafting of the charges?

Quiroz, 55 M.J. at 338–39 (quoting United States v. Quiroz, 53 M.J. 600, 607 (N.M. Ct.
Crim. App. 1993)) (internal quotation marks omitted). “[U]nlike multiplicity—where an
offense found multiplicious for findings is necessarily multiplicious for sentencing—the
concept of unreasonable multiplication of charges may apply differently to findings than
to sentencing.” United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012). In a case
where the Quiroz factors indicate the unreasonable multiplication of charges principles
affect sentencing more than findings, “the nature of the harm requires a remedy that
focuses more appropriately on punishment than on findings.” Quiroz, 55 M.J. at 339.

       In the present case, Specifications 10 and 13 of Charge I involved both the same
time frame and the same victim, JEV. Specification 10 alleged that on divers occasions
Appellant engaged in indecent conduct “by ejaculating in front of [JEV] and then wiping
his semen on [JEV’s] penis.” Specification 13 alleged on divers occasions Appellant
took indecent liberties “by causing [JEV] to watch [Appellant] touch his own penis.”
The elements of Specifications 10 and 13 were otherwise identical. The court members
found Appellant guilty of Specification 10, excepting the words “and then wiping his
semen on [JEV’s] penis,” substituting therefor the words “and then wiping his semen on
[JEV’s] body.” The members found Appellant guilty of Specification 13 as charged.

        Although Appellant did not object at trial, failure to do so does not establish a per
se rule that relief is unwarranted. “While not applying a blanket forfeiture rule, the
failure to raise the issue at trial suggests that the appellant did not view the multiplication
of charges as unreasonable.” United States v. Quiroz, 53 M.J. 600, 607 (N.M. Ct. Crim.
App. 2000). Accordingly, this factor weighs against Appellant.

       The second factor weighs in favor of Appellant. In reviewing the record of trial,
we can find no clear instance in which JEV saw Appellant touch his penis in a sexual
manner, except for those occasions when Appellant also ejaculated and wiped the semen
on JEV’s body. Thus, we cannot find that Specification 10 and 13 address distinctly
separate criminal acts.

      Similarly, the specifications also tend to misrepresent Appellant’s criminality by
suggesting there were instances, apart from those in which he ejaculated, wherein
Appellant caused JEV to watch him touch his own penis. This factor weighs in
Appellant’s favor.

      Since the specifications refer to the same conduct and tend to misrepresent
Appellant’s criminality, we also find that they unreasonably increase Appellant’s punitive
exposure. We are cognizant of the overall scope of Appellant’s misconduct, and do not
consider the magnitude of additional exposure to be substantial. However, even a small


                                              10                                    ACM 38689
increase in exposure is unreasonable when the additional exposure is not rationally
related to a commensurate distinction in culpable behavior.

       Finally, we do not find any evidence of prosecutorial overreach or abuse in the
drafting of the charges. In light of the age of the victim, a reasonable prosecutor would
allow for the possibility that the child’s testimony at trial may vary from his previous
accounts and draft charges accordingly. We find this factor weighs against Appellant.

       On balance, we find that Specification 13 unreasonably multiplied, both for
findings and sentencing, Specification 10. Accordingly, we disapprove and dismiss
Specification 13. Having disapproved Specification 13, we also explicitly find that
Appellant suffered no prejudice by virtue of any failure to dismiss that specification on
double jeopardy multiplicity grounds.

                                        Sentence Reassessment

       Having disapproved Specification 13 of Charge I, we must determine whether we
can reassess the sentence. This court has “broad discretion” when reassessing sentences.
United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). Our superior court has
repeatedly held that if we “can determine to [our] satisfaction that, absent any error, the
sentence adjudged would have been of at least a certain severity, then a sentence of that
severity or less will be free of the prejudicial effects of error.” United States v. Sales, 22
M.J. 305, 308 (C.M.A. 1986). This analysis is based on a totality of the circumstances
with the following as illustrative factors: dramatic changes in the penalty landscape and
exposure, the forum, whether the remaining offenses capture the gravamen of the
criminal conduct, whether significant or aggravating circumstances remain admissible
and relevant, and whether the remaining offenses are the type that we as appellate judges
have experience and familiarity with to reliably determine what sentence would have
been imposed at trial. Winckelmann, 73 M.J. at 15–16.

       We find we can reassess the sentence in this case. The change in the penalty
landscape is insubstantial in light of Appellant’s conviction for several other serious
offenses.5 Specification 10, as discussed above, captures the gravamen of the misconduct
and retains the admissibility and relevance of the surrounding circumstances. We also
find that the remaining offenses are of the type with which we have experience and
familiarity as appellate judges to determine the sentence that would have been imposed.
We have considered the totality of the circumstances and reassess the sentence to the
same sentence approved by the convening authority.




5
 Dismissing the conviction for Specification 13 of Charge I reduces the maximum length of confinement from 70
years to 55 years.


                                                     11                                          ACM 38689
                                       Conclusion

       The finding of guilty as to Specification 13 of Charge I is set aside and dismissed.
The remaining findings, and the sentence, as reassessed, are correct in law and fact, and
no error materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings, as
modified, and sentence, as reassessed, are AFFIRMED.




              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                            12                                   ACM 38689
