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

                            UNITED STATES, Appellee
                                         v.
                            Specialist WAYNE T. HALL
                           United States Army, Appellant

                                    ARMY 20130431

                            Headquarters, Fort Stewart
                         Tiernan P. Dolan, Military Judge
                  Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Major Amy E. Nieman,
JA: Captain Robert H. Meek III, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel John C. Lynch,
JA; Major Daniel D. Derner, JA (on brief).


                                      15 April 2016

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                                SUMMARY DISPOSITION
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MULLIGAN, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of two specifications of sexual assault, in violation of Article
120 Uniform Code of Military Justice, 10 U.S.C. §§ 920 (2012) [hereinafter UCMJ].
The military judge sentenced appellant to a bad-conduct discharge and confinement
for eight months. The convening authority approved the findings and sentence. 1



1
  In his matters submitted pursuant to Rule for Court-Martial 1105 [hereinafter
R.C.M.], appellant requested clemency in the form of a waiver of automatic
forfeitures imposed under Article 58b, UCMJ, based in part upon post-trial
processing delays of his case. The convening authority, in accordance with the staff
judge advocate’s recommendation, waived these forfeitures for a period of six
months, effective 23 May 2013.
HALL- ARMY 20130431

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, only one which requires discussion and relief. 2
Appellant alleges the military judge committed error by failing to dismiss
Specification 1 of Charge I (sexual assault involving a sexual act causing bodily
harm) as an unreasonable multiplication of charges with specification 2 of Charge I
(sexual assault involving a sexual act upon a person incapable of consent due to
intoxication). While we disagree with appellant as to the failure to dismiss, we find
that the two specifications should be merged and grant appropriate relief in our
decretal paragraph.

                                  BACKGROUND

       On the first evening of a four-day weekend, several soldiers living in the
barracks at Hunter Army Airfield, Georgia, to include PFC KJ, accepted an
invitation from appellant and his wife to party at their on-post home. PFC KJ,
although only 20 years old, had already consumed alcoholic drinks and was feeling
“buzzed”.

       Once at appellant’s house, PFC KJ, with appellant’s encouragement, drank to
excess and appeared highly intoxicated (she vomited in the bathroom loudly enough
for others to hear). Eventually, appellant and his wife guided PFC KJ into the
master bedroom of their home and appellant removed KJ’s shorts or pants. 3 His wife
was on top of, and “making out,” with PFC KJ while appellant was at the foot of the
bed. At some point, appellant inserted his finger into PFC KJ’s vagina without her
permission. By appellant’s own admission, he was “not sure [PFC KJ] realized that
[he] was the one” who had placed his finger in her vagina. Soon thereafter, PFC KJ
became upset and attacked appellant’s wife. Other attendees at the party heard PFC
KJ scream and witnessed her, in appellant’s bedroom, naked from the waist down
and apparently topless.

      The military judge found appellant guilty of Charge I, in violation of Article
120, UCMJ, and the following specifications:



2
 The three assignments of error personally raised by appellant pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), are without merit. We note the
convening authority’s action resolved appellant’s prayer for relief based on dilatory
post-trial processing by granting appellant’s request to waive automatic forfeitures.
3
 Due to her state of intoxication, PFC KJ remembers little of what transpired in the
bedroom. Most of the evidence supporting the government’s case came from Special
Agent JZ of the Army Criminal Investigation Command (CID), who related
appellant’s admissions during an interview and laid the foundation for appellant’s
written statement to CID.
                                          2
HALL- ARMY 20130431


               Specification 1: In that [appellant], U.S. Army, did, at or
               near Hunter Army Airfield, Georgia, on or about 9 August
               2012, commit sexual acts upon Private [KJ], to wit:
               penetrating her vulva with his fingers, by causing bodily
               harm to her.

               Specification 2: In that [appellant], U.S. Army, did, at or
               near Hunter Army Airfield, Georgia, on or about 9 August
               2012, commit sexual acts upon Private [KJ], to wit:
               penetrating her vulva with his fingers, when Private [KJ]
               was incapable of consenting to the sexual acts due to
               impairment by intoxicant, and that condition was known
               or reasonably should have been known by [appellant].

Both specifications were based upon the same sexual act by appellant.

       After announcing findings, the military judge sua sponte announced he found
these two offenses were not “multiplicious [] under [a] Teters and Blockburger 4
analysis” and did not “represent an unreasonable multiplication of charges under
Quiroz”. 5 Neither party objected to the court’s ruling. However, he found “the two
offenses to be multiplicious for sentencing” and announced he would treat them as
one offense for that purpose.

                               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 convictions for both specifications of Charge I, sexual assault by
bodily harm and sexual assault on a victim incapable of consent due to impairment
represent an unreasonable multiplication of charges as applied to findings. First,
although the appellant failed to object to the specifications of Charge I as an
unreasonable multiplication of charges for purposes of findings, we need not apply


4
 United States v. Teters, 37 M.J. 370 (C.M.A. 1993); Blockburger v. United States,
284 U.S. 299 (1932).
5
    United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001).
                                            3
HALL- ARMY 20130431

waiver. 6 As to the second factor, each specification under the charge is aimed at the
same criminal act—penetrating Private KIJ’s vulva with his fingers. The two
separate specifications reflect different means by which appellant accomplished the
same criminal act. Third, standing convicted of two separate sex offenses for one
criminal act exaggerates appellant’s criminality. 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 did not increase appellant’s
punitive exposure because the military judge merged the offenses for sentencing
purposes. Finally, we find no evidence of prosecutorial overreaching, given the
facts admitted at appellant’s court-martial could support a finding of guilty to either
specification.

                                   CONCLUSION

      The findings of guilty as to Specifications 1 and 2 of Charge I are merged and
consolidated into a single specification of Charge I, and read as follows:

      Specification:

      In that Specialist Wayne T. Hall, U.S. Army, did, at or near Hunter
      Army Airfield, Georgia, on or about 9 August 2012, commit sexual
      acts upon Private KJ, to wit: penetrating her vulva with his fingers,
      by causing bodily harm to her, when Private KJ was incapable of
      consenting to the sexual acts due to impairment by intoxicant, and
      that condition was known or reasonably should have been known
      by Specialist Wayne T. Hall.

       The finding of guilty of the Specification of Charge I, as so consolidated, is
AFFIRMED. The finding of guilty of Specification 2 of Charge I is set aside and
that specification is dismissed.


6
  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.”).
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HALL- ARMY 20130431


       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 the potential maximum sentence remains the
same since the military judge treated both specifications as one for sentencing.
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
I been merged at trial. Third, we find the merged offense captures the gravamen of
appellant’s criminal conduct which, ultimately, stemmed from a single sexual act.
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.

       Having conducted this reassessment, we AFFIRM the sentence as approved.
All rights, privileges, and property, of which appellant has been deprived by virtue
of the merger of the specifications of Charge I into a single specification under that
Charge, are ordered restored.
      Judge HERRING and Judge BURTON concur.


                                        FOR THE COURT:
                                         FOR THE COURT:



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




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