## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Captain TYLER F. HO United States Army, Appellant

ARMY 20140068

Headquarters, III Co rps and Fort Hood Gregory A. Gross, Military Judge Colonel Richard W. Rousseau, St aff Judge Advocat e (pretrial) Colonel Ian G. Corey, Staff Judge Advocate (post-trial)

For Appellant: Li eutenant Colonel Char les D. Lozano, JA; Ma jor Christopher D. Coleman, JA: Captain Patrick J. Scudieri, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III, JA; Major Daniel D. Derner, JA; Captain Christopher A. Clause n, JA (on brief).

22 June 2016

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

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Per Curiam:

A military judge sitting as a general court-martial convicted appellant, contrary to his plea s, of forty-eight specifications of indecent recording, nine specifications of indecent vi ewing, and two specifications of conduct unbecoming an officer and gentlemen, in violation of Articles 120c and 1 33 Uniform Code of Military Justice, 10 U.S.C. §§ 920c, 933 (2 012) [hereinafter UC MJ]. The military judge sentenced appellant to a dismissa l, seven years conf inement, and total forfeiture of all pay and al lowances. The convening auth ority approved the findings and sentence as adjudged.HO-ARMY 20140068

2 This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises four assignments of error, two of wh ich require discu ssion and relief. 1
Appellant alleges the military judge committed error by not finding Sp ecification 1 of Charge III, alleging c onduct unbecoming an officer, multiplicious with numerous specifications of Charge I, alleging indecent recordin g. We find that these specifications constitute an unreasonable multiplication of charges for findings and grant appropriate relief in our decretal paragraph. 2 Appellant also as ks this court to provide appropriate re lief to remedy the dilatory post-t rial processing of his case. We agree that relief is appropriate in this case and reduce the a pproved sentence to confinement by thirty days in our decretal paragraph.

BACKGROUND

In October 2012, appellant’s unit deploy ed to Fort Irwin, California, for a training rotation. On divers occasions between 15 October and 17 October 2012, the appellant placed a cell phone set to record in the female latrine/shower building. He accomplished this by dressing as a female and carrying a canvas hy giene bag into the

female shower. He then placed a cell phone with th e camera pointed toward the

showers in the side me sh pocket of the bag. In this way, the cel l phone was able to record females as they were using the shower facilities. During one of his trips to

the shower to check on the phone, several fema le soldiers discovered appellant. The military police were called and the appe llant’s phone was se ized. Forensic

examination of the phone revealed thirteen video files containing videos of fifty-four

females in the shower.

The military judge fo und appellant guilty of Specification 1 of Charge III, in

violation of Article 1 33, UCMJ, which alleged:

In that [appellant], did, at or near Fort Irwin, California,

on divers occasions between on or about 15 October 2012

and on or about 17 October 2012, videotape, film, and

record with a cellula r phone the private area of [CW2 SC], [SGT DW] and [PFC CC] an d unknown females, without

1 The matters personally raised by appellant pursuant to United States v. Grostefon

, 12 M.J. 431 (C.M.A. 1982), are without merit.

2 Although appellant argues for a finding of multiplicity, we decline to hold the convictions multiplicious as the specifications in questi on do not run afoul of the

elements test in Blockburger v. United States , 284 U.S. 29 9 (1932) and United States

v. Teeters , 37 M.J. 370 (C.M.A. 1993); see also United Stat es v. Frelix-Vann , 55 M.J. 329 (C.A.A.F. 2001) and United States v. Campbell , 71 M.J. 19 (C.A.A.F. 2012).HO-ARMY 20140068

3 their consent, and under the circumst ances these acts

constitute conduct unbecomi ng an officer and gentleman.

The military judge additi onally found appellant gu ilty of numerous indecent recording specificatio ns of Charge I in violation of Article 120c, UCMJ, including Specifications 1 th rough 3 which alleged indecent recording of CW2 SC, SGT DW

and PFC CC.

Specification 1 of Charge III an d the numerous ind ecent recording specifications of Charge I we re based upon the same acts by appellant. Immediately after announcing findings, the military judge announ ced, “I will consider Specification 1 of Charge III as multiplicious for sentencing with Specifications 1 through 3 of Charge I.” 3

A. Unreasonable Multip lication of Charges

“What is substantia lly one transaction should no t be made the basis for an unreasonable multiplication of charges against one person.” Rule fo r Courts-Martial [hereinafter R.C.M.] 307(c)( 4). The prohibition agains t unreasonable multiplication of charges “addresses those f eatures 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 co nvictions for both Sp ecification 1 of Ch arge III, conduct unbecoming, and the Specifica tions of Charge I, indecent recording, represent an unreasonable multiplication of charges as applied to findin gs. Appellan t objected to these charges as an unreasonable multiplicat ion of charges for pu rposes of findings

at trial. As to the second factor, each specification unde r the respective charge is

aimed at the same criminal act—indecent re cording of persons wit hout their consent. Third, standing convicted of two separate offenses for one crim inal act exaggerates appellant’s criminality. An “unauthori zed conviction has ‘potential adverse consequences that may not be ignored,’ a nd 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 conv iction for both of these specifications did not increase appellant’s punitive exposure because the military judge merged the offenses for se ntencing purposes. Finally, we find no evidence of prosecutorial overreaching, give n the facts admitted at appellant’s courtmartial could suppor t a finding of guil ty to all of the specifications.

3 See Campbell , 71 M.J. at 23, for the discussion that “there is on ly one form of multiplicity.”HO-ARMY 20140068

4 B. Post-Trial Delay

The convening authority took action 360 days after the conclusion of appellant’s court-martial. Of that delay, 356 days are attributable to the government. The record in this case co nsists of seven volu mes, and the trial transcript is 368 pages. Although we find no due process violation in the post-trial processing of appellant’s ca se, we must still review the appropriateness of the sentence in light of the unju stified dilatory post -trial processing. UCMJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A.F. 2 002) (“[Pursuant to Article 66(c), UCMJ, service courts ar e] required to determine what findings and sentence ‘should be approved,’ based on all the facts and circumstance s reflected in the record, includi ng the unexplained and unreasonable po st-trial delay.”). See generally United States v. Toohey , 63 M.J. 353, 362- 63 (C.A.A.F. 2006); United States v. Ney , 68 M.J. 613, 617 (Arm y Ct. Crim. App. 2010); United States v.
Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

The government has not prov ided any explanation for the lengthy post-trial delay in processing this ca se. The delay between ann ouncement of sentence and action is simply too long, and could “adverse ly affect the public’s perception of the fairness and integrit y of military justic e system . . . .” Ney , 68 M.J. at 617. Thus, we find relief is appropriate under the facts of this case.

CONCLUSION

The finding of guilty as to Specification 1 of Charge III is set aside and that specification is DISMISSED. The remaining findings of guilty are AFFIRMED.

We are able to reassess the sentence on the basis of th e errors noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed 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 chan ge in the penalty landscape th at might cause us pause in reassessing appellant’s sentence, as the potential maximum sentence remains the same since the military judg e treated both specificatio ns as one for sentencing. Second, we note appellant elected to be tr ied by a military judge si tting alone, so we

are confident the sentence wo uld not have change d had Specification 1 of Charge III and the several specific ations of Charge I be en merged at trial. Third, we find the remaining offenses capture the gravamen of appellant’s crimin al conduct which, ultimately, stemmed from the same acts. Finally, based on our experience as judges on this court, we are familiar with the re maining offenses so th at we may reliably

determine what sentence would have been imposed at trial.HO-ARMY 20140068

5 Having conducted th is reassessment a nd considering the di latory post-trial processing, we AFFIRM only so much of the sentence as provides for a forfeiture of all pay and allowances, conf inement for six years and el even months, and dismissal from the service. All righ ts, privileges, and property, of which appellant has been deprived by virtue of that portion of findings and sentence set aside by this decision,

are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: