CORRECTED COPY



## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Class MARLIN P. SHUPP 1 , JR. United States Army, Appellant

ARMY 20160079

Headquarters, Fort Drum S. Charles Neill, Military Judge
Lieutenant Colonel John J. Merriam, Staff Judge Advocate

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Captain Ryan T. Yoder, JA; Major Daniel E. Goldman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Anne C. Hsieh, JA; Major Lionel C. Martin, JA (on brief).

12 July 2017

----------------------------------------------------------------- SUMMARY DISPOSITION ON RECONSIDERATION

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Per Curiam:

We summarily affirmed appell ant’s case on 31 May 2017. 2 We granted appellant’s motion to reconsider in order to better explain our summary affirmance to the parties so that they may appropriately sc rutinize our reasoning.

1 Corrected

2 A general court-martial com posed of a military judge co nvicted appellant, pursuant to his pleas, of three speci fications of aggravated se xual assault on a child, one specification of forcible sodo my, and three specifications of indecent acts with a child, in violation of Article s 120, 125, and 134 Uniform Code of Military Justice, 10 U.S.C. 920, 925, 934 (2000, 2006, 2006 & Supp. II 2009, 2006 & Supp. III 2010) [hereinafter UCMJ]. The convening auth ority approved the adju dged sentence of a dishonorable discharge, confinement for f ourteen years, and re duction to the grade
of E-1.SHUPP—ARMY 20160079

2 In appellant’s first assignmen t of error, he alleged the military judge erred in allowing appellant to be subj ected to an unreaso nable multiplication of charges. The government charged appellant with the Article 134, UCMJ, offense of indecent acts with a child for digitally penetrating CS on divers occasions from 12 January 2006 until 30 September 2007. The government also charged ap pellant with aggravated
sexual assault of a ch ild, an Article 120, UCMJ, offens e, for digitally penetrating CS
from 1 October 2007 to 29 January 2009. Appellan t argues the government unreasonably multiplied these offenses by “arbitrarily” spli tting the cond uct into two
offenses before and after 1 October 2007. We disagr ee for multiple reasons.

First, 1 October 2007 was the effect ive date for the 2 006 amendments to
Article 120. See National Defense Authorization Ac t for Fiscal Year 2006, Pub. L. 109-163, § 552(f) (Rap e, Sexual Assault, and Ot her Sexual Misconduct Under
Uniform Code of Milit ary Justice). That is, appellant could no t have been charged with aggravated sexual assault of a child fo r conduct that occurred before 1 October 2007. Thus, it seems clear to us the charging decision co mplained of on appeal was a rational response to a fundamen tal change in substantive law.

Second, appellan t waived the unreasonable multiplication issue when he pleaded guilty to the offens es. As we have repeated ly stated, appellant cannot simultaneously agree to plead guilty to an offense because he is legally and factually guilty of the offense and the n, after getting the benefit of pleading guilty, argue on appeal the military judge erre d as a matter of la w in accepting his plea to an offense because it is unreasonably multiplied. See United States v. Boykin , ARMY 20160136, 2017 CCA LEXIS (Arm y Ct. Crim. App. 12 Ju n. 2017) (sum. disp.);
United States v. Russell , ARMY 20150397, 2016 CCA LEX IS 673 (Army Ct. Crim. App. 18 Nov. 2016) (sum. disp.); and United States v. Tankersley , ARMY 20140074, 2016 CCA LEXIS 504 (Army. Ct. Cr im. App. 15 Aug. 2016) (mem. op.).

Third, each penetrative act was a separa te offense that the government could have charged individually. Th e unit of prosecutio n for sexual assault is each assault. That the government chose to merge multiple o ffenses into two specifications—when
each offense could have been specified individua lly—did not mean th e offenses then
needed to be merged into one offense. See United States v. Neblock , 45 M.J. 191 (C.A.A.F. 1996)

Fourth, assuming we eventually reached the test outlined in United States v. Quiroz for determining specifications are unreasonably multip lied, we would not weigh the factors in appellant’s favor. 55 M.J. 334, 338 -39 (C.A.A.F. 2001).

Appellant’s second assignment of er ror concerns the victim’s unsworn
statement. The victim’s statement wa s marked as Prosecution Exhibit 2 for Identification (PE 2 fo r ID). The military judge verified the de fense had a copy of the statement. The sp ecial victim counsel then read the statement to the militarySHUPP—ARMY 20160079

3 judge. Rather than transcribe the statemen t, the court-reporter entered a note in the
record as follows: “T he special victims [sic ] counsel read PE 2 for ID to the Court.”

On appeal, appellant complains it was e rror not to transcribe the statement,
and therefore we do not have a “complete” record. We di sagree. First, with one technical exception, 3 we do not find it to be error fo r the court-report er to adopt by
reference a document when the exhibit is read into th e record verbatim . Indeed, this is typical for stipulations of expected testimony. Re quiring transcription of a
document that was read verbat im only introduces th e possibility of error that comes with each retelling.

Second, and why we summar ily affirmed appellant’s case the first time, we cannot find any prej udice. Under Article 59(a), UCMJ, we may not set aside a finding or sentence ba sed on an error of law without fi rst finding mate rial prejudice to a substantial right. The special victim counsel read PE 2 for ID. We have PE 2
for ID and have read it ourselves. Ther efore, we are able to fully conduct our review under Article 66( c). Appellant does not claim, for example, PE 2 for ID was
read with substantial additions or omissions. Accordingly, it is not clear to us what material right has been prejudiced, let alone substantially prejudiced.

The findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

3 Under Rule for Courts-Marti al [hereinafter R.C.M.] 1103, exhibits that are marked, but not admitted, are not technically part of th e record of trial. See R.C.M. 1103(b)(2); United States v. Cade , 75 M.J. 923 (Army Ct. Crim. App. 2016) (defining “contents” of the re cord of trial). Accordingly, the ex hibit should have been admitted, marked as an appellate exhibit, or been inserted into the record. To
correct this technical error we will mark PE 2 for ID as an exhibit on appe al and also insert a copy of the exhibit into the record after page ninety-seven. MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: