## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HAIGHT, PENLAND, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Private E1 BRYANT K. MARSH

United States Army, Appellant

ARMY 20120572

Headquarters, 82d Airborne Division Tara A. Osborn, Military Judge
Lieutenant Colonel Paul J. Cucuzze lla, Staff Judge Advo cate (pretrial)

Colonel John N. Oh lweiler, Staff Judge A dvocate (recommendation)

For Appellant: William E. Cassara, Esq. (argued); Capt ain Payum Doroodian, JA; William E. Cassara, Esq. (on brief).

For Appellee: Captain John Gardella, JA (argued); Ma jor John K. Choike, JA; Captain John Gardella, JA (on brief).

31 May 2016

---------------------------------- MEMORANDUM OPINION

----------------------------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

WOLFE, Judge:

A general court-martial composed of officer members convicted appellant, contrary to his pleas, of one specification of willfu lly causing over $500 of damage to military property, one specification of willfully causi ng less than $500 damage to military property, one speci fication of rape, and one specification of aggravated sexual assault, in violatio n of Articles 108 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 908 and 920 (2006 & Supp. IV 2011) [herei nafter UCMJ]. The court-martial sentenced appellant to a dishonorable discharg e, confinement for twenty years, and forfeiture of all pay and allowances. The convening authority approved the dishonorable di scharge and total forfeitures, but only approved nineteen years and th ree months of confinement. Ap pellant was cred ited with 259 days of confinement credit.MARSH—ARMY 20120572

2 Appellant’s case was refe rred to this court for review pursuant to Article 66(b), UCMJ. Appellant assigns five assi gnments of error, fo ur of which merit discussion, and two of which merit relief. 1 Appellant personal ly submitted three issues purs uant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) which do
not warrant additional discussion or relief.

I. BACKGOUND

The surrounding circum stances of appellant’s offens es and the pretrial errors discussed below all took plac e while appellant had been returned to active duty pending a sentence re hearing for an unre lated court-martial. 2

On 21 November 2011, Priv ate First Class (PFC) JCL had a party at her offpost apartment to celebrate her 21st birthda y. Appellant arrive d with three other junior enlisted soldiers. At the party, PFC JCL beca me heavily intoxicated. Pictures of the party intro duced by the government show PFC JCL drinking tequila from the bottle and asleep on a couch with a liquor bottle stil l in her hand. She

testified that after she had fallen aslee p, appellant woke her up and encouraged her to “have one more shot.” After having on e more shot, she again fell asleep on the couch. Waking up on her ow n, PFC JCL then began to have a signif icant verbal altercation with one of her guests, a fo rmer girlfriend. As the argument spilled outside, all the guests left the party except for appellant. Appella nt declined a ride home from other guests , stating that he had a ride fro m “one of his friends or his baby’s mama.”

Private First Class JCL testified that af ter returning inside , she had one final shot of alcohol, left appell ant alone on the couch, and then went into her bedroom where she fell asleep. She testified that sh e then remembered waki ng up to appellant

1 Appellant’s third assignment of error asserts that the trial counsel committed prosecutorial misconduct by providing false informatio n to appellant’s brigade commander and to Criminal Investigative Command (CID) concer ning the case.
We find this matter was forfeited at trial. Additionally, it is fa r from clear that the emails, sent during the initia l stage of the investigation were knowingly false or misleading. Finally, we are unable to discern any prejudice to appellant.

2 At a general court-martial that concluded in May 2008, appellant was acquitted of rape but convicted of making a false official statement. The court-ma rtial sentenced appellant to a bad-co nduct discharge, forf eiture of $1347 .00 of pay for one month, and to be reduced to the gr ade of E-1. The United States Court of Appeals for the

Armed Forces ordered a sent ence rehearing based on an improper sentencing argument by the trial counsel. See United States v. Marsh , 70 M.J. 101, 107 (C.A.A.F. 2011). At the rehearing, appellant was sent enced to be reduced to the grade of E-1.MARSH—ARMY 20120572

3 in her bed and between her legs asking her “how tight is it?” Sh e understood appellant to be asking her for sex. She told appellant “no” and then “passed out.”

Private First Class JCL’s next memory was waking up to find that appellant was penetrating her vagina with his penis. It was now morning a nd she was naked.
Private First Class JCL then tr ied to push appellant off of her, but appe llant lowered his weight onto her so that she couldn’t m ove. After failing to push him off, and unable to move, PFC JCL test ified she just looked out the window until appellant
finished. Private First Class JCL told the co urt-martial that as appellant rolled off of her, she got up, got dressed, and after waiting a bit on the couch to sober up, drove herself to the hospita l and reported that she had been sexually assaulted. Swabs taken from PFC JCL during a sexual assault exam show ed DNA consistent with appellant’s DNA.

Private St. Cyr was one of the other soldiers who atte nded the party. He had previously hung out and was friendly with both PFC JCL and appell ant. After hearing that PFC JCL had be en assaulted, Private St. Cyr and one other soldier returned to PFC JCL’s apartment. He f ound appellant still in PFC JCL’s bed. He testified that he then told appellant to ge t dressed. As Privat e St. Cyr and appellant were leaving the apartment—and without an y warning—Private St . Cyr hit appellant in the jaw, knocking him to the ground. The two soldiers then began to wrestle on the ground with Private St. Cyr ending up on top of appellant, who was face down on the ground. Private St. Cy r testified the following ex change then took place:

Appellant: “What the f**k. What are you doing?”

Private St. Cyr: “Ni**er you know what you did.”

Appellant: “I don’ t know what you ar e talking about.”

Private St. Cyr: “You know what you did.”

Appellant: “[JCL]?”

Private St. Cyr: “[JCL]. You know what you did.”

Appellant: “Oh, my God. Dude, I did not rape that girl.”

Private St. Cyr: “Well, it does n’t matter to me and you are going back to the ba rracks regardless.”MARSH—ARMY 20120572

4 Private St. Cyr further testified that on the drive back, appellant called the military police to inform them he had been accused of rape and asked them to meet

him at the barracks. 3

Just over two weeks late r, appellant trashed his barracks room. Appellant threw exercise equipment into a wall and door and also set fire to a table in his room. Noncommissioned officers (NCOs) responding to the commotion and smoke found appellant drunk and de spondent. Appell ant refused to allow entry and attempted to cl ose the windows to his r oom in order to keep th e smoke inside. Staff Sergeant Humphries, the first NCO on the scene, overpow ered and subdued appellant. He described appellant as appearing suicidal.

The government introdu ced pictures of the damage to appellant’s room which
included a table with a scor ched surface and substantia l damage to the walls. Testimony described damage to two doors, but the testimony also indicated that some of the damage to the doors had been cause d by the responding firefighters. The government introduced evidence on the co st to replace or fix the table, doors,
and walls.

3 Appellant did not object to this testimony either at tria l or on appeal. We find this testimony requires a brief discussion:

In closing argument, the tr ial counsel argued that when appellant was told “you know what you did,” appell ant’s jump to the assump tion of “rape” indicated consciousness of guilt. Additionally, the tr ial counsel argu ed that appellant’s desire to self-report to the military police was an attempt to “get ahead” of the story.

Under Military Rule of Evid ence 304(a), an involuntar y statement made by an accused may not be introduc ed against him at trial “if the accused makes a timely motion to suppress.” “In the absence of su ch a motion or objection, the defense may not raise the issue at a later time except as permitted by the mi litary judge for good
cause shown.” Mil. R. Ev id. 304(d)(2). A statem ent is “involuntary” if, inter alia

, it is made “through the use of coercion.” Mil. R. Evid. 304(c)(3). Private St. Cyr’s questioning, while appellant was face down on the ground immediately after being sucker-punched, raises the issu e of whether appellant’s stat ements in response were coerced. However, as there was no motion to supp ress or other objection, this issue
was forfeited. Additionall y, given that appellant’s statements were facially exculpatory, we do not see plai n error or deficient performa nce by counsel. Finally,
we note that the lack of a motion or objection deprives us of a developed record where arguments and evidence would have been subject to adversarial testing. Accordingly, while we no te this issue, we do not order relief.MARSH—ARMY 20120572

5 II. DISCUSSION

A. Factual Sufficiency – Will fully Damaging Mi litary Property

In his first assignment of error, appell ant alleges that the evidence was legally and factually insufficie nt to support Specifica tion 1 of Charge II. 4 In that offense, appellant was charge d with willfully damaging military property by throwing exercise equipment thro ugh a door and walls.

In reviewing the evidence in this case, we find ourselves w ith two problems. First, it appears from the record that tw o doors were damaged, and one of the doors was at least partly damaged by respond ing firefighters. There is factually insufficient evidence in the record to support that appellant willfully caused the firefighters to damage the door. Second, we find that there is factually insufficient
evidence in the record for us to determine which door was damaged by appellant alone. Or, to the extent th at the record supports that appellant damaged both doors willfully, which dama ge was attributable to appellant’s willfu l conduct and which was caused by the firefighters. Accordin gly, we will approve on ly so much of the finding that addresses appellant’s willful da mage to the walls in his barracks room.

As this action reduces the am ount of damage to less than $500, we will also only approve a finding that pr operly reflects the amount of damage appellant caused. 5

B. Improper Pretrial Confinement

In his second assignmen t of error, appellant allege s that his cour t-martial was tainted by unlawful comma nd influence (UCI) when his battalion commander improperly “forced” the co mpany commander in to placing appellant in pretrial

confinement.

4 In his first assignm ent of error, appellant claims the evidence is legally and factually insufficient to supp ort all charges and specifica tions. With the exception of Specification 1 of Charge II, we disagree.

5 We acknowledge that there are two separate actions we could take given these

circumstances. We could fi nd appellant guilty of the lesser-included offense of negligently causing ove r $500 of damage to the walls and doors (under the theory that appellant was at least negligent in caus ing the responding fire fighters to damage the door). Alternatively, we could except out that part of the specification alleging damage to the doors and find appellant guilt y of willfully causin g some damage (less than $500) to his ba rracks room wall. Bo th results provide fo r the same maximum punishment. See Manual for Courts-Martial, United States (2008 ed.) [hereinafter

MCM , 2008], pt. IV, ¶ 32.e. Th e latter course of action is more consistent with the

facts in the record an d appellant’s actions.MARSH—ARMY 20120572

6 1. Motions Practice

On 10 April 2012, ap pellant’s defense counsel file d a motion alleging that the charges had been impr operly preferred by appellant’ s company commander, Captain (CPT) Beatte. The motion was brief, running just over a page in length, and argued that preferral was improper as CPT Beatte did not ac tually believe there was probable cause to prefer the charges.

At a subsequent Article 39 (a), UCMJ, session, CPT Be atte testifie d that while she had some initial misgivi ngs as the case wa s being investigate d, by the time she swore out charges she believed there was probable cause to support the charges. She repeated this test imony on direct, during cross- examination, and while being questioned by the m ilitary judge.

While CPT Beatte was adamant that the preferral had been proper, she was equally candid that her decisi on to place appell ant into pretrial confinement had been wrong. She testified that she didn’t “want” to place appellant in confinement. When asked, “how does [appel lant] end up in pretrial c onfinement if you didn’t want it?” she responded, “I did feel some pressure from Li eutenant Colonel [LTC] Arnold [appellant’s battalion comm ander and her immediate high er commander] to put him in pretrial confinement.” Ultimately, CPT Beatte agreed with the defense counsel’s characterization that she felt “forced” to pl ace appellant in pretri al confinement. No
one asked CPT Beatte wh y she felt forced. That is, ther e is no evidence of what was

said or done to influence her. At the end of the hear ing, the defense counsel argued
that CPT Beatte was not credible and that “[u]nder the totality of the circumstances, I don’t think that we have enough to beli eve that, at that time [when she preferred charges], she believed she had probable cause.”

The only reference to unlawful command influenc e (UCI) during the hearing was a passing reference by the trial counsel during argument.

The military judge ruled on the defense motion of a defective preferral in short order. The military ju dge made numerous fi ndings of fact, in cluding that “CPT
Beatte believed there was en ough evidence to prefer char ges against the accused . . . .” After accounting for the evidence that CPT Beatte had c onsidered, the military judge conclu ded, “[a]t the time she preferre d charges against the accused,
CPT Beatte believed that the matters set fort h in the charges were true.” Finally, the military judge found that CPT Beatte “was not forced, coerced, or instructed to prefer charges.”

The day after the military judge’s ruling, appellant’ s defense counsel filed a motion for appropriate relief asking the mi litary judge to direct that appellant be released from pretrial confinement. Th e motion, which again was less than two pages long (including the caption and si gnature block), argu ed that as “theMARSH—ARMY 20120572

7 requirements of R.C. M. 305(d) have not b een satisfied . . . [a ppellant] should be released from pretrial confinement.” The motion did not allege UCI.

At a subsequent Article 39 (a), UCMJ, session, the mil itary judge took up the motion to release appellant from confinement. Prior to taking evidence, the military judge confirmed with the defe nse that they had received pr eviously requested emails between the trial counsel, CPT Beatte, and LTC Arnold. The defense counsel confirmed they had received the emails bu t did not introduce th em into evidence.

At the hearing, CPT Beatte testified that on 6 December 2011, when she ordered appellant in to confinement, sh e did not believe that confinement was
warranted as lesser forms of restraint were not inadequate. She testified, “I did feel some pressure from Lieutenant Colonel Arnold to put [appel lant] in pretrial
confinement.” She further testified that she “felt like it would negatively impact my command if I did not put him in pretrial confinement.” Again, no one asked CPT
Beatte what LTC Arnold had said or done to make her feel this way.

However, notwithstanding CP T Beatte’s testimony that her initial d ecision to place appellant into confinement was wron g, she testified that by 30 January 2012,
confinement was warranted. On that date , CPT Beatte preferred additional charges against appellant. In other words, whil e CPT Beatte did not believe confinement
was warranted between 8 Decem ber 2011 and 30 January 20 12, after that date she
felt the confinement was in fact warranted.

As in the first motions session, appe llant did not raise the issue of UCI. 6

The military judge denied the defense motion to releas e appellant. While the military judge found that CPT Beatte erred in ordering appellant into confinement on 8 December 2011, she al so found that the error ceased to exist on 30 January 2012, when CPT Beatte preferred additional ch arges against appellant and determined pretrial confinement was warr anted. The milita ry judge ordered th at appellant be credited with an additional fifty-three da ys of confinement pu rsuant to Rule for Courts-Martial [hereina fter R.C.M.] 305(k).

6 Government trial counsel did, however, address the issue of UCI in both their motion in response to the defense moti on to release appe llant from pretrial confinement and in their argument to the military judge.MARSH—ARMY 20120572

8 2. Analysis

As an initial ma tter, we determine that appellant has forfeited the issue he now asserts on appeal. 7

An accused forfeits claims of accusatory UCI if not raised at trial. United States v. Drayton , 45 M.J. 180 (C.A.A.F. 1996). 8

In the defense’s first motion, appellant argued that preferral was defective because CPT Beatte pr eferred charges without believing that the charges were true. However, when calle d as a witness CPT Beatte’s testimony did not support the

defense’s motion. The mil itary judge ru led on the motion in front of her and properly rejected the defense’s claim. Next, the defense move d to have appellant released from confinement. Ag ain, the military judge ruled on the motion in front of her. The military ju dge found that appellant had been improperly confined for fiftythree days and awarded credit pursuant to R.C.M. 305(k). The defense motion never raised the issue of UCI, forf eiting the issue. The only party to specif ically address UCI in any depth was the gov ernment, who when respondin g to the defe nse’s motion to release appellant fr om confinement wrote:

The [g]overnment cannot as certain the nature of the [d]efense’s argument. The [g ]overnment is unsure if the [d]efense is assertin g probable cause did not exist or that there was some type of disqualification of CPT Beatte regarding ordering the [a]ccused into pretrial confinement. Assuming the [d]efense is alleging unlawful command

influence . . . .

The defense, by failing to raise the issue of accusato ry UCI to the military judge, forfeited the issue.

7 We note that the government conceded in its brief that the defense had preserved
the issue of UCI. For the reasons stat ed below, we reject that concession.

8 Although the Drayton court uses the term “wai ver,” 45 M.J. at 182 n.2, for consistency and in fidelity to our superi or court’s opinion in United States v.
Gladue , we will use the term “forfeiture. ” 67 M.J. 311, 313 (C.A.A.F. 2009) (“Whereas forfeiture is the fa ilure to make the ti mely assertion of a right, waiver is the ‘intentional relinquishmen t or abandonment of a known right.’ The distinction
between the terms is im portant. If an appellant has fo rfeited a right by failing to raise it a trial, we review for plain erro r. When, on the ot her hand, an appellant intentionally waives a know n right, it is extinguished and may not be raised on appeal.”). (internal citations and quotations omitted).MARSH—ARMY 20120572

9 Alternatively, to the extent that the defense motion on a defective preferral implicitly preserved th e issue of UCI, then we are al so convinced that appellant is

not entitled to relief. At trial, “the accuse d must show fact s which, if true,
constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the cour t-martial, in terms of its potential to cause unfairness in the proceedings.” United States v. Biagase , 50 M.J. 143, 150 (C.A.A.F. 1999). 9 Here, the defense motion spec ulated that CPT Beatte did not “believe there was enough evid ence to warrant preferral. ” While the threshold for raising UCI is low, it is “more than mere alle gation or speculation.” Biagase , 50

M.J. at 150.

The evidence introduced did not support that the preferral decision had been influenced by any UCI. Th e military judge’s findings in that regard were well supported by the evidence. To the extent that this is a controvert ed question of fact,

see Article 66(c), UCMJ, we adopt the military judge’s findings. Finally, even assuming that the burden ha d shifted to the government, the government “show[ed]
that there was no unlawful command influence” in the preferral decision. Id.

To the extent that appellant claims he is entitled to relief because there was
UCI in the decision to place him into pretrial confinement—even though that influence did not affect the preferral, transmittal, referral, or court-martial proceedings—we disagree. Pu t differently, we do not beli eve improper influence in a pretrial confinemen t decision can constitu te UCI if the influe nce did not somehow infect the preferral, referral, or the court-ma rtial. First, we must again note that the

record is unde veloped on this point because of the failure to specifically raise the
issue of UCI. It is unclear what caused CPT Beatte to feel “forced” or “pressured” to place appellant in pretri al confinement. The emails between the trial counsel,

9 At oral argument before th is court, the government ar gued that in the case of accusatory UCI, Biagase is inapplicable as accusatory UCI does not raise the same constitutional issues as adjudicative UCI. We agree that the differences between accusatory and adjudicative UCI are differences in kind that may warrant different treatment. That is why, fo r example, accusatory UCI ma y be forfeited or waived while adjudicative UC I has been held to be unwaivable. Compare United States v.
Weasler , 43 M.J. 15, 19 (C.A.A.F . 1995) (allowin g waiver of accusatory UCI) with
United States v. Valmont , 73 M.J. 923, 932-33 (A rmy Ct. Crim. App. 2014) (declining to apply waiver to adjudicative UCI) and United States v. Hamilton , 41 M.J. 32, 37 (C.M.A. 1994) (“Un lawful command influence at the referral, trial, or review stage is not wa ived by failure to ra ise the issue at trial. ”). However, lacking
a better framework with which to address th e issue, and as the result would be the same regardless, we evaluate the accusatory UCI issue in this ca se through the more exacting lens crafted in Biagase

.MARSH—ARMY 20120572

10 CPT Beatte, and LTC Arnold were specific ally not introduced by the defense in support of the motion. 10

Second, we find matters of accusatory UCI are limited to the accusatory

process. See Hamilton , 41 M.J. at 36 (“ It is necessary, how ever, to determine whether the allegation of unl awful command influence in a particular case pertains to the preferral of charges, fo rwarding of charges, referral, trial, or post-trial review, in order to determine the applicable rules of law.”). If a commander’s improper actions do not affect the prefer ral, transmittal, referral, tr ial, or post-t rial processing of a case, the remedy likely lies elsewhere. Here, as the proc edures for pretrial
confinement were violated , the military judge prop erly awarded appellant

confinement credit in accord ance with R.C.M. 305(k).

C. Unreasonable Multiplic ation of Charges Rape and Aggravated Sexual Assault

In appellant’s fourth assi gnment of error he alleges that the specifications of rape and aggravated sexual assault ar e unreasonably multiplied for findings. 11

10 At least some of the emails were includ ed by appellant as part of his submissions
under R.C.M. 1105. The emai ls demonstrate that LTC Ar nold was concerned that CPT Beatte was reluctant to order appellant into confinement. He then separately
asked the trial counsel whether he “could order her to do so or is that undue

influence?” He furthe r asked what legal courses of acti on were availabl e. The trial counsel advised in response that LTC Arnold co uld order appellant into confinement
if CPT Beatte did not and th at any officer coul d order appellant into confinement. That is, the emails do not support an inferenc e of improper infl uence but instead
demonstrate an awareness of the problems with UCI and po ssible courses of action. However, for us to consider the emai ls under these circ umstances would be problematic. First, stri ctly speaking, the emails are not part of the reco rd of trial. Compare R.C.M. 1103(b)(2) (“Cont ents” of the record) with R.C.M. 1103(b)(3) (“Matters attached to the reco rd”). In general, when de termining questi ons of legal error at trial, we do not co nsider facts obtained from outside of the record. For example, for these exact reasons we do no t consider appellant’ s admissions in his
R.C.M. 1105 matters that he caused $1201 in damage to his barracks ro om. Second,
the record reveals that it was a tactical decision by the defense not to admit the emails. Third, and relatedly, the defense was free to submit under R.C.M. 1105 only those emails which best supported his plea s for clemency. It would be speculation to assume that appellant s ubmitted all emails relevant to the decision to place appellant in pretrial confinement. Finally, neither party’s briefs asked us to consider them on appeal.

11 The military judge gr anted the defense’s motion to tr eat the specific ations as one for purposes of sentencing.MARSH—ARMY 20120572

11 As an initial ma tter, we find that appe llant forfeited this issue by not raising it

at trial. In United States v. Quiroz , 55 M.J. 334, 338 (C.A.A .F. 2001), our superior court made clear that courts of criminal ap peals are “well within [their] authority to determine the circumstances, if any , under which [they] wo uld apply waiver or

forfeiture” to issues of unr easonable multiplication of charges. (emphasis added). That is, while we have “awesome, plenary, de novo power” to recognize waived and forfeited issues, such recogn ition is not required and is certainly not always wise.

Id . (citation and internal quotation marks omitted); see also United States v. Chin, 75 M.J. __, 2016 CAAF LEXIS 312, at *8 (C.A.A.F. 26 Apr. 2016) (“[T]he CCAs are required to assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error”).

However, even applying the Quiroz framework to this case, as requested by appellant, would not result in relief. Applying Quiroz requires examination and analysis of five questions:

(1) “Did the accused object at trial that there was an unreasonable multiplicati on of charges and/or specifications?”; (2) “Is each charge and specification aimed at distinctly separate criminal acts?”; (3) “Does the number of charges and specif ications misrepresent or exaggerate the appellant’s criminality?”; (4) “Does the number of charges and specif ications [unreasonably] increase the appellant’s pun itive exposure?” ; and (5) “Is there any evidence of prosecut orial overreachi ng or abuse in the drafting of the charges?”

Quiroz , 55 M.J. at 338 (quoting United States v. Quiroz , 53 M.J. 600, 608 (N.M. Ct. Crim. App. 2000)). As discus sed above, as there was no obje ction at trial, the first factor weighs heavily agains t finding an unreaso nable multiplicati on of charges for findings.

The second factor—is each charge and specification aimed at distinctly separate criminal acts—is a factually nuanced inquiry. The alleged theory of aggravated sexual assault was that appellant committed a sexual act with PFC JCL while she was incapac itated. The rape specificati on on the other ha nd alleged a sexual act by force.

Private First Class JCL testified that sh e awoke to appellan t having sex with her. Once awake, it is cl ear that PFC JCL knew what wa s happening to her. When PFC JCL tried to push appellant off of her, she was able to physically communicate

her lack of co nsent to appellant. In other words, once aw ake, she was cognizant of what was happening to her and physically resisted a ppellant. She was no longer “incapacitated.” See MCM , 2008, pt. IV, ¶ 45.a. (c)(2); ¶ 45.a.(t)(14). However, when appellant continued to engage in the sexual act by using physical strength toMARSH—ARMY 20120572

12 overcome PFC JCL’s resistance he committed the offense of rape. Id . at ¶ 45.a.(t)(5) (“The term ‘force’ means action to compel submission of another or to overcome or prevent another’s resistance by . . . physical violen ce, strength, power, or restraint applied to another pers on, sufficient that th e other pers on could not avoid or escape the sexual condu ct.”).

In short, our read of the evidence is that the aggrav ated sexual assault ended when PFC JCL woke up to appellant havi ng sex with her a nd offered physical resistance. When appellant used forc e to overcome PFC JCL’s resistance, he commenced to rape PFC JCL. There was no point in time when appellant was committing both offens es simultaneously. Therefore, we find the two specifications address separate acts.

To be sure, both offenses were comm itted during the cour se of one ongoing

sexual act. 12 This court has in ot her cases found that factor to be controlling. See
United States v. Kremer , ARMY 20130592, 2015 CCA LEX IS 366, at *6 (Army Ct. Crim. App. 27 Aug. 2 015) (summ. disp.) review denied , 75 M.J. 117 (C.A.A.F. 24 Nov. 2015) (“Appellant’s conv ictions for rape and aggrav ated sexual assault as charged are predicated upon th e same continuing cr iminal act.”). Ho wever, we find

Kremer unpersuasive for two reasons. First, Kremer involved a case of preserved

error. Id . at *4. Second, and mo re importantly, to dismi ss the specification of aggravated sexual assault would be to no longer hold appellant accountable for having sexual intercourse with PFC JCL wh ile she was asleep; an offense for which the panel found appellant guilt y and which we find to be factually su fficient. As the rape of PFC JCL did not begi n until after the aggravated sexual assault had ended,
these offenses were aimed at two separate criminal acts . Accordingly, we find this factor weighs heavily in favor of affirmance.

As to the third factor—do es the number of specifi cations misrepresent or exaggerate appellant’s crim inality—we again find that this weighs in favor of

affirmance. For the reas ons similar to those just stated, it would be a misrepresentation of appell ant’s criminality were we to dismiss one of the specifications. Appellant committed an aggravated sexual assault and then committed rape. To hold ap pellant accountable for his conduct requires affirming both specifications.

12 That there was one contin uing sexual act is a fair reading of the evidence

introduced at trial. However, we again note that since there was no objection at trial, PFC JCL was never asked whether be cause of her initial struggle or other reasons, there were multiple penetrations. That the reco rd is undeveloped on this point because of the failure to object at trial does not weigh in favor of providing

relief.MARSH—ARMY 20120572

13 For the fourth factor, the fact that the offenses were treated as one for sentencing, means that there was no unreas onable increase in appellant’s punitive exposure. Additionally, as the offense of rape includes a ma ximum sentence of
confinement for life withou t the possibility of parole, the offense of aggravated

sexual assault did no t alter appellant’s punitive exposure.

As to the fifth and final factor the r ecord is devoid of any evidence of prosecutorial overreach or a buse in drafting the charges. Accordingly, this factor too weighs in favor of affirmance.

Accordingly, we do not find the offens es of aggravated sexual assault and rape to be unreaso nably multiplied. 13

D. Unreasonable Multiplic ation of Charges Damage to Govern ment Property

Appellant’s final assignment of error argues that th e two specifications of damaging government property were unreasonably multiplied. Specification 1 of Charge II alleged that ap pellant damaged military pr operty by throwing exercise equipment through a barracks room wall. Specification 2 of Ch arge II alleged that appellant damaged military prop erty, a table in his barracks room, by setting fire to
it. The evidence introduced at trial revealed that both offenses were discovered at the same time and were likely committed contemporaneously. However, each offense alleges a separa te and distinct criminal act with separate and distinct harms. Accordingly, we do not find the military ju dge erred, (plain or ot herwise), in failing

to find the offenses unreas onably multiplied. Nonetheles s, as government appellate counsel now argues in favor of merging the offe nses, and as a merged specification adequately accounts for appellant’s condu ct, we will exercise our discretionary authority to approve only th ose findings that “should be approved” and approve a specification that merges the two specifications into one.

CONCLUSION

Specifications 1 and 2 of Charge II are consol idated into a single specification, numbered Specific ation 1 of Charge II, an d that specification is
amended to read as follows:

In that PV1 Bryant K. Marsh, did, on or about 5 December 2011, without proper authorit y, willfully damage by throwing exercise equipment through walls and by setting

13 The government in its brief cited United States v. Elespuru , 73 M.J. 326 (C.A.A.F. 2014) in support of their conc ession that the offenses we re unreasonably multiplied.

We find Elespuru inapplicable as this is not a case where the offens es were charged in the alternative, and accordingly, we reject the government’s concession.MARSH—ARMY 20120572

14 on fire a table in building 5- 4805, military property of the United States, the amount of said damage being less than $500.00.

The finding of guilty to Specification 1 of Charge II, as so amended, is AFFIRMED. The finding of gu ilty to Specificatio n 2 of Charge II is set aside and that specification is DISMI SSED. The remaining finding s 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 the circumstances presented by appellant’s case and in acco rdance with the principles articulated by our superior

court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales , 22 M.J. 305 (C.M.A. 1986).

In conducting a sentence reassessment , a Court of Criminal Appeals must

“assure that the sentence is appropriate in relation to the affirmed findings of guilty, [and] that the sentence is no greater than that which woul d have been imposed if the prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United
States v. Suzuki , 20 M.J. 248, 249 (C.M.A . 1985)). “[I ]f the court can determine to its 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. . . .” Sales , 22 M.J. at 308.

In evaluating the Winckelmann factors, despite consolidating Specifications 1 and 2 of Charge II and appr oving only a finding of damage to mili tary property of less than $500.00, there is no dramatic change in the pena lty landscape, as appellant faced the possibility of life without parole based solely upon his conviction for rape. Second, although appellant wa s sentenced by a pa nel of officer members, we have extensive experience dealing with cases involving sexual crimes and property crimes. We are convinced that, absent the separate specifications for the damage to military property, the panel would have sent enced appellant to at least the sentence adjudged. Third, the gravamen of the crim inal conduct within th e original offenses remains substantially the sa me. Appellant remains convi cted of rape, aggravated sexual assault, and willful damage of military property. Th us, neither the penalty landscape nor the vast majori ty of admissible aggravation evidence has significantly changed.

Reassessing the sentence based on the no ted errors and the entire record, we AFFIRM the approved senten ce of a dishonor able discharge, confinement for nineteen years and th ree months, and forfei ture of all pay an d allowances. All rights, privileges, and property, of which appellant has been deprived by virtue of that portion of the findings set aside and dismis sed by this deci sion are ordered

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

Judge PENLAND concurs.MARSH—ARMY 20120572

15 HAIGHT, Senior Judge, co ncurring in part and dissenting in part:

I concur with every part of the majority opinion except that with respect to the

declination to consolidate th e rape and aggravated sexual assault offenses. I would affirm only one of thes e convictions because of what I perceive to be the appropriate unit of prosecution for penetrative sex crimes.

This case presents us with a scenario where appellant sequ entially committed
two different sex crimes duri ng a single act of penile penetration. Under such circumstances, this ongoing crime is a “continuou s-course-of-conduct offense.”
United States v. Neblock , 45 M.J. 191, 197 (C.A.A.F. 199 6). As such, I believe the proper unit of prosecution—for any penetr ative sex crime—to be the number of penetrations. 14 See United States v. Lloyd , 46 M.J. 19, 24 (C.A.A.F. 1997).

Our two sister panels have both addr essed this current scenario where the

criminal circumstance s during a singular act of sexual penetration change from satisfying the elements of one offense to then satisfyi ng the elements of another offense. Both panels allowed only one conviction to stand, wi th one panel merging specifications and anot her dismissing an aggravated sexual assault charge while affirming a rape conviction. See United States v. Hall , ARMY 20130431, 2016 CCA LEXIS 235, at *7 (Army Ct. Crim. A pp. 15 Apr. 2016) (summ. disp.); United States

v. Kremer , ARMY 20130592, 2015 CCA LEXIS 366 , at *7-8 (Army Ct. Crim. App. 27 Aug. 2015) (summ. disp.) review denied , 75 M.J. 117 (C.A.A .F. 24 Nov. 2015). I would approve only one convi ction for engaging in a sexual act with appellant’s victim by force and while she was incapa citated. UCMJ art. 66(c). Appellant should only stand convicted of one of these o ffenses, especially in light of the government’s concession on this issue.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court

14 That is not to say that it would be pr oper to charge each penetration of one

continuous course of sexual con duct in separate specifications. See United States v. Quiroz , 55 M.J. 334, 338 (C .A.A.F. 2001). MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: