## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, MORAN, and KRAUSS Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 ERIC T. RYANT United States Army, Appellant

ARMY 20120204

Headquarters, 82d Airborne Division Reynold P. Masterto n, Military Judge

Colonel Lorianne M. Campanella, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Li eutenant Colonel Peter Kageleiry, Jr., JA; Major Vincent T. Shuler, JA; Captain Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L Varley, JA; Major Robert A. Rodrigues, JA; Captai n Carl L. Moore, JA (on brief).

30 July 2014

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

--------------------------------- Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of assault consummated by a battery, housebreaking, and breaking restriction, in vi olation of Articles 128, 130, and 134, Uniform Code of Military Justice, 10 U.S.C. 928, 930, 934 (2006 ) [hereinafter UCMJ]. The military judge convicted appellant, contrary to hi s pleas, of attempte d rape, indecent act, assault consummated by a ba ttery, and assault with intent to commit rape, in violation of Articles 80, 120 , 128, and 134, UCMJ. The military judge sentenced appellant to a dishonorable discharge, co nfinement for ten year s, total fo rfeitures, and reduction to the grade of E-1. The convening author ity approved confinement for seven years and eleven months and otherwise approved the sentence. The convening authority also credited appellant with 203 days confinement credit against

the sentence to confinement.

This case is before us for review under Article 66, UCMJ. Appellant’s sole assignment of error warrants discussion and relief. In particul ar, appellant argues that the military judge abused his discre tion by denying appe llant’s motion toRYANT—ARMY 20120204

2 dismiss on the groun ds of an unreasonable multiplication of charges. The government concedes this is sue. We agree and gran t relief in our decretal paragraph. * Appellant’s personal submissions pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982 ) do not warrant relief.

Appellant was charged, inter alia , with the following vi olations of the UCMJ:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 80

THE SPECIFICATION: In that [appellant], U.S. Army, did, at or near Camp R oberts, Kandahar Airfield, Afghanistan, on or about 22 Au gust 2011, atte mpt to cause [PFC EV] to engage in a sexual act, to wit: penetrating her

vulva with his penis, by forcibly leap ing on top of her, straddling her legs with his knees, grabbing both of her

wrists with his hand, and pulling down her pants.

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128

THE SPECIFICATION: In that [appellant], U.S. Army, did, at or near Camp R oberts, Kandahar Airfield, Afghanistan, on or about 22 August 2011, unlawfully strike [PFC EV] in the face with his hand, unlawfully cover her face and mouth with his hand, and unlawfully grab her wrists wi th his hands and shove her backwards.

ADDITIONAL CHARGE II: VI OLATION OF THE UCMJ,

ARTICLE 120

THE SPECIFICATION: In that [appellant], U.S. Army, did, at or near Camp R oberts, Kandahar Airfield, Afghanistan, on or about 22 August 2011, wrongfully commit indecent conduct, to wit: intentio nally pulling down on the pants of [PFC EV ] without the consent of [PFC EV].

* We note that appellant’s pleaded guilty by exceptio ns and substitutions to housebreaking under Articl e 130, UCMJ. In particul ar, he was charged with housebreaking with the intent to commit assault and rape of a female soldier sleeping therein. Appellant pleaded guilty, except for the words “assault and rape”

and substituted the word s “an indecent act in the presen ce.” However, the military judge found appellant guilty of the housebreaking as charged. As a remedy, we will amend and affirm the specifi cation in accordance with ap pellant’s provident pleas of guilty.RYANT—ARMY 20120204

3 ADDITIONAL CHARGE III : VIOLATION OF THE UCMJ, ARTICLE 128

SPECIFICATION 1: In that [appel lant], U.S. Army, did, at or near Camp Roberts, Kandah ar Airfield, Afghanistan, on or about 22 August 2011, unlawfully pull down the pants worn by [PFC EV ] with his hand.

ADDITIONAL CHARGE V: VIOLATION OF THE UCMJ,

ARTICLE 134

SPECIFICATION 1: In that [appel lant], U.S. Army, did, at or near Camp Roberts, Kandah ar Airfield, Afghanistan, on or about 22 August 2011, with the inte nt to commit rape, commit an assault upon [PFC EV] by unlawfully striking [PFC EV] in the face with his hand, unlawf ully covering

her face and mouth with his hand, and unlawf ully grabbing

her wrists with his hands an d shoving her back wards, that action being prejudicial to good order and discipline in the

armed forces.

Appellant moved to dismis s these and other offenses on multiplicity and unreasonable multiplication of charges grounds. The government responded by noting that they charge d appellant on alternative theories of liability. The military judge ultimately denied ap pellant’s motion, found appe llant guilty of the above specifications, and agreed to treat them as a single offense for the purpose of sentencing.

“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 307(c)(4). We consider fi ve factors to determine wh ether charges have been unreasonably multiplied:

(1) Did the accused ob ject at trial that ther e 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 mi srepresent or exaggerate the appellant's criminality?;

(4) Does the number of charges a nd specifications [unreasonably] increase [the] appellan t's punitive exposure?;RYANT—ARMY 20120204

4 (5) Is there any evidence of prosecut orial overreaching or

abuse in the drafting of the charges?

United States v. Quiroz , 55 M.J. 334, 338 (C.A.A.F. 2001) (int ernal citation and quotation marks omitted) (internal alteration re flects the holding in Quiroz that “unreasonably” will be utilized in stead of “unfairl y”). He re, the Quiroz factors on balance weigh in favor of appellant. It is clear that appellant at tempted to rape the victim, PFC EV. It is also clear that th e other specifications at issue were charged

as alternative theories of li ability to account for exigencies of proof. When a fact finder “return[s] guilty find ings for [multiple] specifications and it was agreed that these specifications were char ged for exigencies of proof, it [is] incumbent either to consolidate or dismiss a specification.” United States v. Elespuru , __ M.J. ___, slip op. at 10 (C.A.A.F. July 15, 2014) (quoting United States v. Mayberry , 72 M.J. 467, 467-68 (C.A.A.F. 2013) (summ. disp.) (internal quotation marks omitted).

Although we dismiss several findings of guilty, this ac tion does not affect the

sentence. The fact ors announced in United States v. Winckelmann , 73 M.J. 11, 15- 16 (C.A.A.F. 2013), al l weigh in favo r of reassessing and affirming the sentence. First, the penalty landscape has not changed. Although some specifications described appellant’ s misconduct differently, the res gestae of appellant’s criminal conduct has not changed and is admissible aggravation evidence. A military judge sentenced appellant, and we are sufficiently familiar with the re maining offenses to reassess. Most importantly, the military judge treated the offenses at issue as one for sentencing pur poses.

CONCLUSION

On consideration of the entire recor d, the matters submitt ed pursuant to Grostefon , and the assigned error, the findi ngs of guilty of Ch arge II and its Specification, Additional Charge II and its Specification, Sp ecification 1 of Additional Charge II I, and Specification 1 of Addition al Charge V are set aside. Those charges and specifications are dismissed. Th e Specification of Charge III is

amended as follows:

In that [appellant], U.S. Ar my, did, at or near Camp Roberts, Kandahar Airfield, Afghanistan, on or about 22 August 2011, unlawfully enter tent G-1, a female transient tent, the property of the Government of the United Kingdom, with intent to co mmit a criminal offense

therein: an indecent act in the presence of the female soldier sleepi ng, therein.

That specification as amended is AFFIRM ED. The remaining fi ndings of guilty are AFFIRMED. Reassessing the sentence on the basis of the errors noted and theRYANT—ARMY 20120204

5 principles of Winckelmann , the sentence is AFFIRMED. All rights, pr ivileges, and property, of which ap pellant has been depr ived by virtue of that portion of the findings set aside by this decision, ar e ordered restored.

FOR THE COURT:

ANTHONY O. POTTINGER Chief Deputy Clerk of Court ANTHONY O. POTTINGER Chief Deputy Clerk of Court FOR THE COURT: