## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant WESTON K. DAVIS United States Army, Appellant

ARMY 20150219

Headquarters, 10 th Regional Support Group Mark Bridges, Military Judge Lieutenant Colonel May L. Nicholson, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA (on brief & on brief in response to specified issues).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Timothy C. Donahue, JA (on brief); Colo nel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief in response to specified issues).

25 February 2016

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

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

CAMPANELLA, Judge:

A military judge sitting as a general court-martial convicted appellant, consistent with his pleas, of one specif ication of destructi on of non-military property, one specification of assault consummated by batt ery, one specification of reckless endangerment, and one specification of communicating a threat, in violation of Articles 109, 128, and 134 Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 909, 928, and 934 (2012). The military judge sentenced appellant to a bad-conduct discharge, confinement for four months, and reductio n to the grade of E-1. The convening authority approv ed the sentence as adjudged.

This case is at issue be fore us for review pursua nt to Article 66, UCMJ. Appellant raises one assignmen t of error which we find ha s no merit. The matters raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) are also without me rit. We find one additional is sue, however, that warrantsDAVIS —ARMY 20150219

2 discussion and relief. This court specif ied two issues for further review and briefing; the follow ing issue was specif ied in our order:

WHETHER THE ARTICLE 134, UCMJ OFFENSE OF

RECKLESS ENDANGERMENT SHOULD BE

DISMISSED AS CONSTITUTING AN UNREASONABLE

MULTIPLICATION OF CHARGES IN LIGHT OF WILLIAMS V. STATE, 100 MD. APP. 468, 641 A.2d 990 (1994)?

BACKGROUND

Appellant and his roommate, Staff Se rgeant (SSG) ZI, got into a heated argument during a night of socializing at a local restaurant and bar in Okinawa, Japan. The argument culminated with appe llant telling SSG ZI not to return to the apartment the two men shared. Staff Sergeant ZI left the bar, returned to their apartment, and retired to his bedroom where he went to sleep.

A short time later, SSG ZI awoke to ap pellant knocking on his bedroom door and demanding SSG ZI to le ave the apartment. When SSG ZI did not respond or leave, appellant repeatedly hit the door with a baseball bat, even tually smashing a large hole in the door. As appellant hit th e door, he yelled “I’m going to kill you.” Staff Sergeant ZI stood on the other side of the bedroo m door bracing it with his body to keep appellant from entering the bedroom. As he held the door closed, SSG ZI quietly called the police. At some point during appe llant’s violent frenzy, SSG ZI was hit on the arm by the bat as appellant sw ung it at the door.

Appellant eventually put down the bat and tried to pry the door open with a knife. When this failed, he began stabbing the door with the knife. After more than forty minutes of this violen t tirade, appellant stopped and went do wnstairs and soon after he was arrested by polic e responding to the scene.

LAW AND DISCUSSION

Assault Consummated by Battery and Reckless Endangerment

The prohibiti on against unreasonable multip lication of char ges has long provided reviewing authorities with a traditional legal standard of reasonableness to address the consequences of an abuse of pr osecutorial discretion in the context of the unique military justice system. United States v

. Quiroz , 55 M.J. 334, 338-39 (C.A.A.F. 2001). Rule for Courts-Martial 307(c)(4) is the current regulatory expression of that prohibition , directing that “[w]hat is substantially one transaction

should not be made the basis for an unre asonable multiplicati on of charges against one person.” The principle provides that the governmen t may not needlessly “pileDAVIS —ARMY 20150219

3 on” charges against an accused. United States v. Foster , 40 M.J. 140, 144 n.4 (C.M.A. 1994).

Our superior court has endorsed the following non- exhaustive list of factors in determining whether an unreasonable multiplicati on of charges has occurred:

(1) Did the [appellant] object at trial that there was an unreasonable multiplicati on of charges and/or specifications?

(2) Is each charge and specif ication aimed at distinctly separate criminal acts?

(3) Does the number of ch arges and specifications misrepresent or exaggerate the appellant's criminality?

(4) Does the numbe r of charges and specifications [unreasonably] increase the appellant's punitive exposure?

(5) Is there any evidence ofprosecutorial overreaching

or abuse in the draf ting of the charges?

Quiroz , 55 M.J. at 338-39 (internal quotation marks omitted).

First, appellant did not raise the issu e of unreasonable multiplication of charges at trial. 1 This weighs ag ainst appellant. Second, appellant was convicted of two crimes occurring simultan eously or within seconds of each ot her that arose out

of the same course of condu ct during appellant’s effort s to break dow n the door and get SSG ZI to leave the apartment. Ap pellant was convicted of both assault consummated by battery with a bat and reckless endangerm ent by trying to break

down the door with a bat and knife as SSG ZI braced the door with his body,

conduct that was like ly to cause death or grievous bodily harm. The reckless endangerment specification arose from th e same act of appellant swinging and hitting SSG ZI with the bat. Both offenses occu rred at the same time, location, and during the same criminal course of conduct. Here, the assault consummated by the battery with the bat is aime d at the same action as the reckless endangerment specification. We, therefore, conclude the striking of SSG ZI with th e bat and the reckless endangerment constitu te a single transa ction under these f acts. Convicting appellant twice fo r what amounts to a single offens e exaggerates his criminality and unfairly subjects appellant to increased punitive exposure . Lastly, alth ough we find

1 He also did not specifically waive the issue at trial or in his pre-trial agreement.DAVIS —ARMY 20150219

4 no prosecutorial overreaching or abuse in dr afting charges, we c onclude on balance,

that the Quiroz factors weigh in appellant's favor and an unreasonable multiplication of specifications exists. 2

Sentence Reassessment

This court has “broad discretion ” when reassessing sentences. United States

v. Winckelmann , 73 M.J. 11, 12 (C.A.A .F. 2013). Our superior court has repeatedly held that if we “can determine to [our ] satisfaction that, absent any error, the sentence adjudged would have been of at least a certain se verity, then a sentence of that severity or less will be free of the prejudicial effects of error.” United States v.

Sales , 22 M.J. 305, 308 (C.M .A. 1986). This analysis is based on a totality of the

circumstances with the followin g as illustrati ve factors:

(1) Dramatic changes in the penalty landscape and

exposure.

(2) Whether an appellant chos e sentencing by members or a military judge alone. As a matt er of logic, judges of the courts of criminal appeals are more likely to be certain of what a military judge would have done as opposed to

members. This factor could become more re levant where charges address service cust om, service discrediting

conduct or condu ct unbecoming.

(3) Whether the nature of th e remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in relate d manner, whether significant or aggr avating circumstance s addressed at the

court-martial remain admissible and relevant to the remaining offenses.

(4) Whether the remaining offe nses are of the type that judges of the courts of criminal appeals should have the experience and familiarity with to reliably determine what

sentence would have be en imposed at trial.

2 Given our dismissal of th e assault consummated by batte ry, it is unnecessary to reach a judgment as to whether the assault consu mmated by battery is an unreasonable multiplication of charges with the comm unication of a threat. See United States v. Cox, ARMY 20111136, 2014 LEXIS 876 (Army Ct. Crim. App. 26 Nov. 2014)(sum. disp.).DAVIS —ARMY 20150219

5 Winckelmann , 73 M.J. at 15-16 (inter nal citations omitted).

Applying these factors to th is case, we are confiden t that reassessment is appropriate. First, we look to the pe nalty landscape. A ppellant’s confinement exposure is reduced from five years and si x months to five year s confinement. The remainder of the penalty land scape is unchanged. Seco nd, appellant was sentenced by a military judge. We are confident we can discern wh at punishment a military judge would adjudge in this case. Third, the gravamen of the criminal conduct included within the original offenses remain s the same. Lastly, th e offenses are ones that we have experience a nd familiarity with in determining what sentence would have been imposed at trial.

CONCLUSION

The finding of guilty of Specification 3 of Char ge I is set aside and

DISMISSED. The re maining findings of guilty are AFFIRMED.

Reassessing the sentence on the basis of the errors note d, the entire record, and in accordance with the principles of Winckelmann , 73 M.J. at 15-16, the

sentence is AFFIRMED. All rights, privileges, and propert y, of which appellant has been deprived by virtue of that portion of his findings set aside by this decision, are

ordered restored.

Senior Judge TOZZI and Ju dge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: