UNITED STATES ARMY COURT 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, 10th Regional Support Group 

Mark Bridges, Military Judge 

Lieutenant Colonel May L. Nicholson, Staff Judge Advocate 

For Appellant: Colonel 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); Colonel 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 specification of destruction of non-military 

property, one specification of assault consummated by battery, 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 reduction to the grade of 

E-1. The convening authority approved the sentence as adjudged. 

This case is at issue before us for review pursuant to Article 66, UCMJ. 

Appellant raises one assignment of error which we find has no merit. The matters 

raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 

1982) are also without merit. We find one additional issue, however, that warrants 
DAVIS —ARMY 20150219 

2

discussion and relief. This court specified two issues for further review and 

briefing; the following issue was specified 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 Sergeant (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 appellant 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 appellant knocking on his bedroom door 

and demanding SSG ZI to leave the apartment. When SSG ZI did not respond or 

leave, appellant repeatedly hit the door with a baseball bat, eventually smashing a 

large hole in the door. As appellant hit the door, he yelled “I’m going to kill you.” 

Staff Sergeant ZI stood on the other side of the bedroom 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 appellant’s violent frenzy, SSG 

ZI was hit on the arm by the bat as appellant swung 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 violent tirade, appellant stopped and went downstairs and soon 

after he was arrested by police responding to the scene. 

 

LAW AND DISCUSSION 

Assault Consummated by Battery and Reckless Endangerment 

 The prohibition against unreasonable multiplication of charges has long 

provided reviewing authorities with a traditional legal standard of reasonableness to 

address the consequences of an abuse of prosecutorial 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 unreasonable multiplication of charges against 

one person.” The principle provides that the government may not needlessly “pile 
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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 multiplication of charges has occurred: 

(1) Did the [appellant] object at trial that there 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 

misrepresent or exaggerate the appellant's criminality? 

(4) Does the number of charges and 

specifications [unreasonably] increase the appellant's 

punitive exposure? 

(5) Is there any evidence of prosecutorial overreaching 

or abuse in the drafting of the charges? 

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

First, appellant did not raise the issue of unreasonable multiplication of 

charges at trial.1

 This weighs against appellant. Second, appellant was convicted of 

two crimes occurring simultaneously or within seconds of each other that arose out 

of the same course of conduct during appellant’s efforts to break down the door and 

get SSG ZI to leave the apartment. Appellant was convicted of both assault 

consummated by battery with a bat and reckless endangerment by trying to break 

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

conduct that was likely to cause death or grievous bodily harm. The reckless 

endangerment specification arose from the same act of appellant swinging and 

hitting SSG ZI with the bat. Both offenses occurred at the same time, location, and 

during the same criminal course of conduct. Here, the assault consummated by the 

battery with the bat is aimed at the same action as the reckless endangerment 

specification. We, therefore, conclude the striking of SSG ZI with the bat and the 

reckless endangerment constitute a single transaction under these facts. Convicting 

appellant twice for what amounts to a single offense exaggerates his criminality and 

unfairly subjects appellant to increased punitive exposure. Lastly, although we find 

 

1

 He also did not specifically waive the issue at trial or in his pre-trial agreement. 
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no prosecutorial overreaching or abuse in drafting charges, we conclude 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 severity, 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 following as illustrative factors: 

 (1) Dramatic changes in the penalty landscape and 

exposure. 

(2) Whether an appellant chose sentencing by members or a 

military judge alone. As a matter 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 relevant where 

charges address service custom, service discrediting 

conduct or conduct unbecoming. 

(3) Whether the nature of the remaining offenses capture 

the gravamen of criminal conduct included within the 

original offenses and, in related manner, whether 

significant or aggravating circumstances addressed at the 

court-martial remain admissible and relevant to the 

remaining offenses. 

(4) Whether the remaining offenses 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 been imposed at trial. 

 

2

 Given our dismissal of the assault consummated by battery, it is unnecessary to 

reach a judgment as to whether the assault consummated by battery is an 

unreasonable multiplication of charges with the communication 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 

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Winckelmann, 73 M.J. at 15-16 (internal citations omitted). 

Applying these factors to this case, we are confident that reassessment is 

appropriate. First, we look to the penalty landscape. Appellant’s confinement 

exposure is reduced from five years and six months to five years confinement. The 

remainder of the penalty landscape is unchanged. Second, appellant was sentenced 

by a military judge. We are confident we can discern what punishment a military 

judge would adjudge in this case. Third, the gravamen of the criminal conduct 

included within the original offenses remains the same. Lastly, the offenses are ones 

that we have experience and familiarity with in determining what sentence would 

have been imposed at trial. 

CONCLUSION 

 

 The finding of guilty of Specification 3 of Charge I is set aside and 

DISMISSED. The remaining findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, 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 property, 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 Judge CELTNIEKS concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

 

 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: