OLIVA – ARMY 20080774

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

SULLIVAN, COOK, and BAIME 

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Staff Sergeant EDGAR L. OLIVA, JR.**

**United States Army, Appellant**

ARMY 20080774

Headquarters, U.S. Army Basic Combat Training Center of Excellence

and Fort Jackson 

Tara A. Osborn, Military Judge

Lieutenant Colonel Christopher B. Valentino, Staff Judge Advocate

For Appellant:  Major Grace M. Gallagher, JA; Major Julie Caruso Haines, JA.

For Appellee:  Lieutenant Colonel Francis C. Kiley, JA. 

24 February 2009

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SUMMARY DISPOSITION

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Per Curiam:

This case is before us for review under Article 66, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §866.  Although appellant’s case was submitted to us on the merits**,** we found error in the findings of the court-martial as described below.

Appellant, a drill sergeant, was charged, *inter alia*, with two instances of aggravated sexual assault on a soldier-in-training, in violation of Article 120, UCMJ (Specifications 1 and 2 of Charge II).  Specification 1 of Charge II alleged appellant caused the victim, Private (PVT) MG, to engage in a sexual act, i.e., penetration of her genital opening with appellant’s finger, by causing bodily harm in the form of bruises on her arm.  Specification 2 of Charge II alleged appellant engaged in a sexual act, i.e., penetration of PVT MG’s genital opening with his finger, by placing her in fear of appellant’s abuse of his military position to affect negatively her career.  Appellant pled not guilty to the specifications as charged but guilty to the lesser included offenses of wrongful sexual contact, i.e., placing his fingers in PVT MG’s vagina without legal justification or authorization and without her consent.  Essentially, appellant pled to the *identical* criminal conduct and acts for both specifications of Charge II.  The government did not try to prove any of the additional misconduct charged in those two specifications and the military judge found appellant guilty as pled.  Defense counsel sought no findings relief but the military judge did grant the motion to find the specifications multiplicious for sentencing purposes.  

Under these unique circumstances, we find Specifications 1 and 2 of Charge II multiplicious for findings.  *See United States v. Paxton*, 64 M.J. 484, 490 (C.A.A.F. 2007) (quoting *United States v. Teters*, 37 M.J. 370, 373 (C.M.A. 1991)) (multiplicity occurs if a court imposes multiple convictions for the same act or course of conduct);*United States v. Quiroz*, 55 M.J. 334 (C.A.A.F. 2001). 

Accordingly, we set aside the findings of guilty to and dismiss Specification 2 of Charge II.  We have reviewed appellant’s other assignments of error, including those personally raised, and find them to be without merit.  Reassessing the sentence of the basis of the error noted and the entire record, and applying the principles of *United States v. Sales*, 22 M.J. 305 (C.M.A. 1986) and *United States v. Moffeit*, including Judge Baker’s concurring opinion, 63 M.J. 40, 43 (C.A.A.F. 2006), we hold the remaining findings of guilty and the sentence as approved by the convening authority correct in law and fact.  

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

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