UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, PENLAND, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 DAVID MONTOYA 

United States Army, Appellant 

ARMY 20150211 

Headquarters, Fort Knox 

Steven E. Walburn, Military Judge (arraignment) 

James W. Herring, Jr., Military Judge (trial) 

Colonel E. Edmond Bowen, Jr., Staff Judge Advocate 

For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L. 

Tregle, JA; Captain Matthew D. Bernstein, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Major Anne C. Hsieh, JA; Major 

Lionel C. Martin, JA (on brief). 

29 November 2016 

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SUMMARY DISPOSITION 

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PENLAND, Judge: 

 A military judge sitting as a general court-martial convicted appellant, 

contrary to his pleas, of two specifications of willfully disobeying a superior 

commissioned officer, two specifications of sexual assault, and two specifications of 

abusive sexual contact, in violation of Articles 90 and 120 of the Uniform Code of 

Military Justice, 10 U.S.C. §§ 890, 920 [hereinafter UCMJ]. The convening 

authority approved the adjudged sentence of a dishonorable discharge, confinement 

for thirty-three months, and reduction to the grade of E-1. The military judge and 

convening authority credited appellant with 100 days of confinement credit against 

his sentence to confinement. 

We review this case under Article 66, UCMJ. Appellant raises one issue, 

which merits brief discussion but no relief. We have considered the matters 

personally submitted by appellant pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982); they lack merit. 
MONTOYA—ARMY 20150211 

2 

BACKGROUND 

The charged offenses arose from appellant’s sexual assault of and contact 

with Private First Class (PFC) CM. While PFC CM was sleeping in her barracks 

room after having taken a sleep aid, appellant touched her stomach and breasts. She 

woke up, and thinking it was someone else, nudged away the hand that was touching 

her breasts. Appellant touched her breasts again with his hand and she verbally 

objected to the touching. Appellant stopped and she went to sleep again. Private 

First Class CM was awakened by appellant’s finger penetrating her vulva. She tried 

to move away and said “no,” but the digital penetration continued and progressed to 

appellant penetrating her vulva with his penis while PFC CM continued to protest. 

For this conduct, the government charged appellant with abusive sexual 

contact for touching PFC CM’s stomach, breasts, and vulva while she was asleep 

(Specification 1 of The Additional Charge), abusive sexual contact by bodily harm 

for touching her stomach and breasts (Specification 41

 of Charge II), sexual assault 

by bodily harm for penetrating her vulva with his finger (Specification 3 of Charge 

II), and sexual assault by bodily harm for penetrating her vulva with his penis 

(Specification 2 of Charge II). 

At trial, the military judge sua sponte stated he would merge Specification 4 

of Charge II and Specification 1 of The Additional Charge for sentencing and asked 

if either party saw “any further issue as to merger?” Defense counsel took a moment 

and asked the military judge to merge all of the Article 120 specifications because it 

“was all one continuous act or very close in time.” The military judge disagreed. 

Appellant now asserts Specification 4 of Charge II and Specification 1 of The 

Additional Charge are unreasonably multiplied. 

LAW AND DISCUSSION 

A. Unreasonable Multiplication of Charges 

“What is substantially one transaction should not be made the basis for an 

unreasonable multiplication of charges against one person.” Rule for Courts-Martial 

[hereinafter R.C.M.] 307(c)(4). The prohibition against unreasonable multiplication 

of charges (UMC) “addresses those features of military law that increase the 

potential for overreaching in the exercise of prosecutorial discretion.” United States 

v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 

M.J. 334, 337 (C.A.A.F. 2001)). 

 

1

 The specifications of Charge II were renumbered following the dismissal of some 

of the specifications prior to arraignment. 
MONTOYA—ARMY 20150211 

3 

In Quiroz, our superior court listed five factors to help guide our analysis of 

whether charges have been unreasonably multiplied: 

(1) Did the accused 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? 

55 M.J. at 338 (citation and quotation marks omitted; internal alteration reflects 

Quiroz’s holding that “unreasonably” will be used rather than “unfairly.” Id. at 

339). 

We find the Quiroz factors in this case weigh against appellant. First, while 

parties focus on whether defense counsel raised the issue of UMC before the military 

judge did so, it is relevant that after the military judge raised the issue of merger, 

defense counsel did request the merger of all four Article 120 specifications. 

Second, the two specifications were aimed at distinctly separate criminal acts. 

Specification 1 of The Additional Charge was for the touching that occurred while 

PFC CM was asleep and caused her to wake up. Once awake, it is clear that PFC 

CM knew what was happening to her and physically and verbally resisted appellant. 

She was no longer “incapacitated.” See MCM, 2008, pt. IV, ¶ 45.a. (c)(2); ¶ 

45.a.(t)(14). For continuing to touch PFC CM after she woke up and pushed his 

hand away from her breast and said no, appellant was convicted of Specification 4 of 

Charge II.2

 In short, our read of the evidence is that the abusive sexual contact 

while she was asleep ended when she woke up, and the abusive sexual contact by 

bodily harm occurred when he touched her after she demonstrated her lack of 

consent to the touching. There was no point in time when appellant was committing 

both offenses simultaneously. Therefore, under the facts of this case, we find the 

two specifications address separate acts. See United States v. Marsh, ARMY 

20120572, 2016 CCA LEXIS 362, at *22 (Army Ct. Crim. App. 31 May 2016). 

Third, the number of specifications does not misrepresent or exaggerate 

appellant’s criminality. Instead, it would be a misrepresentation of appellant’s 

criminality were we to dismiss one of the specifications. Appellant committed two 

 

2

 Appellant said he remembered touching PFC CM’s stomach, but PFC CM only 

testified that he touched her breasts. We address this below.
MONTOYA—ARMY 20150211 

4 

distinct abusive sexual contacts. To hold appellant accountable for his conduct 

requires affirming both specifications. 

Fourth, the offenses were treated as one for sentencing, which means that 

there was no unreasonable increase in appellant’s punitive exposure. 

Fifth, the record is devoid of any evidence of prosecutorial overreach or abuse 

in drafting the charges. 

Accordingly, we do not find an unreasonable multiplication of charges. 

B. Factual Sufficiency 

We have the independent duty to review the record to determine whether it is 

correct in law and fact. UCMJ art. 66(c). The test for factual sufficiency, “involves 

a fresh, impartial look at the evidence, giving no deference to the decision of the 

trial court on factual sufficiency beyond the admonition in Article 66(c), UCMJ, to 

take into account the fact that the trial court saw and heard the witnesses.” United 

States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002); see also Unites States v. 

Jimenez-Victoria, 75 M.J. 768, 770-71 (Army Ct. Crim. App. 2016). In exercising 

this authority this court gives no deference to the decisions of the trial court (such as 

a finding of guilty), but does recognize the trial court’s superior ability to see and 

hear the witnesses. Id. In reviewing for factual sufficiency we are limited to the 

facts introduced at trial and considered by the court-martial. United States v. Beatty, 

64 M.J. 456 (C.A.A.F. 2007). 

While appellant told a Criminal Investigation Command (CID) agent he 

remembered touching PFC CM’s stomach, PFC CM herself did not testify to this; 

therefore we find the portion of Specification 4 of Charge II that refers to touching 

her stomach is factually insufficient. 

CONCLUSION 

 The court affirms only so much of the finding of guilty of Specification 4 of 

Charge II as finds that appellant: 

Did, at or near Fort Knox, Kentucky, between on or about 

25 April 2014 and on or about 26 April 2014, commit 

sexual contact upon Private First Class C.M., to wit: 

touching her breasts with an intent to arouse or gratify his 

sexual desires, without her consent, by causing bodily 

harm. 

The remaining findings of guilty and the sentence are AFFIRMED. 
MONTOYA—ARMY 20150211 

5 

 Senior Judge CAMPANELLA and Judge BURTON concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: