UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, CAMPANELLA, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Specialist GARY R. MYERS

United States Army, Appellant

ARMY 20120575

Headquarters, 25th Infantry Division

David Conn, Military Judge

Colonel George R. Smawley, Staff Judge Advocate (pretrial)

Colonel Mark A. Bridges, Staff Judge Advocate (post-trial)

For Appellant: Major Jacob D. Bashore, JA; Captain A. Jason Nef, JA; Captain 

Aaron R. Inkenbrandt, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA; 

Captain Kenneth W. Borgnino, JA (on brief).

20 August 2013

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SUMMARY DISPOSITION

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COOK, Senior Judge:

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

pursuant to his pleas, of three specifications of wrongfully attempting to view child 

pornography on divers occasions, three specifications of wrongfully attempting to 

produce child pornography on divers occasions, and three specifications of 

wrongfully viewing child pornography on divers occasions, in violation of Articles 

80 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 934 (2006)

[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable 

discharge, confinement for eight years, forfeiture of all pay and allowances, and 

reduction to the grade of Private E1. Pursuant to a pretrial agreement, the convening 

authority approved only so much of the sentence as provided for a dishonorable 

discharge, five years of confinement, forfeiture of all pay and allowances, and 

reduction to the grade of Private E1. 
MYERS – ARMY 20120575

2

This case is before this court for review under Article 66, UCMJ. Appellant 

submitted a merits pleading to this court and personally raised the issue of 

unreasonable multiplication of charges, as well as another issue which does not 

merit discussion or relief, pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982). Thereafter, this court issued an order to both the government and 

appellant’s counsel to brief the specified issue*of unreasonable multiplication of 

charges. We have now received briefs from both parties on this issue.

LAW AND DISCUSSION

In its brief, the government concedes Specifications 2, 4, and 6 of Charge II,

the three specifications of wrongfully attempting to produce child pornography, were

unreasonably multiplied with Specifications 1, 3, and 5 of Charge II, the three 

specifications of wrongfully attempting to view child pornography over the same 

time span. We agree and accordingly accept the government’s concession. 

Pursuant to Rule for Courts-Martial [hereinafter R.C.M.] 307(c)(4), “[w]hat is 

substantially one transaction should not be made the basis for an unreaso nable 

multiplication of charges against one person.” Our superior court, in United States 

v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), 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?

Id. at 338.

 

*

 WHETHER APPELLANT’S CONVICTIONS ON THE SIX SPECIFICATIONS OF 

CHARGE II ARE THE RESULT OF UNREASONABLE MUTIPLICATION OF 

CHARGES.
MYERS – ARMY 20120575

3

In regards to the first Quiroz factor, appellant did not raise this issue at trial. 

However, we are still permitted to consider this matter on appeal. See United States 

v. Gilchrist, 61 M.J. 785, 789 (Army Ct. Crim. App. 2005). We do not find in 

appellant’s favor in regards to the fourth Quiroz factor. At trial, government 

counsel conceded Specifications 1, 3, and 5, should be merged with Specifications 2, 

4, and 6, for sentencing purposes because the charges comprised three sets of 

“unitary offenses.” Appellant’s trial defense counsel did not object and the military 

judge accepted the government’s position. Accordingly, he combined the 

specifications to determine the maximum available sentence to confinement. As 

such, appellant’s punitive exposure was not unreasonably increased by the number of 

specifications in Charge II. Regarding the fifth Quiroz factor, we do not find in 

appellant’s favor because there is no evidence of prosecutorial overreaching or 

abuse. The specifications in question were directed at different offenses, namely the 

attempted wrongful viewing of child pornography as well as the attempted wrongful 

production of child pornography. Evidently, these offenses were charged in the 

alternative. 

In regards to the remaining two Quiroz factors, however, we find in favor of 

the appellant. Appellant’s criminal act, requesting via webcam and chat messaging 

that children on the other end of the transmission engage in sexually explicit 

conduct, was intended to produce child pornography for the sole purpos e of his 

viewing these illegal images in real-time. The stipulation of fact and appellant’s 

providence inquiry reveal that appellant’s identical criminal acts form the basis for 

the three sets of specifications. As conceded by the government, based on the facts 

of this case, “appellant’s ‘production’ of child pornography . . . for the purpose of 

[his] real-time viewing amounts to, in essence, a single transaction.” 

We therefore hold, pursuant to the second and third Quiroz factors, that 

appellant’s attempted production and attempted viewing were not aimed at distinctly 

separate criminal acts and the addition of these specifications does misrepresent or 

exaggerate the appellant’s criminality. As such, we will take appropriate action in 

our decretal paragraph to remedy this issue.

CONCLUSION

On consideration of the entire record, the error noted, and those matters 

personally raised by appellant pursuant to Grostefon, the findings of guilty of 

Specifications 2, 4, and 6, Charge II, the wrongful attempted production of child 

pornography offenses, are set aside. The remaining findings of guilty are 

AFFIRMED. 

Reassessing the sentence based on the dismissal of Specifications 2, 4, and 6, 

of Charge II, the entire record, and in accordance with the principles of United 

States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40 
MYERS – ARMY 20120575

4

(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring 

opinion in Moffeit, the court affirms the sentence as approved by the convening 

authority. 

Judge CAMPANELLA and Judge HAIGHT concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

MALCOLM H. SQUIRES, JR. 

Clerk of Court

FOR THE COURT: