## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK

, CAMPANELLA

, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. S pecialist GARY R. MYERS United States Army, Appellant

ARMY 201 2 05 75

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 A ppellee: Lieutenant Colonel Amber J. Roach, JA; Captain Chad M. Fisher, JA; Captain Kenneth W. Borgnino, JA (on brief).

20 August 201 3

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

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

COOK , Senior Judge :

A m ilitary 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 porn ography on divers occasions

, and three specification s of wrongful ly 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 judg e 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 rais ed 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 Speci fication s 2, 4

, and 6 of Charge II

, th e three specifications of wrongfully attempting to produce child pornography, w ere unreasonably multiplied with Specification s 1, 3, and 5 of Charge II, the three specifications of wrongfully attempting to view child p ornography over the same time span

. We agree and accordingly accept the g overnment’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 objec t 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 appella nt's criminality?;

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

(5) Is there any evidence o f 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 MUTIPLI CATION OF

CHARGES.MYERS

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3

In regards to the fir st Quiroz factor, appellant d id 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 S pecifications 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 d efense 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, a ppellant’s punitive exposure was n ot un reasonably i ncreased 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 o ffenses, 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, howev er, we find in favor of the appellant. A ppellant’s criminal act, requesting via webcam and chat messaging that children on the other end of the transmission engage in sexually explicit conduct, w as 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

t he three sets of specifications. As conceded by the government , based on t he 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 appellan t’s attempted production and attempted viewing w ere not aimed at distinctly separate criminal act s and the addition of these s pecification s does misrepresent or

exaggera te the appellant’s criminality. As such, w e will take appropriate action in

our decret al 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 , t he finding s of guilty of Specification s 2, 4

, and 6, Charge II , the wrongful a ttempted production of child pornography offenses, are set aside. The remaining fi ndings of guilty are

AFFIRMED.

Reassessing the sentence based on the dismiss al of Specification s 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. 40MYERS

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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: