## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Private E2 MARQUILL D. WILLIS United States Army, Appellant

ARMY 20120999

U.S. Army Combined Arms Support Comma nd Sustainment Cent er of Excellence

and Fort Lee James W. Herring, Military Judge Colonel Andrew J. Glass, Staff Judge Advocate

For Appellant: Colonel Ke vin Boyle, JA; Ma jor Amy E. Nieman, JA, Captain

Robert N. Michaels , JA (on brief).

For Appellee: Colonel John P. Carrell, JA ; Lieutenant Colonel James L. Varley, JA; Major Daniel D. Derner, JA; Captai n Nathan S. Mammen, JA (on brief).

13 February 2015

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

A panel of officer and en listed members sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification ea ch of conspiracy to commit rape, conspiracy to commit forcible oral sodomy, and co nspiracy to commit forcible anal sodomy; three specifications of rape; tw o specifications of indecent conduct; two specifications of forcible sodomy; and one specificatio n of assault, in violation of Articles 81, 120, 125, and 128, Uniform Code of Military Ju stice, 10 U.S.C. §§ 881 920, 925, 928 (2006 & Supp. IV 2011) [hereinafter UCMJ]. The panel sentenced appellant to a dishonorab le discharge, confinement for eighteen months, and reduction to the grade of E- 1. The convening auth ority approved the sentence as adjudged.WILLIS–ARMY 20120999

2 We now review appellant’s case under Article 66, UC MJ. One of appellant’s two assignments of error wa rrants discussion and relief. Appe llant argues his convictions for conspiracy to commit rape , conspiracy to com mit forcible oral sodomy, and conspiracy to commit forcible anal sodomy (Specifi cations 1, 2, and 3 of Charge III, respectively ) constitute a sing le conspiracy. We agree. The remaining assignment of er ror and the matters raised personally by appellant

pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) do not warrant relief. Additionally, although not raised by the partie s, we consolidate appellant’s two indecent acts specifications in to a single specification.

BACKGROUND

On or about 12 November 2011, appellant and his fri ends, Private First Class (PFC) JC, Private (PV1) AB, and PFC AP, traveled from Fort Lee, Virginia, to Colonial Heights, Virginia , on a weekend pass from A dvanced Individual Training (AIT). There appellant and his fr iends rented a room at Candlewood Suites.

After checking into the hotel, appellant saw PV1 KE, a female soldier, in the hotel lobby. Private KE was attending AIT at Fort Lee wi th appellant. Private KE was also on pass and stay ing at the hotel with frie nds. Appellant and PV1 KE previously had a sexu al encounter during AIT.

Appellant approached PV1 KE and began flirting with her and kissing her. Appellant guided PV1 KE into the elevator, un buckled his pants and attempted to

undress PV1 KE. When the el evator door opened, PFC JC was standing outside the elevator door. Appellant led PV1 KE to hi s room. Private First Class JC followed.

Private AB and PFC AP were already present inside th e room. Once inside the room, appellant continued to kiss PV1 KE and attempted to remove her cl othes in an

effort to have sexual inte rcourse. Private KE, however , refused to have sex while

others were in the room. Appellant directed the thr ee other soldiers to leave the room, which they did. Appe llant proceeded to have cons ensual sex with PV1 KE.

Once finished, appellant got up and open ed the hotel room doo r. Private First

Class JC and PV1 AB came back into the ro om. At this point, PV1 KE was still naked on the bed. She go t up, grabbed some of her clothes and went into the bathroom. Appellant and PV1 AB foll owed PV1 KE into the bathroom and suggested she perform oral sex on one of th em while simultaneously having vaginal

sex with the other. Private KE refu sed and walked out of the bathroom.

After leaving the bath room, PV1 AB pushed PV1 KE onto the bed, climbed on top of her, and began “grinding” on her while appellant stood at the foot of the bed and PFC JC stood to the right of the bed. Private AB got up and continued to ask PV1 KE for oral sex but she refused. Appe llant repositioned PV1 KE on the bed,WILLIS–ARMY 20120999

3 and despite her protests, pulled her pants down to her ankles and forced his penis inside her vagina while holdi ng her legs to his chest.

While appellant was doing th is, PFC JC tried to put his erect penis in PV1

KE’s mouth but PV1 KE turned her head and refused. Seei ng this, appellant said “I got you, battle,” slapped PV1 KE’s thigh, and forcefully thrust his penis inside her vagina, thereby resulting in her opening her mouth. Private First Class JC inserted his penis into PV1 KE’s mout h and while holding her head in place with both his

hands. Private AB left the room.

Appellant and PFC JC then switched places. While PFC JC forcibly penetrated PV1 KE’s va gina with his pe nis, appellant forcibly or ally sodomized her.

At some point, wanting to switch agai n, appellant pushed PFC JC off PV1 KE and pulled PV1 KE on top of him onto a chair, with he r facing away from him. Appellant then directed PV1 KE to engage in vaginal se xual intercourse with him

while he was seated in the chair, but she refused and attempted to get up. When PV1 KE tried to stand up, appellant moved her back to the bed, bent her over at the waist and penetrated her vagina again with his penis.

Private First Class JC wanted to have sex again so he su ggested one of them

have anal sex with her whil e the other had vaginal sex. Appellant then rolled PV1

KE over so that he was u nderneath her penetrating her vaginally, holding her down face-to-face on top of him, while PFC JC pe netrated her anus with his penis. When PV1 KE yelled stop, PFC JC laughed, and then he stopped , got dressed and left the

room.

Appellant then put PV1 KE on her back and continued to penetrate her vagina until he ejaculated. Appellan t got up and sa id “get dressed, battl e” to PV1 KE.

LAW AND DISCUSSION

Conspiracy

Appellant was found guilty, inter alia , of three separate specifications of conspiracy: conspiracy to commit rape, co nspiracy to commit forcible oral sodomy and conspiracy to commit forcible anal so domy. At trial, defe nse counsel asked the court to consolidate the three conspiracy specifications on the basis that there was only one conspiracy. The military judge denied the defense motion. Appellant argues here that he should only be convicted of a sing le conspiracy.

A conspiracy exists when one “enter s into an agreemen t with” another and “performs an overt act for the purpose of bringing about th e object of theWILLIS–ARMY 20120999

4 conspiracy.” Manual for Courts-Mar tial, United States (2008 ed.) [hereinafter

MCM ], Part IV, ¶ 5.b. As we noted in United States v. Finlayson :

“[C]onspiracy is a pa rtnership in crime.” Pinkerton v. United States

, 328 U.S. 640, 644 (1946). The essence of a co nspiracy is in the “agreement or confederation to comm it a crime, and that is what is punishable as a conspiracy, if any overt act is take n in pursuit of it.” United States v. Bayer , 331 U.S. 532 , 542 (1947); see Braverman v.

United States , 317 U.S. 49, 53 ( 1942). As such, it is ordinarily the agreement that forms the unit of pros ecution for conspira cy, “even if it contemplates the commission of severa l offenses.” Ro llin M. Perkins & Ronald N. Boyce, Criminal Law 683 (3rd ed. 1982) (citing

Braverman , 317 U.S. at 53); see United States v. Pereira , 53 M.J. 183, 184 (C.A.A.F. 2000) (finding singl e conspiracy to commit murder, robbery, and kidnapping); cf. United States v. Universal C. I. T. Credit Corp ., 344 U.S. 218, 221 & n.3 (1952) (intro ducing concept of “unit of prosecution”)

. . . .

Whether a single c onspiracy or multipl e conspiracies ex isted in a given circumstance is a question of fact determined by reference to the totality of the circumstances. See United States v. Fields , 72 F.3d 1200, 1210 (5th Cir. 1996); 16 A M

. J UR . 2D Conspiracy § 11 (2002). As the United States Supreme Co urt noted long ago, “the character and effect of a conspiracy [a re] not to be judged by di smembering it and viewing its separate parts, but only by looking at it as a whole.” United States v.

Patten , 226 U.S. 525, 544 (1913).

58 M.J. 824, 826-27 (Army Ct. Crim . App. 2003) (footnote omitted); see also

Braverman , 317 U.S. at 53 (1942) (“The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one”); Pereira , 53 M.J. at 184 (“A single agreement to commit multiple offenses ordinarily constitutes a sing le conspiracy.”).

The factors used to determine the numbe r of conspiracies include: “(1) the objectives and (2) nature of the scheme in each alleged conspiracy ; (3) the nature of the charge and (4) the overt acts alleged in each; (5) the time and (6) location of each of the alleged conspiraci es; (7) the conspiratorial pa rticipants in each; and (8) the degree of interdependence between the alleged conspiracies.” Finlayson , 58

M.J. at 827.

After weighing these factors, we conclude, under th e totality of the circumstances, appellant and his co-con spirator, PFC JC, engaged in a singleWILLIS–ARMY 20120999

5 conspiracy with diverse means to effectuate the object of the conspiracy – namely, to sexually assault PV1 KE. While the nature of the crim inal enterprise evolved and

the overt acts of each sexu al offense alleged are differe nt, the sexual na ture of the objective of the conspiracy is the same. The three underlying crimes alleged in each conspiracy are all of a sexual nature. Each act took place at the same location during the same episode or course of conduct. The pa rticipants in the three conspiracy specifications ar e the same and thei r acts are interdependent. Many of the object offenses occurred simultaneously and some occurred at the urging of a coconspirator while other sexual offenses were ongoing. Given the facts of this case,

we conclude that sufficient facts to di stinguish separate c onspiracies from one another do not exist, and appellant and hi s co-conspirator had a single criminal agreement to commit multiple crimes.

Indecent Acts and Unreasonable Multiplication of Charges

Although not raised by the parties, we find an unre asonable multiplication of charges for appellant’s two convictions for indecent acts under Article 120(k), UCMJ. “What is substantially one transaction sh ould not be made the basis for an unreasonable multiplication of charges against one person .” Rule for Courts–Martial 307(c)(4). The prohibition against un reasonable multiplic ation of charges

“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. 20 12) (quoting United States v. Quiroz , 55 M.J. 334, 337 (C.A.A.F. 2001)). In Quiroz , our superior court li sted five factors to guide our analysis of whether charges have been unreasonably multiplied:

(1) Did the accused obje ct at trial th at there was an unreasonable multiplication of charges and/or specifications?;

(2) Is each charge and specificatio n aimed at distinctly separate criminal acts?;

(3) Does the number of charges and specifications misrepresent or exaggerate the appe llant’s criminality?;

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

(5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?

55 M.J. at 338–39 (internal quotation marks omitted).WILLIS–ARMY 20120999

6 The elements of “indecen t acts” are: (1) the accused engaged in certain conduct; and (2) the conduct was i ndecent conduct. MCM, Part IV, ¶ 45.b.(11).

“Indecent conduct” is “that fo rm of immorality relating to sexual impur ity that is grossly vulgar, obscene, and repugnant to comm on propriety, and tends to excite sexual desire or deprave mo rals with respect to sexua l relations.” UCMJ, art. 120(t)(12). Indecent acts has traditiona lly included fornication committed “openly and notoriously.” See United States v. Izquierdo , 51 M.J. 421, 422 (C.A.A.F. 1999); United States v. Berry , 6 U.S.C.M.A. 609 , 614, 20 C.M.R. 325, 330 (1956) (both cases considering indecent acts char ged under Article 134 , UCMJ).

The record reflects that two indecent ac ts which took place in the presence of others arose during the course of the same transaction. Under th e facts of this case, we find the unit of prosecutio n is the open and notorious nature in which the sexual offenses took place, not the number of sexu al acts which were do ne in an open and notorious way. Application of the Quiroz factors to the eviden ce elicited during the colloquy requires the consolidation of the particulars in Specifications 4 and 5 of Charge I

CONCLUSION

After consideration of the entire record of trial, ap pellant’s assi gnments of error, and the matters personally raised by appellant pursuant to Grostefon

, Specifications 2, 3, and 4 of Charge III are consolidated into a single specification, numbered Specification 2 of Charge III, to read as follows:

In that Private (E-2) Marquill Willis, U.S. Army, did at or near Colonial Heights, Virginia, on or about 12 November 2011, conspire with Private First Class Jeremy Champion to commit

offenses under the Uniform Code of Military Justice, to wit: rape, forcible oral sodomy, and forcible anal sodo my, and in order to effect the objects of the conspiracy the said Private (E-2) Marquill Willis, penetrated Private (E-1) K. Y.E.’s vulva with his penis; and caused Private K.Y.E. to open her mouth by hitting her upper thigh, allowing Private First Class Jeremy Champion to put his penis in her mouth; and held the body of Private (E -1) K.Y.E. with his hands and penetrated the vulva of Private (E-1) K.Y.E. with his penis, allowing Private First Class Jeremy Champion to penetrate the anus of Private (E-1) K.Y.E.

The findings of guilty of Spec ifications 3 and 4 of Charge III are set aside and those specifications are dismissed.

Renumbered Specifications 4 an d 5 of Charge I are cons olidated into a single specification, renumbered Spec ification 4 of Charge I, to read as follows:WILLIS–ARMY 20120999

7 In that Private (E-2) Ma rquill Willis, U.S. Ar my, did at or near Colonial Heights, Virginia, on or about 12 November 2011, wrongfully commit indece nt conduct, to wit: engaging in oral sodomy and sexual in tercourse in the pres ence of others.

The finding of guilty of renum bered Specification 5 of Char ge I is set aside and that specification is dismissed.

Those consolidated specifications are AFFIRMED. The remaining findings of guilty are AFFIRMED. We ar e able to reassess the se ntence on the basis of the errors noted, and do so af ter conducting a t horough analys is of the totality of circumstances presented by appellant’s case and in accordance with the principles articulated by our superior court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305 (C.M .A. 1986). In evaluating the Winckelmann factors, we find no dram atic change in the penalty landscape or exposu re which might cause us paus e in reassessing appellant’s sentence. Second, a lthough appellant was sentenced by members, here, this factor carries less weight because the remainin g offenses do not “add ress service custom,

service discrediti ng conduct or co nduct unbecoming.” Winckelmann , 73 M.J. at 16. Third, the gravamen of appellant’s misc onduct remains unchang ed. Finally, based on our experience, we are familiar with the remaining offenses so that we may reliably determine what sentence would have been imposed at trial. After reassessing the sentence base d on the entire record, the se ntence is AFFIRMED. We

find this reassessed sentence is not only purged of any error but is also appropriate. All rights, privileges, and pr operty, of which appellant ha s been depriv ed by virtue of that portion of the fi ndings set aside by our decision, are ordered restored.

Senior Judge TOZZI and Ju dge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: