BOX – ARMY 20071166

**UNITED STATES ARMY COURT OF CRIMINAL APPEALS**

Before

GALLUP, CHIARELLA, and JOHNSON

Appellate Military Judges

**UNITED STATES, Appellee**

**v.**

**Private E1 JAMES A. BOX**

**United States Army, Appellant**

ARMY 20071166

Headquarters, 2nd Infantry Division

Donna M. Wright, Military Judge

Lieutenant Colonel Kevin M. Boyle, Staff Judge Advocate

For Appellant:  Colonel Christopher J. O’Brien, JA; Lieutenant Colonel Steven C. Henricks, JA; Major Sean F. Mangan; Captain Kathleena R. Scarpato, JA (on brief).

For Appellee:  Lieutenant Colonel Francis C. Kiley, JA; Captain Adam S. Kazin, JA; Captain Anthony O. Pottinger, JA (on brief).

27 February 2009

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SUMMARY DISPOSITION

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Per Curiam:

A military judge sitting as a special court-martial convicted appellant, consistent with his pleas, of conspiracy to commit larceny, making a false official statement, wrongful use of marijuana, and larceny (seven specifications), in violation of Articles 81, 107, 112a, and 121, Uniform Code of Military Justice,      10 U.S.C. §§ 881, 907, 912a and 921 [hereinafter UCMJ].  The convening authority approved the adjudged sentence to a bad-conduct discharge and confinement for ten months. This case is before us for review under Article 66, UCMJ. 

Appellant alleges, *inter alia*, that Specifications 3 and 7 of Charge IV are an unreasonable multiplication of charges.  We agree and will merge the two larceny specifications into one specification in our decretal paragraph.  We find appellant’s remaining assignments of error to be without merit.

**Law and Discussion**

“The prohibition against unreasonable multiplication of charges allows courts-martial and reviewing authorities to address prosecutorial overreaching by imposing a standard of reasonableness.”  *United States v. Roderick*, 62 M.J. 425, 433 (C.A.A.F. 2006).  In addressing whether the government has unreasonably multiplied charges, we apply the five-part *Quiroz* test:  (1) Did the accused object at trial that there was an unreasonable multiplication of****charges 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? *United States v. Pauling*, 60 M.J. 91, 95 (C.A.A.F. 2004) (citing *United States v.**Quiroz*, 55 M.J. 334, 338 (C.A.A.F. 2001)).

In this case, Specifications 3 and 7 of Charge IV involve a larceny of three items from the same victim, at the same time, from the same gym locker.  Although appellant stole three separate items, his acts should have been charged in one specification.   The government, however, improperly charged appellant with two specifications of larceny; Specification 3 of Charge IV alleging appellant stole the victim’s ATM card, and Specification 7 of Charge IV alleging appellant stole the victim’s cash and iPod.  

Under the *Quiroz*factors, Specifications 3 and 7 of Charge IV represent an unreasonable multiplication of charges.  Quite simply, appellant reached into the gym locker with both hands and the government elected to charge the property stolen with the left hand separate from the property stolen with the right hand.  Although appellant did not object at trial, this court may “consider all claims of unreasonable multiplication of charges, even if raised for the first time on appeal, and . . . consider waiver [or forfeiture] only ‘if an accused affirmatively, knowingly, and voluntarily relinquishes the issue at trial.’” *Quiroz*, 55 M.J. at 338 (quoting *United States v. Quiroz*, 53 M.J. 600, 606 (N.M. Ct. Crim. App. 2000)); *see*UCMJ art. 66.  There is no evidence appellant affirmatively, knowingly, and voluntarily waived this issue.  Furthermore, the two specifications are not aimed at distinctly separate criminal acts; and the specifications, as drafted, misrepresent and exaggerate the appellant’s criminality.  On balance, we find the specifications represent an unreasonable multiplication of charges and must be merged.  

With respect to appellant’s sentence, the military judge explicitly stated she considered Specifications 3 and 7 of Charge IV to be “multiplicious for sentencing purposes.”  Consequently, we affirm the approved sentence.

**Conclusion**

The court orders that Specifications 3 and 7 of Charge IV be merged into modified Specification 3 of Charge IV, and to read as follows:

In that Private James A. Box, U.S. Army, did at or near Camp Casey, Republic of Korea, on or about 23 June 2007, steal one Automated Teller Machine (ATM) Debit Card, money, and an iPod, of a value less than $500.00, the property of Specialist [CR].

The findings of guilty of the modified Specification 3 of Charge IV are affirmed.  The finding of guilty of Specification 7 of Charge IV is set aside and that specification is dismissed.  The remaining findings of guilty are affirmed.  Reassessing the sentence on the basis of the modified findings, 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 (C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring opinion, the sentence is affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court

� Judge CHIARELLA took final action in this case while on active duty.

� Specification 3 of Charge IV alleges:

In that Private James A. Box, U.S. Army, did at or near Camp Casey, Republic of Korea, on or about 23 June 2007, steal one Automated Teller Machine (ATM) Debit Card, of a value less than $500.00, the property of Specialist [CR].

Specification 7 of Charge IV alleges:

In that Private James A. Box, U.S. Army, did at or near Camp Casey, Republic of Korea, on or about 23 June 2007, money and an iPod, of a value less than $500.00, the property of Specialist [CR].

� The initial action by the convening authority, Major General John W. Morgan, III, failed to award appellant confinement credit of sixty-two (62) days against appellant’s sentence to confinement.  The subsequent action by the acting convening authority, Brigadier General Joe E. Ramirez, Jr., which attempted to award appellant confinement credit, was unsuccessful because the acting convening authority failed to withdraw the prior action.  We will remedy this error by awarding appellant sixty-two (62) days against his sentence to confinement.  

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