United States v. Torinese ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, T.H. CAMPBELL
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ANTHONY M. TORINESE
LANCE CORPORAL (E-3), U.S. MARINE CORPS
NMCCA 201500129
GENERAL COURT-MARTIAL
Sentence Adjudged: 3 December 2014.
Military Judge: Col D.J. Daughtery, USMC.
Convening Authority: Commanding General, 3d Marine
Logistics Group, Okinawa, Japan.
Staff Judge Advocate's Recommendation: Maj N.C. Evans,
USMC.
For Appellant: CDR Ricardo Berry, JAGC, USN.
For Appellee: CAPT Dale O. Harris, JAGC, USN; LT James M.
Belforti, JAGC, USN.
5 November 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of one
specification of attempted sexual assault of a child; two
specifications of attempted sexual abuse of a child; one
specification of indecent exposure; one specification for
indecent language; and one specification of wrongfully
soliciting a person he believed to be a minor to have sexual
intercourse with him, contrary to Articles 80, 120(c), and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920(c), and
934), respectively.1 The military judge sentenced the appellant
to confinement for eighteen months, reduction to pay grade E-1,
total forfeiture of pay and allowances, and a bad-conduct
discharge. The convening authority approved the adjudged
sentence.
The appellant now claims that the three specifications
under Article 80 constitute an unreasonable multiplication of
charges. We disagree. The findings and sentence are correct in
law and fact, and we find no error materially prejudicial to the
substantial rights of the appellant. Arts. 59(a) and 66(c),
UCMJ.
Background
Between 29 April and 13 May 2014, the appellant engaged in
a series of sexually explicit text messages with “Savannah,” who
the appellant met through the internet.2 During the course of
their conversations, Savannah told the appellant that she was
fifteen years old. Nonetheless, the appellant continued to
engage in text conversations with her, including one in which
the appellant asked Savannah to have sex with him, serving as
the basis for Specification 1 of Charge I.3 In another
electronic conversation, the appellant sent her a picture of his
exposed penis and used explicit language to encourage Savannah
to masturbate. These two offenses, committed in the same
electronic conversation, served as the basis for Specifications
2 and 3 of Charge I.4
1
After findings, the military judge granted the defense motion to
conditionally dismiss Charges II and III for unreasonable multiplication of
charges.
2
“Savannah” was actually a Master-at-Arms Second Class working undercover for
the Naval Criminal Investigative Service.
3
Charge I: Violation of UCMJ, Article 80:
Specification 1: In that [the appellant] Corps, while on active duty, did, on
or near Camp Foster, Japan, between on or about 29 April 2014 and on or about
13 May 2014, attempt sexual assault of a child, by requesting, encouraging
and directing an individual, who [he] believed had not attained the age of
sixteen years, to have sexual intercourse with him.
4
Charge I: Violation of UCMJ, Article 80:
Specification 2: In that [the appellant], while on active duty, did, on
or near Camp Foster, Japan, between on or about 29 April 2014 and on or
about 13 May 2014, attempt sexual abuse of a child, by committing a
2
Before trial, the military judge asked counsel whether
there were any issues of unreasonable multiplication of charges.
The parties responded in the affirmative, agreeing that although
the appellant would plead guilty to all charges and
specifications, Charges II and III represented an unreasonable
multiplication of charges for sentencing and should therefore be
merged. They also agreed that the three specifications of
Charge I were separate offenses.5 Accordingly, trial defense
counsel moved to conditionally dismiss Charges II and III.
Trial defense counsel did not include Charge I or its
specifications in this motion. The military judge reserved
ruling on the motion until after findings.
The appellant then pled guilty to all of the charged
specifications in accordance with his pretrial agreement. The
Government then admitted a stipulation of fact signed by the
appellant that set forth facts to support the elements of each
of the specifications in question. The stipulation described
factual differences between the specifications, specifically
describing the first as an attempt to encourage and plan a
sexual encounter with Savannah, the second as using language he
knew to be indecent with Savannah in an attempt to persuade
Savannah to masturbate, and finally the third as deliberately
sending Savannah a picture of his exposed genitalia in an effort
to persuade Savannah to send him a picture of her in the nude –
which all reflected attempts to gratify the appellant’s sexual
desire.
The judge reviewed these factual distinctions during the
Care inquiry, specifically asking the appellant to differentiate
between Specification 1 of Charge I (attempted sexual assault of
a child by requesting, encouraging and directing a minor to have
sexual intercourse with him) and Specification 2 of Charge I
(attempted sexual abuse of a child by communicating indecent
language to a minor). The appellant responded that in the first
lewd act, to wit: communicate indecent language, to wit: . . . or words
to that effect, with an intent to arouse and to gratify his sexual
desire; to an individual, who [he] believed had not attained the age of
sixteen years.
Specification 3: In that [the appellant], while on active duty, did, on
or near Camp Foster, Japan, between on or about 29 April 2014 and on or
about 13 May 2014, attempt sexual abuse of a child, by committing a
lewd act, to wit: intentionally exposing his genitalia, with an intent
to arouse and to gratify his sexual desire; to an individual, who [he]
believed had not attained the age of sixteen years.
5
Appellate Exhibit III.
3
he was trying to get Savannah to have sex with him, and in the
second, he was trying to encourage her to masturbate.
Satisfied that the appellant was provident, the military
judge found him guilty of all charges and specifications. He
then granted the defense’s motion and conditionally dismissed
Charges II and III.6 The maximum punishment was recalculated to
reflect only the three specifications under Charge I. Finally,
when asked if he wished the military judge to consider any other
matters before sentencing. Trial defense counsel replied, “No,
Sir.”7
Discussion
The appellant now claims -- for the first time and contrary
to his position at trial -- that the three specifications of
Charge I constitute an unreasonable multiplication of charges
because they were all done for the ultimate purpose of having
intercourse with a minor. After reviewing the record and the
pleadings of both parties, we find the appellant waived this
issue at trial.
Waiver occurs when the appellant “affirmatively, knowingly,
and voluntarily relinquishes the issue at trial.” United States
v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001) (citation and
internal quotation marks omitted); see also United States v.
Elespuru 73 M.J. 326, 328 (C.A.A.F. 2014) (“waiver is ordinarily
an intentional relinquishment or abandonment of a known right or
privilege” (citation and internal quotation marks omitted)).
Under normal circumstances, issues that are waived at trial are
not subject to appellate review. See United States v. Gladue,
67 M.J. 311, 313 (C.A.A.F. 2009) (noting that when “an appellant
intentionally waives a known right at trial, it is extinguished
and may not be raised on appeal” (citations omitted)). Whether
charges have been unreasonably multiplied is an issue subject to
waiver. See, Gladue, 67 M.J. at 314 (“[t]he caution against the
unreasonable multiplication of charges is not a constitutional
imperative . . . [and] a party may knowingly and voluntarily
waive such a nonconstitutional right” (citations omitted)).
In determining whether a particular circumstance
constitutes waiver “we consider whether the failure to raise the
object at the trial level constituted an intentional
relinquishment of a known right.” United States v. Campos, 67
6
See United States v. Thomas, 74 M.J. 563, 568-70 (N.M.Ct.Crim.App. 2014)
regarding conditional dismissal.
7
Record at 89.
4
M.J. 330, 332 (C.A.A.F. 2009) (citation omitted). “The
determination of whether there has been an intelligent waiver
. . . must depend, in each case, upon the particular facts and
circumstances surrounding that case[.]” Elespuru, 73 M.J. at
328 (citation and internal quotation marks omitted).
We find the appellant waived the issue for which he now
seeks appellate review. First, he entered into a pretrial
agreement and signed a detailed stipulation of fact discussing
the differences between the three specifications now at issue.
See United States v. Jespersen, 2012 CCA LEXIS 674, *7,
unpublished op. (N.M.Ct.Crim.App. 31 May 2012) (per curiam)
(holding that the record reflected waiver on the issue of
unreasonable multiplication of charges because the appellant
entered into a pretrial agreement, signed two detailed
stipulations of fact describing the conduct in each
specification, pled guilty to the separate specifications, and
failed to raise an objection on the issue.) Second, the
appellant deliberately excluded the specifications now being
challenged from a motion to dismiss other offenses as an
unreasonable multiplication of charges, pled guilty to these
specifications, and agreed that they were separate, distinct
offenses. See Campos, 67 M.J. at 333 (the doctrine of waiver
applies when the appellant has advance notice of the issue and
responds “no” when asked by the military judge whether there are
any objections to that issue); United States v. Gates, 2002 CCA
LEXIS 96, *4-7 (N.M.Ct.Crim.App. 30 Apr 2002) (holding that the
appellant waived the issue of multiplicity when he conceded that
the charges were separate with distinct elements on the record
and then made the “conscious decision” to not object to the
issue.); United States v. Wardenburg, 2000 CCA LEXIS 313, *9-10,
(N.M.Ct.Crim.App. 16 May 2000) (holding that waiver resulted
when the appellant was given notice of the possible unreasonable
multiplication of charges by the military judge, declined to
object, and proceeded to plead guilty). Taken together, we find
the appellant’s actions at trial are consistent with an
affirmative, voluntary, and knowing relinquishment of rights.
Article 66(c), UCMJ, permits us to consider all claims of
unreasonable multiplication of charges, even if raised for the
first time on appeal. While, we may “properly refuse to apply
the doctrine of waiver,” United States v. Evans, 28 M.J. 74, 76
(C.M.A. 1989), the appellant fails to address, let alone offer
any justification for declining to apply the waiver rule, and we
find no reason in this case to do so.
5
Conclusion
The findings of guilt and the sentence as approved by the
convening authority are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
6