United States v. Abbott ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201600375
_________________________
UNITED STATES OF AMERICA
Appellee
v.
JUSTIN M. ABBOTT
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Keith A. Parrella, USMC.
Convening Authority: Commanding General, II Marine
Expeditionary Force, Camp Lejuene, NC.
Staff Judge Advocate’s Recommendation: Colonel K. Scott Woodard,
USMC.
For Appellant: Major Benjamin A. Robles, USMC.
For Appellee: Major Kelli O’Neal, USMC; Captain Brian L. Farrell,
USMC.
_________________________
Decided 26 February 2018
_________________________
Before M ARKS , H UTCHISON , and J ONES , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
JONES, Judge:
A military judge sitting as a general court-martial convicted the
appellant, contrary to his pleas, of four specifications of sexual abuse of a
child and two specifications of indecent exposure, in violation of Articles 120b
and 120c, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b and
920c (2012). The military judge sentenced the appellant to reduction to pay
United States v. Abbott, No. 201600375
grade E-1, forfeiture of all pay and allowances, confinement for five years,
and a dishonorable discharge. The convening authority approved the
adjudged sentence and, except for the dishonorable discharge, ordered it
executed.
The appellant asserts three assignments of error (AOEs). AOE I alleges
that the military judge abused his discretion when he failed to “consolidate”
two of the sexual abuse of a child specifications—Charge I, Specifications 6
and 7—with one of the indecent exposure specifications—Charge II,
Specification 2.1 The appellant also contends that all three offenses were
unreasonably multiplied and should be considered as one for both findings
and sentencing. In AOEs II and III, the appellant claims all of his convictions
were factually insufficient.2
We do not find consolidation of findings appropriate, but Charge II,
Specification 2 should be merged with Specifications 6 and 7 of Charge I for
sentencing. We reassess the sentence and conclude the findings and sentence
are correct in law and fact, and find no error materially prejudicial to the
appellant’s substantial rights. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
On 30 November 2015, the appellant masturbated while driving his truck
next to a school bus filled with high school students. Four girls on the bus
testified they saw the appellant’s penis. Later that same day, the appellant
followed a 13-year-old girl through base housing, communicating indecent
language to her, propositioning her, and masturbating in front of her. She
also saw his penis. The next day, the appellant again drove next to the same
school bus, masturbating. On this occasion, two students under the age of
sixteen, J.R. and F.J. witnessed the appellant’s indecent exposure.
II. DISCUSSION
We have fully considered and summarily reject the appellant’s second and
third AOEs alleging factual insufficiency.3 Our discussion focuses on the
appellant’s first AOE, unreasonable multiplication of charges.
A. Unreasonable multiplication of charges
“What is substantially one transaction should not be made the basis for
an unreasonable multiplication of charges against one person.” RULE FOR
COURTS-MARTIAL 307(c)(4), MANUAL FOR COURTS-MARTIAL, UNITED STATES
1 Appellant’s Brief of 15 May 2017 at 1.
2 Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3 United States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
2
United States v. Abbott, No. 201600375
(2016 ed.). Unreasonable multiplication of charges is a concept distinct from
multiplicity. United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F. 2001). It
“addresses those features of military law that increase the potential for
overreaching in the exercise of prosecutorial discretion.” Id. A military judge’s
unreasonable multiplication of charges ruling is reviewed for an abuse of
discretion. United States v. Campbell, 71 M.J. 19, 22 (C.A.A.F. 2012).
Charges may constitute unreasonable multiplication either as applied to
findings or as applied to sentencing. Id. at 23. We consider five non-exclusive
factors to determine whether there is an unreasonable multiplication of
charges:
(1) Whether the appellant objected at trial;
(2) Whether each charge and specification is aimed at distinctly separate
criminal acts;
(3) Whether the number of charges and specifications misrepresents or
exaggerates the appellant’s criminality;
(4) Whether the number of charges and specifications unreasonably
increases the appellant’s punitive exposure; and,
(5) Whether there is any evidence of prosecutorial overreaching or abuse
in the drafting of the charges.
See Quiroz, 55 M.J. at 338-39.
No one factor is dispositive. Instead, these factors are weighed together,
and “one or more. . . . may be sufficiently compelling[.]” Campbell, 71 M.J. at
23. While some factors may be more pertinent when assessing an
unreasonable multiplication of charges as to findings, others pertain more to
sentencing. The nature of the harm implicated directly affects the remedy a
military judge should craft. In cases in which there is an unreasonable
multiplication of charges as to findings, the military judge should ordinarily
resolve the harm through consolidation of the specifications. This is
accomplished by “combining the operative language from each specification
into a single specification that adequately reflects each conviction.” United
States v. Thomas, 74 M.J. 563, 568-69 (N-M. Ct. Crim. App. 2014) (footnote
omitted). In cases in which there is an unreasonable multiplication of charges
as to sentencing, the military judge should ordinarily resolve the harm
through merging the specifications for sentencing. In this situation, each
affected specification remains, but the maximum punishment available is
reduced to that of the greatest offense merged. In other words, the accused
should be punished as if the affected specifications or charges were but a
single offense. Id.3
United States v. Abbott, No. 201600375
1. Unreasonable multiplication of charges of sexual abuse of a child and
indecent exposure for findings
To capture the appellant’s misconduct on 1 December 2015, the
government charged two specifications of sexual abuse of a child under
Article 120b, UCMJ, and one specification of indecent exposure under Article
120c, UCMJ:
Charge I, Specification 6: In that [the appellant], did . . . on
or about 1 December 2015, commit a lewd act upon J.R., a
child, who had not attained the age of 16 years, to wit:
masturbating in her presence.
Charge I, Specification 7: In that [the appellant], did . . . on
or about 1 December 2015, commit a lewd act upon F.J., a
child, who had not attained the age of 16 years, to wit:
masturbating in her presence.
Charge II, Specification 2: In that [the appellant], did . . . on
or about 1 December 2015, expose, in an indecent manner, his
genitalia.4
Before findings, the appellant argued that Charge II, Specification 2
should be dismissed because it amounted to an unreasonable multiplication
of charges with Charge I, Specifications 6 and 7. In the alternative, he argued
that Specifications 6 and 7 of Charge I should be consolidated because they
addressed the same conduct “they occurred at the same time and the same
place.”5
The military judge applied the Quiroz factors and explained his reasons
for concluding that the appellant could be found guilty of both indecent
exposure and the two lewd acts against children for masturbating alongside
the school bus. In his written ruling, the military judge cited United States v.
Rinkes, 53 M.J. 741, 743 (N-M. Ct. Crim. App. 2000). In Rinkes, we held that
his act of public masturbation in front of a child and an adult woman who
happened by were properly charged as separate specifications—taking
indecent liberties with a child and indecent exposure—because they were
4 Charge Sheet.
5 Record at 61. The defense counsel actually argued they should be “merged.”
However, it is clear that he meant “consolidate” the specifications at findings. The
term “merger” is more appropriately used for sentencing purposes. The appellate
defense counsel also misapplies terminology by framing AOE I as the military judge’s
failure to “consolidate” Specifications 6 and 7 of Charge I with Specification 2 of
Charge II, as these charges have different elements and are not conducive to
consolidation.
4
United States v. Abbott, No. 201600375
aimed at distinctly separate criminal acts, with separate societal goals. Id.Referring to Charge II, Specification 2, the indecent exposure charge in this
case, the military judge found that the appellant’s “exposure of his genitalia
to [others on the bus over the age of sixteen] is not covered by any other
charge or specification. As such, [Charge II, Specification 2 is] also aimed at
distinctly separate criminal acts and do[es] not misrepresent or exaggerate
the [appellant’s] criminality.”6
We find that the military judge did not abuse his discretion when he
found that Charge II, Specification 2—indecent exposure—and Charge I,
Specifications 6 and 7—sexual abuse of a child—were not an unreasonable
multiplication of charges for findings.
2. Unreasonable multiplication of charges of sexual abuse of a child for
findings
The military judge never analyzed the defense’s alternative contention
that Charge I, Specifications 6 and 7 should have been consolidated for
findings because they were an unreasonable multiplication of charges.7 We
review the issue now, de novo, by applying the Quiroz factors.
First, the appellant objected at trial. This factor favors the appellant.
Second, the two specifications are not aimed at distinctly separate
criminal acts. When the appellant drove next to the school bus masturbating
in front of J.R., he was also masturbating in front of F.J.; there was only one
actus reus. This factor also favors the appellant.
Third, the two specifications do not misrepresent or exaggerate the
appellant’s criminality. In United States v. Lacy, 53 M.J. 509 (N-M. Ct. Crim.
App. 2000), we were presented with facts similar to those in the appellant’s
case. There, the appellant was charged with exposing his genitals,
masturbating, and showing a pornographic video to two children
simultaneously. Each child victim was the subject of a separate specification,
and the appellant argued that the specifications should have been
6 Appellate Exhibit (AE) XXXII at 5.
7 It is clear the military judge understood consolidation. After finding the
appellant guilty of Charge I, Specifications 3-5, the military judge consolidated the
three specifications into one, as he said he would do in his earlier ruling. See AE
XXXII at 4; Record at 526. The specifications involved the appellant committing
sexual abuse of the 13-year-old girl he followed around base housing by
communicating indecent language to her at different times, over a several minute
time span, and at different locations around the housing area. The military judge
simply neglected to rule on the appellant’s motion with regard to Specifications 6 and
7.
5
United States v. Abbott, No. 201600375
consolidated. We rejected his position, finding that “cases involving indecent
liberties may be analogized to those involving ‘robbery, assault, or murder—
criminal offenses for which protection of the individual person as victim was
the well-established object.’ Consequently, each offense against a different
victim is a separately punishable crime.” Lacy, 53 M.J. at 510 (quoting
United States v. Scranton, 30 M.J. 322, 325 (C.M.A. 1990)) (citing United
States v. Parker, 38 C.M.R. 343, 344 (C.M.A. 1968); United States v. Peterson,
38 C.M.R. 346, 347 (C.M.A. 1968)).8 This factor weighs heavily in favor of the
government.
Fourth, the two specifications do not unreasonably increase the
appellant’s punitive exposure for findings. To be sure, each specification of
non-contact sexual abuse of a child carries a maximum of 15 years of
confinement,9 but that punitive concern is much more relevant when we
evaluate for unreasonable multiplication of charges for sentencing. As
discussed above, the law allows a conviction for each underage victim who
witnessed the appellant’s actions. The focus is on unreasonably increasing the
appellant’s punitive exposure, not merely an increase in the charges the
appellant may be found guilty of.10 This factor favors the government.
Last, there is no evidence of prosecutorial overreaching or abuse in the
drafting of the charges. This factor also favors the government.
Under the particular facts of this case, we find the third factor
particularly “compelling,” Campbell, 71 M.J. at 23, and we will continue to
adhere to our rationale in Lacy. Applying all of the Quiroz factors, we
conclude the two sexual abuse of a child specifications do not represent an
unreasonable multiplication of charges for findings, and we decline to
consolidate them.
But this does not end the analysis. Earlier, we found the military judge
did not abuse his discretion by concluding that the charges of sexual abuse of
a child and the indecent exposure specification were not unreasonably
8 Charges of larceny appear to be the only exception to this general proposition.
As a matter of policy, “[w]hen a larceny of several articles is committed at
substantially the same time and place, it is a single larceny even though the articles
belong to different persons.” Part IV, ¶ 46c(1)(c)(i)(ii), MANUAL FOR COURTS-MARTIAL
(MCM), UNITED STATES (2016 ed.).
9 MCM, Part IV, ¶ 45b.e(3)(b).
10 Each sexual abuse specification is aimed at protecting a different minor child
who witnessed the appellant’s misconduct. Contrast this with Quiroz, where we did
not allow two convictions—one charged under the UCMJ and one charged under the
U.S. Code—for the single act of selling government ordnance. Quiroz, 55 M.J. 334.
6
United States v. Abbott, No. 201600375
multiplied for findings. The question still remains, however, as to whether
the charges were unreasonably multiplied for sentencing.
3. Unreasonable multiplication of charges of sexual abuse of a child and
indecent exposure at sentencing
The military judge considered the charges separately for sentencing. He
stated that “for sentencing the court will not consider, [J.R.] or [F.J.] as
victims of the misconduct alleged in Specification 2 of Charge II as that same
conduct forms the basis for Specifications 6 and 7 of Charge I.”11 But this
concession does not equate to merging the charges and considering them as
one for sentencing. Again, we will apply the Quiroz factors de novo to
determine whether merger for sentencing is appropriate.
First, the appellant objected at trial. This factor favors the appellant.
Second, with regards to sentencing, the two charges are not aimed at
distinctly separate criminal acts. The military judge correctly ruled that
Charge II, Specification 2 was a distinctly separate criminal act for findings
because the appellant’s act of exposing his genitals to individuals on the bus
over the age of 16 was not covered by the abusive sexual contact
specifications under Charge I. Additionally, we have concluded that the two
sexual abuse of a child specifications—Specifications 6 and 7 of Charge I—are
not an unreasonable multiplication of charges for findings. But our conclusion
is different with regards to sentencing. Our ruling in Rinkes—that “separate
criminal acts, with separate societal goals” was permissible for findings—is
not applicable for sentencing. In fact, in Rinkes the military judge ruled that
the offenses were to be considered one for sentencing.12 Here, when the
appellant drove alongside the school bus masturbating in front of J.R. and
F.J., he was also masturbating in front of anyone else on the bus that
happened to see him; he committed one act. Generally “one act implicating
. . . separate criminal purposes” should be treated as one offense for purposes
of sentencing.13 This factor favors the appellant.
11 Record at 526.
12 The military judge actually considered them multiplicious for sentencing.
Rinkes, 53 M.J. at 741. But this was while the Quiroz case was on appeal to the
Court of Appeals for the Armed Forces, and so the concept of unreasonable
multiplication of charges was not available at the time of Rinkes’ trial.
13 Campbell, 71 M.J. at 25 (finding that the military judge did not abuse his
discretion in merging three offenses into one for purposes of sentencing). See also
United States v. Parker, No. 201400066, 2015 CCA LEXIS 9, at *14-16, unpublished
op. (N-M. Ct. Crim. App. 22 Jan 2015) (upholding the military judge’s decision at
trial to merge sodomy and adultery offenses occurring with the same person at the
same time while not merging similar offense with a separate person occurring over
7
United States v. Abbott, No. 201600375
Third, the charges misrepresent or exaggerate the appellant’s criminality.
The three disparate charges make it appear as though the appellant
committed three wholly different acts on 1 December 2015—indecent
exposure and two acts of sexual abuse of a child—which is not accurate. His
one act was exposing his penis as he masturbated alongside the bus. This
factor favors the appellant.
Fourth, the two charges, and three specifications, unreasonably increase
the appellant’s punitive exposure. In Rinkes, the appellant was at a special
court-martial, where the jurisdictional maximum could have been adjudged
for either offense. By contrast, the appellant faces 16 additional years of
confinement (15 years for the second sexual abuse of a child specification and
1 year for the indecent exposure specification). For sentencing, the increased
punishment misrepresents or exaggerates the appellant’s criminality. This
factor also favors the appellant.
Last, there is no evidence of prosecutorial overreaching or abuse in the
drafting of the charges. This factor favors the government.
Applying the Quiroz factors, we find they favor merging for sentencing all
three specifications—the sexual abuse of children in Charge I, Specifications
6 and 7, and the indecent exposure in Charge II, Specification 2. As we have
merged the charges, we must now reassess the appellant’s sentence.
B. Sentence reassessment
Courts of Criminal Appeals (CCAs) can often “modify sentences ‘more
expeditiously, more intelligently, and more fairly’ than a new court-
martial[.]” United States v. Winckelmann, 73 M.J. 11, 15 (C.A.A.F. 2013)
(quoting Jackson v. Taylor, 353 U.S. 569, 580 (1957)). In such cases, CCAs
“act with broad discretion when reassessing sentences.” Id. Reassessing a
sentence is only appropriate if we are able to reliably determine that, absent
the error, the sentence would have been at least of a certain magnitude.
United States v. Harris, 53 M.J. 86, 88 (C.A.A.F. 2000). A reassessed sentence
must not only “be purged of prejudicial error [but] also must be appropriate
two separate time periods); United States v. Jinetecabarcas, No. 20130444, 2015 CCA
LEXIS 122, at *17, unpublished op. (A. Ct. Crim. App. 27 Mar 2015), (finding that
“[b]ecause [the] appellant’s singular conduct . . . violated two orders that were
essentially the same order issued by two different officials, the military judge
appropriately merged these two specifications for sentencing purposes.”) (citation and
internal quotation marks omitted) (alteration in original); Cf. United States v. Ryan,
No. S32150, 2014 CCA LEXIS 217, *2, *8-9, unpublished op. (A.F. Ct. Crim. App. 28
Mar 2014) (finding the military judge did not abuse his discretion in declining to
merge specifications for drug possession and use, in part because the maximum
punishment was limited by referral to special court-martial).
8
United States v. Abbott, No. 201600375
for the offense involved.” United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986) (internal quotation marks omitted).
We base these determinations of appropriateness on the totality of the
circumstances of each case, guided by the following “illustrative, but not
dispositive, points of analysis”:
(1) Whether there has been a dramatic change in the penalty landscape or
exposure.
(2) Whether sentencing was by members or a military judge alone.
(3) Whether the nature of the remaining offenses captures the gravamen
of criminal conduct included within the original offenses and whether
significant or aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses.
(4) Whether the remaining offenses are of the type with which appellate
judges should have the experience and familiarity to reliably determine what
sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16.
Under all the circumstances presented, we find that we can reassess the
sentence and that it is appropriate for us to do so. First, there has not been a
dramatic change in the penalty landscape. Our merger for sentencing of the
three offenses reduced the maximum authorized confinement from 62 years
to 46 years. Although 16 years is significantly less punitive exposure for the
appellant, he was adjudged only 5 years’ confinement. Therefore, this does
not represent a dramatic change in the sentencing landscape.
Second, the appellant elected to be sentenced by a military judge, and we
are more likely to be certain of what sentence the military judge, as opposed
to members, would have imposed.
Third, the remaining offenses capture the gravamen of the criminal
conduct included within the original offenses. They accurately encapsulate
the appellant’s sexual abuse of a 13-year-old girl on base on 30 November
2015, as well as the two successive days of masturbating in front of a group of
students on a school bus. All of the significant and aggravating circumstances
addressed at the court-martial by both sides remain admissible and relevant
to the remaining offenses.
Last, the remaining offenses are of the type with which we have the
experience and familiarity to reliably determine what sentence would have
been imposed at trial. Taking these facts as a whole, we can confidently and
reliably determine that, absent the errors, the military judge would have
sentenced the appellant to at least five years’ confinement, reduction to pay
grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge.
9
United States v. Abbott, No. 201600375
We also conclude that the adjudged sentence is an appropriate punishment
for the modified offenses and this offender—thus satisfying the Sales
requirement that the reassessed sentence be not only purged of error, but
also appropriate. 22 M.J. at 308.
III. CONCLUSION
The findings and the sentence are affirmed.
Senior Judge MARKS and Senior Judge HUTCHISON concur.
For the Court
R.H. TROIDL
Clerk of Court
10