Document Info

DocketNumber: ARMY 20080774

Filed Date: 2/24/2009

Status: Non-Precedential

Modified Date: 4/17/2021

  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    SULLIVAN, COOK, and BAIME
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Staff Sergeant EDGAR L. OLIVA, JR.
    United States Army, Appellant
    ARMY 20080774
    Headquarters, U.S. Army Basic Combat Training Center of Excellence
    and Fort Jackson
    Tara A. Osborn, Military Judge
    Lieutenant Colonel Christopher B. Valentino, Staff Judge Advocate
    For Appellant:  Major Grace M. Gallagher, JA; Major Julie Caruso Haines,
    JA.
    For Appellee:  Lieutenant Colonel Francis C. Kiley, JA.
    24 February 2009
    -------------------------------------
    SUMMARY DISPOSITION
    -------------------------------------
    Per Curiam:
    This case is before us for review under Article 66, Uniform Code of
    Military Justice [hereinafter UCMJ], 
    10 U.S.C. §866
    .  Although appellant’s
    case was submitted to us on the merits, we found error in the findings of
    the court-martial as described below.
    Appellant, a drill sergeant, was charged, inter alia, with two
    instances of aggravated sexual assault on a soldier-in-training, in
    violation of Article 120, UCMJ (Specifications 1 and 2 of Charge II).
    Specification 1 of Charge II alleged appellant caused the victim, Private
    (PVT) MG, to engage in a sexual act, i.e., penetration of her genital
    opening with appellant’s finger, by causing bodily harm in the form of
    bruises on her arm.  Specification 2 of Charge II alleged appellant engaged
    in a sexual act, i.e., penetration of PVT MG’s genital opening with his
    finger, by placing her in fear of appellant’s abuse of his military
    position to affect negatively her career.  Appellant pled not guilty to the
    specifications as charged but guilty to the lesser included offenses of
    wrongful sexual contact, i.e., placing his fingers in PVT MG’s vagina
    without legal justification or authorization and without her consent.
    Essentially, appellant pled to the identical criminal conduct and acts for
    both specifications of Charge II.  The government did not try to prove any
    of the additional misconduct charged in those two specifications and the
    military judge found appellant guilty as pled.  Defense counsel sought no
    findings relief but the military judge did grant the motion to find the
    specifications multiplicious for sentencing purposes.
    Under these unique circumstances, we find Specifications 1 and 2 of
    Charge II multiplicious for findings.  See United States v. Paxton, 
    64 M.J. 484
    , 490 (C.A.A.F. 2007) (quoting United States v. Teters, 
    37 M.J. 370
    , 373
    (C.M.A. 1991)) (multiplicity occurs if a court imposes multiple convictions
    for the same act or course of conduct); United States v. Quiroz, 
    55 M.J. 334
     (C.A.A.F. 2001).
    Accordingly, we set aside the findings of guilty to and dismiss
    Specification 2 of Charge II.  We have reviewed appellant’s other
    assignments of error, including those personally raised, and find them to
    be without merit.  Reassessing the sentence of the basis of the error noted
    and the entire record, and applying the principles of United States v.
    Sales, 
    22 M.J. 305
     (C.M.A. 1986) and United States v. Moffeit, including
    Judge Baker’s concurring opinion, 
    63 M.J. 40
    , 43 (C.A.A.F. 2006), we hold
    the remaining findings of guilty and the sentence as approved by the
    convening authority correct in law and fact.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court