United States v. Second Lieutenant JOSEPH J. LEE

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Second Lieutenant JOSEPH J. LEE
United States Army, Appellant
ARMY 20140265
Headquarters, 25th Infantry Division
Craig S. Denney and David L. Conn, Military Judges
Colonel Mark A. Bridges, Staff Judge Advocate (pretrial)
Lieutenant Colonel Toby N. Curto, Acting Staff Judge Advocate (recommendation)
For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Patrick A. Crocker, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA; Captain
Robyn M. Chatwood, JA (on brief).
13 January 2016
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SUMMARY DISPOSITION
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CAMPANELLA, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of three specifications of aggravated sexual abuse with a child
under twelve years of age and one specification of assault consummated by battery
of a child under sixteen years of age in violation of Articles 120b and 128, Uniform
Code of Military Justice, 10 U.S.C. §§ 920b and 928 (2012) [hereinafter UCMJ]. 1
The military judge sentenced appellant to a dismissal from the service and thirty
months confinement. The convening authority approved the sentence as adjudged.
1
Appellant attempted to plead guilty to the lesser included offense of assault
consummated by battery for one of the Article 120b specifications, however, the
military judge found appellant guilty, with minor substitutions, of the greater
offense.
LEE—ARMY 20140265
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, one of which warrants discussion and relief. We
also find that the matters raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982) to be meritless.
BACKGROUND
Eleven-year-old KG and her sister fell asleep on a neighbor’s couch while
waiting for their parents to leave a party being held at the same house. It was past
the girls’ usual bedtime.
When KG awakened, she found herself in the downstairs bathroom – with
appellant kissing her bare stomach. Her clothes were on but her shirt was above her
stomach. As appellant touched KG, he told her she had a sexy stomach. Shortly
after, appellant’s hands were touching her waistline and he tried to pull down her
shorts. Realizing what was going on, KG testified she “pulled [her shorts] back up,”
pushed appellant away, and tried to leave the bathroom. Appellant grabbed her by
the arm and unsuccessfully tried to pull her back into the bathroom. As KG walked
out, Ms. LJ, the homeowner, witnessed KG leaving the bathroom followed by
appellant. Ms. LJ knew appellant was not KG’s father and became suspicious as to
what occurred in the bathroom with appellant.
KG immediately informed her parents that appellant had touched her
inappropriately. As a result of appellant’s actions, he was convicted of three
specifications of aggravated sexual assault of KG. Specification 1 of Charge I
alleges appellant committed a lewd act by “touching and kissing [the victim’s]
abdomen while saying ‘you have a sexy stomach’ or words to that effect.”
Specification 2 of Charge I alleges appellant committed a lewd act by “touching her
abdomen, torso, and pelvic area.” Specification 3 of Charge I alleges appellant
committed a lewd act by “lifting her t-shirt and pulling down her shorts.”
LAW AND DISCUSSION
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). “[T]he prohibition against unreasonable multiplication 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. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to guide our analysis of
whether charges have been unreasonably multiplied:
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LEE—ARMY 20140265
(1) Did the accused object at trial that there was an unreasonable
multiplication of charges and/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?; and
(5) Is there any evidence of prosecutorial overreaching or abuse in the
drafting of the charges?
55 M.J. 338 (internal quotation marks omitted).
Application of the Quiroz factors in this case balances in favor of appellant
and requires a finding of unreasonable multiplication of charges for Specifications 1,
2 and 3 of Charge I for findings. 2 Appellant stands convicted of three crimes which
are essentially the same acts and address appellant’s continuous course of conduct -
touching her abdomen and waistline.
Miss KG awoke with her shirt lifted and appellant kissing her abdomen and
telling her she had a “sexy stomach.” Appellant lifted her t-shirt in order to touch
and kiss her abdomen. This misconduct is addressed in Specification 1 of Charge 1
(touching and kissing the abdomen while saying ‘you have a sexy stomach’),
Specification 2 of Charge 1 (touching her abdomen and torso), and Specification 3
of Charge 1 (lifting her t-shirt). Shortly after, appellant touched her waistline and
attempted to pull down her shorts. Arguably, the “waistline” includes the abdomen,
torso, and pelvic area. This misconduct is addressed in Specification 1 of Charge 1
(touching the abdomen), Specification 2 of Charge 1 (touching her abdomen and
torso, and pelvic area), and Specification 3 of Charge 1 (pulling down her shorts).
Because all three of these specifications allege essentially the same misconduct
which took place contemporaneously, these specifications are unreasonably
multiplied.
CONCLUSION
After consideration of the entire record of trial, Specifications 1, 2, and 3 of
Charge I are consolidated into a single specification, denominated The Specification
of Charge I, to read as follows:
2
The government also concedes that these specifications are unreasonably multiplied
and should be consolidated into a single specification.
3
LEE—ARMY 20140265
In that [appellant], U.S. Army, did at or near Schofield
Barracks, Hawaii, on or about 4 May 2013, commit a lewd
act upon [Miss KG] to wit: lifting her t-shirt, touching her
abdomen, torso, and pelvic area and kissing her abdomen
while saying “you have a sexy stomach” or words to that
effect, and pulling down her shorts; and that at the time,
[Miss KG] had not attained the age of 12 years.
The findings of guilty of Specification 2 and 3 of Charge I are set aside and
DISMISSED. The finding of guilty of The Specification of Charge 1, as so
amended, is AFFIRMED. The remaining findings of guilty are AFFIRMED.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis 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). In
evaluating the Winckelmann factors, we first find no change in the penalty landscape
that might cause us pause in reassessing appellant’s sentence. The military judge
merged Specifications 1, 2 and 3 of Charge I for sentencing. Appellant was tried
and sentenced by a military judge. The nature of the new consolidated offense
captures the gravamen of the original offenses and the circumstances surrounding
appellant’s conduct. Lastly, 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. Based on the entire record and appellant’s course of conduct,
we are confident the military judge would have imposed a sentence of at least that
which was adjudged. See United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986).
Reassessing the sentence based on the noted error and the entire record, we
AFFIRM the sentence as adjudged. We find this reassessed sentence is not only
purged of any error but is also appropriate. All rights, privileges, and property, of
which appellant has been deprived by virtue of that portion of his findings set aside
by our decision, are ordered restored.
Senior Judge TOZZI and Judge CELTNIEKS concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN
Acting P. of
Clerk TAITT
Court
Acting Clerk of Court
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