United States v. Solomon

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, K.M. MCDONALD, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
ALLEN J. SOLOMON
PRIVATE FIRST CLASS (E-2), U.S. MARINE CORPS
NMCCA 201100582
GENERAL COURT-MARTIAL
Sentence Adjudged: 9 September 2013.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Logistics Group, Marine Forces Pacific, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: LtCol E.J. Peterson,
USMC.
For Appellant: LCDR Ryan C. Mattina, JAGC, USN.
For Appellee: LCDR Jeremy Brooks, JAGC, USN; Maj Crista D.
Kraics, USMC.
21 August 2014
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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:
This case is before us for a second time. The appellant
was originally convicted of violating a lawful general order,
wrongful use of a controlled substance, abusive sexual contact,
indecent conduct, drunk and disorderly conduct, and obstruction
of justice in violation of Articles 92, 112a, 120, and 134,
Uniform Code of Military Justice, 10 U.S.C. § 892, 912a, 920,
and 934. The appellant was sentenced to six years’ confinement,
reduction to pay grade E-1, total forfeiture of pay and
allowances, and a dishonorable discharge. The convening
authority (CA) approved the sentence as adjudged, and, except
for the dishonorable discharge, ordered it executed.
In our initial decision, United States v. Solomon, No.
201100582, 2012 CCA LEXIS 291, unpublished op. (N.M.Ct.Crim.App.
31 July 2012), this court set aside a finding of guilty as to
the two specifications under Article 134, UCMJ, for failure to
state the terminal element, dismissed those specifications, and
affirmed the remaining findings of guilty. We also reassessed
the sentence and affirmed a sentence of confinement for four
years and the remainder of the approved sentence.
The Court of Appeals for the Armed Forces reversed this
court’s decision as to the abusive sexual contact and indecent
conduct specifications, affirmed the remaining findings, set
aside the sentence, and authorized a rehearing. United States
v. Solomon, 72 M.J. 176, 183 (C.A.A.F. 2013).
On rehearing, a military judge sitting as a general court-
martial convicted the appellant, pursuant to his pleas, of one
specification each of abusive sexual contact, indecent exposure,
and drunk and disorderly conduct in violation of Articles
120(h), 120(n), and 134, UCMJ. The appellant was sentenced to
confinement for five years and six months, reduction to pay-
grade E-1, and a dishonorable discharge.1 In accordance with the
pretrial agreement, the CA disapproved confinement in excess of
time served (977 days), approved the remainder of the adjudged
sentence and, except for the dishonorable discharge, ordered the
sentence executed.
The appellant now alleges two assignments of error: (1)
that the indecent exposure and abusive sexual contact charges
constitute an unreasonable multiplication of charges; and, (2)
that appellant’s sentence was inappropriately severe.
After reviewing the record of trial and the pleadings of
the parties, we hold that the appellant’s conviction for
indecent exposure is an unreasonable multiplication of charges
with the abusive sexual contact offense; we take corrective
action in our decretal paragraph. After our corrective action,
we find the remaining findings of guilty and approved sentence
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The military judge also considered the appellant’s violations of Articles 92
and 112a, UCMJ, when determining this sentence.
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correct in law and fact, and no errors materially prejudicial to
the substantial rights of the appellant remain. Arts. 59(a) and
66(c), UCMJ.
Factual Summary
In the early morning of 17 December 2010, the appellant
pulled Lance Corporal (LCpl) K’s belted jeans down to his
ankles, along with his boxer shorts. LCpl K, the appellant’s
roommate, was asleep at the time. The appellant lay on top of
LCpl K and rubbed his exposed genitals against LCpl K’s. LCpl K
pushed the appellant off and asked what he was doing. The
appellant did not respond, but returned to his own bed. LCpl K
turned on the light, pulled up his pants, and walked over to the
appellant’s bed to confront him. The appellant was lying on the
bed naked and clutching a cell phone to his chest. LCpl K took
the phone from the appellant and found three photos of his
exposed genitals. After a struggle with LCpl K, appellant
deleted the photos in front of LCpl K, who then immediately
reported the incident. The appellant had been drinking that
evening and had ingested ecstasy, a Schedule I controlled
substance.
Unreasonable Multiplication of Charges
In his first assignment of error, the appellant avers that
the abusive sexual contact and indecent exposure specifications
constitute an unreasonable multiplication of charges. We agree.
The prohibition against unreasonable multiplication of
charges allows this court to address prosecutorial overreaching
by imposing a standard of reasonableness. United States v.
Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007); 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 a five-part test: (1) did the accused object at trial; (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? United States v. Quiroz, 55 M.J. 334, 338
(C.A.A.F. 2001). When conducting a Quiroz analysis, we are
mindful that “[w]hat is substantially one transaction should not
be made the basis for an unreasonable multiplication of charges
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against one person.” RULE FOR COURTS-MARTIAL 307(c)(4), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2012 ed.).
At trial, the appellant did not object to the charges as
being unreasonably multiplied even though the pretrial agreement
contained no provision which required him to affirmatively waive
any motions. See Appellate Exhibit II. This factor weighs
heavily in favor of the Government,
The second and third criteria favor the appellant. The
military judge’s pprovidence inquiry into the indecent exposure
charge involved the same factual scenario as the sexual contact
charge. Record at 52. Here, the appellant exposed himself in
order to affect the sexual contact with LCpl K. What was one
transaction became the basis of two separate charges. The
appellant also satisfies the fourth criterion: he faced one
additional year of confinement once convicted of the indecent
exposure offense. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.),
App. 12.
The last factor also favors the appellant. While the
elements of the two subject specifications differ, suggesting no
prosecutorial overreaching or abuse, we recognize that this one
transaction has been parsed into component parts in order to
allege two offenses. The Government also brought this charge
against the appellant on rehearing even though the military
judge at the appellant’s original trial dismissed the indecent
exposure charge as “multiplicious”2 with the sexual contact
charge. Record of 11 July 2011 at 426; Staff Judge Advocate’s
Pretrial Advice of 29 July 2013 at 2.
Accordingly, Specification 2 of the Third Additional Charge
must be dismissed as an unreasonable multiplication of charges
with Specification 1 of that Charge.
Sentence Reassessment
Having dismissed Specification 2 of the Third Additional
Charge, we must also determine whether to reassess the sentence
in accordance with the principles set forth in United States v.
Cook, 48 M.J. 434, 438 (C.A.A.F. 1998). “A ‘dramatic change in
the penalty landscape' gravitates away from the ability to
2
This dismissal comports with a dismissal for unreasonable multiplication of
charges rather than with the doctrine of multiplicity connected to the
constitutional prohibition against double jeopardy. See United States v.
Campbell, 71 M.J. 19 (C.A.A.F. 2012) (comparing unreasonable multiplication
of charges with multiplicity).
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reassess" a sentence. United States v. Buber, 62 M.J. 476, 479
(C.A.A.F. 2006) (quoting United States v. Riley, 58 M.J. 305,
312 (C.A.A.F. 2003)). Upon reassessment, we conclude that there
has not been a dramatic change in the penalty landscape as a
result of our action, and that the sentence as adjudged and
approved is appropriate and no greater than would have been
adjudged but for the error noted. Id.Sentence Severity
In his other assignment of error, the appellant contends
that his sentence is inappropriately severe. The appellant
requests that this court affirm a bad-conduct discharge rather
than a dishonorable discharge.
“Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular appellant ‘on the basis of the
nature and seriousness of the offense and character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).
After reviewing the entire record, we find that the
sentence is appropriate for this offender and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005);
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268.
Conclusion
The finding of guilty of Specification 2 of the Third
Additional Charge is set aside and that specification is
dismissed. The remaining findings are affirmed. The sentence
as approved by the CA is affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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