UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, TELLITOCCI, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist RYAN J. OFFUTT
United States Army, Appellant
ARMY 20120804
Headquarters, XVIII Airborne Corps and Fort Bragg
G. Brett Batdorff and Michael J. Hargis, Military Judges
Colonel Paul S. Wilson, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Lieutenant Colonel Jonathan R. Potter; Captain Aaron R. Inkenbrandt (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Daniel M. Goldberg, JA (on brief).
22 October 2014
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SUMMARY DISPOSITION
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TELLITOCCI, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of failure to obey a lawful general regulation and maltreatment
of a subordinate (two specifications), in violation of Articles 92 and 93, Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 892 and 893. The
military judge sentenced appellant to a bad-conduct discharge, confinement for six
months, and reduction to the grade of E-1. The convening authority approved the
adjudged sentence.
This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error. One assignment of error warrants discussion and
relief, in turn leaving the other assignment of error moot. 1
1
Appellant also personally raises issues pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), none of which merit discussion or relief.
OFFUTT — ARMY 20120804
BACKGROUND
While deployed to Afghanistan in 2011, appellant was assigned to a platoon-
sized element stationed at Combat Outpost (COP) Palace in Zangabad. In August of
2011, Private (PV2) DC arrived at COP Palace. From the start, PV2 DC struggled
with his duties and, as a result, the more senior soldiers in the unit, including the
appellant, began to subject PV2 DC to abusive and degrading treatment.
The providence inquiry clearly detailed that the abusive activities that formed
the basis for the Article 92 conviction (Charge I, Specification 2) 2 were, in part, the
same instances of misconduct for which appellant was convicted of maltreatment
under Article 93. During the colloquy with the military judge for the Article 92
violation, the appellant admitted that he was guilty of the offense because he
engaged in cruel and abusive conduct by directing racially disparaging language at
PV2 DC, by physically prodding, kicking, and dragging PV2 DC, by throwing rocks
at PV2 DC, and by forcing PV2 DC to engage in excessive exercises, low crawling,
and other unnecessary and unjustified conduct.
Appellant was convicted of the two maltreatment specifications by directing
racially disparaging language at PV2 DC (Charge II, Specification 1), and by
kicking, grabbing, and throwing rocks at PV2 DC (Charge II, Specification 2). This
conduct was the exact same conduct that was clearly and specifically included in the
colloquy between the military judge and the appellant during their discussion of the
hazing offense. The following portion of the colloquy from the beginning of the
discussion concerning the maltreatment offense is illustrative:
Military Judge: Okay. Now you have talked to me about
some conduct in relation to the violation of the order. Was
there any conduct that you believe constituted maltreatment
beyond what we have not discussed – or beyond what we
have discussed?
Accused: That’s all I remember, sir.
Military Judge: Okay. Well, let’s talk about what you did.
We talked about how a reasonable person might view
certain conduct as it related to AR 600-20. Let’s talk about
2
Both specifications of Charge I alleged a violation of Army Reg. 600-20, Army
Command Policy, para. 4-20 (Hazing) (18 Mar. 2008) (RAR, 27 Apr. 2010).
Specification 1 of Charge I was dismissed after arraignment but before entry of
pleas.
2
OFFUTT — ARMY 20120804
all of the conduct that you engaged in that you’ve told me
about.
DISCUSSION
The record reflects that the conduct forming the basis for the regulatory
violation was broader in scope than the more narrowly described misconduct in the
maltreatment specifications. It is also clear, however, that when discussing the
maltreatment offenses, the military judge repeatedly referred back to the underlying
conduct that had already been fully inquired into when he and appellant had
previously discussed the regulatory violation.
In short, appellant now stands convicted for failing to obey Army Regulation
600-20’s proscription against “hazing,” as well as two counts of maltreating a
subordinate by subjecting that subordinate to the very same conduct.
Appellant, in his first assignment of error, contends the three specifications
are an unreasonable multiplication of charges. Appellant requests that we set aside
and dismiss the findings of guilty to the Article 93 offenses (Specifications 1 and 2
of Charge II, and Charge II). 3
“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). We consider five factors to determine whether charges have been
unreasonably multiplied:
(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
3
Appellant’s second assignment of error alleges that, under the facts of this case,
Article 93 precludes prosecution for a violation of 600-20’s hazing policy. This
assignment of error is mooted by our resolution of the first issue.
3
OFFUTT — ARMY 20120804
(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) (internal citation and
quotation marks omitted). .
We agree with appellant that he suffered an unreasonable multiplication of
charges. The Article 92, UCMJ, charge sought to punish appellant for violating a
general regulation prohibiting the same conduct for which he was also convicted
under Article 93. “Congress never intended this multiplication of offenses.” United
States v. Curry, 28 M.J. 419, 424 (C.M.A 1989). Factors three and four favor the
appellant. See United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (noting
one or more factors may be sufficiently compelling, without more, to warrant relief).
Accordingly, we will dismiss the specific maltreatment offenses as an unreasonable
multiplication of charges with the broader disobedience offense.
CONCLUSION
On consideration of the entire record and the assigned errors, the findings of
guilty of Specifications 1 and 2 of Charge II and Charge II are set aside and those
specifications and that charge are dismissed. We AFFIRM the remaining findings of
Guilty.
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 the 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) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure which might cause us pause in reassessing appellant’s
sentence. Second, appellant pleaded guilty in a judge-alone, general court-martial.
Third, we find the nature of the remaining offenses captures the gravamen of the
original specifications, and the circumstances surrounding appellant’s conduct
remain admissible with respect to the remaining offense. Finally, 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.
Reassessing the sentence based on the noted error and the entire record, we
affirm only so much of the approved sentence as provides for a bad-conduct
discharge and reduction to the grade of E-1. 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 the findings set
aside by this decision are ordered restored. See UCMJ arts. 58b(c) and 75(a).
4
OFFUTT — ARMY 20120804
Senior Judge COOK and Judge HAIGHT concur.
FOR
FOR THE
THE COURT:
COURT:
ANTHONY O. POTTINGER
ANTHONY
Chief O. POTINGER
Deputy Clerk of Court
Chief Deputy Clerk of Court
5
United States v. Specialist RYAN J. OFFUTT
Combined Opinion