UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CELTNIEKS, BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist RAYMOND J. COOPER
United States Army, Appellant
ARMY 20150425
Headquarters, 2d Infantry Division
Mark A. Bridges, Military Judge
Lieutenant Colonel Lance S. Hamilton, Staff Judge Advocate (pretrial)
Lieutenant Colonel Timothy P. Hayes, Jr. (post-trial)
For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Heather L.
Tregle, JA; Captain Katherine L. DePaul, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Cormac M. Smith, JA (on brief).
7 November 2016
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SUMMARY DISPOSITION
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TOZZI, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of aggravated assault with a means likely
to inflict death or grievous bodily harm in violation of Article 128, Uniform Code of
Military Justice, 10 U.S.C. § 928 (2012) [hereinafter UCMJ]. The military judge
convicted appellant, contrary to his pleas, of attempted murder and aggravated
assault in which grievous bodily harm was intentionally inflicted, in violation of
Articles 80 and 128, UCMJ, 10 U.S.C. §§ 880, 928 (2012). The military judge
sentenced appellant to a dishonorable discharge, confinement for twenty years, and
reduction to the grade of E-1. The convening authority approved only so much of
the sentence as provided for a dishonorable discharge, confinement for fifteen years
and eleven months, and reduction to the grade of E-1. The convening authority also
credited appellant with 267 days confinement credit against the sentence to
confinement.
COOPER—ARMY 20150425
This case is before us for review under Article 66, UCMJ. Appellant’s sole
assignment of error warrants discussion and relief. In particular, appellant argues
that the military judge abused his discretion by merging Specification 1 of Charge I
and Specification 1 of Charge II for sentencing purposes rather than dismissing
Specification 1 of Charge II for findings where both charges are based upon the
same conduct. We agree and grant relief in our decretal paragraph. Appellant’s
personal submissions raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), other than the issue of unreasonable multiplication of charges
discussed herein, do not warrant relief.
BACKGROUND
Appellant was charged, inter alia, with the following violations of the UCMJ:
CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 80
SPECIFICATION 1: In that [appellant], U.S. Army, did, at
or near Camp Casey, Republic of Korea, between on or
about 20 September 2014 and 21 September 2014, with
premeditation and intent to kill, attempt to murder PFC
[C.L.C.], by stabbing him with a knife in the chest and the
neck.
CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 128
SPECIFICATION 1: In that [appellant], U.S. Army, did, at
or near Camp Casey, Republic of Korea, between on or
about 20 September 2014 and 21 September 2014, commit
an assault upon PFC [C.L.C.] by stabbing him in the chest
and neck, and did thereby intentionally inflict grievous
bodily harm upon him, to wit: puncture his lung and
injure his spinal cord.
The military judge found appellant guilty of the above specifications. * After
findings, the military judge discussed the issues of multiplicity and unreasonable
multiplication of charges with regard to Specification 1 of Charge I and
Specification 1 of Charge II. The military judge ruled that the specifications were
neither multiplicious nor an unreasonable multiplication of charges for findings.
The military judge did, however, find Specification 1 of Charge I and Specification
1 of Charge II to be an unreasonable multiplication of charges for sentencing.
*
We note that appellant was found guilty of Specification 1 of Charge I and
Specification 1 of Charge II by exceptions and substitutions, excepting the word
“chest” and substituting the word “back” in both specifications.
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COOPER—ARMY 20150425
LAW AND DISCUSSION
“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?;
(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) (internal alteration reflects the holding in Quiroz that
“unreasonably” will be utilized instead of “unfairly”).
“Unreasonable multiplication of charges is reviewed for an abuse of
discretion.” United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) quoting
United States v. Monday, 52 M.J. 625, 628 n. 8 (Army Ct. Crim. App. 1999). Here
the military judge properly analyzed all of the Quiroz factors but one in rendering
his decision that the charges were not unreasonably multiplied for findings. In
analyzing the second Quiroz factor, the military judge relied upon principles of
multiplicity law. The military judge stated:
The two charges and specifications arguably are aimed at
distinct acts, and separate acts. I recognize it’s the same
act of stabbing, but as I said before, the 128 offense
requires actual infliction of grievous bodily harm, whereas
the attempted murder charge does not. So arguably, under
those circumstances, we could be discussing a separate act
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COOPER—ARMY 20150425
or a separate result certainly, based on these offenses.
Although again, that’s a close call because we are talking
about the same stabbing.
We find the military judge erred in relying too heavily on the elemental
analysis normally performed in reviewing specifications for multiplicity. Here, it is
clear that the gravamen of Specification 1 of Charge I and Specification 1 of Charge
II were the same criminal act, the stabbing of PFC C.L.C. in the neck and back. As
the military judge acknowledges that this was a close call, that close call was
informed by a reliance upon factors more suited for multiplicity than the
unreasonable multiplication of charges. Therefore, we find that the military judge
abused his discretion.
CONCLUSION
On consideration of the entire record, the matters submitted pursuant to
Grostefon, and the assigned error, the finding of guilty of Specification 1 of Charge
II is set aside and that Specification is DISMISSED. The remaining findings of
guilty are AFFIRMED. Reassessing the sentence on the basis of the error noted, the
entire record, and in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013), the sentence is AFFIRMED. 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.
Judge CELTNIEKS and Judge BURTON concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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