UNITED STATES NAVY-MARINE CORPS
                     COURT OF CRIMINAL APPEALS
                          WASHINGTON, D.C.

                                  Before
               K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                         Appellate Military Judges

                           UNITED STATES OF AMERICA

                                                v.

                          DUSTIN M. JOHNSTON
                     CORPORAL (E-4), U.S. MARINE CORPS

                                NMCCA 201400338
                            GENERAL COURT-MARTIAL

Sentence Adjudged: 2 May 2014.
Military Judge: LtCol Leon Francis, USMC.
Convening Authority: Commanding General, I Marine Expeditionary Force, U.S.
Marine Corps Forces Pacific, Camp Pendleton, CA .
Staff Judge Advocate's Recommendation: Col S.D. Marchioro, USMC.
For Appellant: LT Christopher C. McMahon, JAGC, USN.
For Appellee: Capt Cory A. Carver, USMC; LT Amy Freyermuth, JAGC, USN.

                                       21 January 2016

                        ---------------------------------------------------
                        PUBLISHED OPINION OF THE COURT
                      ---------------------------------------------------

MARKS, Judge:

       A panel of members with enlisted representation, sitting as a general court-martial, found
the appellant guilty, contrary to his pleas, of four specifications of sexual abuse of a child and
one specification of indecent exposure, in violation of Articles 120b and 120c, Uniform Code of
Military Justice, 10 U.S.C. §§ 920b and 920c. The members sentenced the appellant to eight
months’ confinement, reduction to pay grade E-1, total forfeitures, and a bad-conduct discharge.
The convening authority approved the sentence as adjudged.
        The appellant raised four assignments of error (AOE), three in his original brief and one
as a supplemental AOE:

       1. The evidence is legally and factually insufficient to sustain a conviction for
       indecent exposure under Article 120c, UCMJ.

       2. Article 120c, UCMJ, is overly broad and void for vagueness, both facially and
       as applied.

       3. The Government unreasonably multiplied charges against the appellant by
       charging a single series of text messages sent during a half-hour period as two
       specifications of committing a lewd act upon a child.

       4. The evidence is legally and factually insufficient to sustain a conviction for
       indecent exposure under Article 120c, UCMJ, because the statute does not apply
       to digital images.

        We find the evidence of indecent exposure factually insufficient and take corrective
action in our decretal paragraph. This moots the issue of legal insufficiency of the indecent
exposure offense as well as the second and fourth AOEs listed above. We find no unreasonable
multiplication of charges. Following our corrective action, we find that no error materially
prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ.

                                          Background

       The appellant met A.C. through an online social networking application in the fall of
2012. They chatted using the application’s messaging function for a day or two, and the
appellant shared his phone number with A.C. Days later, A.C. resumed contact with the
appellant by sending a text message to his phone number. From October 2012 until 12 January
2013, the appellant and A.C. exchanged approximately 2,000 text messages. The content of their
messages ranged from the mundane to graphic verbalizations of sexual fantasies, commonly
known as “sexting.” They also exchanged photos. A.C. sent the appellant six photos of herself,
none of which was sexually explicit. At least two of the photos the appellant sent A.C. featured
his exposed, erect penis.

        Throughout their electronic relationship, A.C. was 14 years old, and the appellant was 19
years old. The appellant asked A.C. her age shortly after meeting her online, and A.C. replied
she was 17. On or about 31 December 2012, A.C. informed the appellant she was in fact 14
years old. He reacted with what she interpreted to be anger. Communication between the
appellant and A.C. stopped for a few days. But the appellant resumed the texting and sexting
with A.C. and sent her at least one more picture of his penis. On 12 January 2013, A.C.’s mother
intercepted a text from the appellant and began exchanging messages with the appellant while
impersonating A.C.. A.C.’s mother alerted Marine Corps law enforcement, and all contact
between the appellant and A.C. ended. During the ensuing Naval Criminal Investigative Service


                                                2
(NCIS) investigation, NCIS recovered all or part of nearly 2,000 text messages between the
appellant and A.C. as well as the photos.

       The appellant was charged with indecent exposure under Article 120c for a photo he sent
between 1 and 31 December 2012.1 For a photo shared between 1 and 12 January 2013, the
appellant was charged with violation of Article 120b, sexual abuse of a child, by intentionally
exposing himself. The Government charged four additional specifications in violation of Article
120b for 13 of appellant’s sexually explicit text messages.

                                                    Analysis

Factual Sufficiency

        We review issues of factual sufficiency de novo. Art. 66(c), UCMJ; United States v.
Washington, 

, 399 (C.A.A.F. 2002) (citing United States v. Cole, 

, 272
(C.M.A. 1990)). The test for factual sufficiency is “whether, after weighing the evidence in the
record of trial and making allowances for not having personally observed the witnesses,” we are
ourselves “convinced of the accused's guilt beyond a reasonable doubt.” United States v. Turner,

, 325 (C.M.A. 1987). “Such a review involves a fresh, impartial look at the
evidence, giving no deference to the decision of the trial court on factual sufficiency beyond the
admonition in Article 66(c), UCMJ, to take into account the fact that the trial court saw and
heard the witnesses.” 

.

Indecent Exposure

           Article 120c(c), UCMJ, prohibits indecent exposure, as defined by three elements:

           (1)      The appellant exposed his or her genitalia, anus, buttocks, female areola,
                    or female nipple;

           (2)      That such exposure was intentional; and,

           (3)      That such exposure was done in an indecent manner.

10 U.S.C. § 920c(c). Unlike prior versions, this statute requires neither a public setting nor a
public view.2 By removing such an element, Congress sought to criminalize “situations in which

1
    Second Additional Charge II, Specification.
2
  From 1 October 2007 until 27 June 2012, Article 120(n), UCMJ, prohibited indecent exposure with the same three
elements above plus an additional element requiring public visibility: That the exposure occurred “in any place
where the conduct involved may reasonably be expected to be viewed by people other than members of the actor’s
family or household.” 10 U.S.C. § 920(n) (2007). Prior to 1 October 2007, indecent exposure was a violation of
Article 134, UCMJ, requiring “[t]hat the accused exposed a certain part of the accused’s body to public view in an
indecent manner[.]” MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005 ed.), Part IV, at ¶ 88 (emphasis
added). As an Article 134 offense, pre-2007 indecent exposure also included the terminal element “that, under the
circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of


                                                         3
the exposure is indecent – even if committed in a place where it would not be reasonably be [sic]
expected to be viewed by people other than the members of the actor’s family or household.”
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), App. 23, at ¶ 45c.a. This
amendment reflected the Court of Appeals for the Armed Forces’ (CAAF) more expansive
interpretation of indecent exposure in United States v. Graham, 

(C.A.A.F. 2002),
discussed infra. It also left “an indecent manner” as the only element making intentional
exposure criminal.

        Article 120c(d)(6) defines indecent manner as “conduct that amounts to a form of
immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to
common propriety, and tends to excite sexual desire or deprave morals with respect to sexual
relations.” Under past definitions, a public setting made indecent exposure easy to distinguish
from other intentional exposure. Intentional exposure in a public place will still satisfy the
element of indecency in most cases, but we must now consider how exposure in a more private
setting might violate the new statute. We turn to case law for objective factors to help define the
parameters of an indecent manner. Three factors emerge as hallmarks of indecent conduct: (1)
lack of consent; (2) involvement of a child; and/or (3) public visibility.

        1.    Consent

        Even in the most private of settings, the presence or absence of consent can determine
whether an intentional exposure is indecent. The official analysis of the new Article 120c
reveals that Congress “intended to criminalize non-consensual sexual misconduct that ordinarily
subjects an accused to sex offender registration.” MCM (2012 ed.), App. 23, at ¶ 45c (emphasis
added). Congress’ change reflected the evolution of indecent exposure jurisprudence in the
military courts.

        Ten years earlier, in Graham, the CAAF upheld a conviction for indecent exposure that
occurred in a private setting because of the witness’s lack of 

. In
Graham, the appellant invited his 15-year-old babysitter into his bedroom after he stepped out of
the shower. Then he let a towel wrapped around his waist drop to the floor, exposing his penis to
her. 

Graham challenged the factual and legal sufficiency of his conviction because
the applicable indecent exposure statute required public view of the accused’s body. 

67 (citing MCM (2000 ed.), Part IV, at ¶ 88b). The CAAF found that Graham’s exposure still
violated the statute because:

        [h]e did not expose himself to his spouse or girlfriend, or to a family member or
        other person involved with him in such a way that a given exposure might not be
        indecent. Appellant exposed himself to a fifteen-year-old girl who was
        completely unrelated to and uninvolved with him, and who neither invited nor
        consented to his conduct.



a nature to bring discredit upon the armed forces.” Our analysis does not focus on the removal of the terminal
element.


                                                         4
       ....

       Appellant exposed himself in the bedroom of his home - clearly a nonpublic
       place. But he did so "willfully . . . by inviting his babysitter into the bedroom
       and then allowing his towel to drop in front of her." [And in] this way, he made
       certain that an unsuspecting and uninterested member of the general population
       had no choice but to see him naked. That is indecent exposure, and as a result,
       appellant was properly convicted under this Court's precedent.

Lack of consent made private exposure indecent.

        On the other hand, invitation and consent can be equally dispositive in finding intentional
exposure is not indecent. Unlike the 15-year-old babysitter in Graham, the victim of indecent
exposure in United States v. Hockemeyer, No. 200800077, 2008 CCA LEXIS 310, *8,
unpublished op. (N.M.Ct.Crim.App. 2008) “was neither ‘unsuspecting’ nor ‘uninterested.’”
(quoting 

). Over a live, online video feed, Hockemeyer exposed his
penis to an undercover NCIS special agent posing as a 13-year-old girl named “Raven.” 

Hockemeyer was alone in front of his computer at home, and the NCIS agent posing as
“Raven” was alone at her computer as well. 

While this court found the NCIS agent to
be a member of the public, the online chat between “Raven” and Hockemeyer immediately
preceding his exposure evidenced her consent. 

Finding that Hockemeyer exposed
himself to an adult who had expressed her consent, the court concluded there was an inadequate
factual basis to Hockemeyer’s plea to indecent exposure, set aside the guilty finding, and
dismissed the charge and specification. 

       2.     Age

        Regardless of consent, determination of indecency also requires consideration of age.
Sexual abuse of a child includes intentionally exposing oneself “to a child [who has not attained
the age of 16 years] by any means, including via any communication technology, with an intent
to abuse, humiliate, or degrade any person, or to arouse the sexual desire of any person.” 10
U.S.C. § 920b(h)(5)(B). Intentional exposure before a child may also constitute indecent
exposure in violation of Article 120c(c), but our superior court has warned us that minority of
age does not, by itself, equate to indecency. The fact finder must analyze the specific
circumstances of a case before finding an indecent manner.

        In United States v. Baker, 

, 331 (C.A.A.F. 2002), the CAAF reversed a 19-
year-old Airman’s conviction for indecent acts with a 15-year-old girl. During deliberations, a
member of the general court-martial panel asked the military judge a question about the
definition of “indecent.” 

The CAAF found the military judge committed plain and
prejudicial error by failing to give additional tailored instructions on the meaning of indecent.

A properly tailored instruction would direct members to consider all facts and
circumstances of a case before finding indecency. 

According to the CAAF, the
military judge in Baker should have advised that the “appellant’s youthful age, the proximity in
age between appellant and [the alleged victim], their prior relationship, and the alleged victim’s


                                                 5
factual consent were circumstances that could be considered in deciding whether the charged
acts were indecent.” 

also clarified that sexual conduct between a service member and a child under
the age of 16 is not per se indecent. 

see also United States v. Strode, 

, 32
(C.A.A.F. 1995). In Strode, the CAAF affirmed the United States Air Force Court of Military
Review’s decision to set aside a guilty plea to indecent acts with a 13-year-old because of a
mistake of fact as to age. 

During the providence inquiry, Strode testified that at the
time of the indecent act he believed the victim was at least 16 years old. 

The military
judge erred by disregarding the mistake of fact as to age as irrelevant. 

The CAAF held
that “[m]istake of fact is available to a military accused who is charged with committing indecent
acts with a child under the age of 16 if he had an honest and reasonable belief as to the age of the
person and if the acts would otherwise be lawful were the prosecutrix age 16 or older.” 

Mistake of fact as to age remains an affirmative defense to sexual abuse of a child under Article
120b. MCM (2012 ed.), App. 23, at ¶ 45. Reasonably mistaking a minor for an adult is also
relevant to a determination of an indecent manner.

       3.   Public vs. Private

        Whether exposure is public or private is the third factor relevant to a determination of
indecency. Although no longer a requirement for indecent exposure, a public setting can still
render the manner of exposure indecent. On the other hand, a non-public setting can afford
protection for adults engaging in consensual sexual conduct even if others may consider it
indecent.

Right to Consenting Adults’ Private Behavior

        Just as the absence of consent, adulthood, or privacy may render sexual conduct indecent,
the presence of those three factors can shield the same conduct from criminal liability.

       The Supreme Court’s opinion in Lawrence v. Texas, 

(2003) nullified a state
law criminalizing homosexual sodomy and describing it as “‘deviate sexual intercourse with
another individual of the same sex.’” 

(quoting Tex. Penal Code Ann. §
21.06(a)(2003)). The court acknowledged:

       [T]hat for centuries there have been powerful voices to condemn homosexual
       conduct as immoral. The condemnation has been shaped by religious beliefs,
       conceptions of right and acceptable behavior, and respect for the traditional
       family. For many persons these are not trivial concerns but profound and deep
       convictions accepted as ethical and moral principles to which they aspire and
       which thus determine the course of their lives.

Despite the long history of social and religious denunciation of sodomy, the Court
noted that prosecutions were usually limited to “predatory acts against those who could not or
did not consent” or conduct in a public space, not “consenting adults acting in private.” 

Ultimately, the Court invalidated the Texas statute, finding a liberty right under the Due

                                                 6
Process Clause for consenting adults to engage in private sexual conduct without intervention of
the government. 

        Interpretations of what makes conduct indecent, and therefore criminal, must account for
the liberty interests of consenting adults acting in private. Fact finders applying the definition of
an indecent manner to intentional exposure must consider the totality of the circumstances, see

, including this non-exclusive list of factors: (1) the presence or absence of
consent, (2) age and whether the accused had a reasonable mistake of fact as to age, and (3)
whether the conduct occurred in a public or private setting.

Application

       With these three factors in mind, we review the factual sufficiency of this record,
beginning with evidence of consent or a lack thereof.

        The recovered text messages between A.C. and the appellant reveal dialogue typical of
two adolescents in a romantic relationship. They frequently referred to each other as “my love”
and “baby” and shared mundane details of their days from haircuts to a trip to the DMV to the
weather, movies, and what they were eating. During one conversation, A.C. complained to the
appellant, “I need you a lot right now I’ve never felt like this, dependant [sic] on another person
but right now I really need your arms to hold me,”3 and the appellant attempted to comfort and
cheer her. Although the appellant and A.C. did not go on dates, A.C. twice left home under false
pretenses to meet the appellant in a nearby park. They sat and talked for about an hour, and the
appellant kissed her. The 12 January 2013 text messages between the appellant and A.C.’s
mother, posing as A.C., revealed the appellant’s assumption that he was A.C.’s only boyfriend.

        The messages also depict A.C. as a willing and active participant in graphic sexual
fantasies shared via text, or “sexting.” She invited, encouraged, and reciprocated the appellant’s
verbalizations of oral sex and sexual intercourse with her, often pressing him for details.4
Regardless of their sincerity, A.C. repeatedly made explicit sexual overtures to the appellant.5
Her proposals evinced willingness to do more than simply view the appellant’s naked body. The
dates associated with two of these text messages reveal that A.C. sent them after receiving at
least one picture of the appellant’s penis.

        Admittedly, there is no evidence A.C. explicitly requested a photograph of the appellant’s
exposed penis. Among nearly 2,000 recovered text messages there is only one reference to an
image of an exposed penis, or “d--k pic.” On 11 January 2013, A.C. seemed to solicit a picture
of the appellant’s penis then immediately and clumsily retracted it:


3
    Defense Exhibit C at 17.
4
    Prosecution Exhibit 11 at 2; DE C at 1, 2, 5, 9.
5
    DE C at 2, 11, 13, and 24; PE 11 at 2-3.



                                                       7
           D--k pics lol
           Send me one lol I don’t have a d--k
           Jk I’m fine
           U wana d--k pic
           Haha maybe later just for me (:6

       By that date in their relationship, A.C. had already received the photos for which
appellant was charged. It is also significant that minutes after this exchange, A.C. mentioned she
was taking a bath and invited the appellant to join her.

       The volume and intimacy of the text messages between A.C. and the appellant are
evidence of a virtual but sexually charged relationship. Unlike the towel-clad father and
babysitter in Graham, the appellant and A.C. were involved with each other, embracing roles as
boyfriend and girlfriend in their intimate texted conversations.

         The sustained volleys of sexually explicit messages and A.C.’s repeated requests for
details of imagined sexual encounters with the appellant are inconsistent with claims that photos
of the appellant’s penis came without her invitation or consent. During the court-martial, trial
counsel asked A.C. how she felt when she first received a photo of the appellant’s penis in
December 2012. She responded, “It was uncomfortable and I – yeah. I didn’t like it very
much.”7 But the Government introduced no evidence that A.C. communicated this discomfort or
any lack of consent to the appellant. A.C. testified that she admitted her real age to the appellant,
hoping he would leave her alone. However, when he resumed his texts, she resumed her role as
his sexting partner. In fact, A.C. testified that she maintained the sexually explicit status quo: “I
just felt like I had to keep going with whatever I had done.”8 On balance, the sustained and
explicit sexual banter between A.C. and the appellant overwhelms the limited evidence that A.C.
did not consent to the appellant’s intentional exposure of his penis.

         We proceed to the ages of the appellant and the victim, 19 and 14 respectively. Sexual
conduct with a child under 16 is not indecent per se. See 

; 

. And as previously discussed, mistake of fact as to age is a defense to sexual abuse of a
child, which includes intentional exposure before a child. See 10 U.S.C. § 920b. Indecent
exposure under Article 120c(c) makes no reference to age or minority, prohibiting only
intentional exposure in an indecent manner. Still, age is relevant to determinations of indecency
as is a reasonable mistake of fact as to age. See 

.

        The Government essentially conceded that the appellant reasonably believed A.C. was 17
years old throughout December 2012, the period encompassed in the specification at issue.
During direct examination, A.C. testified that she told the appellant she was 17 years old shortly
6
 PE 16 at 47; DE C at 30-31. These text messages were recovered without data indicating who sent them, but the
content allows one to reasonably conclude who sent them.
7
    Record at 690.
8
    

they met in October 2012. Not until 31 December 2012 did she admit her true age in a
single text message to the appellant: “I’m 14.”9 Trial counsel prefaced his direct examination of
A.C. about the December 2012 indecent exposure by saying, “Now I want to go back to that
period before you told him that you were 14.”10 The Government introduced no evidence
challenging the reasonableness of the appellant’s belief about A.C.’s age before 31 December
2012. We are left with unrefuted evidence supporting the appellant’s reasonable mistake of fact
as to A.C.’s age during the period charged in the specification.

        Finally, we turn to potential public exposure to the appellant’s photo. The Government
presented no evidence A.C. or the appellant shared or posted these photos of the appellant’s
penis online or that anyone other than A.C. saw them. Fearful of her mother’s regular inspection
of her smartphone, A.C. carefully deleted all texts and photos from the appellant.

        Returning to the elements, the Government proved through the photographs themselves
that the appellant intentionally exposed his penis. The evidence, however, leaves us
unconvinced that he exposed himself in an indecent manner. The photograph’s “tend[ency] to
excite sexual desire” is apparent from the relationship and pattern of sexting surrounding it. But
the evidence points to private conduct toward someone he reasonably perceived to be a
consenting adult. This case has none of the three hallmarks of indecency but all three of the
factors comprising the liberty interest identified in Lawrence. Consent, age (or a reasonable
mistake of fact as to age), and privacy leave us with a reasonable doubt that the appellant’s
conduct was indecent. Therefore, we set aside the finding of guilty to the Second Additional
Charge II and its sole specification, violation of Article 120c(c) from 1-31 December 2012, for
factual insufficiency.

       Our ruling obviates the need to determine the issue of the legal sufficiency of this
conviction and moots the second and fourth AOEs listed earlier in this opinion.

Unreasonable Multiplication of Charges

         The appellant alleges that Specifications 3 and 4 of Additional Charge I11 present an
unreasonable multiplication of charges and should be merged for findings and sentence. Neither
in their Motion to Dismiss Multiplicious Specifications12 nor during trial did trial defense
counsel object to these two specifications as an unreasonable multiplication of charges. Thus
they forfeited the issue. Although forfeiture of an allegation of error normally requires the
appellant to show plain error, the widely used Quiroz test for unreasonable multiplication of


9
    

10
     

11
  After the withdrawal and dismissal of Additional Charge II, Additional Charge I should have been renamed
simply Additional Charge but was not. For consistency and clarity, we will refer to it as Additional Charge I.
12
     Appellate Exhibit III.



                                                         9
charges incorporates forfeiture of the issue. See United States v. Gladue, 

, 313
(C.A.A.F. 2009); cf. United States v. Quiroz, 

, 338 (C.A.A.F. 2001).

       RULE FOR COURTS-MARTIAL 307, MCM (2012 ed.) provides guidance on the preferral of
charges and specifications, and paragraph (c)(4) directs that “[e]ach specification shall state only
one offense. What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.”

        In Quiroz, with one minor exception, the CAAF ratified this court’s “‘framework for
determining whether a given multiplication of charges arising from the same act or transaction,
while permissible under Teters13, is nevertheless 

(quoting
United States v. Quiroz, 

, 607 (N.M.Ct.Crim.App. 2000)). The following factors
help us to determine whether there is an unreasonable “piling on” of charges or specifications:

           (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?

trial defense counsel filed a Motion to Dismiss Multiplicious
Specifications but failed to object to Specifications 3 and 4 of Additional Charge I. Thus, this
first factor of the Quiroz test weighs in the Government’s favor. See United States v.
MartinezMaldonado, 

, 699 (N.M.Ct.Crim.App. 2006).

        The second factor is whether each charge and specification is aimed at a distinctly
separate criminal act. Over a half hour period on a single day, the appellant sent eight lewd texts
to A.C. Specifically, the messages arrived at 23:28:00, 23:38:40, 23:41:39, 23:43:36, 23:48:57,
23:51:28, 23:54:52, and 23:55:44.14 The Government divided them into Specifications 3 and 4,
alleging the first four text messages in one specification and the last four in the other.

13
  United States v. Teters, 

, 377-78 (C.M.A. 1993) (holding that convictions for multiple offenses arising
from the same act or transaction are authorized absent Congressional intent to the contrary).
14
     PE 11 at 2.



                                                        10
        We disagree with the Government that Specifications 3 and 4 address distinct criminal
purposes simply by incorporating different messages. In United States v. Campbell, 

,
24-25 (C.A.A.F. 2012), the CAAF distinguished among Campbell’s decisions to access
prescription medications without authority and under false pretenses, to form the intent to steal
medications, and then to retain those stolen medications and found “each implicated multiple and
significant criminal law interests, none necessarily dependent on the others.” In this case, the
four text messages in Specification 3 implicate the same criminal purpose and the same criminal
law interest as the four text messages in Specification 4.

         Additionally, the eight text messages alleged in Specifications 3 and 4 clearly unfolded in
a single conversation. The appellant sent them in temporal proximity and as part of a cohesive,
albeit lewd, exchange with A.C. In between the charged messages, A.C. replied and the
appellant sent a few less colorful messages. Unlike emails sent mostly on separate days in
United States v. Cordle, No. 200600570, 2007 CCA LEXIS 135, at *6, unpublished op.
(N.M.Ct.Crim.App. 2007), the appellant’s text messages represent “‘a single staccato
conversation.’” 

       Although they are not distinctly separate, each text message was a separate lewd
communication from the appellant to A.C. The appellant typed each message, hit send, then
waited for a reply before typing and sending the next message. This series of eight messages
was a conscious and sustained repetition of the same criminal offense. But there is no
substantive distinction among the texts, much less between the texts in Specifications 3 and 4.
Thus, the second Quiroz factor supports the appellant.

        Next we analyze Specifications 3 and 4 in light of the third factor of the Quiroz test:
whether the number of charges and specifications misrepresents or exaggerates the appellant’s
criminality. Reasonableness must guide us in resolving the tension between charging a single
course of conduct or breaking out the individual acts that comprise that course of conduct. See

. In this case, the appellant was charged with sending 13 lewd text
messages over three days and now objects to distribution of those messages over four
specifications vice three. The Government could have consolidated all of the lewd text messages
in a single specification or maintained a pattern of charging the lewd texts sent on a single day as
a single specification. The decision to prefer and refer four specifications of the charge instead
of three is puzzling but not unreasonable. The third Quiroz factor favors the Government.

       The fourth Quiroz factor, whether the number of charges and specifications unreasonably
increases the appellant’s punitive exposure, is a different matter. Each violation of Article 120b
without sexual contact exposes an accused to an additional 15 years of confinement. The
appellant faced a maximum punishment of 61 years’ confinement so the additional specification
increased his potential confinement time more than 32%. Without a clearer justification, such a
substantial escalation is unreasonable. This fourth Quiroz factor weights in the appellant’s favor.




                                                11
        Finally, we must consider any evidence of prosecutorial overreach or abuse in the
drafting of charges. In his brief, the appellant conceded there is no evidence of prosecutorial
overreach or abuse in the drafting of charges.15 Our review of the charge sheet as well as the
voluminous exhibits of text messages in the record of trial presented no such evidence with
regard to lewd communications. This final Quiroz factor falls in the Government’s favor.

       On balance, we decline to find unreasonable multiplication of charges in Specifications 3
and 4 of Additional Charge I. While our tally of factors is not dispositive, it reflects the narrow
margin of our decision.

                                              Sentence Reassessment

       Having set aside the Article 120c conviction, we must determine whether we are able to
reassess the appellant’s sentence. We consider the following non-exclusive list of factors:

           (1)      Whether there has been a dramatic change in the sentencing landscape;

           (2)      Whether the appellant was sentenced by members or military judge alone;

           (3)      Whether the remaining offenses capture the gravamen of criminal conduct
                    and, relatedly, whether significant or aggravating circumstances addressed
                    at the court-martial remain admissible and relevant to the remaining
                    offenses; and,

           (4)      Whether the remaining offenses are of the type with which we have
                    sufficient experience and familiarity to reliably determine what sentence
                    would have been imposed at trial.

United States v. Winckelmann, 

, 15-16 (C.A.A.F. 2013); see also, United States v.
Moffeit, 

(C.A.A.F. 2006); United States v. Buber, 

(C.A.A.F. 2006); and
United States v. Sales, 

(C.M.A. 1986).

         Without the conviction for violating Article 120c(c), the appellant’s maximum sentence
falls from 61 years’ confinement to 60 years. This reduction does not dramatically change the
sentencing landscape. Members sentenced the appellant to eight months’ confinement, reduction
to pay grade E-1, total forfeitures, and a bad-conduct discharge. The remaining convictions for
sexual abuse of a child capture the gravamen of the appellant’s criminal conduct. We have
sufficient experience and familiarity with sexual abuse of child offenses to determine reliably
what sentence would have been imposed at trial. We are confident that even without the
dismissed charge; the appellant would have received the same sentence imposed at trial.




15
     Appellant’s Brief of 26 Feb 2015 at 24 n. 70.


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                                           Conclusion

       The findings of guilty to the Second Additional Charge II and its sole specification are set
aside. The remaining findings and the sentence are affirmed.

       Chief Judge BRUBAKER and Judge HOLIFIELD concur.

                                     For the Court




                                     R.H. TROIDL
                                     Clerk of Court




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