Filed: Feb. 15, 2017
Latest Update: Mar. 03, 2020
Summary: , Even if charged offenses are not multiplicious, courts may apply the doctrine, of unreasonable multiplication of charges to merge or dismiss certain charges, and specifications. Read alone, that sentence might provide some, proof that Appellant did use his cell phone and borescope to view SrA LY.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32343
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UNITED STATES
Appellee
v.
Anthony L. JONES
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 15 February 2017
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Military Judge: Shaun S. Speranza.
Approved sentence: Bad-conduct discharge, confinement for nine
months, and reduction to E-1. Sentence adjudged 7 July 2015 by
SPCM convened at Hill Air Force Base, Utah.
For Appellant: Major Isaac C. Keenan, USAF; Captain Allen S.
Abrams, USAF.
For Appellee: Lieutenant Colonel Roberto Ramírez, USAF; Gerald R.
Bruce, Esquire.
Before J. BROWN, BENNETT, and MINK, Appellate Military Judges.
Judge BENNETT delivered the opinion of the Court, in which Senior
Judge J. BROWN and Judge MINK joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
BENNETT, Judge:
At a special court-martial composed of a military judge sitting alone, Ap-
pellant was convicted, in accordance with his pleas, of indecent viewing, inde-
cent visual recording, adultery, wrongfully discovering and photographing
the personal photographs of another Airman, and wrongfully searching
United States v. Jones, No. ACM S32343
through and photographing the personal belongings of this same Airman. 1
The adjudged sentence was a bad-conduct discharge, confinement for nine
months, forfeiture of $1,031.00 per month for nine months, and reduction to
E-1. The convening authority approved the sentence except for the forfei-
tures; he also deferred the reduction in rank and waived all the mandatory
forfeitures for the benefit of Appellant’s spouse.
Appellant asserts that the military judge erred by denying the Defense
motion to merge, for sentencing, the specifications of Charge I. We disagree
and affirm.
I. BACKGROUND
During the time that Appellant indecently viewed and photographed Sen-
ior Airman (SrA) LY, he and his wife lived in one part of a duplex. SrA LY,
who lived in the other part of the same duplex, was their neighbor and friend.
On divers occasions, Appellant knowingly and wrongfully viewed SrA LY
while she was naked. He did this by peering through her blinds into her bed-
room, and by drilling a peephole in her bedroom wall and looking through it.
He also used his cell phone and a borescope, which he inserted into the peep-
hole, to knowingly and wrongfully photograph SrA LY while she was naked.
II. DISCUSSION – UNREASONABLE MULTIPLICATION OF CHARGES
Specification 1 of Charge I alleges that Appellant, on divers occasions be-
tween on or about 4 July 2014 and on or about 2 September 2014, wrongfully
and knowingly viewed the private area of SrA LY, without her consent and
under circumstances in which SrA LY had a reasonable expectation of priva-
cy. The allegations of Specification 2 of Charge I are almost identical except
the actus reus is that Appellant wrongfully and knowingly photographed SrA
LY.
There was no stipulation of fact in this case. During his providency in-
quiry for Specification 1 of Charge I, Appellant explained that he found SrA
LY very attractive and was curious to see her naked. He stated that he looked
at her through the blinds of her bedroom window. He also admitted to drill-
ing a half-inch diameter peephole in SrA LY’s bedroom wall so he could view
her. Appellant viewed SrA LY through the peephole more than twice, and he
1The first two convictions were for violations of Article 120c, UCMJ, 10 U.S.C. §
920c; the latter three were for violations of Article 134, UCMJ, 10 U.S.C. § 934.
2
United States v. Jones, No. ACM S32343
viewed her breasts, buttocks, and vaginal area, at different times, while she
was totally or partially undressed.
During his providence inquiry for Specification 2 of Charge I, Appellant
described similar misconduct except in these instances, he used his cell phone
and borescope to photograph SrA LY. Appellant used these devices to capture
images of SrA LY while she was undressed. He took the pictures with his cell
phone through the blinds of her bedroom window or by inserting the
borescope through the peephole he had drilled in her bedroom wall. Appellant
did this more than twice, photographing SrA LY’s breasts, buttocks, and
vaginal area.
When the military judge asked Appellant why he took the pictures, Appel-
lant answered, “Sir, I took the pictures because I wanted to see [SrA LY] na-
ked and I wanted to keep them.” By “them,” Appellant meant the images he
had captured of SrA LY while she was undressed. Concerning the peephole
that he drilled through SrA LY’s bedroom wall, Appellant explained that he
used this hole both for viewing and for photographing SrA LY.
After Appellant pleaded guilty, he unsuccessfully argued that specifica-
tions 1 and 2 of Charge I were unreasonably multiplied and should be consid-
ered one offense for sentencing purposes. 2 At trial, the gist of Appellant’s ar-
gument was that he had to view SrA LY in order to photograph her, that his
misconduct was the result of the same incident of poor decision-making, and
not two separate criminal acts. Appellant, more or less, reiterates this argu-
ment on appeal averring that the record can only support a finding that his
acts of viewing and photographing SrA LY were contemporaneous and indis-
tinguishable, and, therefore, the military judge abused his discretion when he
made findings to the contrary. We do not agree.
We review a military judge’s decision to deny relief or unreasonable mul-
tiplication of charges for an abuse of discretion. United States v. Campbell, 71
M.J. 19, 22 (C.A.A.F. 2012).
Multiplicity in violation of the Double Jeopardy Clause 3 occurs when “a
court, contrary to the intent of Congress, imposes multiple convictions and
2 Appellant made a similar argument for Specifications 2 and 3 of Charge II, alleging
that he wrongfully discovered and photographed the personal photographs of SrA LY
and wrongfully searched through and photographed her personal belongings. He was
unable to convince the military judge that these two offenses were unreasonably mul-
tiplied. Even though this issue was not raised on appeal, we have considered whether
these specifications were unreasonably multiplied and we find that they were not.
3 U.S. CONST. amend. V.
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United States v. Jones, No. ACM S32343
punishments under different statutes for the same act or course of conduct.”
United States v. Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010) (quoting United
States v. Roderick,
62 M.J. 425, 431 (C.A.A.F. 2006)) (emphasis omitted).
Even if charged offenses are not multiplicious, courts may apply the doctrine
of unreasonable multiplication of charges to merge or dismiss certain charges
and specifications. Rule for Courts-Martial 307(c)(4) summarizes this princi-
ple as follows: “What is substantially one transaction should not be made the
basis for an unreasonable multiplication of charges against one person.” The
principle provides that the Government may not needlessly “pile on” charges
against an accused. United States v. Foster,
40 M.J. 140, 144 n.4 (C.M.A.
1994). “[U]nlike multiplicity—where an offense found multiplicious for find-
ings is necessarily multiplicious for sentencing—the concept of unreasonable
multiplication of charges may apply differently to findings than to sentenc-
ing.”
Campbell, 71 M.J. at 23.
We consider the following non-exhaustive factors in determining whether
unreasonable multiplication of charges has occurred:
(1) Did the [appellant] object at trial that there was an unrea-
sonable 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 specifica-
tions misrepresent or exaggerate the appellant’s criminality?;
(4) Does the number of charges and specifications [unreasona-
bly] 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) (quoting United
States v. Quiroz,
53 M.J. 600, 607 (N-M. Ct. Crim. App. 2000) (quotation
marks omitted)). When the Quiroz factors indicate the principles of unrea-
sonable multiplication of charges affect sentencing more than findings, “the
nature of the harm requires a remedy that focuses more appropriately on
punishment than on findings.” Quiroz, 55 M.J at 339.
The record of trial provides ample support for the military judge’s find-
ings of fact. With regard to whether the specifications of Charge I allege two
separate and distinct criminal acts, the military judge correctly found that
Appellant viewed SrA LY through the blinds of her bedroom window and
through the peephole in her bedroom wall. When asked why he drilled this
hole, Appellant admitted that he did it so he could view SrA LY in her bed-
room. Contrary to Appellant’s argument, the record contains no evidence that
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United States v. Jones, No. ACM S32343
Appellant used his cell phone or borescope, in this context, for any purpose
other than to photograph SrA LY. 4 In fact, Appellant made no mention of the
borescope until his providence inquiry for Specification 2 of Charge I. While
Appellant may have been viewing SrA LY while he was photographing her
through her bedroom window and the peephole, there is sufficient factual
support for military judge’s conclusion that Appellant also separately viewed
SrA LY through her bedroom window and the peephole without also photo-
graphing her.
Moreover, Appellant’s motives for committing these two separate offenses
were, in his own words, different. He viewed SrA LY because he thought she
was very attractive and desired to see her naked. He photographed her be-
cause he wanted to keep nude images of SrA LY. This perhaps best under-
scores why these offenses are appropriately charged and punished separately.
Viewing SrA LY while she was nude was one thing. When Appellant photo-
graphed SrA LY, he took the next step and, as a result, there were different
potential ramifications for his victim. Appellant could have repeatedly viewed
these images, duplicated them, distributed them, etc. The record may not be
clear as to what Appellant may have done with these images, but it is clear
that Appellant had different reasons for committing these separate offenses.
This offers additional support for the military judge’s conclusion that Appel-
lant’s viewing and photographing were separate offenses and properly
charged that way. See United States v. Williams, 74 M.J. 572, 575–76 (A.F.
Ct. Crim. App. 2014) (suggesting that the appellant’s possession, receipt, and
distribution of images of child pornography might not have been multi-
plicious if additional or affirmative steps separated his possession from the
receipt and distribution of contraband images.); see also United States v. Es-
cobar, ACM 38721, unpub. op. at 6–8 (A.F. Ct. Crim. App.
24 A.K. Marsh. 2016)
(finding that the appellant’s convictions for possession and distribution of
child pornography were not multiplicious or an unreasonable multiplication
of charges where the two offenses involved additional or affirmative steps and
separate criminal purposes).
4 During his providence inquiry for specification 2 of Charge I, Appellant explained
that he “used the borescope to look through the wall and then a cell phone to take
pictures that were on the screen.” Read alone, that sentence might provide some
proof that Appellant did use his cell phone and borescope to view SrA LY. However,
Appellant made this statement in response to questions the military judge had asked
about how he took pictures of SrA LY. Thus, it is clear from the context in which this
statement was given that, on these particular instances, he used the borescope and
cell phone to photograph SrA LY.
5
United States v. Jones, No. ACM S32343
Applying the Quiroz factors as the military judge correctly did, we find
that, though Appellant raised both at trial and on appeal that these two spec-
ifications represented an unreasonable multiplication of charges, both specifi-
cations were aimed at distinctly separate criminal acts, do not misrepresent
or exaggerate Appellant’s criminality, do not unreasonably increase his puni-
tive exposure, and there is no evidence of prosecutorial overreaching or
abuse.
Having carefully reviewed the record, we find that the military judge ap-
plied the correct law and that his findings of fact were not clearly erroneous.
Thus, we find the military judge did not abuse his discretion and was correct
in not merging the specifications of Charge I for sentencing.
III. CONCLUSION
The findings and sentence are correct in law and fact, and no error mate-
rially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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