United States v. Campbell

71 M.J. 19, 2012 CAAF LEXIS 239, 2012 WL 686211
CourtCourt of Appeals for the Armed Forces
DecidedMarch 1, 2012
Docket11-0403/AF
StatusPublished
Cited by180 cases

This text of 71 M.J. 19 (United States v. Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Campbell, 71 M.J. 19, 2012 CAAF LEXIS 239, 2012 WL 686211 (Ark. 2012).

Opinions

Chief Judge BAKER

delivered the opinion of the Court.

Contrary to his pleas Appellant was convicted of one specification of making a false official statement on divers occasions, one specification of possession on divers occasions of controlled substances, and one specification of larceny, on divers occasions, of military property of a value less than $500.00 in violation of Articles 107, 112a, and 121, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 912a, 921 (2006). Appellant was adjudged a dismissal from the service, and the sentence was approved by the convening authority. The United States Air Force Court of Criminal Appeals affirmed. United States v. Campbell, No. ACM 37460, 2011 CCA LEXIS 36, at *6, 2011 WL 6010259, at *2 (A.F.Ct.Crim.App. Jan. 31, 2011). The issue for review before this Court is as follows:

WHETHER THE MILITARY JUDGE ERRED, AFTER FINDING ALL THREE CHARGES AROSE OUT OF THE SAME TRANSACTION AND WERE PART OF THE SAME IMPULSE, BY MERGING THEM FOR SENTENCING RATHER THAN DISMISSING THEM.

BACKGROUND

Appellant was a nurse manager assigned to the David Grant Medical Center emergency room at Travis Air Force Base. Like other registered nurses, Appellant was required to obtain medication for patients from a device for dispensing medication called a Pyxis machine. No medications were to be dispensed without a physician’s order. Access to the machine was obtained by entering a code verified by scanning the user’s fingerprint. The user would enter or find the patient’s name and enter the name of the medication from the doctor’s order into the machine. The Pyxis machine would then dispense the requested medication.

In June 2007, the Chief Nurse asked for a review when she noticed discrepancies between certain patients’ charts and medications dispensed at the emergency room. This initial review indicated that there were no physician’s orders for medication for several of the patients. In addition, the Pyxis reports for these patients revealed that Appellant had been the nurse who withdrew the medications. Upon this discovery, a broader in-depth review was undertaken. This review revealed that out of forty-seven patient records, there were at least thirty-one occurrences where Percocet and Vicodin were [21]*21withdrawn from the machine by Appellant with no corresponding physician’s order. In twelve instances, medications were withdrawn after patient discharge. In one ease, the report indicated that Appellant withdrew Percocet from the Pyxis machine for a patient who had a documented allergy to the medication. In another instance, the Pyxis report indicated that Appellant withdrew Percocet for a pregnant patient. At trial, the charge nurse at the emergency room testified that it would have been unusual to administer Percocet to a pregnant woman.

Appellant was ultimately charged with three specifications involving the unauthorized withdrawal and possession of Percocet and Vicodin on divers occasions. One specification charged Appellant with falsely stating he had a physician’s authority to withdraw from the Pyxis machine. One specification charged Appellant with larceny of the medications from the machine. And, one specification charged Appellant with wrongfully possessing the Percocet and Vicodin obtained from the machine.1

Prior to trial, the defense challenged the charges on the grounds of multiplicity and unreasonable multiplication of charges. Specifically, the defense filed a motion contending that the larceny charge was multiplicious with the possession charge.2 Alternatively, the defense sought consolidation of the larceny specification with the possession specification “due to unreasonable multiplication of charges.” During the first Article 39(a), UCMJ,3 session in the case, the defense supplemented its motion requesting that the military judge dismiss the false statement charge and specification because it was multi-plicious with the larceny specification. During argument on the-motion, in addition to its position on multiplicity for findings, the defense requested, alternatively, that “the offenses be found multiplicious for sentencing, pursuant to RCM4 1003(c)(1)(c).” Counsel argued that the charges essentially alleged that Appellant had committed a larceny by false pretenses, albeit on divers occasions, by purporting to have a physician’s authorization to obtain the medications from the Pyxis machine. In counsel’s view, the charges “describe[d] substantially the same conduct in different ways.”

The military judge ruled that the offenses were not multiplicious. He then addressed the issue of unreasonable multiplication of charges stating, “With unreasonable multiplication of charges, that can apply to findings or to sentencing. Either place it would be an appropriate remedy.” However, the military judge deferred his ruling on the issue of unreasonable multiplication until sentencing, reasoning that the members could return findings of guilt on any combination of the three charged offenses.

After findings but before sentencing, the military judge revisited the issue of unreasonable multiplication of charges. The fol[22]*22lowing colloquy occurred between the military judge and the parties:

MJ: Before we take documentary evidence, the first issue I think we need to address is the issue that’s still standing before the court, on the unreasonable multiplication of charges, and whether the three offenses should be merged as one. You [the defense] kind of amended your position, from the time of the initial filing of the motion. But at this point, what you’re seeking, defense, is that all three offenses be merged into one. Is that correct?
ADC: Yes, sir.
MJ: And first, Trial Counsel what’s your position on that?
TC: We stand on the motion in the argument and basis with which we argued before the findings, which is that each individual charge and specification has a different intent. So therefore, we think they should not be merged, even for sentencing purposes.

The military judge then ruled as follows:

MJ: Based upon the way the evidence came out during the court-martial ... and the findings the members reached, clearly what we were talking about was one transaction. The false official statement is kind of part of the larceny, in that, the way to commit the larceny was to make the false official statement, essentially to get the pills out of the Pyxis machine. And then the possession. The only evidence we had of the possession would be the possession that would have occurred subsequent to the actual larceny. I do believe that all three offenses essentially arose out of this same transaction and were part of the same impulse.5 ... I do believe it would be appropriate to merge the three offenses into one, for purposes of sentencing.

Footnote added. Having so ruled, the military judge announced that the maximum punishment Appellant would face on sentencing was dismissal, forfeiture of all pay and allowances, and confinement for five years.

DISCUSSION

A military judge’s decision to deny relief for unreasonable multiplication of charges is reviewed for an abuse of discretion. United States v. Pauling, 60 M.J.

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Cite This Page — Counsel Stack

Bluebook (online)
71 M.J. 19, 2012 CAAF LEXIS 239, 2012 WL 686211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-campbell-armfor-2012.