United States v. Carreiro

14 M.J. 954, 1982 CMR LEXIS 789
CourtU.S. Army Court of Military Review
DecidedNovember 23, 1982
DocketCM 442337
StatusPublished

This text of 14 M.J. 954 (United States v. Carreiro) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Carreiro, 14 M.J. 954, 1982 CMR LEXIS 789 (usarmymilrev 1982).

Opinions

OPINION OF THE COURT

NAUGHTON, Judge:

On 1 and 7 April 1982 the appellant was tried by a military judge sitting as a general court-martial at Fort Polk, Louisiana. He was arraigned on charges alleging the violation of a lawful general order by entering a troop billet area designated for occupancy by female military personnel, housebreaking, and indecent assault (two specifications), violations of Articles 92, 130, and 134, Uniform Code of Military Justice (hereinafter UCMJ), 10 U.S.C. §§ 892, 930, and 934 (1976). Contrary to his pleas, the appellant was convicted of violating a lawful general order, and the lesser included offenses of unlawful entry and indecent, lewd, and lascivious acts with another (two specifications), violations of Articles 92 and 134, UCMJ, 10 U.S.C. §§ 892 and 934 (1976). His approved sentence provides for a bad-conduct discharge, confinement at hard labor for one year, and forfeitures of all pay and allowances.

[956]*956Appellant contends: (1) that the offenses of violation of a lawful general order and unlawful entry are multiplicious for purposes of findings and sentence, (2) that the convening authority erred in appointing, and the military judge erred in failing to disqualify, the trial counsel, and (3) that the evidence is insufficient as a matter of law and fact to prove the appellant guilty of committing indecent, lewd, and lascivious acts with a Private First Class (PFC) Crawford. Appellant’s second assignment of error was brought to our attention by both appellate defense and the appellant. See United States v. Grostefon, 12 M.J. 431 (CMA 1982). We find appellant’s contentions to be without merit and affirm the findings and sentence.

During the early morning hours of 16 March 1982, appellant, in violation of a lawful general order,1 followed PFC Leppala into the female troop billets which housed members of the appellant’s unit. Once inside, appellant entered the room occupied by PFC Crawford and Private (PVT) Campbell.

PFC Crawford testified that as she awoke the appellant came over to where she had been sleeping and laid on her bed. As she rolled over, appellant’s hand brushed across her chest. PFC Campbell had on night clothes and the bed covers pulled over her at this time. She also testified that the appellant rubbed his hand up and down her leg. She attempted to persuade appellant to leave by telling him that she was pregnant and calling to her sleeping roommate. She indicated, however, that she was neither frightened nor offended by the appellant’s conduct.

When appellant learned that another female was in the room, he went over to PVT Campbell and laid on her bed. At this point, PFC Crawford got out of bed and dressed. Campbell testified that her efforts to get the appellant to leave were unsuccessful and she became scared. She stated that appellant grabbed her breasts, tore her nightgown, fondled her then., exposed breasts, and placed his head down near her crotch. PVT Campbell was sitting up at this time with the appellant forcing her against the wall. She then called for PFC Crawford to help her. PFC Crawford came over and pulled the appellant away from PVT Campbell and onto the floor.

PVT Campbell then ran over to PFC Leppala’s and PFC Dozier’s nearby room with the appellant in pursuit. Appellant forced his way into their room and again grabbed PVT Campbell. Leppala and Dozier succeeded in removing the appellant from the room and locked the door. Appellant departed the billets when Leppala went to contact the Charge of Quarters and the First Sergeant. All of the witnesses, agreed that the appellant was intoxicated.

MULTIPLICITY

After findings, the trial defense counsel requested that the military judge treat the offenses of violation of a lawful general order and unlawful entry as multiplicious for sentencing purposes. The military judge stated that he would “take into account the nature and the circumstances of what had been shown” in determining an appropriate sentence, but he refused to rule as a matter of law that the offenses were multiplicious. Appellant now contends that these two offenses are multiplicious for purposes of both findings and sentence because they were part of a single integrated transaction.

This Court recently summarized the rules governing multiplicity determinations in United States v. Jefferson, CM 442048, 14 M.J. 806 (ACMR 1982). As we emphasized there, no one test for multiplicity is controlling in all circumstances, United States v. Harrison, 4 M.J. 332 (CMA 1978), and neither the single integrated transaction nor single impulse test should be used “as a talisman to overcome more penetrat[957]*957ing analysis when there are clearly two or more distinct criminal acts that arose out of essentially one overall transaction or course of conduct.” United States v. Burney, 21 U.S.C.M.A. 71, 73, 44 C.M.R. 125,127 (1971).

Although the appellant’s unlawful entry charge and his violation of a lawful general order prohibiting male soldiers from entering the female barracks area were part of a “single integrated transaction,” this does not end our analysis.

Applying the “societal norms test,” United States v. Beene, 4 U.S.C.M.A. 177, 15 C.M.R. 177 (1954), we believe that both the violation of the lawful general order and the unlawful entry offenses were reasonably charged. The unlawful entry offense concerns the preservation of the sanctity and privacy of a person’s dwelling place, whereas the violation of a lawful general order concerns the proscription of commingling of male and female military personnel in troop billet areas. The purpose of such general orders is to further the Army’s distinct interest in preserving good order and discipline within a command by prohibiting the mixing of male and female soldiers in troop billets. It is of no consequence that female soldiers might consent to or encourage the entry of male soldiers into female billets areas. In the instant case the appellant infringed upon the Army’s disciplinary interest when he entered the female billets; he aggravated this unlawful conduct by then entering PFC Crawford’s and PVT Campbell’s room without their permission.

Finally, each offense includes an element the other does not, neither is a lesser included offense of the other, and each requires proof of different facts. Compare paragraph 3-27 with paragraph 3-185, Military Judges’ Benchbook, DA Pam 27-9 (May 1982). Accordingly, we conclude the simultaneous charging of these offenses was reasonable, and that they are separately punishable.

DISQUALIFICATION OF TRIAL COUNSEL

Prior to entering his plea, appellant through his trial defense counsel made a motion for appropriate relief in the form of requesting that a different prosecutor be appointed on the ground that appellant feared that the trial counsel’s marriage to another attorney within the Trial Defense Service at Fort Polk would lead to inadvertent leaks of information relevant to appellant’s ease.

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Related

United States v. Beene
4 C.M.A. 177 (United States Court of Military Appeals, 1954)
United States v. Burney
21 C.M.A. 71 (United States Court of Military Appeals, 1971)
United States v. Harrison
4 M.J. 332 (United States Court of Military Appeals, 1978)
United States v. Johnson
4 M.J. 770 (U.S. Army Court of Military Review, 1978)
United States v. Iverson
5 M.J. 440 (United States Court of Military Appeals, 1978)
United States v. Grostefon
12 M.J. 431 (United States Court of Military Appeals, 1982)
United States v. Lyles
14 M.J. 771 (U.S. Army Court of Military Review, 1982)
United States v. Jefferson
14 M.J. 806 (U.S. Army Court of Military Review, 1982)
United States v. Caggiano
660 F.2d 184 (Sixth Circuit, 1981)

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Bluebook (online)
14 M.J. 954, 1982 CMR LEXIS 789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-carreiro-usarmymilrev-1982.