 UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              LIND, KRAUSS, and PENLAND
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                          Specialist TYWAN J. MITCHELL
                           United States Army, Appellant

                                    ARMY 20130033

                   Headquarters, 8th Theater Sustainment Command
                            David L. Conn, Military Judge
                   Colonel Paul T. Salussolia, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Robert
H. Meek, III, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Steven J. Collins, JA; Captain Benjamin W. Hogan, JA (on brief).


                                     31 October 2014

                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

PENLAND, Judge:

       An officer panel sitting as a general court-martial convicted appellant, contrary
to his pleas, of conspiracy to commit burglary; conspiracy to commit housebreaking;
false official statement; aggravated sexual assault of a child; four specifications of
indecent acts; adultery; and wrongful receipt of stolen property of a value of over
$500, in violation of Articles 81, 107, 120, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 891, 907, 920, 934 (2006 & Supp. IV 2011). The
panel sentenced appellant to a dishonorable discharge, confinement for five years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening
authority credited appellant with five days against the sentence to confinement and
approved the adjudged sentence.

      This case is before us for review under Article 66, UCMJ. Appellant raises three
assignments of error, two of which merit discussion and one of which merits relief.
Appellant’s matters submitted personally pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), are without merit.
MITCHELL — ARMY 20130033

                  FACTUAL AND LEGAL INSUFFICIENCY

    Appellant was convicted of Specification 1 of Charge II, which alleged:

          In that [appellant] did, on the island of Oahu, between on or
          about 21 April 2012 and on or about 7 May 2012, wrongfully
          receive the following property, of a value of about the
          following amount, the property of the following people, which
          property, the accused then knew had been stolen, and that said
          conduct was to the prejudice of good order and discipline in
          the armed forces and was of a nature to bring discredit upon
          the armed forces.

          Name: SPC [SS]
          Property: Apple MacBook Laptop and one watch
          Value: over $500

          Name: 2LT [JB]
          Property: Xbox 360, eleven Xbox 360 video games, two
          laptop computers, and nine Blu-Ray movies
          Value: over $500

          Name: Mrs. [ET]
          Property:    Nintendo 3DS, Kindle Fire, nine rings, two
          necklaces, four bracelets, three pairs of earrings, two earrings,
          two necklaces, a watch, and a jewelry box
          Value: over $500

          Name: Mrs. [KR]
          Property: Playstation 3, two necklaces, and two Mississippi
          University class rings
          Value: over $500

          Name: LTC [RG]
          Property: 46 inch Sony television, television remote control,
          Apple iPad, one ring, one bracelet, and one pair of earrings
          Value: over $500

          Name: LTC [PF]
          Property:    Xbox 360, iPod Touch, Nintendo DS, twelve
          Nintendo DS video games, six Xbox 360 video games, two
          Airsoft guns, five pairs of earrings, two earrings, one Pendant,
          and one ring
          Value: over $500



                                         2
MITCHELL — ARMY 20130033

               Name: Mrs. [JL]
               Property: iPod Touch, 48 pairs of earrings, 8 earrings, 32
               necklaces, 43 bracelets, 13 rings, 19 pendants, 3 watches, and
               a silver crown design with diamonds decorative piece
               Value: over $500

               Name: SGT [JC]
               Property:    BOSE speakers, 52 inch Samsung television,
               television remote control, and three Xbox controllers
               Value: over $500

       Our examination reveals obvious evidentiary shortfalls with respect to
Specification 1 of Charge II. 1 The test for legal sufficiency is whether, considering all
of the evidence in the light most favorable to the government, a reasonable fact-finder
could have found all of the essential elements of the offense beyond a reasonable
doubt. United States v.Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). The test for factual sufficiency is whether,
after weighing the evidence and making allowances for not having personally observed
the witnesses, this court is convinced of appellant’s guilt beyond a reasonable doubt.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

       The officer panel in this case returned a verdict of guilty to this specification,
without exception. However, there was no direct or circumstantial evidence of the
following at trial: that appellant received any stolen property belonging to SPC SS,
Mrs. KR, or Mrs. JL; 2 that appellant received a stolen Nintendo 3DS and more than two
stolen necklaces belonging to Mrs. ET; or that appellant received a Nintendo DS and
more than three stolen Nintendo DS video games belonging to LTC PF. The findings
of guilty to these portions of Specification 1 of Charge II are wholly unsupported by
the evidence and thus legally insufficient. We are left to wonder how the guilty verdict
of this specification in its entirety withstood the scrutiny of the military judge, staff
judge advocate, and convening authority during post-trial processing.

      The government alleged that appellant wrongfully received stolen property of a
value exceeding $500. We find the evidence of this element factually insufficient. The
property’s value at the time of its alleged wrongful receipt is a fundamental element of

1
 As an example, in an Article 39(a) session, upon motion of the trial counsel and
without defense objection, the military judge allowed trial counsel to preadmit
photographs of various stolen property alleged to be found in appellant’s quarters. No
evidence was elicited before the members regarding when and where these photographs
were taken.
2
    SPC SS, Mrs. KR, and Mrs. JL did not testify at trial.



                                              3
MITCHELL — ARMY 20130033

this offense, but the government’s evidence of value consisted almost entirely of
Amazon.com “shopping cart” printouts and related testimony indicating the
replacement costs of certain electronic items. The evidence at trial included virtually
no evidence, direct or otherwise, of the stolen property’s condition at the time of theft.
With scant evidence of this element, we are not convinced beyond a reasonable doubt
that the stolen property appellant received was of a value in excess of $500.00.
Therefore, we will only affirm as much of the conviction as provides that appellant
received certain stolen property of some value. See United States v. Rupert, 25 M.J.
531, 532-33 (A.C.M.R. 1987); United States v. Tamas, 6 U.S.C.M.A. 502, 510-11, 20
C.M.R. 218, 226-27 (1955).

               UNREASONABLE MULTIPLICATION OF CHARGES

      Appellant engaged in sexual and sodomitic acts with SB, DW, and JV, while in
each other’s presence. SB was under the age of 16. This conduct formed the bases of
appellant’s conviction of Charge III and its specifications (violations of Article 120,
UCMJ) which alleged: aggravated sexual assault of a child, SB; indecent act for the
same sexual act with SB; indecent act for a sexual act with DW; indecent act for a
sexual act with JV; and indecent act for a sodomitic act with JV.

       Appellant alleges unreasonable multiplication of charges with regard to these
five specifications. We agree in part and, applying the factors in United States v.
Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) and considering Rule for Courts-Martial
307(c)(4), we conclude that Specification 2 of Charge III constitutes an unreasonable
multiplication of charges for findings with Specification 1 of Charge III.
Specifications 3, 4, and 5, however, address fundamentally independent acts of
indecency; a conviction for each is not inconsistent with Quiroz.

                                     CONCLUSION

      The Court affirms only so much of the finding of guilty of Specification 1 of
Charge II as provides that:

             In that Specialist Tywan J. Mitchell, U.S. Army, did, on the
             island of Oahu, between on or about 21 April 2012 and on or
             about 7 May 2012, wrongfully receive the following property,
             of a value of about the following amount, the property of the
             following people, which property, the accused then knew had
             been stolen, and that said conduct was to the prejudice of good
             order and discipline in the armed forces and was of a nature to
             bring discredit upon the armed forces.




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MITCHELL — ARMY 20130033

             Name: 2LT JB
             Property: Xbox 360, eleven Xbox 360 video games, two
             laptop computers, and nine Blu-Ray movies
             Value: some value

             Name: Mrs. ET
             Property:     Kindle Fire, nine rings, two necklaces, four
             bracelets, three pairs of earrings, two earrings, a watch, and a
             jewelry box
             Value: some value

             Name: LTC RG
             Property: 46 inch Sony television, television remote control,
             Apple iPad, one ring, one bracelet, and one pair of earrings
             Value: some value

             Name: LTC PF
             Property: Xbox 360, iPod Touch, three Nintendo DS video
             games, six Xbox 360 video games, two Airsoft guns, five pairs
             of earrings, two earrings, one Pendant, and one ring
             Value: some value

             Name: SGT JC
             Property:    BOSE speakers, 52 inch Samsung television,
             television remote control, and three Xbox controllers
             Value: some value

The finding of guilty of Specification 2 of Charge III is set aside and dismissed. The
remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 16-17
(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), 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.

      Senior Judge LIND and Judge KRAUSS concur.

                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




                                      MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                      Clerk
                                       Clerkofof
                                               Court
                                                 Court

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