United States v. Private E2 DAVID MONTOYA
ARMY 20150211
| A.C.C.A. | Nov 29, 2016Background
- Appellant, Pvt. David Montoya, was convicted at a general court-martial of multiple Article 120 and Article 90 offenses arising from sexual touching and penetration of PFC C.M. while she slept and after she woke and objected.
- Facts: appellant touched C.M.’s stomach and breasts while she was asleep, she woke, pushed his hand away and verbally protested, he touched her again, then digitally penetrated her and later penetrated her with his penis.
- Charges included abusive sexual contact (while asleep), abusive sexual contact by bodily harm (after she woke), sexual assault by bodily harm (digital penetration), and sexual assault by bodily harm (penile penetration).
- At trial the military judge merged one sleeping-contact specification with another for sentencing; defense sought merger of all Article 120 specifications but the judge declined. Appellant later argued unreasonable multiplication of charges (UMC).
- The convening authority approved a sentence of dishonorable discharge, 33 months confinement (with 100 days credit), and reduction to E-1. The court reviewed factual sufficiency and UMC on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unreasonable multiplication of charges (UMC) | Government: separate specifications reflect distinct acts; no prosecutorial overreach; sentencing treated them as one for exposure | Montoya: the acts were one continuous transaction and thus should have been merged | Court: No UMC — Quiroz factors weigh against appellant; the sleeping touching and post-wake touching were distinct acts; no prosecutorial overreach; treated as one for sentencing so no increased exposure |
| Factual sufficiency of specification alleging touching stomach and breasts | Government: CID agent testimony supports touching stomach and breasts | Montoya: challenges sufficiency; victim testified only to breast touching | Court: Partially finds factual insufficiency as to touching the stomach; affirms guilty finding only for touching breasts (abusive sexual contact by bodily harm) |
Key Cases Cited
- United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012) (UMC addresses prosecutorial-discretion overreach)
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (sets five-factor test for UMC)
- United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (standard for appellate factual-sufficiency review)
- United States v. Jimenez-Victoria, 75 M.J. 768 (A. Ct. Crim. App. 2016) (discusses factual-sufficiency review principles)
- United States v. Beatty, 64 M.J. 456 (C.A.A.F. 2007) (limits factual-sufficiency review to evidence admitted at trial)