## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before COOK, TELLITOCCI, and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. Private First Clas s CORY M. LANG United States Army, Appellant

ARMY 20140083

Headquarters, 8th Theate r Sustainment Command David L. Conn, Military Judge (arraignment) Brad Bales, Milita ry Judge (trial)

Colonel Paul T. Salussol ia, Staff Judge Advocate

For Appellant: Major Robert N. Michaels , JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Li eutenant Colonel James L. Varley, JA (on brief).

31 October 2014

---------------------------------- MEMORANDUM OPINION

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

HAIGHT, Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of two specifications of wrongful posses sion of child pornography and two specificati ons of distribution of th at same child pornography, in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [hereinafter UCMJ]. The convening auth ority approved the adju dged sentence of a bad-conduct discharge, confinement for nine ty days, and reduction to the grade of

E-1.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant submitted a merits pleading to this court and personally ra ised two issues pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), neither of which merits

discussion or relief. Howeve r, one additional issue meri ts discussion and relief.LANG—ARMY 20140083

2 BACKGROUND

Appellant was charged with and convicted of possession and di stribution of child pornography as define d by 18 U.S.C. §2256(8). 1 During the providence inquiry into his guilty plea, appellant admitted that in N ovember or December of 2012, a “friend of [his ] had Facebooked [to appellant] pi ctures . . . [of Ms. KS and Ms. RS] over the internet.” Appellan t further explained the photogr aphs are “sexually explicit” and ad mitted he knew Ms. KS and Ms. RS were both approximately sixteen years old at the time the respective photographs were taken.

He also stated that after he received th e images, he saved them to his personal computer and later po sted them online to a “public do main website . . . [on which]

1 18 U.S.C. §2256(8) defines “child pornography” as: [A]ny visual depiction, including any photogra ph, film, video, picture, or co mputer or computer-generated image or picture, whether ma de or produced by electr onic, mechani cal, or other means, of sexually exp licit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexual ly explicit conduct;

(B) such visual depiction is a di gital image, computer image, or computer-generated image that is , or is indistin guishable from, that of a minor enga ging in sexually ex plicit conduct; or

(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

18 U.S.C. §2256(2)(A) defines “sexually explicit conduct” for §2256(8)(A) and (C)

as “actual or simulated--”

(i) sexual interc ourse, including genital- genital, oral-genital, anal-genital, or oral-anal, whet her between person s of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pub ic area of any person.LANG—ARMY 20140083

3 [a]nybody who logs onto the site is able to view any materi al that is on the site.” Appellant’s actions concerning these tw o images are the basis for his four convictions involving child pornography.

During appellant’s provide nce inquiry, the military judge defined the terms “child pornography,” “minor,” and “sexually explicit co nduct” using definitions closely mirroring those fou nd in 18 U.S.C. §2256. In ad dition, while neither 18 U.S.C. §2256 nor the Presiden t has defined “lascivious exhibition,” the military judge provided an expansiv e explanation (i.e. the “ Dost factors”) embraced by our superior court in United States v. Roderick , 62 M.J. 425, 429-430 (C.A.A.F. 2006).

See United States v. Blouin , 73 M.J. 694, 696 (Arm y Ct. Crim. App. 2014); see also

United States v. Dost , 636 F.Supp 828, 83 2 (S.D. Cal. 1986), aff’d sub nom. United States v. Wiegand , 812 F.2d 1239 (9th Cir. 1987).

Image 1—Ms. KS

The photograph of Ms. KS 2 is the basis for the firs t correspondin g possession and distribution offenses (Spe cifications 1 & 3 of The Charge ). It is a small grainy image of a nude female seated alone in front of a mirror. Her bare breasts are plainly exposed, but her legs ar e tightly crossed, concealing her geni talia. Ms. KS’s entire body is visible, but from some distance with no close-up of any particular body part, especially not of the pubic area. Du ring the colloquy wi th the military judge regarding the possession offense, appellant provided very little de scription of the photograph, explaining only that Ms. KS “was . . . in a sexu ally explicit way for the simple fact that her body was the main focal point of the picture.” 3 (emphasis added). When initially discussing th e distribution specificat ions, appellant stated, “[I] . . . knew that they were minors being that the pictures were --the focal point of the picture being of their bo dy showing breasts, pubic regions, I knew that was to be [sic] child pornography.”

2 The government admitted Prosecution Exhibit 2—the relevant images of Ms. KS and Ms. RS—presumably copies of what was received and su bsequently posted online by appellant. Both of the photographs ap pear to be images that Ms. KS and Ms. RS took of themselves using a camera to capture their own respective images in

a mirror.

3 Additionally, the stipulatio n of fact provided a brief description of the image of Ms. KS: “The picture of Ms. [KS] is of her sitting . . . in a complete state of nudity. She is using the mirror and what appears to be a cell phone to take a picture of herself. She is crossing her legs so that her genitals are not exposed , but her pubic region is exposed.” (emphasis added).LANG—ARMY 20140083

4 Image 2—Ms. RS

The photograph of Ms. RS is the basis for the second corresponding possession and distribution offe nses (Specifications 2 & 4 of The Charge). It is an image of a female standing in front of a mirror. In the photograph, Ms. RS is looking up towards a camera that she is holding above her head . Ms. RS is nude from the waist up and her brea sts are exposed and visible. Her hair is wet and she is sticking her tongue out. However, the imag e of Ms. RS is much grainier from her

abdomen down and covered in sh adows. It is difficult to discern what, if anything, is covering her pubic region based on the angl e and shadows. More simply stated, her genitals are not visible or discernible, and the pubic area is decidedly not the focus of this particular image.

Additionally, appellant prov ided no explanation as to how or why the image of Ms. RS was sexually explicit when discussing the possession offens e. Instead, after the military judge told appellant he was going to “go over the elements real quick again,” appellant simply agreed with the military’s judge’s truncate d recitation of the possession sp ecification pertaining to Ms. RS. 4 With respect to the

distribution offense for this image, appellant stated that he uploaded the photograph onto the website “knowing th at that was considered ch ild pornography for the fact that the focal point of th at picture was also her body .” 5 (emphasis added).

DISCUSSION

A military judge’s acceptance of a guilt y plea is reviewed for an abuse of discretion and questions of law arising from the guilty pl ea are reviewed de novo.

United States v. Inabinette , 66 M.J. 320, 321 -22 (C.A.A.F. 2008); see also United

States v. Eberle , 44 M.J. 374, 375 (C.A.A.F. 1996); United States v. Rogers , 59 M.J. 584, 585 (Army Ct. Crim. App. 2003). “The test for an abuse of discretion is

4 “I’m going to go over the elements real quick again. S o, do you agree that, at or near Schofield Barracks, Ha waii, between on or about 1 November 2012 and 31 December 2012, you knowingly pos sessed child porn ography, to wit: a digital image of Miss [RS], a minor engaging in sexually explicit conduct? Do you agree with

that?”

5 The stipulation of fact al so provided a brief description of the image containing Ms. RS: “The picture of Ms. RS is of her stan ding in front of a bathroom mirror. She is taking a photo of herself from an elevated angle. Her hair is wet as if she just took a shower. She is comp letely naked. Her breasts a nd pubic region ar e visible. She is sticking her tongue out to the camera in a pl ayful/suggestive manner.”LANG—ARMY 20140083

5 whether the record shows a subs tantial basis in law or fact for questioning the plea.”

United States v. Schell , 72 M.J. 339, 345 (C.A .A.F. 2013) (citation omitted). “It is an abuse of discretion for a military j udge to accept a guilty plea without an adequate factual basis to support it . . . [or] if the ruling is based on an erroneous

view of the law.” United States v. Weeks , 71 M.J. 44, 46 (C.A.A.F. 2012); see also

United States v. Outhier , 45 M.J. 326 (C.A.A.F. 1996); Rule for Courts-Martial 910(e) (“The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the m ilitary judge that there is a factual basis for the plea.”). Lastly, the providen ce inquiry must make clear the accused

understands how the law relates to the facts. United States v. Medina , 66 M.J. 21, 26 (C.A.A.F. 2008).

Image 1—Ms. KS

The image of Ms. KS depict s a nude female in a seat ed position with her legs crossed. She is not touching her genitals or pubic area nor looking or otherwise directing a viewer’s attention towards that ar ea. In other words, her pubic area is no

more or less the focus of the image than any other part of he r body. Thus, because the image of Ms. KS does not involve inte rcourse, bestialit y, masturbation, or sadistic or masochistic behavior, the only remaining means of proving its sexually explicit nature was by establishing that it contains a lascivious exhibition of Ms. KS’s genitals or pubic area. Roderick , 62 M.J. at 429-430; see also Blouin , 73 M.J.

at 696. In the contex t of a guilty plea, the military judge was re quired to explain the correct legal standard, elicit an adequate factual basis for appellant’s pleas, and ensure appellant understood how the la w related to the facts of his case.

Here, the military judge properly defined child porn ography using the

definition from 18 U. S.C. §2256. Further, he prov ided a proper explanation of sexually explicit con duct, to in clude the Dost factors. 6 Additionally, appellant

6 The Dost factors are:

(1) whether the focal point of the visual depiction is on the ch ild’s genitalia or pubic area;

(2) whether the setting of th e visual depiction is sexual ly suggestive , i.e., in a place or pose generally associ ated with sexual activity;

(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering th e age of the child;

(4) whether the child is fully or partially clothed, or nude;

(continued . . .)LANG—ARMY 20140083

6 admitted that he knew Ms. KS was under the age of eighte en and that the image was “sexually explicit.” For purposes of estab lishing the lascivious nature of the image, appellant made reference to the first Dost factor, briefly comme nting on the “focal point” of the image. With respect to the possession specification, this was the only

factor that he mentioned. Significantly, his affi rmation that Ms. KS’s “ body ” is the focal point of the image—while not fact ually inaccurate—does not specifically address the genitals or pubic region of Ms . KS. The military judge did not conduct any additional inquiry into this factor nor make reference to any of the other remaining factors. 7 Instead, the milita ry judge concluded th e inquiry into the possession specification by eliciting appellant’s agreement that the image depicted Ms. KS engaging in sexually explicit behavi or.

When discussing the distri bution offense pertaining to the image of Ms. KS, appellant again focused exclusively on the first Dost factor, stating that “the focal point of their body sh owing breasts, pubic regions, I knew that was to be [ sic ] child pornography.” The mili tary judge did not conduct any further inquiry into this factor. Specifically, there was no discussion as to how or why the genitals or pubic

area was considered th e focal point, as obje ctively it was not. See United States v.

Knox , 32 F.3d 733, 746-47 (3d Cir. 1994).

Based on appellant’s limited and inconsistent descriptions of the image of Ms. KS, in addition to the military judge’s failure to elicit additional facts or further explore other potentially relevant factors, we find a substantial ba sis in law and fact to question the pl eas of guilty to the offenses concerning th e image of Ms. KS and

will take correct ive action in our de cretal paragraph.

(. . . continued)

(5) whether the visual depiction suggests coyness or a willingness to engage in sexual activity;

(6) whether the visual depiction is inte nded or designed to elicit a sexual response in the viewer.

Roderick , 62 M.J. at 429 (quoting Dost , 636 F.Supp. at 832).

7 Other Dost factors may have been relevant with regard to the image of Ms. KS. However, in the ab sence of any inquiry or disc ussion between the judge and appellant of those other fact ors, we are unable to determine whether those other factors were relied upon in appellant’s pl ea of guilty and ad missions that the

exhibition is lascivious.LANG—ARMY 20140083

7 Image 2—Ms. RS

Here, although appellant agre ed with the military judg e that the image of Ms. RS depicted “a minor engaging in sexually explicit conduct ,” there was no additional inquiry into the relevant definitions of se xually explicit behavi or or lasciviousness when discussing the possession specificat ion. Further, when the military judge asked appellant why he was gu ilty of distributing child pornograph y, appellant could only muster that he “[knew] that was considered chil d pornography for the fact that the focal point of that picture was also [Ms. RS’s] body .” (emphasis added). However, despite any concerns this cour t may have with th e adequacy of the providence inquiry with respect to this image (both possession and distribution of it), we are spared fu rther examination of th e quality of appellant’s pleas in light of a more fundamental problem.

The image of Ms . RS displayed in Prosecution Exhibit 2 simply does not satisfy all the elements of child pornography as charge d, and we are unable to envision any manner in wh ich it could, even with a more exacting providence inquiry examining and applyi ng 18 U.S.C. §2256 and the Dost factors. The shadows and/or poor quality of the image completely obstruct any view of Ms. RS’s genitalia and much, if not all, of her pubic area. This co mpletely undermines any proof of the

first Dost factor, and we find th e remaining five factor s wanting as well.

While it is tempting to conclude that possession and distri bution of any image of a sixteen-year-old in this condition a nd under these circumst ances is distasteful

and should amount to offenses proscribed by child pornog raphy law, that is simply

not the current state of the law. Rather, the image must entail sexually explicit

conduct

.

Because the image of Ms. RS does not amount to child pornography, it is unnecessary to further examine the adequacy of the military judge ’s definition of the offense or appellant’s explan ation of why he believed the image amounted to child pornography. See United States v. Inabinette , 66 M.J. 320, 322 (C.A.A.F. 2008) (“[W]here the factual predicat e for a plea falls short, a reviewing court would have no reason to inquire de novo into any lega l questions surrounding the plea.”).

CONCLUSION

Our Article 66, UCMJ, revi ew is confined to the charges and th e findings approved by the convening authority. We make no decision as to what other crimes chargeable under the UCMJ that appellant’s behavior with respect to these images may have constituted. Th e findings of guilty and the sentence are set aside. Specifications 2 and 4 of the Charge are dismissed. With respect to Specifications 1 and 3 of the Charge , a rehearing may be ordered by the sa me or a different convening authority. See generally R.C.M. 810. All right s, privileges, andLANG—ARMY 20140083

8 property, of which appe llant has been depriv ed by virtue of th is decision setting aside the findings and sentence are ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

Senior Judge COOK and Judge TELLITOCCI concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: