## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class MATTHEW N. WATKINS United States Army, Appellant

ARMY 20140275

Headquarters, 8th Theate r Sustainment Command James W. Herring, Jr., Milit ary Judge (arraignment) Craig S. Denney, Military Judge (mot ions hearing) Andrew J. Glass, M ilitary Judge (trial) Colonel Paul T. Salussolia, St aff Judge Advocat e (pretrial) Colonel Anthony T. Fe bbo, Staff Judge Advo cate (post-trial)

For Appellant: Lieutenant Colonel Charles D. Lozan o, JA; Captain Heather L. Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Christopher A. Clause n, JA (on brief).

26 May 2016

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

A panel composed of enlisted and office r members, sitting as a general courtmartial, convicted appellant, contrary to his pleas, of one sp ecification of sexual
assault of a child and one specification of possession of child pornography in
violation of Articles 120b a nd 134, Uniform Code of Milit ary Justice, 10 U.S.C §§ 920b and 934 (2012) [hereina fter UCMJ]. The panel sentenced appellant to a dishonorable discharge, one year of c onfinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening au thority approved the findings and sent ence as adjudged.WATKINS – ARMY 20140275

2 Appellant’s case is now be fore us for review pursua nt to Article 66, UCMJ. Appellant raises three assignm ents of error, two of wh ich merit disc ussion and one
of which merits relief. We find the is sues raised by appe llant, pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982 ) to be without merit.

BACKGROUND

While living at Schofield Barracks in Hawaii, appe llant began to exchange electronic messages with Miss E.-K. on the social networking website “MeetMe.com.” On her main personal prof ile page on the we bsite (a truncated profile page), Miss E.-K. port rayed herself as nine teen years old. On her full profile page - a separate page link - Ms. E.-K. wrote, “Hey guys . . . I am actually 15 not
19.” Miss E.-K. was actual ly fourteen years old at the time. At trial, the government introduced forens ic evidence showing appe llant accessed both the abridged and full profile pages of Miss E.-K. on the MeetMe.com website.

Appellant and Miss E.-K. exchanged se veral electronic messages over both computer and cell phone ove r a few weeks, during which appellant requested Miss E.-K. to send him a naked photo of herself. Miss E.-K. obliged and sent appellant a full front nude phot ograph of herself, wh ich she had taken standing in front of her bathroom mirror. The phot ograph was sent from her cell phone to his cell phone through a text messaging program.

After receiving the photograph, appellan t invited Miss E.-K. over to visit him

at Schofield Barracks. When she arrived at his barracks, appellant and Miss E.-K.

had sexual intercourse. For his misconduct , appellant was ch arged with and

convicted of a sexual act with a child over the age of twelve but under the age of sixteen and possession of child pornography.

DISCUSSION

Factual and Legal Suffici ency - Child Pornography

In the Specification of Charge II, ap pellant was charged with possessing an image of Miss E.-K. that constitutes chil d pornography. In his first assignment of error, appellant asserts that the Specificat ion of Charge II is legally insufficient where the image possessed by appellant was not “child pornograph y.” We disagree.

To sustain a conviction fo r possessing child pornogr aphy the government must prove that appellant “knowin gly and wrongfully possessed . . . child pornography;” and that said conduct “was to the prejudi ce of good order and di scipline in the armed
forces and was of a natu re to bring discredit upon the armed forces.” Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM ], pt. IV, ¶ 68b.b.(1).WATKINS – ARMY 20140275

3 “Child pornography” is defined as “mater ial that contains either an obscene visual depiction of a minor engaging in sexually exp licit conduct or a visual depiction of an actual minor engaging in sexual ly explicit conduct.” MCM , pt. IV, ¶ 68b.c.(1).

MCM, pt. IV, ¶ 68b.c.(7) de fines “sexually explicit conduct” as:

(a) sexual interc ourse or sodomy, including genitalgenital, oral-genital, anal-gen ital, or oral-a nal, whether between persons of the same or opposite sex;

(b) bestiality;

(c) masturbation;

(d) sadistic or maso chistic abuse; or

(e) lascivious exhibi tion of the genitals or pubic area of

any person.

In this case, the photograph does not fall into the first four categories, thus our focus is on (e) – whet her the photograph sent by Miss E.-K. to appellant
constitutes a “lascivious exhibition of the genitals or pubic ar ea of any person.”

To assist this court in deciding whether an image constitutes a “lascivious exhibition,” our superior court embraced the factors recognized in United States v.

Dost , 636 F.Supp 828, 8 32 (S.D. Cal. 1986), aff’d sub nom. Un ited States v. Wiegand , 812 F.2d 1239 (9th Cir. 1987). The Dost factors are:

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

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

(3) whether the child is depict ed in an unna tural pose, or in inappropriate attire, consid ering the age of the child;

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

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

(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.WATKINS – ARMY 20140275

4 United States v Roderick , 62 M.J. 425, 429 (C .A.A.F. 2006) (quoting Dost , 636 F.Supp. at 832).

In addition, our superior court has rec ognized “there may be other factors that are equally if not more important in “det ermining whether a pho tograph contains a
lascivious exhibition . . . by combinin g a review of the Dost factors with an overall
consideration of the totalit y of the circumstances.” Roderick, 62 M.J. at 430.

The image of child pornography which appellant stands convicted of possessing is a photograph of Miss E.-K . taken by herself wi th her cell phone camera facing the bathroom mirror. The backdrop of the pho tograph is neither provocative nor unprovocative and it is not an uncommon settin g for a self-taken picture. The angle of the pho tograph captures the details of her naked body centered in the frame; her pubic area and bare breasts constitute the focal point of the picture. The child’s pubic area is discernable, vi sible, and unobscured. She is holding the cell phone camera in her left hand to snap the picture and posi tioning her right hand
behind her tilted head in what appears to be an unnatural coy poise, staring directly
at the camera. Her facial expression, while no t a full smile, fe atures upturned
corners of her mout h giving the appearan ce of indicating fa vor or a pleasant agreeable affect.

While we acknowledge Miss E.-K. stated in testimony she was not trying to be sexy in the photogra ph, we do not find he r intent dispositive. Appellant’s intent
is also relevant in our assessment of the totality of the circumstances. See Roderick,
62 M.J. at 430. It is clear appellant solicited the photograph fo r his sexual pleasure.

We therefore conclude based on the Dost factors and the totality of the circumstances that the phot ograph meets the st atutory definition of “lascivious display of genitals or pubic area.” Therefor e, we find appellant’ s possession of said photo constitutes a legally and factuall y sufficient charge.

Dilatory Post-Trial Delay

The convening authority took action 356 days after the conclusion of appellant’s court-martial. Of that delay, tw enty days are attribut able to the defense, and 336 days are attributab le to the government. See Rule for Courts-Martial 1105.
The record of trial in this ca se consists of five volumes, and the trial transcript is 668 pages. Although we find no due process violation in the post -trial processing of appellant’s case, we must still review the ap propriateness of the sentence in light of the unjustified dilatory post-trial processing. UC MJ art. 66(c); United States v. Tardif , 57 M.J. 219, 224 (C.A.A .F. 2002) (“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what find ings and sentence ‘should be approved,’ based on all the facts and circum stances reflected in the record, including the unexplained and unreasonable post-trial delay.”). See generally Unit ed States v. Toohey , 63 M.J. 353, 362-6 3 (C.A.A.F. 2006); United States v. Ney , 68 M.J. 613,WATKINS – ARMY 20140275

5 617 (Army Ct. Crim. App. 2010); United States v. Collazo , 53 M.J. 721, 727 (Army Ct. Crim. App. 2000).

The delay between announceme nt of sentence and actio n is simply too long, and could “adversely affect th e public’s perception of th e fairness and integrity of military justice system . . . .” Ney , 68 M.J. at 617. T hus, we find relief is appropriate under the facts of this case.

CONCLUSION

Upon consideration of th e entire record, the fi ndings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm only so much of the sentence as provides for a dishonorable discharg e, confinement for eleven months, forfeiture of all pay and allowa nces, and reduction to the grade of E-1. All rights, privileges , and property, of which appellant has been deprived by virtue of that portion of the sentence set as ide by this decision, are ordered restored.
See UCMJ arts. 58b(c) and 75(a).

Senior Judge TOZZI and Judge CELTNIE KS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: