UNITED STATES ARMY COURT 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 Theater Sustainment Command 

James W. Herring, Jr., Military Judge (arraignment) 

Craig S. Denney, Military Judge (motions hearing) 

Andrew J. Glass, Military Judge (trial) 

Colonel Paul T. Salussolia, Staff Judge Advocate (pretrial) 

Colonel Anthony T. Febbo, Staff Judge Advocate (post-trial) 

For Appellant: Lieutenant Colonel Charles D. Lozano, 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. Clausen, JA (on brief). 

26 May 2016 

---------------------------------- 

MEMORANDUM OPINION 

---------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge: 

 A panel composed of enlisted and officer members, sitting as a general courtmartial, convicted appellant, contrary to his pleas, of one specification of sexual 

assault of a child and one specification of possession of child pornography in 

violation of Articles 120b and 134, Uniform Code of Military Justice, 10 U.S.C §§ 

920b and 934 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a 

dishonorable discharge, one year of confinement, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. The convening authority approved 

the findings and sentence as adjudged. 
WATKINS – ARMY 20140275 

2 

Appellant’s case is now before us for review pursuant to Article 66, UCMJ. 

Appellant raises three assignments of error, two of which merit discussion and one 

of which merits relief. We find the issues raised by appellant, 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, appellant began to exchange 

electronic messages with Miss E.-K. on the social networking website 

“MeetMe.com.” On her main personal profile page on the website (a truncated 

profile page), Miss E.-K. portrayed herself as nineteen 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 actually fourteen years old at the time. At trial, the 

government introduced forensic evidence showing appellant accessed both the 

abridged and full profile pages of Miss E.-K. on the MeetMe.com website.

Appellant and Miss E.-K. exchanged several electronic messages over both 

computer and cell phone over 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 photograph of herself, which she had taken standing in front of her 

bathroom mirror. The photograph was sent from her cell phone to his cell phone 

through a text messaging program. 

 After receiving the photograph, appellant 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 charged 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 Sufficiency - Child Pornography 

In the Specification of Charge II, appellant was charged with possessing an 

image of Miss E.-K. that constitutes child pornography. In his first assignment of 

error, appellant asserts that the Specification of Charge II is legally insufficient 

where the image possessed by appellant was not “child pornography.” We disagree. 

To sustain a conviction for possessing child pornography the government must 

prove that appellant “knowingly and wrongfully possessed . . . child pornography;” 

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.” Manual for 

Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 68b.b.(1). 
WATKINS – ARMY 20140275 

3 

“Child pornography” is defined as “material that contains either an obscene 

visual depiction of a minor engaging in sexually explicit conduct or a visual 

depiction of an actual minor engaging in sexually explicit conduct.” MCM, pt. IV, ¶ 

68b.c.(1). 

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

(a) sexual intercourse or sodomy, including genitalgenital, oral-genital, anal-genital, or oral-anal, whether 

between persons of the same or opposite sex; 

(b) bestiality; 

(c) masturbation; 

(d) sadistic or masochistic abuse; or 

(e) lascivious exhibition 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) – whether the photograph sent by Miss E.-K. to appellant 

constitutes a “lascivious exhibition of the genitals or pubic area 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, 832 (S.D. Cal. 1986), aff’d sub nom. United 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 depicted in an unnatural pose, or 

in inappropriate attire, considering 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 recognized “there may be other factors that 

are equally if not more important in “determining whether a photograph contains a 

lascivious exhibition . . . by combining a review of the Dost factors with an overall 

consideration of the totality 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 with her cell phone 

camera facing the bathroom mirror. The backdrop of the photograph is neither 

provocative nor unprovocative and it is not an uncommon setting for a self-taken 

picture. The angle of the photograph 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, visible, and unobscured. She is holding the 

cell phone camera in her left hand to snap the picture and positioning 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 not a full smile, features upturned 

corners of her mouth giving the appearance of indicating favor or a pleasant 

agreeable affect. 

 While we acknowledge Miss E.-K. stated in testimony she was not trying to 

be sexy in the photograph, we do not find her 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 for his sexual pleasure. 

 We therefore conclude based on the Dost factors and the totality of the 

circumstances that the photograph meets the statutory definition of “lascivious 

display of genitals or pubic area.” Therefore, we find appellant’s possession of said 

photo constitutes a legally and factually sufficient charge. 

Dilatory Post-Trial Delay 

The convening authority took action 356 days after the conclusion of 

appellant’s court-martial. Of that delay, twenty days are attributable to the defense, 

and 336 days are attributable to the government. See Rule for Courts-Martial 1105. 

The record of trial in this case 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 appropriateness of the sentence in light of 

the unjustified dilatory post-trial processing. UCMJ 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 findings and sentence ‘should be 

approved,’ based on all the facts and circumstances reflected in the record, including 

the unexplained and unreasonable post-trial delay.”). See generally United States v. 

Toohey, 63 M.J. 353, 362-63 (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 announcement of sentence and action is simply too long, 

and could “adversely affect the public’s perception of the fairness and integrity of 

military justice system . . . .” Ney, 68 M.J. at 617. Thus, we find relief is 

appropriate under the facts of this case. 

CONCLUSION

Upon consideration of the entire record, the findings of guilty are 

AFFIRMED. Given the dilatory post-trial processing, however, we affirm only so 

much of the sentence as provides for a dishonorable discharge, confinement for 

eleven months, forfeiture of all pay and allowances, 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 aside by this decision, are ordered restored. 

See UCMJ arts. 58b(c) and 75(a). 

Senior Judge TOZZI and Judge CELTNIEKS concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: