## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, HERRING, and BURTON Appellate Military Judges

UNITED STATES, Appellee

v. Staff Sergeant VICTOR M. LOPEZ United States Army, Appellant

ARMY 20140891

Headquarters, United States Army South

Wade N. Faulkner , Military Judge

Lieutenant Colonel James S. Tripp, Staff Judge Advocate

For Appellant: Li eutenant Colonel Ch arles D. Lozano, JA ; Major Aaron R. Inkenbrandt, JA; Captain Jennif er K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Samuel E. Landes, JA (on brief).

21 January 2016

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

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

Judge BURTON:

A military judge sitting as a general court-martial convicted appellant, pursuant to hi s pleas, of one specification of possessing child pornography, one specification of distributing child pornography, and one specificat ion of adultery 1 in

violation of Articles 134, Uniform Code of Military Justice, 10 U.S.C. §934 (2012) [hereinafter UCMJ]. The court sentenced ap pellant to be discharged from the service with a dishonorable discharge, to be conf ined for twenty-three months and to be reduced to the grade of E-1. The conveni ng authority approved the sentence as adjudged.

Appellant’s case is before this court for revi ew under Article 66, UCMJ. Appellant counsel raises two errors, one of which merits discussion and relief.

1 Appellant was found guilty of adultery, except the words, “was to the prejudice of good order and discipline in the armed forces”.LOPEZ—ARMY 20140891

2 BACKGROUND

Appellant was charged with and pleaded guilty to Specification 1 of The Charge, in violation of Artic le 134, UCMJ, as follows:

[Appellant], U.S. Army, did, at or near Bogota, Columbia, between 15 January 2014 and about 29 January 2014 , knowingly and wrongfully possess child po rnography, to wit: approximately three 2 images and 28 videos of a minor, or what appears to be a minor, engaging in sexually explicit conduct, and that sa id conduct was to the prejudice of good order and discipline in the armed forces and of a nature to bring discredi t upon the ar med forces.

During the providence inqu iry, the military judge desc ribed the two clauses of

the terminal elem ent of Article 134, UCMJ offenses in the conjunc tive, as they were charged. Appellant admi tted in his own words:

It’s prejudicial against good order and discipline, sir, um, because, us , not only did the people I work

with had to find someone else immediately while I was removed from my position; they also have to feel and do everything that I ha ve done for almost an entire an year which is very difficu lt. Not only did I have to be in different groups but also different entitie s. And in turn

it took—it takes time for the government to find someone to replace me which means that they would have to do your job plus their job.

When asked by the military judge, “[W]he n it was discovered that you had this child pornography were you suspended from your duties at all?” Appellant responded: “I was told to go into my office and wait th ere and not go nowhere. And then my supervisor was told the same thing not to leave me to go nowh ere and I was in my office still working be cause I didn’t know w hy at that time.”

The providence inquiry concluded with no additional inquiry in to prejudicial to good order and discipline.

Appellant was charged with and pleaded guilty to speci fication 2 of the Charge,

in violation of Article 134, UCMJ, as follows:

[Appellant], U.S. Army, did, at or near Bogota, Columbia,

on or about 22 Ja nuary 2014, knowin gly and wrongfully

2 The charges was amended after pleas and before findings to two images.LOPEZ—ARMY 20140891

3 distribute child por nography, to wit: approximately six videos of a minor, or what appears to be a minor, engaging in sexually explicit conduct , to another person via a

Peer-to-Peer Network called Shar eaza, and that said conduct was to the prejudice of good order and di scipline in the

armed forces and of a nature to bring discredit upon the

armed forces.

During the providence inquiry for this specification, the military judge again

described the two clauses of the terminal element of Artic le 134, UCMJ offenses in the conjunctive, as they we re charged. When asked w hy his conduct wa s prejudicial to good order and discip line, Appellant stated:

Um, I was- - I was stating earlier as far as my position, not only I was gone now that somebody has to replace me and lear n everything that I had to do in a short period of time which is not really - - it’s not possibl e to do. You have to be there

for some amount of time.

The providence inquiry for this specif ication concluded wi th no additional inquiry into prejudicial to good order and discipline.

LAW AND DISCUSSION

“During a guilty plea inquiry the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it.” United States v. Inabinette , 66 M.J. 320, 321–22 (C.A.A.F. 2008) (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). We review a military judge's decision to accept a plea fo r an abuse of discretion by determining

whether the record as a whole shows a subs tantial basis in law or fact to question the plea. Inabinette , 66 M.J. at 322.

In this case, the providence inquir y does not adequately establish how appellant's conduct caused a “’direct an d palpable prejudice’ to good order and discipline.” United States v. Erickson , 61 M.J. 230, 232 (C .A.A.F. 2005). The investigation into appellant’s possessi on of child pornography or the command’s response after the investigation are not a legitimate basis for accepting the plea

because it does not demonstrate how the charged offense had an effect on good order and discipline. Additionally, the st ipulation of fact does not provide an additional factual basis upon which to satisfy this requirement. See United States v.

Care , 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).LOPEZ—ARMY 20140891

4 There is, however, a factual basis to support that appellant’s conduct is service discrediting. See United States v. Phillips , 70 M.J. 161, 166 (C.A.A.F. 2011). Consequently, we will dismiss the language “to the prejudice of good order and discipline in the armed forces” from Specification 1 and Specification 2 of The Charge.

CONCLUSION

The court affirms only so mu ch of the finding of guil ty of Specification 1 of The Charge as finds that:

[Appellant], U.S. Army, did, at or near Bogota, Columbia, between 15 January 2014 and about 29 January 2014 , knowingly and wrongfully possess child po rnography, to wit: approximately two images and 28 videos of a minor, or what appears to be a minor, engaging in sexually explicit conduct, and that sa id conduct was of a nature to bring discredit upon th e armed forces.

The court affirms only so mu ch of the finding of guil ty of Specification 2 of The Charge as finds that:

[Appellant], U.S. Army, did, at or near Bogota, Columbia,

on or about 22 Ja nuary 2014, knowin gly and wrongfully distribute child por nography, to wit: approximately six videos of a minor, or what appears to be a minor, engaging in sexually explicit conduct , to another person via a

Peer-to-Peer Network called Shar eaza, and that said conduct was of a nature to bring discredit upon the armed forces.

The remaining findings of guilty are AFFIRMED.

We are able to reassess th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed by our superior

court in United States v. Winckelmann , 73 M.J. 11, 15-16 (C.A.A.F. 2013) and

United States v. Sales , 22 M.J. 305 (C.M.A. 1986). We are conf ident that based on the entire record and appell ant’s course of conduct, the panel would have imposed a

sentence of at least that which was ad judged, and accordin gly we AFFIRM the

sentence.

We find this reassess ed sentence is not only purged of any error but is also appropriate. All rights, privileges, a nd property, of which appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are

ordered restored.LOPEZ—ARMY 20140891

5 Senior Judge MULLIGAN and Judge HERRING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: