## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before CAMPANELLA, SALUSSOLIA, and FLEMING Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Cla ss DAVID E. BLACK United States Army, Appellant

ARMY 20170140

Headquarters, United States Arm y Recruiting Comma nd, Fort Knox

Matthew A. Calarco and Jame s A. Ewing, Military Judges Colonel Rick S. Lear, Staff Judge Advocate

For Appellant: Captain Patri ck G. Hoffman, JA (on brief)

For Appellee: Lieutenant Colonel Eric K. Stafford , JA (on brie f)

13 July 2018

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

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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge:

This case is before us for re view pursuant to A rticle 66, Unif orm Code of Military Justice, 10 U.S.C . 866 [hereinafter UCMJ].

A military judge sitti ng as a general court-martial convicted a ppellant, pursuant to his pleas, of three specifications of possession of child pornography, in violation of Article 134, UCMJ. T he military judge sentenced a ppellant to a

dishonorable dischar ge, confinement for forty-two months, and r eduction to the grade of E-1. Pursuan t to a pretrial agreement, the convening authority approved only so much of the sen tence as extended t o a dishonor able disc harge, twenty-four months confinement, and reduc tion to the grade of E-1.

In this case, we conclude that, in light of United States v. Forrester , 76 M.J. 479 (C.A.A.F. 2017), and United States v. Mobley , __M.J.__ (Army Ct. Crim. App. 22 June 2018), Specifications 2 a nd 3 of The Cha rge are multipl icious and should be

consolidated. As we held in Mobley , the allowable unit of prosecution forBLACK—ARMY 20170140

2 possessing child porn ography in violation o f Article 134, UCMJ, is the “material”

that contains se xually explicit images of minors. In this case , the material containing sexually exp licit images of minor s is the same in Sp ecifications 2 and 3 of The Charge.

BACKGROUND

The military judge found appellant guilty o f the three specifi cations of possession of child pornograph y, in violation of Article 134, U CMJ as follows: 1

SPECIFICATION 2: [Appellant], U .S. Army, did, at or near Glenv iew, Illinois, between on or about 1 August 2014 and o n or about 25 June 2015, knowingly and wrongfully possess ch ild pornography, to wit: tw o hundred forty-one (241) digita l images, located on his HP Compaq Presar io Laptop computer of minors, or what appear to be minors, 2 engaging in sexually explicit conduct, su ch conduct being to t he prejudice of good o rder and discipline in the arm ed forces and of a nat ure to bring discred it upon the

armed forces.

SPECIFICATION 3: [Appellant], U .S. Army, did, at or near Glenv iew, Illinois, between on or about 4 September 2013 and on or about 25 June 2015, knowingly and wrongfully possess ch ild pornograp hy, to wit: fo rty-three (43) digital images, located in the unallocated space of his HP Comp aq Presario Laptop computer of mi nors, or what appear to be minors, engagin g in sexually explicit conduct, su ch conduct being to t he prejudice of good o rder and discipline in the arm ed forces and of a nat ure to bring discred it upon the

armed forces.

1 Although not relevant to the issue of mul tiplicity, the promul gating order incorrectly states the content of all three specifications. Sp ecifications 2 and 3 are addressed in our decretal paragra ph. The clerk’s office will s eparately issue a

certificate of correction to add ress the errors i n the promulga ting order with respect to Specification 1.

2 The government’s failu re to charge that th e images were “obsce ne” was mooted by appellant’s explanatio n during his providen ce inquiry that the images were of actual minors, not merely “what appear to be minors.”BLACK—ARMY 20170140

3 LAW AND DISCUSSION

In Forrester , our superior court clarified that the unit of prosecution for possessing child porn ography is tied to the material containing illicit images, and “not the qua ntity or variety of vi sual depictions.” Forrester , 76 M.J. at 481. In Mobley , we held when multiple illicit im ages or videos are possessed on a single computer, the computer is the “m aterial” constituting the unit of prosecution. Mobley , slip op. at 5.

The relevant facts of this case are simil ar to the facts in Mobley . Appellant admitted possessing two hundred f orty-one illicit images on his laptop computer, as reflected in Specification 2. Appellant admitted possessing fo rty-three illicit images on the same laptop co mputer as reflected i n Specification 3. T he date range of Specification 2 is wholly withi n the date range of Specificatio n 3. The on ly other

difference betwee n the two relevant speci fications is the image s in Specification 3

were stored in unalloc ated space while the images in Specificat ion 2 were not.

We conclude the proper unit of p rosecution for bo th Specificati on 2 and Specification 3 is the appellant’s laptop c omputer, regardless of whether the images

were found in allocated or unal located space. Accordingly, we consolidate Specifications 2 and 3 of The Charge in our decretal paragraph.

The military judge corr ectly noted that several of the images a t issue are duplicates. The number of image s alleged, however , is irreleva nt to the unit of prosecution and is surplus to th e specification the government chose to dra ft. While the number of images is a proper matter in aggrav ation, it need not be alleged in the specification and may be offered a s aggravating evidence throug h a stipulation of fact, or any otherwise proper form of evide nce. For the purpos es of alleging the offense of possession of child pornograph y under Article 134, U CMJ, it suffices to charge that an acc used possessed “multiple” images.

CONCLUSION

Specifications 2 and 3 of The Charge are c onsolidated into Spec ification 2 of The Charge as follows:

In that SFC (E-7) David E. Black, U.S. Army, did, at or near Gl enview, Illinois, between on or about 4 September 2013 and on or about 25 June 2015, knowingly and wron gfully possess child pornography to wit : two hundred eighty-four (284) digital images, located on his HP Com paq Presario Laptop computer of minor s, or what appear to be minors

, engaging in sexually explicit con duct, such conduc t being to th e prejudice of good order and disci pline in the armed forces and of a nature to bring d iscredit upon th e armed forces.BLACK—ARMY 20170140

4 The finding of guilty o f Specification 2 of T he Charge, as cons olidated, is AFFIRMED. The findings of guilt y of Specification 1 of The Cha rge, and The Charge are AFFIRMED.

We reassess the sentence in accordance with the principles of United States v.

Winckelmann , 73 M.J. 11, 1 5-16 (C.A.A.F. 2013) and United States v. Sales , 22 M.J. 305, 307-08 (C.M.A. 1986 ), and we are confident the military ju dge would have adjudged a sentence at least as severe as the approved sentence absent the error

described above. Whi le the consolidation of Specifications 2 a nd 3 of The Charge reduces appellant’s e xposure from thirty yea rs to twenty years, the gravamen of the

criminal conduct remains substan tially the same. Here, appella nt was convicted of possessing a computer containing two hundre d eighty-four digita l images of minors engaging in sexually explicit co nduct on his laptop computer an d possessing, on an external hard drive, t en digital images and forty-five videos o f minors engaging in sexually explicit conduct.

Reassessing the sentence based on the noted error and the entir e record, we AFFIRM the approved sen tence. All rights, p rivileges, and prop erty, of which appellant has been depr ived by virtue of tha t portion of the fi ndings set aside by this

decision are ord ered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

Judge SALUSSOLIA and Judge FLEMING concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: