United States v. Private E1 JONATHAN M. CLEMONS ( 2009 )


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  •                 UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    
                                       Before
                             CONN, HOFFMAN, AND GIFFORD
                              Appellate Military Judges
    
                               UNITED STATES, Appellee
                                         v.
                           Private E1 JONATHAN M. CLEMONS
                            United States Army, Appellant
    
                                    ARMY 20090226
    
       Headquarters, United States Army Intelligence Center and Fort Huachuca
                          Michael J. Hargis, Military Judge
                   Colonel Karen L. Judkins, Staff Judge Advocate
    
    For Appellant:  Major Timothy Thomas, JA; Major Angelines McCaffrey, JA
    
    For Appellee:  Lieutenant Colonel Francis C. Kiley, JA
    
    
                                  17 December 2009
    
                          ---------------------------------
                                 SUMMARY DISPOSITION
                          ---------------------------------
    Per Curiam:
    
          A military judge sitting as a general court-martial convicted
    appellant, pursuant to his pleas, of willful disobedience of a commissioned
    officer, indecent acts, and possession of child pornography, in violation
    of Articles 90, 120, and 134, Uniform Code of Military Justice [hereinafter
    UCMJ], 10 U.S.C. §§ 890, 920, and 934.  The military judge sentenced
    appellant to a bad-conduct discharge and confinement for twelve months.
    The convening authority limited confinement to ten months and otherwise
    approved the adjudged sentence.  This case is before us for review under
    Article 66, UCMJ.
    
    
          In Specification 1 of Charge I, the Government charged appellant with
    possession of child pornography, in violation of Article 134, UCMJ.  In an
    apparent effort to comport with United States v. Medina, 
    66 M.J. 21
    (C.A.A.F. 2008), the specification alleged both a violation of 18 U.S.C.§
    2252A for possessing video files of child pornography on “land owned by the
    United States Government” and a violation of clauses 1 and 2 of the general
    article that “under the circumstances, this conduct was to the prejudice of
    good order and discipline in the armed forces or was of a nature to bring
    discredit upon the armed forces.”   Appellant pled guilty to Specification
    1 of Charge I, excepting words related to the number of videos involved and
    a description of one of the video files alleged.
    During the providence inquiry, however, appellant asserted that he did not
    possess the child pornography on Fort Huachuca, but only possessed it off
    the installation in the nearby community of Sierra Vista.
    
          The military judge properly identified that, to constitute an offense
    as alleged under 18 USC § 2252A(a)(5)(A), the possession must have occurred
    on property under the special jurisdiction or control of the United States.
     The government did not move to amend the specification.  Appellant’s
    defense counsel conceded that, under the specification as charged,
    appellant might nonetheless be guilty of an offense under clauses 1 and 2
    of Article 134.  Thereafter, appellant providently admitted, as charged in
    part, to possessing certain videos constituting child pornography, which
    were both prejudicial to good order and discipline and discrediting to the
    service.  However, the Government did not thereafter move to amend the
    specification to conform to the facts to which appellant admitted, nor did
    the military judge make findings consistent with the facts to which
    appellant admitted by excepting certain language of the specification to
    comport with appellant’s providency.
    
          We will modify Specification 1 of Charge I to conform to the facts to
    which appellant admitted.  See United States v. Sanchez, 
    54 M.J. 874
    , 878
    (Army Ct. Crim. App. 2001). The court affirms only so much of the finding
    of guilty of Specification 1 of Charge I as follows:
    
               In that Private (E-1) Jonathan M. Clemons, U.S. Army, did,
               between on or about 9 March 2008 and 18 March 2008, at or near
               Fort Huachuca, Arizona, knowingly possess a Toshiba laptop hard
               drive, serial number 37173066k, containing three video files of
               child pornography, including:
    
    
               T-88957440-(Pthc)(Liluplanet)(Lordofthering) mod 01 (One of the
               Hotest Clips I’ve seen) (Peeing.mpg
    
    
               T-158959620-142 Pthc Ultra Hussyfan 9 Yo Preteen Little Lolita
               R@Ygold Incest Kiddy Mafiasex (74).mpg
    
    
               and that, under the circumstances, this conduct was to the
               prejudice of good order and discipline in the armed forces or
               was of a nature to bring discredit upon the armed forces.
    
    
          We further affirm the finding of guilty to Charge I.  The remaining
    findings of guilty are affirmed.
    
    
          We have considered those matters personally raised by appellant
    pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), and find
    them to be without merit.  Reassessing the sentence on the basis of the
    modified findings and the entire record, and applying the principles of
    United States v. Sales, 
    22 M.J. 305
     (C.M.A. 1986) and United States v.
    Moffeit, 
    63 M.J. 40
    , 43 (C.A.A.F. 2006), to include those factors
    identified in Judge Baker's concurring opinion in Moffeit, the sentence is
    affirmed.
    
                                      FOR THE COURT:
    
    
    
    
                                      MALCOLM H. SQUIRES, JR.
                                      Clerk of Court
    

Document Info

DocketNumber: ARMY 20090226

Filed Date: 12/17/2009

Precedential Status: Non-Precedential

Modified Date: 1/9/2015