United States v. Specialist JOSEPH R. LEE ( 2015 )

                            TOZZI, CAMPANELLA, and CELTNIEKS
                                   Appellate Military Judges
                                UNITED STATES, Appellee
                                Specialist JOSEPH R. LEE
                               United States Army, Appellant
                                       ARMY 20130718
              Headquarters, 7th Army Joint Multinational Training Command
                             Joshua S. Shuey, Military Judge
             Lieutenant Colonel John L. Kiel, Jr., Acting Staff Judge Advocate
    For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
    Patrick J. Scudieri, JA (on brief).
    For Appellee: Major A.G Courie III, JA; Major Daniel D. Derner, JA; Captain
    Christopher A. Clausen, JA (on brief).
                                           9 July 2015
                                    SUMMARY DISPOSITION
    Per Curiam:
           A general court-martial comprised of officer and enlisted members convicted
    appellant, consistent with his plea, of one specification of violating a lawful general
    order in violation of Article 92 Uniform Code of Military Justice, 10 U.S.C. § 892
    (2006) [hereinafter UCMJ]. Contrary to his pleas appellant was convicted of three
    specifications of possessing child pornography in violation of Article 134, UCMJ, 10
    U.S.C. § 934. The panel sentenced appellant to a dishonorable discharge,
    confinement for two years, forfeiture of all pay and allowances, and reduction to the
    grade of E-1. The convening authority approved only so much of the sentence as
    provided for a dishonorable discharge, confinement for twenty-two months,
    forfeiture of all pay and allowances, and reduction to the grad e of E-1.
          Appellant’s case is before this court for review under Article 66, UCMJ.
    Appellate counsel assigned six errors to this court, and appellant personally raised
    matters pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982). One of
    LEE—ARMY 20130718
    the assigned errors warrants discussion but no relief. 1 We find the matters raised
    pursuant to Grostefon are without merit.
           The panel returned a general verdict of guilty to the Specifications of Charge
    II for possession of child pornography. The images contained in Prosecution
    Exhibits 10 and 11 pertained to Specifications 1 and 2 of Charge II. Those
    Specifications charged appellant with possession of “more than fifty (50) digital
    images and one (1) video of child pornography…” Appellant alleges the evidence is
    legally and factually insufficient to support his conviction of possessing child
    pornography as defined by 18 U.S.C § 2256 (8) as the pictures do not meet the
    definition. Appellant asserts that no reasonable factfinder could have found certain
    photographs in Prosecution Exhibits 10 and 11 2 to meet the definition of child
           Article 66(c), UCMJ, requires that we approve only those findings of guilty
    we determine to be correct in both law and fact. We review iss ues of legal and
    factual sufficiency de novo. United States v. Washington, 
    57 M.J. 394
    , 399
    (C.A.A.F. 2002). The test for legal sufficiency of the evidence is “whether,
    considering the evidence in the light most favorable to the prosecution, a reasonable
    factfinder could have found all the essential elements beyond a reasonable doubt.”
    United States v. Turner, 
    25 M.J. 324
     (C.M.A. 1987) (citing Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979)). The test for factual sufficiency is “whether, after weighing
    the evidence in the record of trial and making allowances for not having personally
    observed the witnesses, [we] are [ourselves] convinced of the accused's guilt beyond
    a reasonable doubt.” Turner, 25 M.J. at 325.
           “Child pornography” is defined as “any vis ual depiction . . . where the
    production of such visual depiction involves the use of a minor engaging in sexually
    explicit conduct.” 18 U.S.C. § 2256(8)(A). “Sexually explicit conduct” is defined
    as “actual or simulated sexual intercourse . . . or . . . lascivious exhibition of the
    genitals or pubic area of any person.” 18 U.S.C. §§ 2256(2)(A)(i), (v). It is clear
    from the record that appellant was convicted of possession of child pornography
    consistent with the above definitions.
     We also find that the matters raised in appellant’s motion to reconsider this court’s
    decision to grant the government’s motion to attach Prosecution Exhibit 7 are
    without merit.
     Specifically, appellant asserts Prosecution Exhibit 10, photos 53, 101, 105, 108,
    112, and 175, and Prosecution Exhibit 11, photos 207, 267, and 270, do not meet the
    definition of child pornography.
    LEE—ARMY 20130718
           It is also clear from the record that not all the images provided in the
    prosecutions exhibits constitute child pornography as defined by the statute above.
    Appellant alleges six images from Prosecution Exhibit 10 and three images from
    Prosecution Exhibit 11 do not meet the definition of child pornography. We agree
    with appellant that those particular images do not meet the statutory definition and
    are therefore constitutionally protected. However, even discounting those images
    from the prosecution’s exhibits, there are still enough qualifying images, clearly
    over fifty images in each exhibit, that meet the definition of child pornography for
    each specification. The video contained in Prosecution Exhibits 10 and 11 also
    meets the definition of child pornography. In light of our superior court’s recent
    ruling in United States v. Piolunek, it is no longer necessary to reject an entire
    verdict simply because some of the conduct that resulted in the verdict was
    constitutionally protected. 
    74 M.J. 107
    , 111 -12 (C.A.A.F. 2015) (“Contrary to our
    conclusion in Barberi, convictions by general verdict for possession and receipt of
    visual depictions of a minor engaging in sexually explicit conduct on divers
    occasions by a properly instructed panel need not be set aside after the CCA decides
    several images considered by the members do not depi ct the genitals or pubic
          Upon consideration of the entire record, the findings of guilty and the
    sentence are AFFIRMED.
                                           FOR THE
                                           FOR THE COURT:
                                           MALCOLM H.  H. SQUIRES,
                                                          SQUIRES, JR.
                                           Clerk of
                                                 of Court

Document Info

DocketNumber: ARMY 20130718

Filed Date: 7/9/2015

Precedential Status: Non-Precedential

Modified Date: 7/13/2015