United States v. Private (E-2) STUART H. CLARK ( 2015 )

                               HAIGHT, PENLAND, and WOLFE
                                  Appellate Military Judges
                               UNITED STATES, Appellee
                            Private (E-2) STUART H. CLARK
                             United States Army, Appellant
                                      ARMY 20140312
       Headquarters, Maneuver Support Center of Excellence and Fort Leonard Wood
                          Gregory B. Batdorff, Military Judge
                     Colonel Robert F. Resnick, Staff Judge Advocate
    For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
    Inkenbrandt, JA; Captain Amanda R. McNeil, JA (on brief).
    For Appellee: Colonel Mark H. Sydenham, JA; Major A.J. Courie III, Major Daniel
    D. Derner, JA; Captain James P. Curtin, JA (on brief).
                                     16 December 2015
                                  SUMMARY DISPOSITION
    WOLFE, Judge:
           A general court-martial composed of a military judge convicted appellant,
    consistent with his pleas, of one specification of sexual abuse of a child, two
    specifications of producing child pornography, and two specifications of possessing
    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 military judge
    sentenced appellant to a dishonorable discharge, confinement for six years, and a
    reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening
    authority reduced the confinement to sixteen months and approved the remainder of
    the sentence.
            Appellant’s case is before this court for review under Article 66, UCMJ.
    Appellant assigns two allegations of error, one of which merits discussion but not
    CLARK—ARMY 20140312
           During the summer and early fall of 2013, appellant met two unrelated
    children online - girls aged 13 and 16. During a series of emails and chats, he
    independently convinced both of them to take graphic photos of themselves in
    various stages of undress and nudity. Despite knowing their age, appellant sent each
    child emails directing them on how to take additional photos, how to position
    themselves, and how to better display their genitals for his sexual pleasure. Both
    children complied and sent appellant a series of pictures. Appellant copied and
    stored the pictures and reviewed them weekly for the purpose of sexual gratification.
           Appellant pleaded guilty to one specification of sexual abuse of a child for
    communicating indecent language to the 13-year old child, including telling her to
    use two fingers to spread open her labia. Appellant pleaded guilty to two
    specifications of producing child pornography for directing both children to create
    child pornography that did not previously exist. * Appellant pleaded guilty to two
    specifications of possessing child pornography for copying the images he was sent
    on to various media devices so he could view them later.
                            Unreasonable Multiplication of Charges
          On appeal, for the first time, appellant argues that the charges are
    unreasonably multiplied, and that the military judge abused his discretion in not
    merging the specifications. We disagree.
           As an initial matter, we note that appellant specifically waived this issue
    when he agreed to waive all waivable motions under the exact same circumstances as
    were presented in United States v. Gladue, 
    67 M.J. 311
     (C.A.A.F. 2009). While this
    court can notice a waived error, see Article 66(c), UCMJ, we decline to do so in this
    case for two independent reasons.
          First, appellant’s convictions address three separate criminal acts, each
    designed to avoid different societal harms. When appellant indecently
    communicated graphic sexual language to children, the offense was completed
    regardless of whether the children eventually complied with his direction to provide
    sexual photos. When the children took the photos at appellant’s direction, appellant
    produced child pornography. When appellant copied and saved the images and
    reviewed them on a regular basis for the purpose of sexual gratification, the
    victimization of the children continued. Appellant stipulated that child pornography
     Appellant’s providence inquiry was detailed and lengthy and included admissions that he was
    giving directions on how to pose in the same manner as a photographer would direct a model.
    CLARK—ARMY 20140312
    is not a victimless crime and to the unknown future impact his offenses may have on
    his victims.
          Second, it important to note that appellant’s pleas were part and parcel of a
    negotiated guilty plea. That is, in exchange for a substantial limit to the
    confinement appellant would serve, appellant agreed to plead guilty to all charges
    and specifications. If, for example, appellant had raised the issue of unreasonable
    multiplication of charges at trial, he would have violated his agreement with the
    convening authority and risked losing the benefit of the deal. Alternatively, had
    appellant negotiated to plead guilty to only some of the offenses, or to have the
    offenses merged, it is far from certain that the parties would have arrived at the
    same deal. Appellant fails to provide any reason to disturb this negotiated
    agreement, and our independent review of the record finds none.
          After considering the entire record and the submissions of the parties, the
    findings of guilty and the sentence are AFFIRMED.
          Senior Judge HAIGHT and Judge PENLAND concur.
                                           FOR THE COURT:
                                           FOR THE COURT:
                                           JOHN P. TAITT
                                           Chief  P. TAITT
                                                 Deputy Clerk of Court
                                            Deputy Clerk of Court

Document Info

DocketNumber: ARMY 20140312

Filed Date: 12/16/2015

Precedential Status: Non-Precedential

Modified Date: 12/17/2015