United States v. Private E2 ERIK D. JENKINS ( 2013 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
KERN, ALDYKIEWICZ, and MARTIN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 ERIK D. JENKINS
United States Army, Appellant
ARMY 20110673
Headquarters, Fort Bliss
David H. Robertson, Military Judge
Colonel Francis P. King, Staff Judge Advocate
For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Richard E. Gorini, JA; Captain Richard M. Gallagher, JA (on
brief).
For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Robert A. Rodrigues,
JA; Captain Steve T. Nam, JA (on brief).
13 May 2013
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of failure to obey a lawful order, false official statement,
assault upon a commissioned officer, possession of child pornography, and
possession of ten video files of bestiality, in violation of Articles 92, 107, 128, and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, 928, 934 (2006)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct
discharge, confinement for three years, and reduction to the grade of E-1. Pursuant
to a pretrial agreement, the convening authority approved a sentence to a bad-
conduct discharge, confinement for eighteen months, and reduction to the grade
of E-1.
Appellant’s case is before this court for review pursuant to Article 66, UCMJ,
and appellant raises two assignments of error, one of which warrants discussion and
relief. Appellant claims the military judge abused his discretion when he accepted
JENKINS—ARMY 20110673
appellant’s plea to the alternative theories of guilt alleged in the child pornography
specification of which he was convicted. Specifically, appellant argues that the
military judge failed to elicit a factual basis that appellant’s possession of child
pornography was either prejudicial to good order and discipline or service-
discrediting. We agree.
“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 for an abuse of discretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Id. at 322; UCMJ art. 45; Rule for Courts-Martial
910(e).
The government charged appellant with knowingly possessing child
pornography in violation of 18 U.S.C. § 2252A(a), “such conduct being prejudicial
to good order and discipline in the armed forces and of a nature to bring discredit
upon the armed forces.” See Manual for Courts–Martial, United States (2008 ed.),
pt. IV, ¶ 60.c.(2), (3), and (4). As our superior court recently reiterated, “[t]he three
clauses of Article 134 constitute ‘three distinct and separate parts.’” United States
v. Fosler, 70 M.J. 225, 230 (C.A.A.F. 2011) (quoting United States v. Frantz,
2 U.S.C.M.A. 161, 163, 7 C.M.R. 37, 39 (1953)). Thus, if a specification alleges all
three, then there must be a substantial basis in fact in the record to support a finding
of guilty to all three.
Given the facts of this case, there is no question as to appellant’s possession
of child pornography in violation of § 2252A. However, the plea inquiry does not
establish facts demonstrating that appellant’s conduct was prejudicial to good order
and discipline or service-discrediting. The military judge never explained these
elements to appellant, nor did he discuss with appellant whether his conduct violated
these elements. Consequently, the military judge did not elicit an adequate factual
basis during his colloquy with appellant to support his plea to committing conduct
prejudicial to good order and discipline or of a nature to bring discredit upon the
armed forces. Accordingly, on the record before us, we find a substantial basis in
fact to question appellant’s pleas to violating Clauses 1 and 2 of Article 134, UCMJ.
CONCLUSION
On consideration of the entire record, the court affirms only so much of the
finding of guilty of Specification 1 of Charge I as finds that appellant “did, at Fort
Bliss, Texas, between on or about 1 June 2010 and 22 August 2010, a place under
exclusive or concurrent federal jurisdiction, or under the control of the United States
Government, knowingly possess a laptop computer containing more than 10 images
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JENKINS—ARMY 20110673
and video files of child pornography, in violation of 18 U.S. Code, Section
2252A(a)(5).” The remaining findings of guilty are AFFIRMED. Reassessing the
sentence on the basis of the error noted, the entire record, and in accordance with the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v.
Moffeit, 63 M.J 40 (C.A.A.F 2006), to include the factors identified by Judge Baker
in his concurring opinion, the sentence as approved by the convening authority is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored. See UCMJ art. 75(a).
FOR THE COURT:
MALCOLM
MALCOLM H. H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
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