United States v. Private E1 ADAM R. BANISTER ( 2010 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    TOZZI, HAM, and SIMS
    Appellate Military Judges
    UNITED STATES, Appellant
    v.
    Private E1 ADAM R. BANISTER
    United States Army, Appellee
    ARMY 20080887
    Headquarters, 3d Infantry Division and Fort Stewart
    Tara A. Osborn, Military Judge
    Colonel Jonathan C. Guden, Staff Judge Advocate
    For Appellant:  Colonel Mark Tellitocci, JA; Lieutenant Colonel Matthew M.
    Miller, JA; Captain Shay Stanford, JA; Captain Sarah E. Wolf, JA (on
    brief).
    For Appellee:  Colonel Norman F.J. Allen, III, JA; Lieutenant Colonel
    Martha Foss, JA; Major Sara M. Root, JA; Captain Kevin F. Sweeney, JA (on
    brief).
    15 June 2010
    -----------------------------------
    SUMMARY DISPOSITION
    -----------------------------------
    Per Curiam:
    A military judge sitting as a general court-martial convicted
    appellant, pursuant to his pleas, of two specifications of possession of
    child pornography in violation of Article 134, Uniform Code of Military
    Justice, 
    10 U.S.C. § 934
     [hereinafter UCMJ].  The military judge sentenced
    appellant to a dishonorable discharge and confinement for sixty-one months.
    Pursuant to a pretrial agreement the convening authority approved only so
    much of the sentence as provided for thirty-six months of confinement and
    otherwise approved the adjudged sentence.
    On appeal, appellant raises two assignments of error.[1]  While we
    find the second assignment of error lacks merit, the first assignment of
    error is meritorious.  We grant relief below.
    Appellant claims, and we agree, the military judge erred in accepting
    his plea of guilty to Specification 2 of Charge III without first resolving
    an inconsistency raised when appellant stated he believed the subjects in
    one of the four charged images he possessed (image 43c20336c77afl46.jpg)
    were “between the ages of 16 and 19.”  The military judge defined child
    pornography as “any visual depiction . . . of sexually explicit conduct
    when the production of such visual depiction involves the use of an actual
    minor engaged in sexually explicit conduct or such visual depiction has
    caught an actual minor engaged in sexually explicit conduct or such visual
    depiction has been created, adapted, or modified to appear that an
    identifiable actual minor is engaging in sexually explicit conduct.”  The
    military judge defined “minor” as “any actual person[] under the age of 18
    years.” (Emphasis added.)
    Additionally, appellant’s colloquy with the military judge revealed a
    similar inconsistency as to Specification 1 of Charge III where appellant
    stated he believed the female subject in one of the two charged videos
    (image m04-3.mpeg) “appears to be a young lady approximately, probably,
    about 17 to 19 years old.”  A military judge should not accept an
    appellant’s plea of guilty to an offense where the appellant “sets up
    matter inconsistent with the plea” without first resolving the
    inconsistency.  UCMJ, art. 45(a); United States v. Mitchell, 
    66 M.J. 176
    ,
    178 (C.A.A.F. 2008) (quoting United States v. Garcia, 
    44 M.J. 496
    , 498
    (C.A.A.F. 1996)).
    Accordingly, we will modify Specifications 1 and 2 of Charge III to
    conform to the facts to which appellant unambiguously admitted.   See
    United States v. Sanchez, 
    54 M.J. 874
    , 878 (Army Ct. Crim. App. 2001).
    Upon consideration of the entire record, including the matters
    personally raised by appellant pursuant to United States v. Grostefon, 
    12 M.J. 431
     (C.M.A. 1982), the court affirms only so much of the finding of
    guilty of Specification 1 of Charge III as finds appellant did, “on or
    about 21 November 2007, at Fort Stewart, Georgia, knowingly possess one (1)
    image of child pornography, which conduct was prejudicial to good order and
    discipline in the Armed Forces and was of a nature to bring discredit upon
    the Armed Forces.”
    The court affirms only so much of the finding of Specification 2 of
    Charge III as finds appellant did, “on or about 25 September 2007, at Fort
    Stewart, Georgia, knowingly possess three (3) images of child pornography,
    which conduct was prejudicial to good order and discipline in the Armed
    Forces and was of a nature to bring discredit upon the Armed Forces.”
    The court affirms the finding of guilty to Charge III.
    Reassessing the sentence on the basis of the errors 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 court affirms the sentence.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    -----------------------
    [1] Appellant’s assignments of error follow:
    (continued . . .)
    I.
    THE MILITARY JUDGE ERRED IN ACCEPTING APPELLANT’S PLEA OF GUILTY
    TO SPECIFICATION 2 OF CHARGE III (POSSESSION OF CHILD
    PORNOGRAPHY) WHERE APPELLANT TOLD THE MILITARY JUDGE THAT HE
    BELIEVED THAT INDIVIDUALS IN ONE OF THE IMAGES WERE OVER THE AGE
    OF 18.
    II.
    THE TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS SENTENCING
    ARGUMENT WHEN HE INTERJECTED HIS PERSONAL VIEWS OF THE EVIDENCE
    AND ARGUED FACTS NOT IN EVIDENCE.
    

Document Info

Docket Number: ARMY 20080887

Filed Date: 6/15/2010

Precedential Status: Non-Precedential

Modified Date: 4/17/2021