United States v. Private First Class MICAH S. ROCHET ( 2011 )


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  • UNITED STATES ARMY COURT OF CRIMINAL APPEALS
    Before
    KERN, CARLTON, and YOB
    Appellate Military Judges
    UNITED STATES, Appellee
    v.
    Private First Class MICAH S. ROCHET
    United States Army, Appellant
    ARMY 20100732
    Headquarters, Fort Carson
    Mark Bridges, Military Judge
    Colonel Randy T. Kirkvold, Staff Judge Advocate (pretrial)
    Major Jeffrey S. Thurnher, Acting Staff Judge Advocate (post-trial)
    For Appellant:  Lieutenant Colonel Imogene M. Jamison, JA; Major Laura R.
    Kesler, JA; Captain Richard M. Gallagher, JA (on brief).
    For Appellee:  Colonel Michael Mulligan, JA; Major Amber Williams, JA;
    Captain Kenneth W. Borgnino, JA; Captain Christopher L. Simons, JA (on
    brief).
    29 July 2011
    ---------------------------------
    SUMMARY DISPOSITION
    ---------------------------------
    Per Curiam:
    A military judge sitting as a general court-martial convicted
    appellant,  pursuant to his pleas, of absence without leave and possession
    of child pornography, in violation of Articles 86 and 134, Uniform Code of
    Military Justice [hereinafter UCMJ], 
    10 U.S.C. §§ 866
     and 934 (2008).  The
    military judge sentenced appellant to reduction to E1, confinement for
    eleven months, and a bad conduct discharge.  The convening authority
    approved the sentence as adjudged.
    On appeal, appellant raised a single assignment of error regarding the
    possession of child pornography specification of which he was convicted.[1]
    That specification alleged appellant knowingly and wrongfully possessed a
    laptop computer containing [numerous] images and files of child
    pornography.  The stipulation of fact, admitted into evidence pursuant to
    appellant’s guilty plea, indicates that there were 78 images and 9 videos
    on the laptop computer of apparent minors engaging in sexually explicit
    conduct.  Appellant now takes issue with one image, which was listed as a
    representative example within the specification:
    9yo_nude_preteen_girlrealkiddymov preteen lolita ddoggpornincest sister
    daddy kiddy little girl teen kiddie underage qwerty child porn illegal rape
    dad.jpg.  The image under this file name depicted a topless young girl
    wearing a swimsuit bottom in a pose that appellant argues is not sexual.
    We review a military judge’s decision to accept a plea of guilty “for
    an abuse of discretion and questions of law arising from the guilty plea de
    novo.”  United States v. Inabinette, 
    66 M.J. 320
    , 322 (C.A.A.F. 2008).  A
    guilty plea will be set aside on appeal only if an appellant can show a
    substantial basis in law or fact to question the plea.  
    Id.
     (citing United
    States v. Prater, 
    32 M.J. 433
    , 436 (C.M.A. 1991)).  The Court applies this
    “substantial basis” test by determining whether the record raises a
    substantial question about the factual basis of appellant’s guilty plea or
    the law underpinning the plea.  
    Id.
      See Article 45, UCMJ; Rule for Court-
    Martial 910(e).
    During the providence inquiry, the military judge clarified and
    appellant affirmed his understanding that Specification 1 of Charge II and
    his plea of guilty to that specification were for many more images and
    videos than just the file names listed in the specification.  Appellant
    affirmed that the file names listed in the specification were just some
    examples.  Of the numerous images and videos contained on the laptop for
    which the appellant was charged, appellant contests only the one JPG image
    as not constituting child pornography and argues that the military judge
    failed to question the appellant on his belief as to why that particular
    image constituted child pornography.  Our review also finds the military
    judge failed to question the appellant as to why that particular image
    constituted child pornography. Therefore we find the military judge’s
    inquiry factually deficient.
    The court affirms only so much of the finding of Specification 1 of
    Charge II as finds the appellant did, between on or about 1 January 2009
    and on or about 21 May 2009, at Fort Carson, Colorado, knowingly and
    wrongfully possess an HP Laptop Computer, SN: 2CE848178S, containing images
    and video(s) files of child pornography, including:  9yo littlegirl
    displays her sweet yng cunt – PART2 – Pussy licking now (2min7sec)(Orig
    duogil l)-real kiddymov Lolita preteen young incest kiddie porno.sex xxx
    ddoggprn.mpg, which conduct was prejudicial to good order and discipline or
    of a nature likely to bring discredit upon the armed forces.  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 court affirms the sentence as approved by the convening
    authority.
    FOR THE COURT:
    MALCOLM H. SQUIRES, JR.
    Clerk of Court
    -----------------------
    [1] Appellant assigned the following error:  THE MILITARY JUDGE ABUSED HIS
    DISCRETION IN ACCEPTING APPELLANT’S GUILTY PLEA IN FULL BECAUSE THE “JPG”
    IMAGE ALLEGED IN SPECIFICATION 1 OF CHARGE II DID NOT CONTAIN CHILD
    PORNOGRAPHY.
    

Document Info

Docket Number: ARMY 20100732

Filed Date: 7/29/2011

Precedential Status: Non-Precedential

Modified Date: 4/17/2021