United States v. Private E1 ADAM R. BANISTER

• Court: Army Court of Criminal Appeals
• Decided: June 15, 2010
• Docket: ARMY 20080887
• Status: Unpublished

Opinion

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.