United States v. Private E1 JONATHAN M. CLEMONS

• Court: Army Court of Criminal Appeals
• Decided: December 17, 2009
• Docket: ARMY 20090226
• Status: Unpublished

Opinion

UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before CONN, HOFFMAN, AND GIFFORD Appellate Military Judges

UNITED STATES, Appellee v. Private E1 JONATHAN M. CLEMONS United States Army, Appellant

ARMY 20090226

Headquarters, United States Army Intelligence Center and Fort Huachuca Michael J. Hargis, Military Judge Colonel Karen L. Judkins, Staff Judge Advocate

For Appellant: Major Timothy Thomas, JA; Major Angelines McCaffrey, JA

For Appellee: Lieutenant Colonel Francis C. Kiley, JA

17 December 2009

--------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam:

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of willful disobedience of a commissioned officer, indecent acts, and possession of child pornography, in violation of Articles 90, 120, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 890, 920, and 934. The military judge sentenced appellant to a bad-conduct discharge and confinement for twelve months. The convening authority limited confinement to ten months and otherwise approved the adjudged sentence. This case is before us for review under Article 66, UCMJ.

In Specification 1 of Charge I, the Government charged appellant with possession of child pornography, in violation of Article 134, UCMJ. In an apparent effort to comport with United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), the specification alleged both a violation of 18 U.S.C.§ 2252A for possessing video files of child pornography on “land owned by the United States Government” and a violation of clauses 1 and 2 of the general article that “under the circumstances, this conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.” Appellant pled guilty to Specification 1 of Charge I, excepting words related to the number of videos involved and a description of one of the video files alleged. During the providence inquiry, however, appellant asserted that he did not possess the child pornography on Fort Huachuca, but only possessed it off the installation in the nearby community of Sierra Vista.

The military judge properly identified that, to constitute an offense as alleged under 18 USC § 2252A(a)(5)(A), the possession must have occurred on property under the special jurisdiction or control of the United States. The government did not move to amend the specification. Appellant’s defense counsel conceded that, under the specification as charged, appellant might nonetheless be guilty of an offense under clauses 1 and 2 of Article 134. Thereafter, appellant providently admitted, as charged in part, to possessing certain videos constituting child pornography, which were both prejudicial to good order and discipline and discrediting to the service. However, the Government did not thereafter move to amend the specification to conform to the facts to which appellant admitted, nor did the military judge make findings consistent with the facts to which appellant admitted by excepting certain language of the specification to comport with appellant’s providency.

We will modify Specification 1 of Charge I to conform to the facts to which appellant admitted. See United States v. Sanchez, 54 M.J. 874, 878 (Army Ct. Crim. App. 2001). The court affirms only so much of the finding of guilty of Specification 1 of Charge I as follows:

In that Private (E-1) Jonathan M. Clemons, U.S. Army, did, between on or about 9 March 2008 and 18 March 2008, at or near Fort Huachuca, Arizona, knowingly possess a Toshiba laptop hard drive, serial number 37173066k, containing three video files of child pornography, including:

T-88957440-(Pthc)(Liluplanet)(Lordofthering) mod 01 (One of the Hotest Clips I’ve seen) (Peeing.mpg

T-158959620-142 Pthc Ultra Hussyfan 9 Yo Preteen Little Lolita R@Ygold Incest Kiddy Mafiasex (74).mpg

and that, under the circumstances, this conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

We further affirm the finding of guilty to Charge I. The remaining findings of guilty are affirmed.

We have considered those matters personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Reassessing the sentence on the basis of the modified findings and the entire record, and applying the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 63 M.J. 40, 43 (C.A.A.F. 2006), to include those factors identified in Judge Baker's concurring opinion in Moffeit, the sentence is affirmed.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court