          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                        Senior Airman CHRISTOPHER W. DALTON
                                   United States Air Force

                                               ACM 38463

                                           16 December 2014

         Sentence adjudged 8 July 2013 by GCM convened at Royal Air Force
         Lakenheath, United Kingdom. Military Judge: Jefferson B. Brown (sitting
         alone).

         Approved Sentence: Dishonorable discharge, confinement for 18 months,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Lauren A. Shure.

         Appellate Counsel for the United States: Major Daniel J. Breen;
         Major Roberto Ramirez; and Gerald R. Bruce, Esquire.

                                                  Before

                            MITCHELL, WEBER, and CONTOVEROS
                                  Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                             under Air Force Rule of Practice and Procedure 18.4.



WEBER, Judge:

       A military judge sitting as a general court-martial convicted the appellant,
consistent with his pleas, of two specifications of possessing child pornography, one
specification of accessing child pornography, one specification of receiving child
pornography, and one specification of communicating indecent language, all in violation
of Article 134, UCMJ, 10 U.S.C. § 934. The adjudged and approved sentence consisted
of a dishonorable discharge, confinement for 18 months, forfeiture of all pay and
allowances, and reduction to E-1.
       The appellant raises two assignments of error before this court: (1) the two
specifications of possessing child pornography are lesser included offenses of the
specification of receiving child pornography and therefore represent multiplicious
charging; and (2) his plea to communicating indecent language is improvident when his
admissions indicate that the communication was likely between two consenting adults via
a private internet chat session, and the appellant fabricated the conversation. We find no
error materially prejudicial to a substantial right of the appellant and affirm.

                                        Background

        The appellant’s misconduct came to light when an internet photo sharing website
flagged three pictures the appellant posted as possible child pornography. Officials from
the website passed this information to civilian law enforcement officials and the
Air Force Office of Special Investigations (AFOSI). Once AFOSI obtained investigative
jurisdiction, it sought and received authorization to search the appellant’s computer
media devices. That search authorization was the subject of significant motions practice
at trial. The military judge found that the search authorization was not supported by
probable cause and that the good faith exception to the exclusionary rule did not apply.
However, he concluded that the inevitable discovery doctrine did apply and did not
warrant suppressing the evidence obtained from the search.

       The search revealed that the appellant searched for, downloaded, and possessed
multiple images of child pornography on his computer media devices. The Government
introduced 29 such images at trial. The search also revealed an internet chat session log
containing communications between the appellant and a person who held him or herself
out to be an 11-year-old girl. In that chat session, the appellant voiced a desire to rape the
purported 11-year-old girl as well as the girl’s 4-year-old sister. During a later
conversation, the appellant said he had earlier raped a 9-year-old girl.

        At trial, the appellant pled guilty to the charge and its specifications pursuant to a
pretrial agreement. One of the agreement’s terms, initiated by the defense, required the
appellant to waive all waivable motions. The agreement specifically noted that one such
motion the appellant waived was the defense’s suppression motion arising from the
search authorization. Defense counsel also noted several other possible motions the
appellant was agreeing to waive as part of this provision, including a motion for
multiplicity that the defense had apparently filed but was not included in the record of
trial due to the waiver.

                                        Multiplicity

       The appellant alleges that the specifications of possessing child pornography are
multiplicious with the receiving child pornography specification. At trial, the military
judge sua sponte elected to merge for sentencing purposes the specifications of accessing
and receiving child pornography with the two specifications of possessing child


                                              2                                   ACM 38463
pornography. The military judge ruled the two sets of specifications were not legally
multiplicious. He also stated he recognized he could dismiss two of the specifications as
an unreasonable multiplication of charges under United States v. Quiroz, 55 M.J. 334
(C.A.A.F. 2001), but declined to do so.

       In United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009), our superior court
held that a “waive all waivable motions” provision waived, rather than forfeited, a claim
of multiplicity on appeal and therefore the multiplicity claim was extinguished and could
not be raised on appeal. The court held this issue was waived even though the defense
counsel did not specifically mention multiplicity as a motion that was initially considered
but affirmatively waived by the provision. Id. In Gladue, the court held multiplicity was
waived because the pretrial agreement required the appellant to waive “all” waivable
motions, the military judge conducted a thorough inquiry to ensure the appellant
understood the effect of this provision, and the appellant explicitly indicated his
understanding that he was waiving the right to raise any waivable motion. Id.

       Consistent with Gladue, we find the appellant has waived his right to raise the
issue of multiplicity on appeal. The military judge conducted a thorough inquiry
concerning the “waive all waivable motions” provision, and the appellant affirmatively
voiced his understanding that this provision waived his right to raise any waivable motion
on appeal. In fact, defense counsel affirmatively indicated he had previously submitted a
motion concerning multiplicity, and this motion was now being waived by this provision.
The appellant agreed that this provision “precludes th[e] [trial] court, or any appellate
court, from having the opportunity to determine if [he was] entitled to any relief based
upon those motions the defense counsel just discussed he would have raised.” In
addition, the defense was certainly aware of the possibility of raising a multiplicity issue,
because the military judge had just merged specifications for sentencing and explained
his decision not to find the specifications multiplicious or an unreasonable multiplication
of charges for findings purposes. The appellant has waived this issue, and therefore he is
not entitled to relief on this issue.

                                  Guilty Plea Providence

       The appellant also alleges that his guilty plea to communicating indecent language
is improvident because: (1) his admissions indicated that the communication was likely
between two consenting adults via a private internet chat session; and (2) the
conversation was fabricated by the appellant. We disagree.

       “In reviewing the providence of Appellant’s guilty pleas, we consider his colloquy
with the military judge, as well any inferences that may reasonably be drawn from it.”
United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) (citing United States v. Hardeman,
59 M.J. 389, 391 (C.A.A.F. 2004)). A military judge abuses this discretion when
accepting a plea if he does not ensure the accused provides an adequate factual basis to


                                             3                                   ACM 38463
support the plea during the providence inquiry. See United States v. Care, 40 C.M.R. 247
(C.M.A. 1969). This is an area in which the military judge is entitled to “significant
deference.” United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citing
United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)).

       Our reviewing standard for determining if a guilty plea is provident is whether the
record presents a substantial basis in law or fact for questioning it. Id.; United States v.
Prater, 32 M.J. 433, 436 (C.M.A. 1991). At trial, the military judge must ensure the
accused understands the facts that support his guilty plea and be satisfied that the accused
understands the law applicable to his acts. United States v. Medina, 66 M.J. 21, 26
(C.A.A.F. 2008) (citing Care, 40 C.M.R. at 250–51); Jordan, 57 M.J. at 238.

       To sustain a guilty plea to indecent language, the appellant’s communication must
have the “tendency to incite lustful thought” or be “grossly offensive to modesty,
decency, or propriety, or shock[] the moral sense, because of its vulgar, filthy, or
disgusting nature.” United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004).
Indecency “depends on a number of factors, including but not limited to fluctuating
community standards of morals and manners, the personal relationship existing between a
given speaker and its auditor, motive, intent and the probable effect of the
communication.” United States v. Hullett, 40 M.J. 189, 191 (C.M.A. 1994) (quoting
United States v. Linyear, 3 M.J. 1027, 1030 (N.C.M.R. 1977)) (internal quotation marks
omitted).

        In the providence inquiry, the appellant affirmatively and repeatedly admitted that
his language toward a purported 11-year-old girl was indecent and service discrediting.
Although he stated that he did not know the identity of the other party, and that the nature
of the other party’s communication made him think that person might have been an adult,
the appellant nonetheless admitted that his vocalization of a fantasy of raping an
11-year-old girl and her 4-year-old sister was indecent and service discrediting. He stated
that his language “dealt with fantasies that would be a crime if acted upon,” would cause
members of the community to be “shocked” by his “vulgar and disgusting comments,”
and “reasonably tend[ed] to corrupt morals.” He also agreed that his comments, in which
he had identified himself as a military member, would be “vastly discrediting.”

       In addition, the military judge specifically identified the very issue of which the
appellant now complains. At the conclusion of the providence inquiry, the following
exchange took place:

              MJ: Let me just ask a general question of both trial and
              defense counsel—actually I’ll ask it of trial counsel regarding
              the indecent language specification. Is the government’s
              position that it is—that even if this [purported 11-year-old
              girl] was a male that was purporting to be a minor for sexual
              fantasy purposes, that this would still constitute an offense?

                                             4                                   ACM 38463
TC: Yes, Your Honor. And we always knew that we’d
probably never identify the actual age, and so we went off
that assumption from the beginning.

MJ: All right; so as far as—so since this was a private
messaging between two individuals, two individuals that
seemed to be actively engaged, is—and I don’t know, has
either trial or defense counsel looked at the—for two
individuals that both appear to be engaged in a conversation,
although it’s a fantasy type one involving child rape, whether
or not that would constitute an offense under indecent
language, or whether or not any First Amendment or any
other concerns might come into play? I don’t know if there
are any cases out there, so I don’t know if either trial or
defense had actually looked at that.

TC: No, Your Honor.

[Senior Defense Counsel (SDC)]: Your Honor, I’m not
aware of any cases that are directly on point. But I think this
would be analogous to indecent exposure type cases where
it’s not necessary that the government proved that somebody
else actually did see the indecent exposure, just that it could
have been seen. And I think that we have a situation here
where as [the appellant] has admitted, and there were
situations where individuals could use what you say to
blackmail; it’s possible that other people could have learned
of this chat.

MJ: Or that it could have been someone—because he didn’t
know who this individual that he’s talking to is, that the
individual could have been someone young, and he was
reckless in saying these kinds of things, because it could’ve
been someone—

SDC: Not only that, it could’ve been law enforcement.

MJ: It could have been law enforcement. So just so I
understand; so to a certain extent there’s a repulsive type
sexual fantasy discussion and that is happening between two
personas; one the accused and the other this other individual,
that part of indecency is obviously what they’re discussing,
but also that the accused had not identified really who this
person was, whether or not they really were young, what the


                               5                                  ACM 38463
              circumstances were. And it might be a very different
              situation if he had a good friend, 20-year-old, and they
              decided to play act, and he identified who he was; that might
              be a different situation than what we have here. Would you
              agree with that?

              TC: Yes, Your Honor. And not only because that person
              wasn’t identified, but also because he seemed to identify
              himself as a military member during the chat.

              MJ: Understand; and you concur with that as well, defense?

              SDC: Yes, Your Honor.

              MJ: And Airman Dalton, the reason we had that discussion is
              I just wanted to have a good sense as to sort of what the
              theory of the government was, as well [as] the defense, is that
              in determining whether or not this is indecent, and whether or
              not I’m going to accept your plea, I have to look at the totality
              of the conversation; and that might include whether or not it
              was fantasy role-playing, and all those types of things as well;
              whether or not the individual was actively participating, those
              types of things. But do you agree that you didn’t really know
              who this individual was and whether or not this person may
              or may not have been a child, that that was something that
              could have contributed to being indecent?

              [Appellant]: I would agree with that, sir.

       Under these circumstances, and particularly given the graphic and disturbing
language the appellant used, we have no difficulty concluding that the appellant’s guilty
plea was provident. The military judge specifically identified the issue now raised on
appeal, and the appellant and his counsel affirmatively asserted that the plea was
provident, despite the possibility that the appellant was engaged in fantasy role-playing or
communicating with an adult. We see no substantial basis in law or fact for questioning
the plea and find the military judge did not stray out of bounds from the “significant
deference” afforded him in this area.

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).




                                              6                                   ACM 38463
Accordingly, the findings and the sentence are AFFIRMED.



            FOR THE COURT


            STEVEN LUCAS
            Clerk of the Court




                                        7                  ACM 38463
