          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                           Staff Sergeant ZACHARY R. LYNCH
                                   United States Air Force

                                         ACM 38094 (rem)

                                           28 March 2014

         Sentence adjudged 20 December 2011 by GCM convened at Joint Base
         Elmendorf-Richardson, Alaska. Military Judge: W. Shane Cohen (sitting
         alone).

         Approved Sentence: Bad-conduct discharge, confinement for 18 months,
         reduction to E-1, and a reprimand.

         Appellate Counsel for the appellant: Major Zaven T. Saroyan.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Brian C. Mason; and Gerald R.
         Bruce, Esquire.

                                                 Before

                              ROAN, HARNEY, and MITCHELL
                                 Appellate Military Judges

                                         UPON REMAND

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

      Before a general court-martial composed of military judge alone, the appellant was
charged with and pled guilty to one specification of knowingly and wrongfully
possessing one or more video files “of minors engaging in sexually explicit conduct” and
one specification of knowingly and wrongfully possessing one or more images “of minors
engaging in sexually explicit conduct,” in violation of Article 134, UCMJ,
10 U.S.C. § 934 (emphasis added).1 The military judge merged the two specifications for
sentencing and determined the maximum punishment by referencing
18 U.S.C. § 2252A(b)(2), which sets maximum confinement at 10 years for possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(5). The court adjudged a bad-
conduct discharge, confinement for 22 months, reduction to E-1, and a reprimand. The
convening authority approved confinement for 18 months and otherwise approved the
sentence as adjudged.

       On appeal, the appellant argued that the military judge erred when he used the
punishment authorized for possession of child pornography under 18 U.S.C.
§ 2252A(a)(5) for purposes of determining the maximum punishment. Alternatively, the
appellant argued that the plea inquiry was improvident because the military judge failed
to establish the appellant possessed images of actual children.

       On 14 May 2013, we issued a decision denying the appellant relief. United States
v. Lynch, ACM 38094 (A.F. Ct. Crim. App. 14 May 2013) (unpub. op.). On
23 July 2013, upon our own motion, this Court vacated the previous decision for
reconsideration before a properly constituted panel, and affirmed our prior decision.
United States v. Lynch, ACM 38094 (recon) (A.F. Ct. Crim. App. 23 July 2013) (unpub.
op.). The appellant filed a petition for review with the Court of Appeals for the Armed
Forces on 18 December 2013. On 31 October 2013, our superior court granted the
appellant’s petition for review on the issue of whether our panel was properly constituted.
United States v. Lynch, ___ M.J. ___, No. 13-0717/AF (Daily Journal 31 October 2013).
In that same order, the Court set aside our decision and remanded the case for an
additional review and consideration of the panel constitution under Article 66(c), UCMJ,
10 U.S.C. § 866(c). Id.

       On 6 March 2014, our superior court issued its opinion in United States v. Finch,
73 M.J. 144 (C.A.A.F. 2014). In Finch, the appellant was charged with “receipt,
possession, and distribution of “visual depictions of a minor engaged in sexually explicit
conduct.” Id. at 148. The Court upheld our decision, which affirmed the trial court’s
determination that the maximum punishment was properly based on analogous portions
of 18 U.S.C. 2252A, which addressed essentially the same offenses as charged in Finch’s
case. Id. In addition, the Court found no substantial basis in law or fact to reject Finch’s
plea as improvident.2 Id. at 149.

1
  The specifications alleged, in the disjunctive, both Clauses 1 and 2 of the terminal element of Article 134, UCMJ,
10 U.S.C. § 934.
2
  During the providence inquiry in United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014), the military judge advised
the accused that images that could be used to satisfy the elements of his alleged offense of distribution of child
pornography, in violation of Article 134, UCMJ, 10 U.S.C. § 934, could be of either actual or virtual minors. After
being found guilty, in accordance with his plea, he appealed, arguing this inconsistent statement from the military
judge caused confusion and that he could not be sure if he was pleading guilty to offenses involving actual minors
with a maximum sentence of 30 years or offenses involving virtual minors with a maximum sentence of 8 months.
Id. at 149. Our superior court held that despite this one inconsistency, the parties proceeded as though the


                                                         2                                       ACM 38094 (rem)
        The decision in Finch resolves the issues raised by the appellant against him. The
crime charged here is punishable as authorized by the United States Code section
referenced by the military judge, which criminalizes possession of child pornography.
The term “child pornography” includes any visual depiction of sexually explicit conduct
where (1) the visual depiction involves “the use of a minor engaging in sexually explicit
conduct,” or (2) the visual depiction is “a digital image, computer image, or computer-
generated image that is, or is indistinguishable from, that of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2256(8)(A)-(B) (emphasis added). Consistent with that
definition, the specifications here allege the wrongful and knowing possession of images
and videos of minors engaging in sexually explicit conduct. Therefore, the military judge
correctly used the punishment authorized for possession of child pornography under
18 U.S.C. § 2252A(a)(5) for purposes of determining the maximum punishment. See
Finch, 73 M.J. at 148; Rule for Courts-Martial 1003(c)(1)(B)(ii) (an offense not listed in
or closely related to one listed in the Manual for Courts-Martial is punishable as
authorized by the United States Code).

        We also rely on Finch to find that the appellant’s plea was provident. Finch,
73 M.J. at 148-49. We review a military judge’s decision to accept a guilty plea 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). In doing so, we apply the
substantial basis test and look for something in the record of trial, with regard to the
factual basis or the law, that would raise a substantial question regarding the guilty plea.
Inabinette, 66 M.J. at 322; United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)
(a plea of guilty should not be overturned as improvident unless the record reveals a
substantial basis in law or fact to question the plea). “An accused must know to what
offenses he is pleading guilty.” United States v. Medina, 66 M.J. 21, 28 (C.A.A.F. 2008).
A military judge’s failure to explain the elements of a charged offense is error. United
States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969). Accordingly, “a military judge must
explain the elements of the offense and ensure that a factual basis for each element
exists.” United States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004) (citing United States v.
Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996).

        Here, we find nothing that would raise a substantial question regarding the
appellant’s guilty plea. The military judge correctly explained the elements and
definitions of the offenses to include defining “minor” as “any person under the age of
18 years.” After acknowledging his understanding of the elements and definitions, the
appellant admitted to possessing videos and still images of minors engaged in sexually
explicit conduct. He told the judge that the age range of the persons in the videos was
“[b]etween the ages of 12 and 17.” The judge pointedly asked, “[D]o you have any doubt


allegations involved actual minors and the military judge gathered enough information from the accused to support
his plea. Id.


                                                       3                                      ACM 38094 (rem)
in your mind as you sit here today, that you possessed approximately 10 videos of minors
between the ages of 12 to 17 years of age who were engaged in sexually explicit conduct
as I have defined that term for you?” The appellant replied, “No, sir.” The judge
conducted a similar inquiry regarding the ages of the persons in the still images. The
appellant told the judge that the persons in the images were “[b]etween the ages of 9 and
17” and that he had no doubt they were under the age of 18. In consideration of the entire
inquiry, we find no substantial basis to question the appellant’s guilty plea.

                                         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). Accordingly, the approved findings and
sentence are

                                         AFFIRMED.



             FOR THE COURT


             LEAH M. CALAHAN
             Deputy Clerk of the Court




                                             4                             ACM 38094 (rem)
