UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                            Specialist JOSEPH R. LEE
                           United States Army, Appellant

                                   ARMY 20130718

          Headquarters, 7th Army Joint Multinational Training Command
                         Joshua S. Shuey, Military Judge
         Lieutenant Colonel John L. Kiel, Jr., Acting Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Patrick J. Scudieri, JA (on brief).

For Appellee: Major A.G Courie III, JA; Major Daniel D. Derner, JA; Captain
Christopher A. Clausen, JA (on brief).


                                       9 July 2015

                              -----------------------------------
                                SUMMARY DISPOSITION
                              -----------------------------------

Per Curiam:

       A general court-martial comprised of officer and enlisted members convicted
appellant, consistent with his plea, of one specification of violating a lawful general
order in violation of Article 92 Uniform Code of Military Justice, 10 U.S.C. § 892
(2006) [hereinafter UCMJ]. Contrary to his pleas appellant was convicted of three
specifications of possessing child pornography in violation of Article 134, UCMJ, 10
U.S.C. § 934. The panel sentenced appellant to a dishonorable discharge,
confinement for two years, forfeiture of all pay and allowances, and reduction to the
grade of E-1. The convening authority approved only so much of the sentence as
provided for a dishonorable discharge, confinement for twenty-two months,
forfeiture of all pay and allowances, and reduction to the grad e of E-1.

      Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel assigned six errors to this court, and appellant personally raised
matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of
LEE—ARMY 20130718

the assigned errors warrants discussion but no relief. 1 We find the matters raised
pursuant to Grostefon are without merit.

       The panel returned a general verdict of guilty to the Specifications of Charge
II for possession of child pornography. The images contained in Prosecution
Exhibits 10 and 11 pertained to Specifications 1 and 2 of Charge II. Those
Specifications charged appellant with possession of “more than fifty (50) digital
images and one (1) video of child pornography…” Appellant alleges the evidence is
legally and factually insufficient to support his conviction of possessing child
pornography as defined by 18 U.S.C § 2256 (8) as the pictures do not meet the
definition. Appellant asserts that no reasonable factfinder could have found certain
photographs in Prosecution Exhibits 10 and 11 2 to meet the definition of child
pornography.

       Article 66(c), UCMJ, requires that we approve only those findings of guilty
we determine to be correct in both law and fact. We review iss ues of legal and
factual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). The test for legal sufficiency of the evidence is “whether,
considering the evidence in the light most favorable to the prosecution, a reasonable
factfinder could have found all the essential elements beyond a reasonable doubt.”
United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). The test for factual sufficiency is “whether, after weighing
the evidence in the record of trial and making allowances for not having personally
observed the witnesses, [we] are [ourselves] convinced of the accused's guilt beyond
a reasonable doubt.” Turner, 25 M.J. at 325.

       “Child pornography” is defined as “any vis ual depiction . . . where the
production of such visual depiction involves the use of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2256(8)(A). “Sexually explicit conduct” is defined
as “actual or simulated sexual intercourse . . . or . . . lascivious exhibition of the
genitals or pubic area of any person.” 18 U.S.C. §§ 2256(2)(A)(i), (v). It is clear
from the record that appellant was convicted of possession of child pornography
consistent with the above definitions.



1
 We also find that the matters raised in appellant’s motion to reconsider this court’s
decision to grant the government’s motion to attach Prosecution Exhibit 7 are
without merit.
2
 Specifically, appellant asserts Prosecution Exhibit 10, photos 53, 101, 105, 108,
112, and 175, and Prosecution Exhibit 11, photos 207, 267, and 270, do not meet the
definition of child pornography.



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LEE—ARMY 20130718

       It is also clear from the record that not all the images provided in the
prosecutions exhibits constitute child pornography as defined by the statute above.
Appellant alleges six images from Prosecution Exhibit 10 and three images from
Prosecution Exhibit 11 do not meet the definition of child pornography. We agree
with appellant that those particular images do not meet the statutory definition and
are therefore constitutionally protected. However, even discounting those images
from the prosecution’s exhibits, there are still enough qualifying images, clearly
over fifty images in each exhibit, that meet the definition of child pornography for
each specification. The video contained in Prosecution Exhibits 10 and 11 also
meets the definition of child pornography. In light of our superior court’s recent
ruling in United States v. Piolunek, it is no longer necessary to reject an entire
verdict simply because some of the conduct that resulted in the verdict was
constitutionally protected. 74 M.J. 107, 111 -12 (C.A.A.F. 2015) (“Contrary to our
conclusion in Barberi, convictions by general verdict for possession and receipt of
visual depictions of a minor engaging in sexually explicit conduct on divers
occasions by a properly instructed panel need not be set aside after the CCA decides
several images considered by the members do not depi ct the genitals or pubic
region”).

                                  CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence are AFFIRMED.

                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk
                                       Clerk of
                                             of Court
                                                Court




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