UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                             BURTON, RODRIGUEZ, and FLEMING
                                  Appellate Military Judges

                               UNITED STATES, Appellee
                                             v.
                         Private First Class STEPHEN D. BRITT
                              United States Army, Appellant

                                        ARMY 20190290

                    Headquarters, 21st Theater Sustainment Command
                       Christopher T. Fredrikson, Military Judge
                      Colonel John S. Frost, Staff Judge Advocate

For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Kyle C. Sprague, JA;
Captain Alexander N. Hess, JA (on brief and reply brief).

For Appellee: Colonel Steven P. Haight, JA; Lieutenant Colonel Wayne H.
Williams, JA; Major Dustin B. Myrie, JA; Major Lauryn D. Carr, JA (on brief).

                                          17 April 2020

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

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FLEMING, Judge:

      Appellant pleaded guilty to distributing eight videos and five images of child
pornography in an online chat group. 1 On appeal, appellant argues the military
judge abused his discretion by accepting appellant’s guilty plea to distribution of

1
  A military judge sitting as a general court-martial convicted appellant, consistent
with his pleas, of one specification of attempted sexual abuse of a child and one
specification of distributing child pornography, in violation of Articles 80 and 134,
Uniform Code of Military Justice [UCMJ]; 10 U.S.C. §§ 880 and 934. The military
judge sentenced appellant to a bad-conduct discharge, twenty months of
confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1.
The convening authority approved the findings and sentence as adjudged.
Appellant’s case is now pending review before this court pursuant to Article 66,
UCMJ.
BRITT—ARMY 20190290

child pornography because “[t]he military judge failed to resolve whether two of the
videos depicted actual minors.” 2 For the reasons set forth below, we disagree.

                                   BACKGROUND

       During appellant’s providence inquiry, the military judge explained to
appellant the elements and definitions of the offenses to which he pleaded guilty. In
regards to the offense of distributing child pornography, the military judge explained
that appellant’s guilty plea would admit that he “knowingly and wrongfully
distributed child pornography, to wit: eight digital video files and five digital
images of a minor engaging in sexually explicit conduct . . . .” The military judge
defined “child pornography” as “material that contains a visual depiction of an
actual minor engaging in sexually explicit conduct.” The military judge defined
“minor” and “child” to “mean any person under the age of [eighteen] years.”
Appellant agreed that he understood all elements and definitions.

       Next, the military judge asked appellant whether the child pornography he
distributed contained visual depictions of an actual minor engaged in sexually
explicit conduct. Appellant stated that it did. The military advised appellant that he
was not guilty of distributing child pornography if he did not know the images were
of actual minors engaged in sexually explicit conduct. Appellant confirmed he knew
he was distributing visual depictions of actual minors engaged in sexually explicit
conduct.

       After fully explaining the elements and definitions and receiving appellant’s
affirmation of his guilt, the military judge asked appellant to specifically describe
why he was guilty. In response, appellant explained he accepted an invitation to
join the chat group “Tweenteenlove,” knowing that “tweens” were generally ten to
fourteen-year-old girls. Appellant stated, “I knew the images were child
pornography because the images and videos depict girls under the age of [eighteen]
actually engaged in sexual acts like intercourse, masturbation, or they contained a
lascivious display of the genitals of the minor girls.”

       The government introduced the child pornography into the record as a
prosecution exhibit. After reviewing the exhibit, the military judge re-opened the
providence inquiry and directed appellant’s attention to two of the videos. The
military judge asked appellant if he was convinced the females in the two videos
were under the age of eighteen. Appellant stated he was convinced they were under


2
  Appellant also argues one of the images does not contain a lascivious exhibition of
the genitals or pubic area. We fully and fairly considered this claim and find it
merits neither discussion nor relief.




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BRITT—ARMY 20190290

the age of eighteen and detailed why he was convinced. The military judge then
accepted appellant’s guilty plea.

      On appeal, appellant argues the military judge failed to resolve whether those
two videos depicted actual minors.

                             LAW AND DISCUSSION

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “A
military judge abuses his discretion if he fails to obtain from the accused an
adequate factual basis to support the plea – an area in which we afford significant
deference.” Id. (citing United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)).
“[I]n reviewing a military judge’s acceptance of a plea for an abuse of discretion,
[w]e apply a substantial basis test: Does the record as a whole show “a substantial
basis in law for questioning the guilty plea.” Id. (quoting United States v. Prater,
32 M.J. 433, 436 (C.M.A. 1991)).

       “If an accused sets up matter inconsistent with the plea at any time during the
proceeding, the military judge must either resolve the apparent inconsistency or
reject the plea.” United States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014); see also
UCMJ art. 45(a); Rule for Courts-Martial 910(h)(2). Additionally, an accused’s
guilty plea must be voluntary and knowing. See United States v. Care, 18 C.M.A.
535, 538-39, 40 C.M.R. 247, 250-51 (1969). “[T]he providence of a plea is based
not only on the accused’s understanding of the factual history of the crime, but also
an understanding of how the law relates to those facts.” United States v. Blouin, 74
M.J. 247, 251 (C.A.A.F. 2015) (quoting United States v. Medina, 66 M.J. 21, 26
(C.A.A.F. 2008)).

      Appellant argues an inconsistency was raised in appellant’s guilty plea
because the age of the females in two of the videos is “unclear.” We disagree that
any inconsistency remains.

       First, as discussed above, the military judge accurately and thoroughly
explained to appellant the elements and definitions pertaining to the offense of
distribution of child pornography. The military judge made clear that the law
required that the videos depict actual minors under the age of eighteen. Appellant
stated he understood all of the elements and definitions. Second, after reviewing the
videos himself, the military judge sufficiently resolved any inconsistency when he
re-opened the providence inquiry, instructed appellant and his counsel to review the




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BRITT—ARMY 20190290

two videos at issue, and then engaged in a detailed discussion with appellant
regarding the age of the females. 3

       Specifically, the military judge asked appellant, “[a]re you absolutely
convinced that the girls in those [videos] were under the age of [eighteen]?”
Appellant stated he was convinced and explained, “[i]n both of the videos, you can
see that neither of the girls have pubic hair. . . . [A]nd, in both of them, neither of
them have developed breasts. . . . [A]lso, the very skinny body proportions that you
can see are indicative of a younger female.” Appellant also stated that he knew the
girls were children because, “[y]ou can tell that they don’t have razor burn or things
like that. So, it’s easier to distinguish that they didn’t grow pubic hair.” The
military judge asked appellant a final time, “[a]re you absolutely convinced they
were under the . . . age of [eighteen]?” Appellant replied, “[y]es, Your Honor.”

       In the above colloquy, the military judge adequately elicited from appellant
detailed factual circumstances that objectively supported his guilty plea. See United
States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011) (An accused is required to
articulate factual circumstances “that objectively support his guilt.”). Appellant
provided specific details about the females in the videos, beyond mere conclusions
of law, to explain why he himself was personally convinced they were in fact actual
minors. See United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996). (“Mere
conclusions of law recited by an accused are insufficient to provide a factual basis
for a guilty plea.”). No other inconsistency regarding the age of the females in the
videos was raised during the guilty plea proceedings.




3
  Prior to admitting the child pornography into evidence, the military judge
commendably reminded the government of this court’s opinion in United States v.
Guy and ensured the government understood it was not obligated to admit this
evidence during a guilty plea. 2019 CCA LEXIS 129 (Army Ct. Crim. App. 21 Mar.
2019) (mem. op.). The government informed the military judge it was aware of Guy
and still wanted to admit the child pornography into evidence. Once again, we
remind counsel that admission of child pornography into the record during a guilty
plea is not necessary. “The factual basis of the accused’s plea is established by his
admissions, not by physical evidence.” Id. at *5. Additionally, counsel should be
sensitive that “[c]hild pornography involves real people who are done no great
service when images of their rape as a child are needlessly included in a record for
strangers to review.” Id. at *4.




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