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

                            UNITED STATES, Appellee
                                         v.
                   Private First Class MATTHEW N. WATKINS
                           United States Army, Appellant

                                      ARMY 20140275

                 Headquarters, 8th Theater Sustainment Command
                James W. Herring, Jr., Military Judge (arraignment)
                 Craig S. Denney, Military Judge (motions hearing)
                       Andrew J. Glass, Military Judge (trial)
             Colonel Paul T. Salussolia, Staff Judge Advocate (pretrial)
            Colonel Anthony T. Febbo, Staff Judge Advocate (post-trial)


For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Captain Heather L.
Tregle, JA; Captain Matthew L. Jalandoni, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain
Christopher A. Clausen, JA (on brief).


                                         26 May 2016

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                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Judge:

       A panel composed of enlisted and officer members, sitting as a general court-
martial, convicted appellant, contrary to his pleas, of one specification of sexual
assault of a child and one specification of possession of child pornography in
violation of Articles 120b and 134, Uniform Code of Military Justice, 10 U.S.C §§
920b and 934 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a
dishonorable discharge, one year 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.
WATKINS – ARMY 20140275

       Appellant’s case is now before us for review pursuant to Article 66, UCMJ.
Appellant raises three assignments of error, two of which merit discussion and one
of which merits relief. We find the issues raised by appellant, pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) to be without merit.

                                  BACKGROUND
       While living at Schofield Barracks in Hawaii, appellant began to exchange
electronic messages with Miss E.-K. on the social networking website
“MeetMe.com.” On her main personal profile page on the website (a truncated
profile page), Miss E.-K. portrayed herself as nineteen years old. On her full profile
page - a separate page link - Ms. E.-K. wrote, “Hey guys . . . I am actually 15 not
19.” Miss E.-K. was actually fourteen years old at the time. At trial, the
government introduced forensic evidence showing appellant accessed both the
abridged and full profile pages of Miss E.-K. on the MeetMe.com website.
        Appellant and Miss E.-K. exchanged several electronic messages over both
computer and cell phone over a few weeks, during which appellant requested Miss
E.-K. to send him a naked photo of herself. Miss E.-K. obliged and sent appellant a
full front nude photograph of herself, which she had taken standing in front of her
bathroom mirror. The photograph was sent from her cell phone to his cell phone
through a text messaging program.
       After receiving the photograph, appellant invited Miss E.-K. over to visit him
at Schofield Barracks. When she arrived at his barracks, appellant and Miss E.-K.
had sexual intercourse. For his misconduct, appellant was charged with and
convicted of a sexual act with a child over the age of twelve but under the age of
sixteen and possession of child pornography.

                                   DISCUSSION

                 Factual and Legal Sufficiency - Child Pornography

       In the Specification of Charge II, appellant was charged with possessing an
image of Miss E.-K. that constitutes child pornography. In his first assignment of
error, appellant asserts that the Specification of Charge II is legally insufficient
where the image possessed by appellant was not “child pornography.” We disagree.

       To sustain a conviction for possessing child pornography the government must
prove that appellant “knowingly and wrongfully possessed . . . child pornography;”
and that said conduct “was to the prejudice of good order and discipline in the armed
forces and was of a nature to bring discredit upon the armed forces.” Manual for
Courts-Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 68b.b.(1).


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WATKINS – ARMY 20140275

       “Child pornography” is defined as “material that contains either an obscene
visual depiction of a minor engaging in sexually explicit conduct or a visual
depiction of an actual minor engaging in sexually explicit conduct.” MCM, pt. IV, ¶
68b.c.(1).
      MCM, pt. IV, ¶ 68b.c.(7) defines “sexually explicit conduct” as:
             (a) sexual intercourse or sodomy, including genital-
             genital, oral-genital, anal-genital, or oral-anal, whether
             between persons of the same or opposite sex;

             (b) bestiality;

             (c) masturbation;

             (d) sadistic or masochistic abuse; or

             (e) lascivious exhibition of the genitals or pubic area of
             any person.
       In this case, the photograph does not fall into the first four categories, thus
our focus is on (e) – whether the photograph sent by Miss E.-K. to appellant
constitutes a “lascivious exhibition of the genitals or pubic area of any person.”
      To assist this court in deciding whether an image constitutes a “lascivious
exhibition,” our superior court embraced the factors recognized in United States v.
Dost, 636 F.Supp 828, 832 (S.D. Cal. 1986), aff’d sub nom. United States v.
Wiegand, 812 F.2d 1239 (9th Cir. 1987). The Dost factors are:
             (1) whether the focal point of the visual depiction is on
             the child’s genitalia or pubic area;

             (2) whether the setting of the visual depiction is sexually
             suggestive, i.e., in a place or pose generally associated
             with sexual activity;

             (3) whether the child is depicted in an unnatural pose, or
             in inappropriate attire, considering the age of the child;

             (4) whether the child is fully or partially clothed, or nude;

             (5) whether the visual depiction suggests coyness or a
             willingness to engage in sexual activity; [and]

             (6) whether the visual depiction is intended or designed to
             elicit a sexual response in the viewer.

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WATKINS – ARMY 20140275

United States v Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006) (quoting Dost, 636
F.Supp. at 832).

       In addition, our superior court has recognized “there may be other factors that
are equally if not more important in “determining whether a photograph contains a
lascivious exhibition . . . by combining a review of the Dost factors with an overall
consideration of the totality of the circumstances.” Roderick, 62 M.J. at 430.

       The image of child pornography which appellant stands convicted of
possessing is a photograph of Miss E.-K. taken by herself with her cell phone
camera facing the bathroom mirror. The backdrop of the photograph is neither
provocative nor unprovocative and it is not an uncommon setting for a self-taken
picture. The angle of the photograph captures the details of her naked body centered
in the frame; her pubic area and bare breasts constitute the focal point of the picture.
The child’s pubic area is discernable, visible, and unobscured. She is holding the
cell phone camera in her left hand to snap the picture and positioning her right hand
behind her tilted head in what appears to be an unnatural coy poise, staring directly
at the camera. Her facial expression, while not a full smile, features upturned
corners of her mouth giving the appearance of indicating favor or a pleasant
agreeable affect.
       While we acknowledge Miss E.-K. stated in testimony she was not trying to
be sexy in the photograph, we do not find her intent dispositive. Appellant’s intent
is also relevant in our assessment of the totality of the circumstances. See Roderick,
62 M.J. at 430. 		 It is clear appellant solicited the photograph for his sexual pleasure.
       We therefore conclude based on the Dost factors and the totality of the
circumstances that the photograph meets the statutory definition of “lascivious
display of genitals or pubic area.” Therefore, we find appellant’s possession of said
photo constitutes a legally and factually sufficient charge.
                               Dilatory Post-Trial Delay

       The convening authority took action 356 days after the conclusion of
appellant’s court-martial. Of that delay, twenty days are attributable to the defense,
and 336 days are attributable to the government. See Rule for Courts-Martial 1105.
The record of trial in this case consists of five volumes, and the trial transcript is
668 pages. Although we find no due process violation in the post-trial processing of
appellant’s case, we must still review the appropriateness of the sentence in light of
the unjustified dilatory post-trial processing. UCMJ art. 66(c); United States v.
Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) (“[Pursuant to Article 66(c), UCMJ,
service courts are] required to determine what findings and sentence ‘should be
approved,’ based on all the facts and circumstances reflected in the record, including
the unexplained and unreasonable post-trial delay.”). See generally United States v.
Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006); United States v. Ney, 68 M.J. 613,

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WATKINS – ARMY 20140275

617 (Army Ct. Crim. App. 2010); United States v. Collazo, 53 M.J. 721, 727 (Army
Ct. Crim. App. 2000).

       The delay between announcement of sentence and action is simply too long,
and could “adversely affect the public’s perception of the fairness and integrity of
military justice system . . . .” Ney, 68 M.J. at 617. Thus, we find relief is
appropriate under the facts of this case.

                                    CONCLUSION

       Upon consideration of the entire record, the findings of guilty are
AFFIRMED. Given the dilatory post-trial processing, however, we affirm only so
much of the sentence as provides for a dishonorable discharge, confinement for
eleven months, forfeiture of all pay and allowances, and reduction to the grade of
E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the sentence set aside by this decision, are ordered restored.
See UCMJ arts. 58b(c) and 75(a).

      Senior Judge TOZZI and Judge CELTNIEKS concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




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