UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                            MULLIGAN, HERRING, and BURTON
                                Appellate Military Judges

                              UNITED STATES, Appellee
                                           v.
                               Captain LAITH G. COX
                             United States Army, Appellant

                                     ARMY 20130923

          Headquarters, U.S. Army Maneuver Support Center of Excellence
              Jeffrey R. Nance and Gregory A. Gross, Military Judges
                  Colonel Robert F. Resnick, Staff Judge Advocate


For Appellant: Captain Jennifer K. Beerman, JA; Mr. Frank J. Spinner, Esquire (on
brief); Captain Jennifer K. Beerman, JA; Mr. Frank J. Spinner, Esquire (on reply
brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major John K. Choike, JA (on
brief).


                                        29 April 2016
                                 ---------------------------------
                                 MEMORANDUM OPINION
                                 ---------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BURTON, Judge:

       An officer panel of sitting as a general court-martial convicted appellant,
contrary to his pleas, of three specifications of aggravated sexual assault of a child,
two specifications of indecent liberties with a child, three specifications of sodomy
with a child who had attained the age of 12 years but was under age of sixteen years,
one specification of conduct unbecoming an officer, three specifications of indecent
language to a child, one specification of producing child pornography, one
specification of viewing child pornography, and one specification of obstructing
justice, in violation of Articles 120, 125, 133 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920, 925, 933, 934 (2006 & Supp. IV 2011) [hereinafter
UCMJ]. The panel sentenced appellant to a dismissal and confinement for forty
COX—ARMY 20130923


years. The convening authority approved the findings and sentence as adjudged and
credited appellant with nineteen days against the sentence to confinement.

       Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate defense counsel raises four errors, one of which merits discussion and
partial relief. 1 After review of the entire record, we find no evidence to support
various specifications of Charge III as being prejudicial to good order and discipline
in the armed forces. We will provide relief in our decretal paragraph.

                                        FACTS

       Appellant, a thirty-two year old, married man, met Miss DS, a fourteen year
old girl, 2 on an adult-oriented website. 3 On that website, DS represented herself as a
nineteen year old woman. 4 Appellant contacted DS through the website. They spoke
several times on the phone and communicated through electronic media to include
text messages and email. On 11 September 2011, appellant set up a time to meet DS
in Norman, Oklahoma. On their first meeting appellant met DS in a parking lot
across the street from where she lived with her mother and younger sisters. They
engaged in sexual intercourse in appellant’s vehicle and appellant took photos of DS
in various stages of undress. Later that night, appellant met DS in the same parking
lot. They drove to a motel where appellant engaged in anal, oral and vaginal
intercourse with DS. Appellant took photographs and video-recorded the sexual acts
with DS.

       On 1 October 2011, appellant visited DS again. He picked her up in a parking
lot near her home and drove to a motel. While at the motel, they again engaged in
various sexual acts to include anal, oral and, vaginal intercourse. Appellant once
again took photographs and video-recorded these sexual acts.




1
 We have also reviewed those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit.
2
 DS testified she was born on 25 September 1996. Thus at the time of the incident
on 11 September 2011, she was fourteen years old.
3
 The adult-oriented website is for people who would like to indulge in their sexual
fantasies, and a relationship site for people who want a fling, casual dating, or
sexual encounter with men, women, transsexuals, and/or couples.
4
 The website does not allow guests under the age of eighteen to register for the
website. At the time of trial DS was seventeen years old.


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COX—ARMY 20130923


       Appellant and DS discussed her age on several occasions. DS testified that
before they met, she was on the telephone with appellant while she was attending a
“kid’s party.” When appellant inquired as to why she was at a “kid’s party,” she
told him she was fourteen years old and he replied, “[i]t doesn’t really matter. I
already like you anyway.” According to DS she never told him any other age other
than fourteen with the exception of what he saw posted on the adult-oriented
website. On the video taken on 11 September 2011, prior to any sexual acts
occurring, appellant asked DS to state her name and her age, and DS responded with
her name and “fourteen.” DS was aware that appellant was in the Army because he
told her. Law enforcement located appellant by contacting a military installation.

                               LAW AND ANALYSIS

       In accordance with Article 66(c), UCMJ, we review issues 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 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); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001). 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.

       Appellant claims there is no evidence that the conduct alleged in
Specifications 1, 2, 4 and 5 of Charge III was prejudicial to good order and
discipline. 5 We have no dispute that appellant engaged in such conduct, as
photographs and videos were admitted at trial of appellant engaging in the conduct
as charged. Appellant informed DS that he was in the military and civilian law
enforcement officials contacted a military installation to obtain information about
appellant’s location. The evidence is more than sufficient to support a finding
appellant’s conduct was service discrediting.

      However, our review of the record discloses no evidence to show that
appellant’s misconduct had any impact on the good order and discipline of his unit.


5
 Appellant alleges that the evidence is factually insufficient to sustain a conviction
of the specifications alleged in Charges I and III and the Additional Charge. We
only address the sufficiency of Charge III and its specifications as they pertain to
prejudice to good order and discipline.


                                           3
COX—ARMY 20130923


We find the evidence to be less than minimal and insufficient to sustain a finding of
guilty as to that language.

                                  CONCLUSION

     Having completed our review and in consideration of the entire record, we
AFFIRM only so much of the Specifications 1, 2, 4 and 5 of Charge III as finds:

             Specification 1: In that [appellant], did, while on board
             the SS OAK HILL and/or assigned to Key West Naval Air
             Station, 6 on or about 10 December 2011, in writing
             communicate to Ms. [DS], a child under the age of 16
             years, certain indecent language, to wit:

                   “I would wear a mask, so all she would know
                   is that I was hella old, and then just to make
                   my point I would pull out of you and nut on
                   her face. Then as it dripped down cuz she
                   couldn’t wipe it cuz her hands are tied, I’d
                   just fuck you again,”

                   “I was getting worried I wouldn’t get to
                   pound your sexy ass again,”

                   “I need my little sluts pussy like now,”

                   “you still want me to rape you,”

                   “I wish I could come over there and fuck you
                   all over her bed,”

                   “I could really use some pussy right now, its
                   been fucking months,”

             or words to that effect, and that such conduct was of a
             nature to bring discredit upon the armed forces.



6
  In Specification 1 and 2 of Charge III, appellant was charged with “while on board
the SS OAK HILL; he was found guilty except the words “SS OAK HILL”
substituting therefore the words “SS OAK HILL and/or assigned to Key West Naval
Air Station.” We note the proper designation of this vessel is “USS Oak Hill.” We
hold the incorrect designation harmless in Specifications 1, 2, and 5 of Charge III.


                                          4
COX—ARMY 20130923


         Specification 2: In that [appellant], did, while on board
         the SS OAK HILL and/or assigned to Key West Naval Air
         Station on about 24 December 2011, in writing
         communicate to Ms. [DS], a child under the age of 16
         years, certain indecent language, to wit:

               “remember what I said that one time about
               fucking you in front of her and then bustin
               my nut all over her face,”

               “how about you just bring her alone and she
               can watch me fuck you and then we will see
               what she is up for,”

               “who is [KW]? Well I’d like to fuck around
               with her”

               “I just want her to watch me fuck you and
               suck on my dick a little and video me
               cumming on her, you think she would come
               and play, and I promise I won’t fuck her,
               thats what I want for Christmas,”

         or words to that effect, and that such conduct was of a
         nature to bring discredit upon the armed forces.

         Specification 4: In that [appellant], did at or near
         Norman, Oklahoma, between on and about 11 September
         2011 to on or about 2 October 2011, knowingly and
         wrongfully produce child pornography to wit: a video of
         sexually explicit conduct between the said [appellant] and
         Ms. [DS], a child under the age of 16, and that such
         conduct was of a nature to bring discredit upon the armed
         forces.

         Speciation 5: In that [appellant], did while on board the
         SS OAK HILL, between 20 December 2011 to on or about
         24 December 2011, knowingly and wrongfully view child
         pornography, to wit: a video of sexually explicit conduct
         between the said [appellant] and Ms. [DS], a child under
         the age of 16, and that such conduct was of a nature to
         bring discredit upon the armed forces.




                                      5
COX—ARMY 20130923


       The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error noted and do so after conducting a thorough
analysis of the totality of circumstances presented by appellant’s case and in
accordance with the principles articulated by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986). The maximum sentence appellant could have received included
confinement in excess of 100 years. We are confident that based on the entire record
and appellant’s course of conduct, the panel would have imposed a sentence of at
least that which was adjudged, and accordingly we AFFIRM the sentence. We find
this reassessed sentence is not only purged of any error but is also appropriate. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings set aside by our decision, are ordered restored.

      Senior Judge MULLIGAN and Judge HERRING concur.



                                       FOR THE COURT:




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




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