UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                                COOK, HAIGHT , MAGGS *
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Sergeant WILLIAM L. KNIGHT JR.
                            United States Army, Appellant

                                    ARMY 20130432

                                Headquarters, I Corps
                     David L. Conn, Military Judge (arraignment)
                           Brad Bales, Military Judge (trial)
                   Colonel William R. Martin, Staff Judge Advocate

For Appellant: Major Amy E. Nieman, JA; Lieutenant Colonel Jonathan F. Potter,
JA (on brief).

For Appellee: Major A.G. Courie III, JA; Major Daniel D. De rner, JA; Major Daniel
M. Goldberg, JA (on brief).

                                       17 June 2015

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


HAIGHT, Judge:

       A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of three specifications of possession of child pornography and
one specification of wrongfully soliciting another to sexually contact a dog, all in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a bad -conduct
discharge, confinement for thirty-six months, and reduction to the grade of E-1. The
convening authority reduced the confinement by five days for post-trial delay but
otherwise approved the adjudged sentence.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error, which merits discussion and relief. We find an
additional issue which also merits discussion and relief.


*
    Judge MAGGS took final action in this case while on active duty.
KNIGHT — ARMY 20130432

                                  BACKGROUND

       Appellant was charged with and convicted of three specifications of
possessing child pornography, conduct which “was to the prejudice of good order
and discipline in the armed forces and was of a nature to bring discredit upon the
armed services.” During the providence inquiry concerning these specifications, the
military judge properly explained all of the elements of this particular crime and
correctly defined all relevant terms. For each specification, appellant provided an
adequate factual basis as to his knowing and wrongful possession of child
pornography.

       After providing a basis for each specification (which did not include any
discussion or exposition of facts as to whether appellant’s misconduct had impacted
good order and discipline in the military or t ended to harm the service’s public
reputation) the military judge asked, “And do you agree that your conduct is
prejudicial to good order and discipline in the Armed forces and is also of a nature
to bring discredit upon the Armed forces?” To which, appel lant simply replied each
time, “Yes, sir.” Again, for each specification, when asked upon the heels of this
sole query regarding the terminal element and appellant’s one -word affirmation,
both parties responded that no further inquiry into these offenses was needed, at
least not with respect to the aspect of why or how appellant’s conduct was
prejudicial to good order and discipline or serv ice discrediting. The stipulation of
fact contains no further elaboration with respect to the Article 134 , UCMJ, terminal
element beyond the bald assertion, “The possession of child pornography was
prejudicial to good order and discipline in the armed forces and was of a nature to
bring discredit upon the armed forces.”

       The other Article 134, UCMJ, offense charged appellant with soliciting his
wife to masturbate the family’s male dog. The providence inquiry with respect to
the terminal element of this offense mirrored the previous discussions and was
equally anemic. Furthermore, appellant asserts the military judge fai led to elicit a
factual basis establishing that the solicitee, appellant’s wife, appreciated that she
was being invited to join a criminal plan , scheme, or venture. This understanding on
the part of the one being solicited is essential to the crime of sol icitation charged
under Article 134, UCMJ. See United States v. Higgins, 40 M.J. 67, 68-69 (C.M.A.
1994). The government concedes that the providence inquiry into the solicitation
charge (specifically regarding the aspect of whether appellant’s wife knew she was
being asked to enter into a criminal venture) was deficient and agrees that conviction
should be set aside.

                             LAW AND DISCUSSION

      “During a guilty plea inquiry the military judge is charged with determining
whether there is an adequate basis in law and fact to support the plea before
accepting it.” United States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008)


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KNIGHT — ARMY 20130432

(citing United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)). “The providence
of a plea is based not only on the accused’s understanding and recitation of the
factual history of the crime, but also on an understanding of how the law relates to
those facts.” United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008). We review a
military judge’s decision to accept a plea for an abuse of d iscretion by determining
whether the record as a whole shows a substantial basis in law or fact for
questioning the guilty plea. Inabinette, 66 M.J. at 322.

       It may be tempting to simply acknowledge that crimes such as the possession
of child pornography are intuitively, inherently, or per se prejudicial to good order
and discipline or service discrediting. However, it is well established that the
terminal element “cannot be conclusively presumed from any particular course of
action,” even deplorable behavior such as that charged and admitted to here. United
States v. Phillips, 70 M.J. 161, 165 (C.A.A.F. 2011); see also United States v.
Fosler, 70 M.J. 225, 229-31 (C.A.A.F. 2011) (determining that an accused cannot be
convicted under Article 134 only for committing the misconduct in question —that
misconduct must also be proven to satisfy the terminal element). While appellant
did agree that his possession of child pornography was prejudicial and discrediting,
his “Yes, sir” responses to “questions put to him as to whether his conduct was
prejudicial to good order and discipline or service discrediting” were “mere
conclusions of law recited by [him that] are insufficient to provide a factual basis
for a guilty plea.” United States v. Jordan, 57 M.J. 236, 239 (C.A.A.F. 2002)
(quoting United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996)).

       In this case, the military judge did not elicit an adequate factual basis during
the colloquy with appellant to support his plea that his possession of child
pornography as well as his solicitation of his wife to make sexual contact with a dog
was either prejudicial to good order and discipline or service discrediting. N or does
the stipulation of fact satisfy the providency requirement for either clause of the
terminal element. Compare United States v. Sweet, 42 M.J. 183, 185 (C.A.A.F.
1995).

       Therefore, on the record before us and in light of the government’s
concession, we find a substantial basis in fact to question appellant’s guilty plea to
all offenses.

                                   CONCLUSION

       The findings of guilty and the sentence are set aside. A rehearing may be
ordered by the same or a different convening authority. See generally R.C.M. 810.
All rights, privileges, and property, of which appellant has been deprived by virtue
of this decision setting aside the findings and sentence are ordered restored. See
UCMJ arts. 58a(b), 58b(c), and 75(a).




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KNIGHT — ARMY 20130432

     Senior Judge COOK and Judge MAGGS concur.

                                 FOR  THECOURT:
                                  FOR THE COURT:




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




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