                                     CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                HAIGHT, PENLAND, and ALMANZA 1
                                    Appellate Military Judges

                                UNITED STATES, Appellee
                                             v.
                            Private E1 ANDREW W. CUCCARO
                               United States Army, Appellant

                                          ARMY 20130338

                                 Headquarters, Fort Stewart
                              Tiernan P. Dolan, Military Judge
                      Colonel Randall J. Bagwell, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Captain Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major A.G. Courie III, JA; Captain
Benjamin W. Hogan, JA (on brief).


                                        28 September 2015
                                     ----------------------------------
                                      MEMORANDUM OPINION
                                     ----------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 2

HAIGHT, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of indecent acts, one specification of
indecent exposure, one specification of sexual exploitation of a child, one
specification of possession of child pornography, and one specification of
communication of indecent language to a child under 16 years of age, in violation of
Articles 120 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10
U.S.C. §§ 920 and 934 (2006 & Supp. IV 2011). The convening authority approved
the adjudged sentence of a bad-conduct discharge and confinement for thirty months.

1
    Judge ALMANZA took final action in this case while on active duty.
2
    Corrected
CUCCARO—ARMY 20130338

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, both of which merit discussion and relief.
Appellant personally raises three issues pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), none of which merits discussion or relief.

                                   BACKGROUND

       Appellant’s misconduct stemmed from an illicit relationship he engaged in
with a 12-year-old girl, EC—the younger sister of a friend and fellow soldier with
whom he served at Fort Stewart, Georgia. Appellant met and befriended Specialist
(SPC) MC while the two attended basic training at Fort Knox, Kentucky, and both
were subsequently stationed together in the same unit at Fort Stewart in late 2010.
Because Specialist MC’s mother lived just a few hours south of post in central
Florida, SPC MC invited appellant to join him at his mother’s house on two separate
occasions in early 2011 “for home cooked meal[s]” and “some time away from Fort
Stewart.” While in Florida, appellant was introduced to EC, who SPC MC indicated
was 12 years old. During appellant’s second visit, appellant and EC exchanged their
cellphone numbers.

       Shortly after appellant’s last visit with SPC MC to Florida, the two were
hanging out in SPC MC’s barracks room and drinking. They went outside to smoke
a cigarette, and appellant left his phone outside with SPC MC while he went back
inside to retrieve a debit card to order some pizza. At that point in time, appellant’s
phone “went off,” and SPC MC proceeded to “go through” and “scroll down”
through the messages and pictures stored on appellant’s phone. To his dismay, SPC
MC discovered his sister had sent nude pictures of herself to appellant.

       At trial, EC testified that after appellant’s most recent visit to her house, she
and appellant exchanged text messages that were increasingly sexual in nature. By
his words and deeds, appellant induced the young girl to send him sexually explicit
pictures of herself. As a result, EC did send multiple nude pictures of herself to
appellant. Within the context of this sexually-charged exchange of text messages,
appellant sent her a picture of his erect penis.

       For his misconduct, appellant was charged with and convicted of indecent
acts, indecent exposure, sexual exploitation of a child, possession of child
pornography, and communicating indecent language to a child under 16 years of age.

                                     DISCUSSION

                       1. Unreasonable Multiplication of Charges

      In his first assignment of error, appellant argues the indecent act and the
indecent exposure offenses “constitute an unreasonable multiplication of charges for



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findings when the offense of indecent exposure is [the] predicate offense for an
indecent act.” In its response, the government concedes that “the charges are both
multiplicious and unreasonably multiplied.” We accept the government’s
concession.

       The government charged appellant with two different offenses pursuant to
Article 120, UCMJ, for the singular act of sending EC an image of his exposed erect
penis: indecent acts and indecent exposure.

      In Specification 1 of Charge I, the government alleged appellant:

             Did, at or near Fort Stewart, Georgia, on or between 8
             May 2011 and 11 May 2011, wrongfully commit indecent
             conduct, to wit, sending Miss E.C., a person [appellant]
             believed to be less than 16 years of age, one or more
             digital photographs of an erect penis. 3

In Specification 2 of Charge I, the government alleged appellant:

             Did, at or near Dade City, Florida, on or between 8 May
             2011 and 11 May 2011, intentionally expose in an
             indecent manner his erect penis by means of digital
             photograph, to Miss E.C., a person [appellant] believed to
             be less than 16 years of age.

       At trial, the government adduced sufficient evidence to prove that appellant
sent a digital image of his exposed erect penis to EC’s smartphone and that EC
received and observed the image. In closing argument, defense counsel conceded
appellant had sent the image to EC but asserted “under the totality of the evidence,”
“in a consensual exchange of photographs,” appellant’s actions “should not be
considered indecent.” Additionally, defense counsel argued that “based on United
States v. Campbell, 71 M.J. 19, those two charges are multiplicious. If they are
multiplicious for sentencing, then they should be multiplicious for findings as well.
They allege the exact same conduct and act.” In its rebuttal, the government
acknowledged that “the first element of the indecent act offense fairly
encompass[es] the first three elements of indecent exposure.” Nonetheless, the
military judge ultimately convicted appellant of both offenses, but “considered
[them] to be multiplicious for sentencing and . . . treated them as one offense for
sentencing.”




3
 By exception and substitution, the military judge found appellant guilty of only
sending EC a single photograph of a penis.


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       “What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts-Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Quiroz, 55 M.J. 334,
337 (C.A.A.F. 2001); see also United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F.
2012). In Quiroz, our superior court listed five factors to guide our analysis of
whether charges have been unreasonably multiplied:

             (1) Did the accused object at trial that there was an
             unreasonable multiplication of charges and/or
             specifications?;

             (2) Is each charge and specification aimed at distinctly
             separate criminal acts?;

             (3) Does the number of charges and specifications
             misrepresent or exaggerate the appellant’s criminality?;

             (4) Does the number of charges and specifications
             [unreasonably] increase the appellant’s punitive
             exposure?; and

             (5) Is there any evidence of prosecutorial overreaching or
             abuse in the drafting of the charges?

55 M.J. 338-39 (internal quotation marks and citation omitted).

      The offense of indecent exposure entails the following elements:

             (a) That the accused exposed his or her genitalia, anus,
             buttocks, or female areola or nipple;

             (b) That the accused’s exposure was in an indecent
             manner;

             (c) That the exposure occurred in a place where the
             conduct involved could reasonably be expected to be
             viewed by people other than the accused’s family or
             household; and

             (d) That the exposure was intentional.




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Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], pt. IV,
¶ 45.b.(14).

The offense of indecent acts requires:

             (a) That the accused engaged in certain conduct; and

             (b) That the conduct was indecent conduct.

MCM, pt. IV, ¶ 45.b.(11).

        Here, the first three Quiroz factors weigh heavily in favor of appellant.
First, trial defense counsel objected—albeit in his closing argument—to the
government moving forward with both offenses. Second, the indecent act and
indecent exposure specifications are not aimed at distinctly criminal acts. Rather,
they are aimed at precisely the same criminal act. The evidence plainly established
that appellant sent EC a picture of his penis on a single occasion. Moreover, at trial,
the government conceded that the indecent act offense effectively encompassed the
elements of indecent exposure. Third, under the circumstances of this case, separate
convictions for each offense exaggerate appellant’s criminality. Not only does
appellant stand convicted of two serious offenses for the same misconduct, his
criminality is grounded upon the same basis for each offense—namely, that it is
indecent for an adult to send a photograph of his penis to a child he believes to be
less than 16 years of age.

       Appellant’s punitive exposure was not unreasonably increased because the
military judge merged the indecent act and indecent exposure offenses for
sentencing. Finally, in light of the individual elements of each offense and our
superior court’s decision in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), we
recognize genuine proof issues that likely prompted the government to pursue both
specifications and thus find no prosecutorial overreach or abuse. See also United
States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012).

       Although no single Quiroz factor is dispositive, the first three work in
appellant’s favor. See Campbell, 71 M.J. at 23 (noting one or more factors may be
sufficiently compelling, without more, to warrant relief). Coupled with the
government’s concession, we hold that appellant’s convictions for an indecent act
and indecent exposure represent an unreasonable multiplication of charges for
findings. Therefore, consistent with appellant’s prayer for relief, we will set aside
and dismiss the indecent exposure offense.




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                 2. Factual and Legal Sufficiency—Child Pornography

       In Specification 3 of Charge II, appellant was charged with possessing four
images of EC that amount to child pornography “as defined in Title 18, United
States Code, Section §2256(8).” Pursuant to a motion for a finding of not guilty, the
military judge acquitted appellant of two of the images 4 at the close of the
government’s case in chief, but convicted appellant of the other two. In his second
assignment of error, appellant asserts that “Specification 3 of Charge II is legally
insufficient where the images [possessed by appellant] were not ‘child pornography’
as defined by 18 U.S.C. § 2256(8).” We agree with appellant and find the two
remaining images to be factually and legally insufficient.

      18 U.S.C. §2256(8) defines “child pornography” as: [A]ny visual depiction,
including any photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic, mechanical, or other
means, of sexually explicit conduct, where—

             (A) the production of such visual depiction involves the use
             of a minor engaging in sexually explicit conduct;

             (B) such visual depiction is a digital image, computer
             image, or computer-generated image that is, or is
             indistinguishable from, that of a minor engaging in sexually
             explicit conduct; or

             (C) such visual depiction has been created, adapted, or
             modified to appear that an identifiable minor is engaging in
             sexually explicit conduct.

18 U.S.C. §2256(2)(A) defines “sexually explicit conduct” for §2256(8)(A) and (C)
as “actual or simulated:”

             (i) sexual intercourse, including genital-genital, oral-
             genital, anal-genital, or oral-anal, whether between
             persons of the same or opposite sex;

             (ii) bestiality;



4
 These images (labeled as (a) and (c) in Specification 3 of Charge II) showed EC’s
breasts and/or buttocks, but were taken from angles such that they did not reveal any
portion of her pubic area or genitalia.




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CUCCARO—ARMY 20130338

             (iii) masturbation;

             (iv) sadistic or masochistic abuse; or

             (v) lascivious exhibition of the genitals or pubic area of
             any person. 5

      While neither 18 U.S.C. §2256 nor the President has defined “lascivious
exhibition,” in United States v. Roderick, 62 M.J. 425, 429-430 (C.A.A.F. 2006), our
superior court embraced the Dost 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.

Roderick, 62 M.J. at 429 (quoting Dost, 636 F.Supp. at 832).

       Here, neither of the images of which appellant remains convicted falls within
the first four categories of “sexually explicit conduct.” Therefore, we must
determine if they qualify as a “lascivious exhibition” of the statutorily specified
parts of the body. We “determine whether a particular photograph contains a



5
 When charged using the definition of “child pornography” in §2256(8)(B), the
government must prove “that in addition to being lascivious, all digital images must
be ‘graphic,’ which means that ‘a viewer can observe any part of the genitals or
pubic area of any depicted person.’” United States v. Blouin, 74 M.J. 247, 250
(C.A.A.F. 2015) (emphasis added). Here, based on the imprecise charging language
and the fact that appellant was tried by a judge alone, it is not clear whether the
government was using subsection 8(A) or (B) in appellant’s case. Although we
presume the government was proceeding under subsection 8(A) (which “makes
criminal any photograph . . . of actual children”), in light of the relief afforded
below, the distinction between 8(A) and the “more onerous ‘graphic’ requirement”
of 8(B) is not relevant in appellant’s case. Id. (emphasis added).


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‘lascivious exhibition’ by combining a review of the Dost factors with an overall
consideration of the totality of the circumstances.” Id. at 430.

                                     1. Image (b)

        The first image of which appellant stands convicted (labeled as image “b” in
Specification 3 of Charge III) is a photograph which appears to have been taken by
EC of herself facing a mirror. The lighting and quality of the image are very poor,
but it appears EC is not wearing any clothing. She is standing in a poorly lit room
or hallway with her legs slightly apart and she is bent forward at the waist, leaning
towards the mirror. She is holding the camera near her face with her left hand and
bracing herself with her right hand on her right thigh. The image is so blurry that it
is not possible to perceive any details of her body from the chest down. Rather, it
essentially depicts a silhouette of EC.

       The focal point of image (b) is decidedly not on EC’s genitalia or pubic area.
See Dost, 636 F. Supp. at 832. Instead, the picture focuses primarily on EC’s
shadowy outline of her facial features and upper body. These parts of her body are
closer to the camera due to her positioning before the mirror. Most importantly,
because of the dim lighting, heavy shadows, and poor quality of the picture, EC’s
genitals and pubic area are simply not visible or discernible. See Blouin, 74 M.J. at
250 (C.A.A.F 2015) (“We decline to accept the CCA’s invitation to adopt the
Knox II 6 standard as controlling precedent in this jurisdiction.”). Ultimately, this
image reveals little more than a blurry silhouette of EC’s entire body; it is not a
lascivious display of her genitals or pubic area.

                                     2. Image (d)

       The second remaining image of EC was again taken by herself using a mirror.
It displays her body from the thighs up. She is topless, and her breasts are fully
exposed and clearly visible. However, EC is wearing a pair of white shorts which
completely covers her genitals and pubic area. The shorts are not see-through.
While this picture is a full-body depiction of EC, her pubic area is completely
covered. Government appellate counsel argues that “[n]udity is not required when
determining whether an image depicts a ‘lascivious exhibition’ under the federal
statute,” citing Knox II, 32 F.3d at 746-52, and this court’s decision in United States
v. Blouin, 73 M.J. 694 (Army Ct. Crim. App. 2014), rev’d, 74 M.J. 247. Our



6
 United States v. Knox, 32 F.3d 733, 737 (3d Cir. 1994) (holding that the “federal
child pornography statute, on its face, contains no nudity or discernibility
requirement, that non-nude visual depictions . . . can qualify as lascivious
exhibitions”).



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superior court reversed our Blouin decision and expressly questioned the viability of
further reliance on Knox II. Blouin, 74 M.J. at 251.

       EC’s genitals and pubic area are not exposed, nude, or discernible.
Furthermore, we find contrary to the government’s assertion that EC’s “pubic area is
in the image and discernible by her form fitting shorts.” Also, the focal point of this
image is clearly not the girl’s shorts; rather, it is her exposed breasts.

       Applying the applicable standards, we find neither image (b) nor (d) depicts a
lascivious display of a minor’s genitalia and, therefore, neither image amounts to
child pornography as defined by 18 U.S.C. §2256(8). See Dost, 636 F.Supp 828;
Blouin, 74 M.J. 247; Roderick, 62 M.J. 425.

                                   CONCLUSION

      The findings of guilty to Specification 2 of Charge I and Specification 3 of
Charge II are set aside and those specifications are DISMISSED. 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). In evaluating the Winckelmann
factors, we first find no dramatic change in the penalty landscape that might cause
us pause in reassessing appellant’s sentence. The military judge merged the
indecent act and indecent exposure specifications for sentencing. Moreover,
although we have set aside appellant’s possession of child pornography offense,
appellant’s remaining convictions still carry a maximum sentence to confinement of
thirty-seven years. Second, appellant was tried and sentenced by a military judge
alone. Third, the remaining offenses still capture the gravamen of the original
offenses and the circumstances surrounding appellant’s conduct. Appellant engaged
in a highly inappropriate relationship with a 12-year-old girl by exchanging
sexually-based messages and pictures with her. Although we have concluded the
images he received from EC did not entail a lascivious exhibition of her genitals or
pubic area, they still would have been admissible as aggravating evidence in relation
to his sexual exploitation conviction. Finally, based on our experience, we are
familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial.

       Reassessing the sentence based on the entire record, the noted errors, and the
remaining findings of guilty, we AFFIRM only so much of the sentence as provides
for a bad-conduct discharge and twenty-seven months of confinement. We find this
reassessed sentence is not only purged of any error but is also appropriate. All



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rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the findings and sentence set aside by our decision, are ordered
restored. See UCMJ arts. 58b(c) and 75(a).

      Judge PENLAND and Judge ALMANZA concur.

                                       FORTHE
                                      FOR  THECOURT:
                                               COURT:




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




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