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

                            UNITED STATES, Appellee
                                         v.
                          Specialist TAYLOR A. LAYTON
                           United States Army, Appellant

                                    ARMY 20150260

              Headquarters, Joint Readiness Training Center and Fort Polk
                           Randall L. Fluke, Military Judge
                  Colonel Jan E. Aldykiewicz, Staff Judge Advocate


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

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Daniel D. Derner, JA; Captain Nathan S. Mammen, JA (on brief).


                                       27 July 2016

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant, in
accordance to his pleas, of one specification of violating a lawful general order, four
specifications of possessing child pornography, and one specification of viewing
child pornography, in violation of Articles 92 and 134 Uniform Code of Military
Justice, 10 U.S.C. §§ 892, 934 (2012 & Supp. I 2014) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, thirty-six months
confinement, and reduction to the grade of E-1. In accordance with the pretrial
agreement, the convening authority approved only eighteen months confinement but
otherwise approved the findings and sentence as adjudged.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises two assignments of error, one of which merits discussion but not relief.
LAYTON-ARMY 20150260

Appellant alleges the military judge abused his discretion by accepting appellant’s
pleas to possessing and viewing child pornography. According to appellant, the
military judge erred by giving two varying definitions of child pornography during
the providence inquiry while the stipulation of fact contained another definition of
child pornography. We find a lack of a substantial basis to question appellant’s
pleas and find appellant provident to wrongfully possessing and viewing child
pornography as adjudged.

                                    BACKGROUND

      Appellant, while stationed at Fort Polk in May 2013, sought out and
downloaded approximately one hundred videos and six thousand images of child
pornography on multiple computers. Appellant deployed to Kandahar Airfield,
Afghanistan, the following year. Between 6 June 2014 and 6 August 2014, appellant
viewed approximately thirty images containing child pornography from his Google
Plus account. For each specification of possessing or viewing child pornography,
the government charged the misconduct as “[images/videos] of a minor or what
appears to be a minor, engaging in sexually explicit conduct.”

       During the providence inquiry, the military judge gave two definitions of
child pornography. The first was “material that contains a visual depiction of an
actual minor engaging in sexual [sic] explicit conduct.” The second definition was
given immediately after:

             [A]lso means material [sic] and obscene visual depiction
             of a minor engaging in sexual [sic] explicit conduct. Such
             a depiction need not involve an actual minor but instead
             only what appears to be a minor.

Both definitions follow the definitions in the Military Judges’ Benchbook. See
Dep’t of Army, Pam 27-9, Legal Services: Military Judges’ Benchbook [hereinafter
Benchbook], para. 3-68b-1(d). The note before these definitions in the Benchbook
gives guidance to the military judge:

             The first definition . . . should be given where actual
             minors are in issue. The second definition . . . should be
             given where the depictions do not involve the use of actual
             minors, or there is some question as to whether actual
             minors were used in the depictions. If appropriate give
             both definitions.

Benchbook, para. 3-68b-1(d), n.2.


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The military judge also gave verbatim the instruction for “obscene,” “sexually
explicit conduct,” and “lascivious” during the providence inquiry. Benchbook, para.
3-68b-1(d), n.2 and n.3.

       The stipulation of fact defined child pornography as “a visual depiction of a
minor engaging in sexually explicit conduct, which includes ‘lascivious display of
the genitals,’ defined as [the six non-exclusive factors outlined in United States v.
Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986).]” The stipulation of fact also went into
detail for each specification that “[a]ll of the [images/videos] depict actual children”
and described in detail the images or video and how each of those images and videos
depicts sexually explicit conduct.

       Throughout the course of the providence inquiry, the military judge asked the
appellant three times whether he understood the definitions given to him, including
the definitions of child pornography. All three times the appellant responded that he
understood and never asked to clarify the definition of child pornography despite
being given opportunities to do so.

                  THE PROVIDENCY OF APPELLANT’S PLEAS

       "A military judge's decision to accept a guilty plea is reviewed for an abuse of
discretion." United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). To
ensure a provident plea, the military judge must accurately inform the appellant of
"the nature of his offense and elicit from him a factual basis to support his plea."
United States v. Negron, 60 M.J. 136, 141 (C.A.A.F. 2004). "An essential aspect of
informing [the a]ppellant of the nature of the offense is a correct definition of legal
concepts. The judge’s failure to do so may render the plea improvident." Id. Yet,
"an error in advising an accused does not always render a guilty plea improvident.
Where the record contains factual circumstances that objectively support the guilty
plea to a more narrowly construed statute or legal principle, the guilty plea may be
accepted." Id. (quoting United States v. James, 55 M.J. 297, 300 (C.A.A.F. 2001)).

       In appellant’s case, the government charged appellant with possessing and
viewing child pornography using the model specification. See Manual For Courts-
Martial, United States (2012 ed.) [hereinafter MCM], pt. IV, ¶ 68.b(f). Based on the
stipulation of fact, the child pornography in appellant’s case involved images and
videos of actual minors engaging in sexually explicit conduct. “Sexually explicit
conduct” includes, inter alia: “(a) sexual intercourse or sodomy, including genital-
genital, oral-genital, anal-genital, or oral anal, whether between persons of the same
or opposite sex . . . (c) masturbation; . . . or (e) lascivious exhibition of the genitals
or pubic area of any person.” Benchbook, para. 3-68b-1. n.2. The stipulation of fact
sufficiently describes each image or video as to how it qualifies as sexually explicit
conduct. The military judge asked multiple times if appellant knew what he was

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LAYTON-ARMY 20150260

viewing and downloading was child pornography, based on the legal definition given
by the military judge, and the appellant responded the he knew it was in fact child
pornography. Appellant entered search terms associated which child pornography
and “it gave results.”

       Appellant’s argument has merit as the second Benchbook definition was not
needed based on the stipulation of fact. However it falls short of an abuse of
discretion by the military judge. Both the providence inquiry and the stipulation of
fact adequately describe appellant’s misconduct and “objectively support the guilty
plea to a more narrowly construed statute or legal principle," namely the first
definition of child pornography. Negron, 60 M.J. at 141 (quoting James, 55 M.J. at
300). The military judge reviewed the images and videos submitted by the
government in evidence. The military judge then asked appellant whether he had
reviewed them as well and whether they met the definition of child pornography
given to appellant by the military judge; appellant responded that he had reviewed
the exhibits and they met the definition of child pornography. The military judge
made specific findings for each video and image entered into evidence by the
government. He found that one video did not meet the definition of child
pornography and adjusted his findings accordingly. As that video contains what is
clearly sexually explicit conduct, namely sexual intercourse between a female of
unknown age and an adult male, the military judge made moot the language “or what
appears to be a minor” in the definitions of child pornography provided to appellant.
But before that finding, the military judge used both definitions out of an abundance
of caution. Explained another way, for each finding of guilty, the military judge
found that each image and video entered into evidence was a “visual depiction of an
actual minor engaging in sexually explicit conduct.” There is no question appellant
understood and agreed that all of the videos and images to which he was found
guilty were of actual children.

       Appellant’s reliance on United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015)
is misplaced. In Blouin, the alleged child pornography involved children but with a
questionable lascivious display of the genitals. In appellant’s case, the stipulation
of fact and the military judge made clear that the child pornography involved an
unquestionable lascivious display of the genitals of actual minors, and appellant
agreed.




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LAYTON-ARMY 20150260

                                  CONCLUSION

     The findings of guilty and the sentence are correct in law and fact and are
AFFIRMED.


                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




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




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