UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, PENLAND, and WOLFE
                              Appellate Military Judges

                         UNITED STATES, Appellant
                                       v.
                       Sergeant ORVAL W. GOULD, JR.
                         United States Army, Appellant

                                    ARMY 20120727

          Headquarters, 3d Infantry Division and Fort Stewart (convened)
                        Headquarters, Fort Stewart (action)
                         Tiernan P. Dolan, Military Judge
          Lieutenant Colonel Kent Herring, Acting Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter E. Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on brief); Lieutenant
Colonel Charles D. Lozano, JA; Captain Heather L. Tregle, JA; Captain Amanda R.
McNeil Williams, JA (on additional brief following remand).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief); Colonel Mark
H. Sydenham, JA; Major Steven J. Collins, JA; Captain Anne C. Hsieh (on
additional brief following remand).


                                      5 August 2016

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                       MEMORANDUM OPINION ON REMAND
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MULLIGAN, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of indecent liberty with a child and production of child
pornography in violation of Articles 120 and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 920, 934 (2006 & Supp. IV 2011). The convening
authority approved the adjudged sentence of a bad-conduct discharge, three years
confinement, and reduction to the grade of E-1. The convening authority credited
appellant with two days against the sentence to confinement.
GOULD — ARMY 20120727

       Our court previously conducted an appellate review of this case pursuant to
Article 66, UCMJ, affirming appellant’s conviction for production of child
pornography in violation of Article 134, UCMJ, and only so much of the finding of
guilty as to the Article 120, UCMJ, offense as provided that appellant committed the
lesser-included offense of indecent act in violation of Article 120(k), UCMJ. United
States v. Gould, ARMY 20120727 2014 CCA LEXIS 694 (Army Ct. Crim. App. 16
Sept. 2014) (summ. disp.). We affirmed the sentence after conducting a
reassessment pursuant to United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986)
and United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013). Gould, 2014
CCA LEXIS 694 at *3. The Court of Appeals for the Armed Forces (CAAF)
subsequently reversed this court’s decision as to the production of child pornography
charge (Specification 1 of Charge II) and the sentence, but affirmed the remaining
finding of guilty. United States v. Gould, 75 M.J. 22 (C.A.A.F. 2015). The CAAF
returned the record to The Judge Advocate General for remand to this court for
further consideration of the child pornography specification in light of that court’s
holding in United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015). Id.

                             LAW AND DISCUSSION

       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 military judge, in finding appellant guilty of producing child
pornography, found four images taken by appellant of Ms. KO constituted a
lascivious exhibition of her genitals or pubic area. See 10 U.S.C. § 2256(8)(A); 10
U.S.C. 2256(2)(A)(v). In each of these images, Ms. KO’s pubic area was covered by
underwear. We have re-examined these four photographs in light of the
nonexclusive factors set forth by our superior court in United States v. Roderick, 62
M.J. 425, 429 (C.A.A.F. 2006) (citing United States v. Dost, 636 F. Supp. 828, 832
(S.D.Cal. 1986)) for determining if they represent a “lascivious exhibition.”
Viewing the images under a totality of the circumstances, we are not convinced that




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GOULD — ARMY 20120727

the images legally support the findings of guilty. 1 Accordingly, we need not further
review this charge in light of Blouin.

                                   CONCLUSION

      Specification 1 of Charge II is set aside and DISMISSED. We again AFFIRM
the remaining finding of guilty.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in Winckelmann, 73 M.J. at 15-16, and Sales, 22 M.J. at 307-08.

        In conducting a sentence reassessment, a Court of Criminal Appeals must
“assure that the sentence is appropriate in relation to the affirmed findings of guilty,
[and] that the sentence is no greater than that which would have been imposed if the
prejudicial error had not been committed.” Sales, 22 M.J. at 307-08 (quoting United
States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). “[I]f the court can determine to
its satisfaction that, absent any error, the sentence adjudged would have been of at
least a certain severity, then a sentence of that severity or less will be free of the
prejudicial effects of error. . . .” Sales, 22 M.J. at 308.

       First, the dismissal of Specification 1 of Charge II reduces appellant’s
punitive exposure from thirty-five to five years. However, this factor is not
dispositive in this case. Second, appellant was tried and sentenced by a military
judge sitting alone. Third, the gravamen of the criminal conduct within the original
offenses remains substantially the same. Appellant remains convicted of committing
an indecent act upon Ms. KO. The appellant’s photography of Ms. KO, while
perhaps not production of child pornography, was nonetheless an admissible
aggravating circumstance surrounding the indecent act. Finally, the remaining
offense is of the type with which this court has experience and familiarity, and can
reliably determine what sentence would have been imposed at trial. We are
confident that based on the entire record and appellant’s course of conduct, the
military judge sitting alone as a general court-martial, would have imposed a
sentence of at least a bad-conduct discharge, thirty months confinement, and a
reduction to the grade of E-1.

      Reassessing the sentence based on the noted errors and the entire record, we
AFFIRM only so much of the approved sentence as provides for a bad-conduct
discharge, thirty months confinement, and reduction to the grade of E-1. All rights,


1
 We need not answer here the question whether a lascivious exhibition requires
actual nudity. See Blouin, 74 M.J. at 256-57 (Baker, J., dissenting). Assuming
nudity is not a requirement, we would still come to this conclusion.


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GOULD — ARMY 20120727

privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision, are ordered restored.

      Judge PENLAND concurs.

WOLFE, Judge, dissenting:

       Appellant, while babysitting an eight year old girl, had her try on underwear
while he took pictures with his cellphone. (That is, appellant had girls’ underwear
at the ready). He also had her sleep in his bed, and she testified that appellant had
“spied” on her while in the bathroom. Appellant told police he did these actions
because he was attracted to the girl “in some form of fashion” and admitted that the
pictures were “part of his pornography.”

       One of the pictures is an extreme close up of the girl’s groin. While she is
wearing loose fitting underwear in the picture, her genital area is not merely “the
focal point” of the image–it takes up the entire screen. In another image the girl
wears tighter fitting underwear and one can depict (slightly) the outline of her labia.
The record makes clear these images were taken for the purpose of satisfying
appellant’s sexual desires.

      The majority determines that these images do not constitute child
pornography. I respectfully disagree, and therefore dissent.

                           A. Totality of the Circumstances

       Our superior stated that “courts determine whether a particular photograph
contains a lascivious exhibition by combining a review of the six [Dost] factors with
an overall consideration of the totality of the circumstances.” United States v.
Roderick, 62 M.J. at 425, 427 (C.A.A.F. 2006). In other words, our inquiry is not
limited to the four corners of the image. The “totality of the circumstances” requires
us to not only look at the image but also the manner in which the image was
produced, and its purpose for which it was taken. Judge Baker described this
inquiry as “necessarily[] a highly contextual and fact-specific inquiry.” United
States v. Blouin, 74 M.J. 247, 255 (C.A.A.F. 2015) (Baker, J., dissenting). A picture
taken for medical diagnosis and treatment, for example, is reviewed differently than
a picture that was part and parcel to a child’s sexual exploitation. Here, these
images were taken in order to facilitate appellant’s sexual attraction to an eight year
old girl when appellant was purportedly acting in loco parentis. The totality of the
circumstances weighs in favor of finding the specification legally sufficient.




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GOULD — ARMY 20120727

                               B. Is Nudity Required?

       In Blouin, our superior court rejected the application of United States v. Knox
(Knox II), 32 F.3d 733 (3d Cir. 1994), as controlling precedent. Blouin, 74 M.J. at
250. Adopting Knox II would have made clear that non-nude images could be child
pornography under 18 U.S.C. § 2256(8). While the CAAF rejected adopting Knox II,
they did not adopt another standard in its place. The CAAF never answered the
question of whether non-nude images could constitute child pornography under 18
U.S.C. § 2256(8).

       Instead, the court’s decision in Blouin turned on whether the military judge
adequately conducted an inquiry into appellant’s pleas. See United States v. Blouin,
73 M.J. 694 (C.A.A.F. 2014) (order granting review). Specifically, the court found
that the military judge failed to distinguish which subsection of 18 U.S.C. § 2256(8)
appellant was pleading guilty to, and there was therefore a substantial basis in law
and fact to question the providence of the appellant’s plea. Blouin, 74 M.J. at 252.

       If non-nude images could never be child pornography, the CAAF’s decision in
Blouin would be beside the point. Put simply, the CAAF determined that the
providence inquiry was insufficient; they did not determine that no inquiry would
have been sufficient. The entire thrust of the Blouin court’s decision is that the
military judge should have better explained to the appellant to which subsection of
18 U.S.C. § 2256(8) he was pleading guilty. For example, the CAAF specifically
described the differences in the subsections as “not inconsequential.” Blouin, 74
M.J. at 250. But if nudity was per se required for child pornography under 18
U.S.C. § 2256(8), the differences in the subsections would have been irrelevant (i.e.
inconsequential); no providence inquiry would have been sufficient.

       Put simply, I cannot read into Blouin a sub silentio holding that requires
nudity in all child pornography offenses under 18 U.S.C. § 2256(8). If that were the
case, the difference in the subsections of 18 U.S.C. § 2256(8) would be
“inconsequential” instead of “not inconsequential” and the case would have been
decided on legal sufficiency grounds instead of whether appellant was adequately
provident to his pleas. To believe otherwise would mean that the court in Blouin
found error in how the military judge explained the offenses—when no explanation
would have been sufficient. While the granted issue in Blouin was whether non-
nude images meet the statutory definition of 18 U.S.C. § 2256(8), the court decided
the case on the alternative ground that appellant was not provident in his pleas.




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GOULD — ARMY 20120727

       Our superior court remanded this case to us for reconsideration in light of
Blouin. As Blouin was a case about an improvident guilty plea, 1 and this case was
contested judge-alone case, I see no reason to modify our previous decision. There
is no issue with a Care inquiry, nor were there instructional errors that might raise
similar issues.

       The majority determines that no reasonable fact-finder could find appellant
guilty, and that therefore the specification 1 of Charge II is legally insufficient. As I
disagree, I respectfully dissent.

                                         FOR THE COURT:
                                          FOR THE COURT:



                                          JOHN P. TAITT
                                         JOHN   P. TAITT
                                          Chief Deputy Clerk of Court
                                         Chief Deputy Clerk of Court




1
 For example, the CAAF digest of opinions records Blouin as a decision about the
providence of a plea, not a case about what constitutes child pornography. See
http://www.armfor.uscourts.gov/newcaaf/digest/IVB2.htm


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