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

                          UNITED STATES, Appellee
                                       v.
                 Private First Class FRANCISCO M. SOLORIO
                         United States Army, Appellant

                                   ARMY 20140562

                            Headquarters, Fort Stewart
                         John T. Rothwell, Military Judge
            Colonel Francisco A. Vila, Staff Judge Advocate (pretrial)
        Colonel Luis O. Rodriguez, Staff Judge Advocate (recommendation)


For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA (on brief).

For Appellee: Major A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Scott
L. Goble, JA (on brief).


                                    21 March 2016
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                               SUMMARY DISPOSITION
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Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of indecent acts, two specifications of
communicating indecent language to a child under the age of 16 years, and two
specifications of possession of child pornography, in violation of Articles 120 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2006; 2012)
[hereinafter UCMJ]. The convening authority approved the adjudged sentence of a
bad-conduct discharge, confinement for fifteen months, forfeiture of all pay and
allowances, and reduction to the grade of E-1.

        This case is before us for review pursuant to Article 66, UCMJ. Appellant’s
sole assigned error merits brief discussion and relief. The matters raised pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), do not warrant discussion or
relief.
SOLORIO—ARMY 20140562

      All of appellant’s misconduct concerns his admitted sexual fascination with
minors. In the Specification of Additional Charge II, appellant was convicted of
wrongfully possessing four images of child pornography. Appellant now claims that
two of those four images are not child pornography in that two of the images do not
contain a “lascivious exhibition of the genitals or pubic area of any person.”
Manual for Courts-Martial, United States (2012 ed.), pt. IV, ¶ 68b.c.(7)(e).

       With respect to the four images of which appellant stands convicted of
possessing, we agree with appellant that two of them do not constitute child
pornography under the law. In the images labeled TM-3 and TM-4, included within
Prosecution Exhibit 4, because of angling, body position, and shadows, TM’s
genitals and pubic area are simply not visible or discernible. Accordingly, those two
images do not depict a minor engaging in “sexually explicit conduct.”

                                   CONCLUSION

       We approve only so much of the finding of guilty to Additional Charge II and
its Specification as follows:

             In that Private First Class Francisco M. Solorio, U.S.
             Army, did, at or near Kandahar Airfield, Afghanistan,
             between on or about 12 January 2012 and on or about 30
             April 2012, knowingly and wrongfully possess child
             pornography, to wit: two sexually-explicit photographs of
             a minor, T.M., engaging in sexually explicit conduct, and
             that said conduct was of a nature to bring discredit upon
             the armed forces.

       The remaining findings of guilty are AFFIRMED. Reassessing the sentence
on the basis of the error noted, the remaining findings of guilty, and the record as a
whole, the sentence is AFFIRMED. See United States v. Winckelmann, 73 M.J. 11
(C.A.A.F. 2013); United States v. Sales, 22 M.J. 305 (C.M.A. 1986).


                                        FOR THE COURT:
                                         FOR THE COURT:



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




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