UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          BURTON, SALADINO, and FLEMING
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                        Staff Sergeant JOSEPH W. SMITH
                          United States Army, Appellant

                                   ARMY 20180047

             Headquarters, United States Army Recruiting Command
           Matthew A. Calarco and Daniel G. Brookhart, Military Judges
                   Colonel Rick S. Lear, Staff Judge Advocate


For Appellant: Lieutenant Colonel Tiffany D. Pond, JA; Major Jack Einhorn, JA;
Captain Patrick G. Hoffman, JA (on brief).

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Major Marc B. Sawyer, JA;
Captain Meredith M. Picard, JA (on brief).


                                      12 April 2019

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

BURTON, Senior Judge:

       At trial, appellant was convicted of three separate specifications of possessing
child pornography. As outlined below, and for the reasons annotated by this court in
United States v. Mobley, 77 M.J. 749 (Army Ct. Crim. App. 2018), we merge these
specifications in our decretal paragraph.

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of three specifications of possession of child pornography in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 [UCMJ].
The military judge sentenced appellant to a bad-conduct discharge, confinement for
eighteen months, and reduction to the grade of E-1. Pursuant to a pretrial
agreement, the convening authority approved only so much of the adjudged sentence
as provided for a bad-conduct discharge, confinement for thirteen months, and
reduction to the grade of E-1.
SMITH–ARMY 20180047

       We review this case under Article 66, UCMJ. Appellant raises one
assignment of error in his brief and several additional issues pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). As outlined below, one of the
Grostefon issues merits discussion and relief. 1, 2

                             LAW AND DISCUSSION

       On 19 January 2018, appellant pleaded guilty to three separate specifications
of possessing child pornography. 3 Each specification addressed a different “film” 4
containing child pornography. During his providence inquiry, appellant explained
that he downloaded each of the charged files to his phone.

       After appellant’s trial, this court issued United States v. Mobley, which
“conclude[d] that, in light of United States v. Forrester, 76 M.J. 479 (C.A.A.F.
2017), the allowable ‘unit of prosecution’ for possessing child pornography . . . is
the ‘material’ that contains illicit videos and images of child pornography, in this
case, appellant’s computer.” 77 M.J. at 749-50. In Mobley, the “videos and still
images of child pornography that make up the two specifications were on the same
computer” and this court elected to use its Article 66 power to “notice” the issue and
consolidate the specifications as multiplicious. Id. at 751-52.

       Upon review, appellant’s case factually mirrors Mobley, and we choose to
follow a similar course of action under Article 66. As such, we consolidate the
specifications and reassess the sentence in our decretal paragraph.


1
  We have carefully considered appellant’s assignment of error that the military
judge abused his discretion in accepting appellant’s guilty plea without discussing a
lack of mental responsibility defense, as well as his remaining Grostefon issues. We
find they merit neither discussion nor relief.
2
 Pursuant to our review of the record, we noticed the Staff Judge Advocate did not
prepare an Addendum following appellant’s submission of matters pursuant to Rule
for Courts-Martial 1105 and 1106. While this would normally necessitate corrective
action, the record inherently reflects that the Convening Authority both received and
considered these matters prior to action. In particular, the Convening Authority
directly acted on the single request contained in these matters. As such, while we do
not condone such administrative oversight, we do not find any relief is warranted.
3
  Appellant was originally charged with two additional specifications of possessing
child pornography related to digital images. Pursuant to the pretrial agreement,
these specifications were dismissed during trial.
4
 At trial, the charged “film[s]” were discussed by the parties in the context of
digital video files. Accordingly, we do too.


                                           2
SMITH–ARMY 20180047

                                   CONCLUSION

      Specifications 3, 4, and 5 of The Charge are consolidated into Specification 3
of The Charge as follows:

             In that Staff Sergeant Joseph W. Smith, U.S. Army, did, at
             or near Fort Knox, Kentucky, on or about 14 March 2017,
             knowingly and wrongfully possess child pornography, to
             wit: three films of a minor or what appears to be a minor,
             engaging in sexually explicit conduct, such conduct being
             to the prejudice of good order and discipline in the armed
             forces and of a nature to bring discredit upon the armed
             services.

     The finding of guilty of Specification 3 of The Charge, as consolidated, is
AFFIRMED.

      We reassess the sentence in accordance with the principles of United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305, 307-08 (C.M.A. 1986), and we are confident the military judge would have
adjudged a sentence at least as severe as the approved sentence absent the error
described above. Most notably, while the consolidation of the specifications reduces
appellant’s punitive exposure, the gravamen of the criminal conduct remains
substantially the same.

       Reassessing the sentence based on the noted error and the entire record, we
AFFIRM the approved sentence. All rights, 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. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Judge SALADINO and Judge FLEMING concur.

                                        FOR THE
                                        FOR THE COURT:
                                                COURT:




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




                                           3
