UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                        TOZZI, CAMPANELLA, and CELTNIEKS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                       Private E2 ALEXANDER LENHART
                          United States Army, Appellant

                                   ARMY 20130116

                              Headquarters, I Corps
                  Stefan Wolfe and Kurt Bohn, Military Judges
                 Colonel William R. Martin, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Major Robert N. Michaels, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Major John
Choike, JA; Captain Timothy C. Erickson, JA (on brief).


                                  22 December 2014

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

TOZZI, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of possession of child pornography and
one specification of possession of multiple digital images of a sexual nature
depicting a minor or minors [hereinafter child erotica], in violation of Article 134
Uniform Code of Military Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The
military judge sentenced appellant to a bad-conduct discharge, confinement for
twelve months, and reduction to the grade of E-1. Pursuant to a pretrial agreement,
the convening authority only approved a bad -conduct discharge, confinement for 180
days, and reduction to the grade of E-1.

       Appellant’s case is before this court for review pursuant to Article 66, UCMJ.
In his sole assignment of error appellant asserts that Specification 2 of The Charge
is void for vagueness because appellant was not given fair notice that the charged
conduct of possessing child erotica was forbidden and subject to criminal sanction.
LENHART—ARMY 20130116

We find that the military judge abused his discretion in accepting appellant’s plea to
Specification 2 of The Charge and take corrective action on that basis, rendering it
unnecessary to reach the merits of appellant’s assignment of error.

                                   BACKGROUND

       Appellant pled guilty to one specification of possession of child pornography,
and one specification of possession of child erotica. The military judge began
appellant’s guilty plea inquiry by correctly defining the offense of possession of
child pornography, and he then engaged in a colloquy with appellant, in which
appellant provided a factual and legal basis for the military judge’s finding of gu ilty
on that specification. Next, the military judge defined the offense of possession of
child erotica to appellant, as follows:

             On or between 12 August 2011 and 9 September 201 1 at
             or near Joint Base Lewis-McCord, Washington, the
             accused knowingly and wrongfully possessed multiple
             digital images of a sexual nature depicting a minor or
             minors and that under the circumstances the conduct of
             Private Lenhart, the accused, was to the prejudice of good
             order and discipline in the armed forces or of a nature t o
             bring discredit upon the armed forces .

       After further defining conduct prejudicial to good order and discipline and
service discrediting conduct, the following colloquy occurred:

             MJ: Now when I asked you about this before when you
             were charged with a sexual nature depicting minors, do
             you remember my discussion of the definition of
             lascivious? [Referring to the military judge’s earlier
             definition of child pornography, which included a
             comprehensive definition of lascivious exhibition of the
             genitals or pubic area of any person].

             ACC: Yes, Your Honor.

             MJ: It means exciting of sexual desires or marked by lust,
             correct?

             ACC: Yes, Your Honor.

             MJ: And that not every exposure to the genitals or the
             pubic area constitutes a lascivious exhibition, correct?




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LENHART—ARMY 20130116

             ACC: Yes, Your Honor.

             MJ: All right. But if the consideration of the overall
             content of the visual depiction should be made and
             determined to constitute a lascivious exhibition, do you
             remember that?

             ACC: Yes, Your Honor.

             MJ: All right. And the facts we talked about was the
             focal point of the imaging and the photographs, correct?

             ACC: Yes, Your Honor.

              After receiving a factual predicate for why appellant’s conduct was
prejudicial to good order and discipline and service discrediting, and establishing
that the children in the images were real children, the colloquy continued:

             MJ: All right. Tell me in a general sense what sort of
             activities the children engaged in t hat was considered
             child erotica to you?

             ACC: Your Honor, I believe it to be classified as child
             erotica in the sense that there was a general focus on the
             genitalia.

The military judge then proceeded to discuss the attire of the children in the images
with the appellant, and that the attire would be “inappropriate for a child of 11, 12,
13.” The military judge then noted particular photographs that satisfy the definition
of child erotica, stating that the images noted are “not the only images that the court
believes would have satisfied that but will use that as a basis in the acceptance of or
decision whether or not to accept the accused’s plea of guilty to the erotica
regarding that age group.” Among the images noted on the record as constituting
child erotica by the military judge is an image that clearly depicts the lascivious
exhibition of the genitals (Pros. Ex. 1, encl. 3, image 04-08-033).

                              LAW AND DISCUSSION

       A military judge’s acceptance of a guilty plea is reviewed for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “The test
for an abuse of discretion is whether the record shows a substantial basis in law or
fact for questioning the plea.” United States v. Schell, 72 M.J. 339, 345 (C.A.A.F.
2013) (citing Id.).




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LENHART—ARMY 20130116

       In order for a “plea of guilty to be knowing and voluntary, the record of trial
‘must reflect’ that the elements of ‘each offense charged have been explained to the
accused’ by the military judge.” United States v. Redlinski, 58 M.J. 117, 119.
(C.A.A.F. 2003) (quoting United States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247
(1969) (other citations omitted). If the military judge fails to explain each element
to the appellant, “he commits reversible error, unless ‘it is clear from the entire
record that the accused knew the elements, admitted them freely, and pleaded guilty
because he was guilty.’” Id.

       In the instant case, the colloquy with appellant concerning the child erotica
specification was confusing in that the military judge appeared to conflate the
definitions of child pornography and child erotica. Appellant exhibited a
misunderstanding of the elements of child erotica by focusing on the genitalia in
explaining the factual predicate for Specification 2 of The Charge. In addition, the
military judge relied upon an exhibit that clearly constituted child pornography in
finding appellant guilty of child erotica. For these reasons there exists a substantial
basis in law and fact to question appellant’s plea to possession of child erot ica.

                                   CONCLUSION

      Upon consideration of the entire record, the finding of guilty of Specification
2 of The Charge is set aside. Specification 2 of the Charge is dismissed. The
remaining finding of guilty is 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 in this court-martial. Second, appellant was sentenced by a
military judge. Third, the remaining offense capture s the gravamen of appellant’s
misconduct, and the fact that appellant possessed substantial amounts of digital
images and video files containing child pornography is profound aggravation
evidence. Fourth, based on our experience, we are familiar with the remaining
offense so that we may reliably determine what sentence would have been imposed
at trial.

       After reassessing the sentence and the entire record, we AFFIRM the
approved sentence. We find this purges the error in accordance with Sales and
Winckelmann, and is also appropriate under Article 66(c), UCMJ. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decisi on are ordered restored.



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LENHART—ARMY 20130116


    Judge CAMPANELLA and Judge CELTNIEKS concur.


                              FOR THE
                              FOR THE COURT:
                                      COURT:




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




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