UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              COOK, TOZZI, and HAIGHT
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                      Staff Sergeant CLAYTON C. KELLEY
                          United States Army, Appellant

                                  ARMY 20120837

                                Headquarters, I Corps
                   David L. Conn and Stefan Wolfe, Military Judges
              Lieutenant Colonel John T. Rothwell, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Major Vincent T. Shuler, JA; Captain
Brian D. Andes, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
Daniel H. Karna, JA (on brief).


                                     19 June 2015
                              ---------------------------------
                               SUMMARY DISPOSITION
                              ---------------------------------

Per Curiam:

       A panel composed of officer and enlisted members sitting as a general court-
martial convicted appellant, contrary to his pleas, of maltreatment (two
specifications), making a false official statement, indecent exposure (two
specifications), indecent language (five specifications) and disorders and neglects
(four specifications), in violation of Articles 93, 107, 120 and 134, Uniform Code of
Military Justice, 10 U.S.C. §§ 893, 907, 920 and 934 (2006; 2012) [hereinafter
UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct
discharge and four years of confinement.
KELLEY—ARMY 20120837

      This case is before us for review pursuant to Article 66, UCMJ. Appellant has
assigned several errors, one of which merits discussion and relief. *

        Specification 9 of Charge IV alleged appellant violated Article 134, UCMJ
by: “show[ing] to Mrs. A.W. photographs of himself naked and videos of couples
engaged in sexual intercourse . . . .” (emphasis added). The only evidence
introduced at trial to support this charge was Mrs. A.W.’s testimony. Mrs. A.W.
testified that in addition to appellant showing her a nake d photograph of himself, he
showed her a single picture of a naked couple engaged in sexual intercourse.
Although Mrs. A.W. also testified that appellant showed her a third photograph
featuring a naked girl, Mrs. A.W. failed to state that appellant had shown her any
videos or any additional photographs involving couples. Appellant now alleges the
portion of this specification pertaining to “videos of couples” is legally an d factually
insufficient. The government concedes this point and we accept its conc ession.

       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 test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

     Having completed our review and in considerations of the entire record, we
AFFIRM only so much of Specification 9, Charge IV as finds:

             [Appellant], did, at or near Joint Base Lewis -McChord,
             Washington, between on or about 1 July 201 1 and on or
             about 30 November 2011, show to Mrs. A.W. photographs
             of himself naked and of a couple engaged in sexual
             intercourse, which conduct was prejudicial to good order
             and discipline and of a nature to bring dis credit upon the
             armed forces.


*
 We have also reviewed those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit.




                                           2
KELLEY—ARMY 20120837

      The remaining findings of guilty are 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). We are confident that based on the entire record and appellant’s
course of conduct, the panel would have imposed a sentence of at least that which
was adjudged, and accordingly we AFFIRM the sentence.

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has b een
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.

                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




                                        MALCOLMH.
                                       MALCOLM      H.SQUIRES,
                                                       SQUIRES,JR.
                                                                JR.
                                        Clerkof
                                       Clerk  ofCourt
                                                 Court




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