UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                              YOB, LIND, and KRAUSS*
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                       v.
                       Specialist JASON A. BLANCHETTE
                         United States Army, Appellant

                                  ARMY 20120291

                             Headquarters, Fort Riley
                         Jeffery R. Nance, Military Judge
           Lieutenant Colonel Daniel G. Brookhart, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison , JA; Captain A. Jason Nef,
JA; Captain James P. Curtin, JA (on brief).

For Appellee: Lieutenant Colonel James L. Varley, JA; Major Catherine Brantley,
JA; Captain Daniel M. Goldberg, JA (on brief).


                                    8 January 2014

                              ---------------------------------
                               SUMMARY DISPOSITION
                              ---------------------------------
LIND, Judge:

       A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of one specification of rape of a child; one specification of
service-discrediting conduct for possession of images of child pornography; and one
specification of service-discrediting conduct for possession of images depicting
young girls or boys as sexual objects or in a sexually suggestive way in violation of
Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. § § 920, 934
(2006 & Supp. IV) [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge and confinement for two years. The convening authority
approved the adjudged sentence, credited appellant with forty-five days against the
sentence to confinement, and waived automatic forfeitures for a period of six months
for the benefit of appellant’s daughter.


* Senior Judge YOB took final action on this case prior to his permanent change of
duty station.
BLANCHETTE — ARMY 20120291

       This case is before the court for review under Article 66, UCMJ. Appellant
argues he did not have fair notice that the charged conduct in Specification 2 of
Charge II (possession of “images that depict young girls or boys as sexual objects or
in a sexually suggestive way” in violation of Article 134, UCMJ) was subject to
criminal sanction. The government concedes in light of United States v. Warner,
   M.J.    (C.A.A.F. 6 Dec. 2013).

       We will grant appellant the relief he requests —dismissal of Specification 2 of
Charge II—but on different grounds. As a result of our decision regarding
appellant’s first assignment of error, appellant’s second assignment of error alleging
legal insufficiency of Specification 2 of Charge II is rendered mo ot. We have also
considered those matters personally raised by appellant pursuant to United States v.
Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are without merit.

      In light of our superior court’s decision in United States v. Warner, assuming
without deciding that appellant was on notice that possessing nude images “ depict[ing]
young girls or boys as sexual objects or in a sexually suggestive way” was subject to
criminal sanction under Article 134, UCMJ, Specification 2 of Charge II must
nevertheless be set aside and dismissed pursuant to United States v. Barberi, 71 M.J.
127 (C.A.A.F. 2012).

        Specification 2 of Charge II alleged appellant possessed “some images,” but did
not list any specific image names or numbers . The government entered Prosecution
Exhibit 12 into evidence, which was a compact disc containing hundreds of numbered
nude images of both children and adults, only some of which depicted sexually explicit
conduct and some of which depicted children as sexual objects or in sexually suggestive
ways. While the military judge announced specific image numbers in his finding of
guilty of Specification 1 of Charge II (possession of child por nography), the military
judge reached a general verdict of guilty for Specification 2 of Charge II and did not
distinguish any images in Prosecution Exhibit 12 as constitutionally protected speech.
“[I]f a factfinder is presented with alternative theories of guilt and one or more of those
theories is later found to be unconstitutional, any resulting conviction must be set aside
when it is unclear which theory the factfinder relied on in reaching a decision.”
Barberi, 71 M.J. at 131 (quoting United States v. Cendejas, 62 M.J. 334, 339 (C.A.A.F.
2006) (citing Stromberg v. California, 283 U.S. 359, 368 (1931)).

       We nonetheless test whether the constitutional error was harmless beyond a
reasonable doubt. Id. at 132 (citing Chapman v. California, 386 U.S. 18, 21-22 (1967)).
To do so, we must determine “ whether there is a reasonable possibility that the
evidence complained of might have contributed to the conviction.” Id. at 132
(quoting Chapman, 386 U.S. at 23). In this case, like in Barberi, we find the
constitutional error was not harmless beyond a reasonable doubt because we cannot
know which images formed the basis for the finding of guilt y of Specification 2 of
Charge II. Accordingly, “the constitutionally protected images reasonably may have




                                             2
BLANCHETTE — ARMY 20120291

contributed to the conviction and cannot be deemed unimportant in relation to
everything else” the fact-finder considered. Id. at 132-33.

                                    CONCLUSION

      The finding of guilty of Specification 2 of Charge II is set aside and
dismissed. The remaining findings of guilty are AFFIRMED.

        In United States v. Sales, our superior court set forth the standard for sentence
reassessment: “if the [service] 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 . . . .” 22 M.J. 305, 308 (C.M.A. 1986). After conducting a thorough analysis
on the basis of the entire record and in accordance with the principles of United
States v. Sales, id., and the factors set forth in United States v. Winckelmann,
M.J.     , slip op. at 12-13 (C.A.A.F. 18 Dec. 2013), we are confident in our ability to
reassess appellant’s sentence without the need for a rehearing .

       In evaluating the Winckelmann factors, we find there is no dramatic change in
the penalty landscape or significant decrease in sentencing exposure. Appellant’s
conviction for rape of a child by itself carried a maximum punishment of life
without the possibility of parole. The military judge considered Specification 2 of
Charge II an unreasonable multiplication of charges for sentencing with the child
pornography specification. Appellant was sentenced by a military judge and his
adjudged sentence was well-below the maximum. The gravamen of appellant’s
misconduct remains the rape of a child under the age of twelve. Finally, this court
reviews the records of a substantial number of courts -martial involving sexual
misconduct and we have extensive experience with the level of sentences imposed
for such offenses under various circumstances.

       After our review of the record, we are confident the military judge would have
adjudged the same sentence absent the error noted. The sentence is AFFIRMED.
All rights, privileges, and property, of which appellant has been deprived by virtue
of the finding of guilty set aside by the decision , are ordered restored.

      Senior Judge YOB and Judge KRAUSS concur.

                                         FOR
                                         FOR THE
                                             THE COURT:
                                                 COURT:




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



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