UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                         KERN, ALDYKIEWICZ, and MARTIN
                             Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                            Sergeant JOHN C. KING
                          United States Army, Appellant

                                  ARMY 20120136

                    Third Army, United States Army Central
                      Reynold P. Masterton, Military Judge
               Colonel Stephanie L. Stephens, Staff Judge Advocate

For Appellant: Major Richard E. Gorini, JA; Captain Matthew M. Jones, JA (on
brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Catherine L. Brantley,
JA; Captain Bradley M. Endicott, JA (on brief).


                                     11 April 2013

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

Per Curiam:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of four specifications of violating a general order and four
specifications of possession of child pornography, in violation of Articles 92 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 934 (2006) [hereinafter
UCMJ]. The convening authority approved the adjudged sentence to a bad-conduct
discharge, confinement for ten months, forfeiture of all pay and allowances, and
reduction to the grade of E-1.

      On appeal, appellant raises a single assignment of error regarding
Specification 2 of Charge I, a possession of child pornography specification of
which he was convicted. That specification alleged appellant wrongfully and
knowingly possessed an external hard drive containing child pornography as defined
by 18 U.S.C. § 2256(8), including a named image file and several named video files.
Appellant now takes issue with the one named image file within the specification:
“Kids Teens Women (Porno-Lolitas-Preteens-Reelkiddymov-R@Ygold-Hussyfans-
KING—ARMY 20120136

Underage-Girls-Children-Pedofilia-Pthc-Ptsc-Xxx-Sexy) 14 (2).jpg” [hereinafter
“Kids”]. The image under this file name depicts a young girl lying on her stomach
in apparent undress facing the camera with the top of her buttocks exposed, but
without her breasts or genitals exposed. In addition, the girl is not engaged in a
sexual act.

       We review a military judge’s decision to accept a plea of guilty for an abuse
of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). A
guilty plea will be set aside on appeal only if an appellant can show a substantial
basis in law or fact to question the plea. Id. (citing United States v. Prater, 32 M.J.
433, 436 (C.M.A. 1991)). The court applies this “substantial basis” test by
determining whether the record raises a substantial question about the factual basis
of appellant’s guilty plea or the law underpinning the plea. Id. See UCMJ art. 45;
Rule for Courts-Martial 910(e).

       Appellant argues, and the government concedes, that the “Kids” image does
not constitute child pornography under the 18 U.S.C. § 2256(8) definition
incorporated into the specification. After reviewing the image, this court agrees that
it does not constitute child pornography under the statutory definition because it
does not depict sexually explicit conduct; specifically, the image does not include a
lascivious exhibition of the genitals or pubic area. Finding no other issue with that
specification, we except out only that particular image and affirm the specification
with the remaining listed video files.

        Therefore, this court affirms only so much of the finding of Specification 2 of
Charge I as finds the appellant did, “on or about 20 June 2011, at or near Camp
Arifjan, Kuwait, wrongfully and knowingly possess an 500 gigabyte (500 GB)
external hard disk drive bearing the serial number 2GE3WHL0, which did contain
child pornography as defined by 18 U.S.C. Section 2256(8), including the video
files: ‘(Pthc) Threesome - (9yo Girl & 10yo Boy & 15yo Boy).mpg’, ‘(Ptch) 10Yo
Mandy - Real Incest 2.mpg’, ‘ANNI 10 Hussyfan) (Ptch) Vicky 7yo and 10yo 69
Pedo Child Porno Lolita.mpg’, ‘Kiddy-((Hussyfan)) Pthc Americanpie New
Vicky.mpg’, ‘PTHC - Vicky-11yo - like pro.mpg’, ‘Pthc - 9Yo Linda TakesDad Up
Ass And Sucks His Cum And Swallows.mpg’, ‘preteen pedo (pthc) vicky_9yo_early
works (rare) beautiful 24min.mpg’, and ‘pthc Vicky wth stockings very hot.mpg’,
which conduct was prejudicial to good order and discipline and likely to bring
discredit upon the armed forces.”

       On consideration of the entire record, including the matters personally raised
by appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), the
remaining findings of guilty are AFFIRMED. Reassessing the sentence on the basis
of the error noted, the entire record, and in accordance with the principles of United
States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J 40



                                           2
KING—ARMY 20120136

(C.A.A.F 2006), to include the factors identified by Judge Baker in his concurring
opinion, the sentence as approved by the convening authority is AFFIRMED.


                                       FOR
                                        FORTHE
                                            THECOURT:
                                                COURT:




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




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