              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.

                                Before
          F.D. MITCHELL, J. R. MCFARLANE, M.C. HOLIFIELD
                      Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                      JEFFREY F. MORRIS
      SONAR TECHNICIAN (SUBMARINE) SEAMAN (E -3), U.S. NAVY

                            NMCCA 201300348
                        SPECIAL COURT-MARTIAL

Sentence Adjudged: 21 May 2013.
Military Judge: CDR Robert P. Monahan Jr., JAGC, USN.
Convening Authority: Commanding Officer, Naval Submarine
Support Center New London, Groton, CT.
For Appellant: Capt Jason R. Wareham, USMC.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT Ian D.
MacLean, JAGC, USN.

                             28 August 2014

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                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

    A military judge, sitting as a special court-martial,
convicted the appellant, consistent with his pleas, of two
specifications of possessing media containing child pornography,
in violation of Article 134, Uniform Code of Military Justice 10
U.S.C. § 934.1 The military judge sentenced the appellant to

1
  The appellant also pled guilty to a charge of communicating a threat under
Article 134, UCMJ; however, the Government withdrew and dismissed that charge
prior to findings. Record at 241.
confinement for 11 months, reduction to pay grade E-1, and a
bad-conduct discharge. The convening authority (CA) deferred
automatic forfeitures until the CA’s action and then waived them
for a period of six months. He otherwise approved the sentence
as adjudged, and, except for the bad-conduct discharge, ordered
it executed.

    The appellant raises six assignments of error: 1) his guilty
plea was improvident as to Charge I, Specification 2, because
one of the images constituted child erotica, not child
pornography; 2) the search and seizure of his laptop was
unlawful; 3) his conviction is legally and factually
insufficient where the evidence against him constituted
thumbnail files and were acquired due to automatic caching of
his internet browser; 4) his conviction is legally and factually
insufficient due to some images not being verified by the
National Center for Missing and Exploited Children (NCMEC); 5)
his sentence is inappropriately severe; and, 6) the judge
violated his duty to remain impartial.2

     After careful examination of the record of trial and the
pleadings of the parties, we are satisfied that the findings and
the sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant occurred. Arts. 59(a) and 66(c), UCMJ.

                                 Background

     The appellant was charged with and pleaded guilty to, inter
alia, possessing a computer hard drive containing child
pornography. Specifically, Charge I, Specification 2 alleged a
violation of Article 134, UCMJ:

      Specification 2: In that [appellant], on active duty,
      did, at or near Naval Submarine Base New London,
      Groton, Connecticut, between on or about 12 January
      2012 and on or about 30 May 2012, knowingly and
      wrongfully possess a computer hard drive containing
      child pornography, to wit: approximately 19 digital
      images of a minor, or what appears to be a minor,
      engaging in sexually explicit conduct, and that said
      conduct was of a nature to bring discredit upon the
      armed forces.


2
  Assignments of error two through six are summary assignments of error raised
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


                                      2
     The Government produced twenty-two (22) images to support
Specification 2’s charge of “approximately 19 digital images.”
The military judge sua sponte excluded two of the twenty-two
images, leaving twenty (20) images of child pornography to which
the appellant was found guilty of possessing.3

     The appellant acknowledged that the items of media he
possessed contained child pornography. The appellant also
agreed that all of the images to which he pled guilty depicted
real children under the age of eighteen, even though some of the
children were not able to be verified as such through the NCMEC.
Record at 83, 92.

     The appellant admitted that his possession of media
containing child pornography was intentional and wrongful, that
he was capable of avoiding those actions, that he was not forced
to engage in such conduct, and that he had no legal
justification or excuse. Id. at 224-25.

     Further facts relevant to the assignments of error are
developed below.

                             Improvident Plea

     In his initial assignment of error, the appellant contends
that his plea was improvident to Charge I, Specification 2
because the image listed in Prosecution Exhibit 11 as Number 19
with Unique ID number 106470 constituted child erotica under
United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013), not child
pornography.

                        Child Pornography Defined

     Once the military judge elects to use the statutory
definition of child pornography under 18 U.S.C. § 2256(8), the
Child Pornography Prevention Act (CPPA), the evidence must meet
that definition. See United States v. Barberi, 71 M.J. 127,
129-30 (C.A.A.F. 2012). As part of the providence inquiry, the
military judge informed the appellant that “child pornography”:

      means material that contains a visual depiction of an
      actual minor engaging in sexually explicit conduct.
      Child pornography also means material that contains an
      obscene visual depiction of a minor engaging in
3
  The military judge excluded one image as duplicative and another image
because he found that it did not constitute child pornography under the
statutory definition. Record at 108, 119.
                                      3
      sexually explicit conduct. Such a depiction need not
      involve an actual minor but instead only what appears
      to be a minor.

Record at 72-73. The military judge used the CPPA’s definition
of “sexually explicit conduct”:

      actual or simulated (i) sexual intercourse, including
      genital-genital, oral-genital, anal-genital, or oral-
      anal, whether between persons of the same or opposite
      sex; (ii) bestiality; (iii) masturbation; (iv)
      sadistic or masochistic abuse; or (v) lascivious
      exhibition of the genitals or pubic area of any person
      . . . .

18 U.S.C § 2256(2)(A) (emphasis added); see Record at 73-74.

     In explaining what constitutes a “lascivious exhibition,”
the military judge listed the six Dost factors relied on in
United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006).4
In addition, as instructed by the military judge in this case,
in order to constitute a “lascivious exhibition” as defined by
the CPPA, the image must depict the genitals or pubic area of
the child. Record at 85.

     A “lascivious exhibition” includes “a depiction which
displays or brings forth to view in order to attract notice to
the genitals or pubic area of children, in order to excite
lustfulness or sexual stimulation in the viewer.” United States
v. Knox, 32 F.3d 733, 745 (3d Cir. 1994) (emphasis added); see
also United States v. Clark, 468 Fed. Appx. 102, 103-04 (3d Cir.
2011); United States v. Grimes, 244 F.3d 375, 381 (5th Cir.
2001). However, there is no “requirement that the contours of
the genitals or pubic area be discernible or otherwise visible
through the child subject's clothing.” Knox, 32 F.3d at 746.

     “[L]asciviousness is not a characteristic of the child
photographed but of the exhibition which the photographer sets
up for an audience that consists of himself or like-minded
4
  The Dost factors are: (1) whether the focal point of the depiction is on the
genitals or pubic area; (2) whether the setting is sexually suggestive; (3)
whether the child is depicted in an unnatural pose, or in inappropriate
attire, considering the child’s age; (4) whether the child is fully or
partially clothed or nude; (5) whether the depiction suggests sexual coyness
or a willingness to engage in sexual activity; and (6) whether the depiction
is intended to elicit a sexual response in the viewer. United States v.
Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d, 812 F.2d 1231 (9th Cir.
1987).
                                      4
pedophiles.” United States v. Larkin, 629 F.3d 177, 184 (3d
Cir. 2010) (citation and internal quotation marks omitted).
“[T]he focus must be on the intended effect, rather than the
actual effect, on the viewer.” Id. (citation omitted).

                       Standard of Review

     We review a military judge's decision to accept a guilty
plea for an abuse of discretion. United States v. Eberle, 44
M.J. 374, 375 (C.A.A.F. 1996). A decision to accept a guilty
plea will be set aside if there is a substantial basis in law or
fact for questioning the plea. United States v. Inabinette, 66
M.J. 320, 321-22 (C.A.A.F. 2008). We will not reverse a
military judge’s decision to accept a guilty plea unless we find
“a substantial conflict between the plea and the accused's
statements or other evidence of record.” United States v.
Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996). “A ‘mere possibility’
of such a conflict is not a sufficient basis to overturn the
trial results.” Id. (quoting United States v. Prater, 32 M.J.
433, 436 (C.M.A. 1991)).

                           Discussion

     The appellant argues that the issue presented in the case
at bar is similar to that presented in Warner. In Warner, the
Court of Appeals for the Armed Forces (CAAF) found that the
appellant, convicted contrary to his pleas, did not have notice
that possession of images depicting minors “as sexual objects or
in a sexually suggestive way” without depicting any nudity or
other sexually explicit conduct was child pornography. Warner,
73 M.J. at 3.   The CAAF went on to say that “. . . although
child pornography is a highly regulated area of criminal law, no
prohibition against possession of images of minors that are
sexually suggestive but do not depict nudity or otherwise reach
the federal definition of child pornography . . . .” Id. The
appellant contends that because the victim was partially clothed
in the image listed in Prosecution Exhibit 11 as Number 19 with
Unique ID number 106470, it constituted child erotica, not child
pornography and his plea to this charge was therefore
improvident. We disagree.

      In the case sub judice, the military judge conducted a
thorough providence inquiry into why the appellant believed that
the image with the Unique ID number 106470 contained a
“lascivious exhibition” of the minor’s pubic area. The
appellant stated he was confident that the female in the image
was under the age of 18 because of her “breast size, lack of

                                5
pubic hair, skinny arms and legs and narrow hips.” Record at
196. He found this picture in his search for child pornography.
Id. at 195. The appellant conceded that the child’s genitals
were a “focal point” of the photo because “she is pulling down
her underwear” and “[h]er legs are spread open wide,” which
“draws the eye to the pubic area.” Id. at 195, 197-98. The
caption to the image highlights the fact that the child’s pubic
area is a focal point: “Daddy…where is your condom?” Id. at
194. The setting of the image is sexually suggestive in that
the child is posed on a black background dressed in short
fingerless sheer gloves, a string bikini, and a feathered boa
over her shoulders while lying on her back staring at the camera
with her legs spread apart beyond ninety degrees. Id. 194-95,
197. The child is in an unnatural pose and in inappropriate
attire, considering her young age. Id.at 197-98. She is
topless and pulling back her string bikini, which partially
exposes her pubic area and draws attention to her genital
region. Id. at 196, 198. Her feet are drawn together near her
genital region, further directing the viewer’s attention to that
area. The depiction clearly suggests willingness to engage in
sexual activity. Id. at 198-99. Finally, the image itself is
designed to elicit a sexual response in the viewer, even without
the caption. Id. at 199.

     We are convinced beyond a reasonable doubt that the image
with Unique ID number 106470 meets the definition of sexually
explicit conduct. After thoroughly reviewing the record to
include the appellant’s responses to the military judge’s
questions during the Care inquiry, and the stipulation of fact,
we do not find a substantial basis in law or fact to question
the plea. Inabinette, 66 M.J. at 321-22. We therefore decline
to set aside the appellant’s conviction on that specification.

                       Search and Seizure

     In his first summary assignment of error, the appellant
asserts the search and seizure of his laptop was unlawful.

     The appellant pleaded guilty pursuant to a pretrial
agreement in which he waived all nonwaivable motions,
specifically including a motion to suppress any evidence seized
by the Naval Criminal Investigative Service. Appellate Exhibit
I, ¶ 16(h). The military judge conducted a substantial inquiry
into this waiver on the record, where the appellant agreed that
he was waiving a motion to suppress the search of his laptop and
that he understood he would not be entitled to appellate relief
on that motion. Record at 275-76.

                                6
     Under these circumstances, he waived any claim relating to
the improper search and seizure of his laptop. See United
States v. Lee, 73 M.J. 166, 167 (C.A.A.F. 2014) (citing United
States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) ("An
unconditional plea of guilty waives all nonjurisdictional
defects at earlier stages of the proceedings.”). We therefore
decline to grant relief.

                   Legal and Factual Sufficiency

     In his third and fourth assignments of error, the appellant
asserts that his conviction is both legally and factually
insufficient where some of the evidence against him constituted
thumbnail files and was acquired due to automatic caching of his
internet browser and where some of the images were not verified
by the NCMEC. We find these arguments inapplicable in light of
the appellant’s guilty pleas.

      When an appellant pleads guilty, the providence of the plea
rather than the sufficiency of the evidence must be analyzed.
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996).
During the providence inquiry, the military judge must determine
whether there is a “factual basis for the plea.” RULE FOR COURTS-
MARTIAL 910(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
There is no requirement that any independent evidence be
produced to establish a factual basis for the plea. Faircloth,
45 M.J. at 174. Rather, the factual predicate is sufficiently
established if “the factual circumstances as revealed by the
accused himself objectively support that plea . . . .” Id.
(citing United States v. Davenport, 9 M.J. 364, 367 (C.M.A.
1980)).

     The appellant’s statements during the providence inquiry
“raised no matters inconsistent with his guilty pleas,
demonstrated that he was convinced of his guilt, and he was able
to describe all the facts necessary to establish guilt,
including adequate descriptions of the pornographic images at
issue.” See United States v. Jones, 69 M.J. 294, 300 (C.A.A.F.
2011) (citation and internal quotation marks omitted).
Therefore, there is no substantial basis in law or fact to
question the appellant’s guilty pleas.



                                  7
                        Sentence Severity

     In his fifth assignment of error, the appellant contends
that his sentence is inappropriately severe where the reason he
was charged arose from his self-report to mental health
professionals when he sought help to cease viewing child
pornography.

     “Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).

     After reviewing the entire record, we find that the
sentence is appropriate for this offender and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005);
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268.

                      Judicial Impartiality

     In his final assignment of error, the appellant avers that
the military judge’s parents were seated in the gallery and
observed the trial, and that this fact alone somehow made the
military judge less than impartial. We find this contention to
be wholly without merit. United States v. Matias, 25 M.J. 356,
363 (C.M.A. 1987).

                           Conclusion

     Accordingly, the findings and the sentence as approved by
the CA are affirmed.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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