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

                           UNITED STATES, Appellee
                                        v.
                         Sergeant BENJAMIN R. ETTER
                          United States Army, Appellant

                                  ARMY 20150422

                       Headquarters, 82nd Airborne Division
                           Tara Osborn, Military Judge
            Lieutenant Colonel Dean L. Whitford, Staff Judge Advocate


For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Heather L.
Tregle, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA (on brief).


                                   31 October 2016

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

TOZZI, Senior Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of possession of child pornography in
violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (2012)
[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 approved only so much of
the sentence that provided for a bad-conduct discharge, confinement for eleven
months, 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 alleges the military judge abused her
discretion by accepting appellant’s plea of guilty to possessing child pornography
where the record demonstrates that the digital image possessed was not child
pornography. We do not find the military abused her discretion at the time of trial,
ETTER—ARMY 20150422

but subsequent case law from our superior court now provides a substantial basis to
question the legal sufficiency of appellant’s plea. We will provide relief in our
decretal paragraph.

                                   BACKGROUND

       Appellant pled guilty to one specification of possession of child pornography
in the form of seven videos and one digital image, all found on his laptop computer.
Only the digital image is in dispute here. During the providence inquiry, appellant
described the digital image as a “minor female in a suggestive position with a blue
jacket on.” Appellant explained that the focal point of the image was the genitalia,
but the viewer could not see the genitalia because the minor female was wearing
black shorts.

       After explaining the Dost factors to appellant, the military judge explained
that the digital image could constitute a “lascivious exhibition” of genitalia even
though the genitals were clothed, citing this court’s decision in United States v.
Blouin, 73 M.J. 694 (Army Ct. Crim. App. 2014) (Blouin I) * and United States v.
Knox, 32 F.3d 733, 737 (3d Cir. 1994) (Knox II). See United States v. Dost, 636
F.Supp 828, 832 (S.D. Cal. 1986); Manual for Courts-Martial, United States (2012
ed.), pt. IV, ¶ 60b.c.(7)(e). Thus, the military judge accepted appellant’s plea to
possessing the digital image of child pornography described above. Subsequently,
our superior court reversed this court’s decision in Blouin I, questioning the viability
of further reliance on Knox II. See United States v. Blouin, 74 M.J. 247 (C.A.A.F.
2015) (Blouin II).

                              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.).

       In the instant case, the nature of the digital image in question and the fact that
the military judge did not have the benefit of our superior court’s opinion in Blouin
II raises a substantial basis in law to question appellant’s plea. Without deciding
whether Blouin II mandates a nudity requirement for a lascivious exhibition of the
genitals under Article 134, UCMJ, it is apparent that the military judge would have


*
 This court’s decision in Blouin I relied upon Knox, 32 F.3d at 737 (holding that the
“federal child pornography statute, on its face, contains no nudity or discernibility
requirement, that non-nude visual depictions . . . can qualify as lascivious
exhibitions”).


                                            2
ETTER—ARMY 20150422

benefitted by the additional guidance and direction provided by our superior court in
Blouin II. For this reason, there exists a substantial basis in law to question
appellant’s plea to possession of the digital image of child pornography in this case.

                                   CONCLUSION

       Upon consideration of the entire record, the court affirms only so much of the
finding of guilty of Specification 1 of The Charge as finds that:

             [Appellant], U.S. Army, did, at or near Fort Bragg, North
             Carolina, between on or about 21 October 2013 and on or
             about 6 November 2013, knowingly and wrongfully
             possess child pornography, to wit: seven videos contained
             on an ASUS laptop computer of minors engaging in
             sexually explicit conduct, such conduct being of a nature
             to bring discredit upon the armed forces.

       Reassessing the sentence on the basis of the error noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 15-
16 (C.A.A.F. 2013), the sentence as approved by the convening authority is
AFFIRMED. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.

      Judge CELTNIEKS and Judge BURTON 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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