UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
LIND, KRAUSS, and PENLAND
Appellate Military Judges
UNITED STATES, Appellant
v.
Sergeant ORVAL W. GOULD, JR.
United States Army, Appellee
ARMY 20120727
Headquarters, 3d Infantry Division and Fort Stewart (convened)
Headquarters, Fort Stewart (action)
Tiernan P. Dolan, Military Judge
Lieutenant Colonel Kent Herring, Acting Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter E. Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain Matthew M. Jones, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Robert A. Rodrigues, JA; Captain Carl L. Moore, JA (on brief).
16 September 2014
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SUMMARY DISPOSITION
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KRAUSS, Judge:
A military judge sitting as a general court-martial convicted appellant,
contrary to his pleas, of indecent liberty with a child and production of child
pornography in violation of Articles 120 and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 920, 934 (2006 & Supp. IV 2011). The convening
authority approved the adjudged sentence of a bad-conduct discharge, three years
confinement, and reduction to the grade of E-1. Appellant was credited with two
days against the sentence to confinement.
This case is before the court for review under Article 66, UCMJ. Appellant
assigns two errors asserting the evidence is insufficient to support each conviction,
GOULD — ARMY 20120727
respectively, and raises several matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). *
We agree with appellant that the evidence is factually insufficient to support
his conviction for indecent liberty with a child. See generally United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The government did not prove that
the child, KO, was aware of the indecent act alleged sufficient to establish the
offense of indecent liberty with a child as contemplated under Article 120(j), UCMJ.
See United States v. Burkhart, 72 M.J. 590, 594 (A.F. Ct. Crim. App. 2013) (“[F]or a
child to be ‘exposed to or involved in sexual conduct [under Article 120(j)],’ the
child must be aware the conduct is occurring.” (quoting Article 120(t)(11), UCMJ));
see also United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008); United States v.
Knowles, 15 U.S.C.M.A. 404, 35 C.M.R. 376 (1965). However, the evidence was
sufficient to establish that appellant committed the lesser-included offense of
indecent act under Article 120(k), UCMJ. See Burkhart, 72 M.J. at 595-96.
We do find the evidence legally and factually sufficient to support appellant’s
conviction for production of child pornography. See generally Washington, 57 M.J.
at 399. The military judge properly considered relevant factors when reviewing the
totality of circumstances necessary to adjudge whether the four photographs at issue
constitute a lascivious exhibition of the genitals or pubic area required to resolve
whether the images constitute child pornography. See United States v. Blouin,
73 M.J. 694 (Army Ct. Crim. App. 2014). Our own review of the evidence
independently convinces us of the sufficiency of the evidence in this regard and that
each of the four photographs depicts KO as alleged. See id.
Therefore, we affirm only so much of Specification 4 of Charge I as provides
that appellant committed the lesser-included offense of indecent act in violation of
Article 120(k), UCMJ. The remaining findings of guilty are AFFIRMED.
Reassessing the sentence on the basis of the error noted and the entire record,
we are confident appellant would have received a sentence at least as severe as that
adjudged despite the erroneous conviction of indecent liberty. See United States v.
Sales, 22 M.J. 305, 307-08 (C.M.A. 1986); United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013). The sentence 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.
Senior Judge LIND and Judge PENLAND concur.
*
We hold appellant’s assertions pursuant to Grostefon are without merit.
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GOULD — ARMY 20120727
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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