United States v. Specialist ANDRES PADILLA II

UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before DARPINO, KERN, and YOB Appellate Military Judges UNITED STATES, Appellee v. Specialist ANDRES PADILLA II United States Army, Appellant ARMY 20090388 Headquarters, Joint Base McGuire-Dix-Lakehurst Theodore Dixon, Military Judge Lieutenant Colonel Mark A. Nozaki, Staff Judge Advocate For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Jonathan F.

Potter, JA; Major Laura R. Kesler, JA; Captain Jennifer A. Parker, JA (on brief).

For Appellee: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain Stephen E. Latino, JA (on brief).

1 September 2011 --------------------------------- SUMMARY DISPOSITION --------------------------------- Per Curiam: A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of violating a lawful order, indecent exposure, indecent acts and possession of child pornography, in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934. The military judge sentenced appellant to reduction to E1, confinement for twelve months, and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

On appeal, appellant raised an assignment of error regarding the possession of child pornography specification of which he was convicted.* That specification alleged appellant knowingly possessed child pornography, which was of a nature to bring discredit upon the armed forces. Appellant contends that the plea fails because the underlying evidence forming the basis of the charge does not constitute child pornography. In particular, appellant argues that the military judge did not have him fully describe the video of his thirteen-year-old niece masturbating in the shower he admitted to possessing, and that the nude images he had of his niece do not have as their focal point genitalia or the pubic area.

We review a military judge’s decision to accept a plea of guilty “for an abuse of discretion and questions of law arising from the guilty plea de novo.” 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 Article 45, UCMJ; Rule for Court- Martial [hereinafter R.C.M] 910(e).

We find that in this case, the video of a thirteen-year-old child masturbating is on its face and without further explanation sexually explicit conduct constituting child pornography. The appellant’s admission of possessing this video alone upholds the factual underpinning for a finding of guilty to possession of child pornography. "A providence inquiry into a guilty plea must establish . . . that the accused believes he is guilty [and] that the factual circumstances as revealed by the accused himself objectively support that plea." United States v. Garcia, 44 M.J. 496, 497-98 (C.A.A.F. 1996) (citations omitted). See also R.C.M.

910(e). During the providence inquiry regarding the specification in question, appellant admitted that he possessed a video of his niece, a minor. He stated, “[t]here is a video of her masturbating in the shower.”

While describing the nature of the images and the video to the military judge, the appellant further testified, “I believe these images were sexual in nature. We had an ongoing e-mail dialog of a sexual nature, and the images were sent as part of that dialog.” The stipulation of fact clearly lists each element of the specification in question. The stipulation of fact defines child pornography as “any visual depiction, including photograph, film, video, . . . of sexually explicit conduct where the production of such visual depiction involves the use of minors engaging in sexually explicit conduct” and includes masturbation as “sexually explicit conduct.” The appellant signed the stipulation of fact and did not object to its introduction. We conclude, based on the appellant’s providence colloquy, coupled with the stipulation of fact that the military judge conducted a legally sufficient inquiry under United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969) with which to accept appellant’s guilty plea to possession of child pornography.

With regards to the photo images, the accused admitted to possessing pictures of his naked thirteen-year-old niece with her breasts exposed and her pubic area exposed. The appellant further agreed during the providence inquiry that the pictures he possessed were the lascivious exhibition of the genitals or pubic area of his thirteen-year-old niece and thereby constituted child pornography. We reviewed the appellate exhibit containing the pictures that were on the appellant’s laptop computer which included pictures of his thirteen-year-old niece: posing topless exposing her bare breasts and wearing a bikini bottom; posing naked seated in a bathtub with the side of her bare breast exposed and her knees raised up out of the water; posing while standing naked with her back turned to the camera, buttocks exposed, and head turned looking back at the camera; and posing naked laying on her back on the floor caressing one breast with her hand and the other bare breast exposed and her knee up and legs crossed exposing her pubic area.

We do not rule out the possibility that there may be images of the victim that would constitute child pornography that do not show the pubic area or genitals. However, we need not make such a finding here. In this case, upon combining a review of the factors set out in United States v. Dost, 636 F.Supp 828 (S.D. Cal 1986); “with an overall consideration of the totality of the circumstances,” United States v. Roderick, 62 M.J. 425, 430, it is clear that the picture of the thirteen-year-old victim posing on the floor exposing her pubic area is a lascivious exhibition amounting to child pornography. Therefore, we find that the military judge did not abuse his discretion in accepting the appellant’s guilty plea.

CONCLUSION We have considered appellant's other assignments of error, including matters raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.

1982) and find them to be without merit. On consideration of the entire record, we hold the findings of guilty and sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence are AFFIRMED.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court * Appellant assigned the following error: THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO SPECIFICATION 1 OF CHARGE III (POSSESSION OF CHILD PORNOGRAPHY) WHEN THE IMAGES AT ISSUE, ATTACHED AS APPELLATE EXHIBIT (AE) XXIV, SET UP A MATTER INCONSISTENT WITH THE PLEA THAT THE MILITARY JUDGE DID NOT RESOLVE.