UNITED STATES, Appellee, v. Casey D. RODERICK, Staff Sergeant, U.S. Air Force, Appellant.
No. 05-0195. Crim.App. No. 34977.
U.S. Court of Appeals for the Armed Forces.
Argued Nov. 8, 2005. Decided March 8, 2006.
62 M.J. 425
For Appellant: Captain Christopher S. Morgan (argued); Colonel Carlos L. McDade and Major Sandra K. Whittington (on brief); Lieutenant Colonel Mark R. Strickland.
Judge ERDMANN delivered the opinion of the court.
Staff Sergeant Casey Roderick pled guilty to receiving and possessing child pornography in violation of
The convening authority approved the sentence. The United States Air Force Court of Criminal Appeals modified the findings with regard to the CPPA charges in light of the Supreme Court‘s ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), and this court‘s decision in United States v. O‘Connor, 58 M.J. 450 (C.A.A.F.2003). United States v. Roderick, No. ACM 34977, 2004 WL 2421871, 2004 CCA Lexis 246 (A.F.Ct.Crim.App. Oct. 29, 2004). The Air Force court affirmed Roderick‘s conviction on the child pornography charges as convictions of the lesser included offense of engaging in conduct that is of a nature to bring discredit upon the armed forces under clause 2 of Article 134, UCMJ. The court affirmed the remaining charges and Roderick‘s sentence. Id., 2004 WL 2421871 at *5-6, 2004 CCA Lexis 246 at *15-*16.
We granted review in this case to determine whether Roderick‘s guilty plea to receiving child pornography was provident to the lesser included offense of service-discrediting conduct. We also considered whether there was legally sufficient evidence to support two of the specifications of using a minor to create child pornography and taking indecent liberties, whether the Air Force court properly performed the legal sufficiency review, and whether the charges against Roderick were multiplicious or unreasonably multiplied.1 We conclude that the lower court properly affirmed Roderick‘s plea as provident to a lesser included offense and that the evidence was legally sufficient to support the charge of using one of his daughters to create sexually explicit images but not the other. We conclude that the Air Force court, in performing its legal sufficiency review, improperly relied on evidence that was not before the military judge, but that the error was harmless. Finally, we conclude
BACKGROUND
Roderick is a single father of two young girls, CMR and LMR. While living on Andersen Air Force Base in Guam, Roderick agreed to watch a friend‘s two children for the weekend. The next week, one of the visiting children—eight-year-old SKA—had a regularly scheduled meeting with a psychologist. During the meeting, SKA told the psychologist that Roderick had sexually abused her and taken inappropriate photographs of her.
Based on SKA‘s report the Air Force Office of Special Investigation (AFOSI) launched an investigation. Agents searched Roderick‘s house and found computer disks, photographs, undeveloped film and negatives all depicting suspected child pornography, some of which Roderick had created and some of which he had downloaded from the Internet. Many of the photographs showed Roderick‘s own two daughters in various states of undress. Over one hundred of the photographs depicted SKA. In addition, AFOSI found three stories on Roderick‘s computer that described in graphic detail instances of sexual relations between fathers and their daughters.
DISCUSSION
On appeal, Roderick raises three issues. He argues that his guilty plea to receiving child pornography was improvident, that the evidence was legally insufficient to convict him of using his daughters to create sexually explicit photographs or taking indecent liberties with his daughters, and that the charges of taking indecent liberties with all three girls were multiplicious or an unreasonable multiplication of charges. We will address each of Roderick‘s arguments in turn.
I. Providence of Guilty Plea to Receiving Child Pornography
When an appellant challenges the providence of his guilty plea on appeal, we consider whether there is a “substantial basis in law and fact for questioning the guilty plea.” United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.2002) (citing United States v. Prater, 32 M.J. 433, 436 (C.M.A.1991)). Roderick‘s first argument is that the Air Force court erred by affirming his conviction for receiving child pornography in violation of the CPPA as a lesser included offense under clause 2 of Article 134, UCMJ, which prohibits service-discrediting conduct. Roderick argues that it was error to affirm his plea as provident to the lesser included offense because the military judge used an unconstitutional definition of “child pornography” during the providence inquiry, which made no distinction between images of “actual” and “virtual” children.
We resolved this issue in United States v. Mason, 60 M.J. 15 (C.A.A.F.2004). In Mason we held that “receipt or possession of ‘virtual’ child pornography can, like ‘actual’ child pornography, be service-discrediting or prejudicial to good order and discipline.” Id. at 20. Roderick‘s attempt to distinguish his case from Mason is unpersuasive. As we stated in Mason, a charge of receiving child pornography under clause 2 of Article 134, UCMJ, can be based on “actual” or “virtual” images. Id. Thus, the military judge‘s definition which included both “actual” and “virtual” images did not impact this lesser included charge.
Roderick admitted during the providence inquiry that he “failed to live up to” the “higher standard” that applies to members of the military. Roderick admitted that his actions in downloading child pornography from the Internet “may lower the service in public esteem” if people became aware of what he was doing and that “under the circumstances [his] conduct ... was of a nature to bring discredit upon the Armed Forces.” Roderick specifically emphasized that his conduct was service-discrediting because, as a member of the armed forces, he was held to a higher standard than civilians. Roder
II. Legal Sufficiency
When testing for legal sufficiency, we look at “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 324 (C.M.A.1987) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Legal sufficiency is a question of law that we review de novo. Hays, 62 M.J. at 162.
Roderick argues that the photographs of his daughters did not depict “sexually explicit conduct” as is required for a conviction under
Section 2251(a) prohibits any person from “us[ing], persuad[ing], induc[ing], entic[ing], or coerc[ing] any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means.”
Although this court has not had occasion to adopt a test for determining what constitutes a “lascivious exhibition,” this issue has been considered by several federal circuit courts. All of the federal courts to address this question have relied, at least in part, on a set of six factors developed by the United States District Court for the Southern District of California in United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff‘d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987).2 The so-called “Dost factors” are:
- whether the focal point of the visual depiction is on the child‘s genitalia or pubic area;
- whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity;
- whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
- whether the child is fully or partially clothed, or nude;
- whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
- whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Id. at 832. In addition to these six factors, several of the federal circuit courts have recognized that “[a]lthough Dost provides some specific, workable criteria, there may
A. Photos of CMR
At trial the military judge admitted nearly two dozen photos of CMR into evidence. In his general verdict he announced that Roderick was guilty of Specification 1—using CMR to create sexually explicit photographs. At the request of trial defense counsel, the military judge then entered special findings. In his special findings, the military judge identified three of the photos of CMR that fell within the definition of “sexually explicit.”
While CMR is fully or partially nude in each of the pictures cited by the military judge, none of the three photos specified by the military judge depicts her genitals or pubic area, a requirement of
B. Photos of LNR
In addition to the photos of CMR, the military judge admitted into evidence more than two dozen photos of LNR. He concluded that thirteen of these photos fell within the definition of “sexually explicit.” Twelve of these photos depict LNR‘s pubic area and it could be considered the focal point of the image in at least eight of the photos. In all twelve photos, LNR is fully or partially nude. In addition, a reasonable factfinder could have concluded that these twelve photos were intended or designed to elicit a sexual response in the viewer.3 Thus, the first, fourth and sixth Dost factors all point to a “lascivious exhibition” of the pubic area in a number of photos of LNR.
Moreover, there are other factors that support the finding of “sexually explicit” images, including the fact Roderick had many nude photographs of his daughters rather than one or two, that Roderick‘s ex-wife characterized her husband as “highly interested” in pornography and testified that Roderick used their home computer to view pornography as part of “his ritual in the morning,” and that Roderick admitted to downloading and possessing numerous images of child pornography. When these “other factors” are viewed in combination with the Dost factors, there is a clear basis on which a reasonable factfinder could have concluded that the photos of LNR satisfied the definition of “sexually explicit” photographs.
C. Indecent Liberties Charges
Roderick also argues that the evidence was not legally sufficient evidence to support the military judge‘s finding of guilty on the two specifications of taking indecent liberties with a child that concern his daughters. He takes the position that because the photos of his daughters were not sexually explicit, his actions in taking the photos were not indecent. As explained above, Roderick was properly convicted of using LNR to create sexually explicit photographs and his arguments concerning LNR fail on that basis. With regard to CMR, the elements of a charge of taking indecent liberties are: (1) that the accused committed a certain act, (2) that the act amounted to the taking of certain liberties with a certain person, (3) that the accused committed the act in the presence of this person, (4) that the person was
D. The Air Force Court‘s Legal Sufficiency Review4
When the Air Force court performed its factual and legal sufficiency review on the issue of whether the photos were sexually explicit, the court took into consideration three “incest stories” that were admitted into evidence by the military judge. Roderick, 2004 WL 2421871, at *4, 2004 CCA Lexis 246, at *12. The lower court explained that it “considered these stories as evidence of the appellant‘s motive and intent in accordance with Mil. R. Evid. 404(b)” and ruled that the stories provided further support for the conclusion that Roderick “intended the photographs to elicit a sexual response in the viewer.” Id.
A Court of Criminal Appeals is constrained by the bounds of the record from the court below when reviewing an appellant‘s guilt or innocence for legal or factual sufficiency. United States v. Holt, 58 M.J. 227, 232 (C.A.A.F.2003); United States v. Dykes, 38 M.J. 270, 272 (C.M.A.1993). Similarly, the Courts of Criminal Appeals are “precluded from considering evidence excluded at trial in performing their appellate review function under Article 66(c).” Holt, 58 M.J. at 232.
At Roderick‘s trial the military judge admitted three of the four stories found on Roderick‘s home computer for a limited purpose. The military judge ruled that the stories would “be considered for the limited purpose of their tendency, if any, to prove the accused‘s intent with respect to Specifications 6 [indecent acts upon LNR], 8 [taking indecent liberties with CMR] and 9 [taking indecent liberties with LNR] alone.” The military judge clearly ruled that the stories would “not be considered as to any other specification.” Thus, it was error for the Air Force court to consider the stories as evidence of Roderick‘s intent to take “sexually explicit” photographs—the subject of Specifications 1 and 2—but this error is harmless in light of the other evidence that the photos portrayed a “lascivious exhibition of the genitals.”
III. Multiplicity and Unreasonable Multiplication of Charges
A. Multiplicity
“[I]f a court, contrary to the intent of Congress, imposes multiple convictions and punishments under different statutes for the same act or course of conduct,” the court violates the Double Jeopardy Clause of the Constitution. United States v. Teters, 37 M.J. 370, 373 (C.M.A.1993). We conduct a de novo review of multiplicity claims. United States v. Pauling, 60 M.J. 91, 94 (C.A.A.F.2004); United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F.2002).
Prior to trial, Roderick filed two motions to dismiss on multiplicity grounds. One motion sought dismissal of the indecent liberties charges involving Roderick‘s two daughters. The other motion sought dismissal of the indecent liberties charges involving SKA. The defense argued that the indecent liberties charges should be dismissed because they were multiplicious with the charges of
The Double Jeopardy question raised in this case is whether Congress intended for one appellant at a single court-martial to be convicted of both using a minor to create sexually explicit photographs in violation of
The Government argues that each of the charges in question requires proof of an additional fact that the other does not. The Government takes the position that only the
Roderick responds with three arguments that are ultimately unsuccessful. Roderick first argues that the interstate commerce element of the
Next, Roderick argues that the indecent liberties charges were predicated on the taking of sexually explicit photographs and it is virtually impossible to take such photographs using only materials that originated in-state. On that basis Roderick concludes that “interstate commerce” is an element of the indecent liberties charge and it is therefore multiplicious with the
Finally, Roderick argues that the
In conclusion, despite Roderick‘s creative arguments, he has failed to establish that the offenses in question contain the same elements for purposes of the Blockburger analysis. Accordingly, we agree with the lower court that there is no reason to disturb the military judge‘s ruling on Roderick‘s multiplicity motions.
B. Unreasonable Multiplication of Charges
During argument on the motions, trial defense counsel suggested that the military judge could also dismiss the indecent liberties specifications using the “equitable doctrine of unreasonable multiplication.” The defense argued that it was fundamentally unfair to charge Roderick multiple times for the same picture-taking episodes.6
In ruling on Roderick‘s motions, the military judge concluded that he had “no power at the findings phase to address allegations of unreasonable multiplication of charges outside the multiplicity realm.” He went on to conclude that his only option was to consider whether there was an unreasonable multiplication of charges that required sentencing relief. After handing down his findings, the military judge ruled that for sentencing purposes the specifications alleging a violation of
In Roderick‘s case, the military judge did not consider dismissal an option that was available to him. Thus, we find that the military judge erred. Furthermore, Roderick was prejudiced by the error because he was convicted of three additional charges. Accordingly, with respect to SKA and LNR, we will dismiss the indecent liberties charges (Specifications 9 and 10) and leave only the
SENTENCE
We find that as a result of these errors, there was no prejudice as to Roderick‘s sentence. See Article 59(a), UCMJ. The dismissal of Specification 1 for the charges related to CMR results in a twenty-year reduction in the maximum available sentence.
DECISION
The decision of the United States Air Force Court of Criminal Appeals with respect to the findings of guilty to Specifications 1, 9 and 10 of the Charge is reversed and those specifications are dismissed. The remaining findings of guilty and the sentence are affirmed.
CRAWFORD, Judge (concurring in part and dissenting in part):
I concur with the majority that Appellant‘s plea of guilty to receiving child pornography was provident as to the lesser included offense involving service-discrediting conduct. I also concur with the majority‘s holding as to the legal sufficiency of the evidence concerning the use of a minor to create child pornography and taking indecent liberties.
While I agree the charges mentioned by the majority are not multiplicious, I respectfully dissent from the holding there was unreasonable multiplication of charges. The military judge‘s action in this case in consolidating the charges and specifications for sentencing was more than a sufficient remedy.
JAMES E. BAKER
Judge
Notes
WHETHER APPELLANT‘S ADMISSION THAT HIS [RECEIPT] OF “CHILD PORNOGRAPHY” WAS SERVICE DISCREDITING WAS KNOWING AND VOLUNTARY IN LIGHT OF THE FACT THAT HE WAS PROVIDED AN UNCONSTITUTIONALLY OVERBROAD DEFINITION OF “CHILD PORNOGRAPHY.”
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN APPELLANT‘S CONVICTION FOR TAKING INDECENT LIBERTIES WITH [CMR] AND [LNR] AND FOR HAVING THEM ENGAGE IN SEXUALLY EXPLICIT CONDUCT FOR THE PURPOSE OF CREATING A VISUAL DEPICTION OF IT.
WHETHER APPELLANT‘S CONVICTION FOR VIOLATING