United States v. Private First Class DARIN P. WITTY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HOLDEN, HOFFMAN, and SULLIVAN
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class DARIN P. WITTY
United States Army, Appellant
ARMY 20071304
United States Army Central
Coalition Forces Land Component Command
Edward J. O’Brien, Military Judge
For Appellant: Major Sean F. Mangan, JA; Major Julie Caruso Haines, JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.2, no response filed.
23 May 2008
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SUMMARY DISPOSITION
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Per Curiam:
This case is before us for review under Article 66, Uniform Code of
Military Justice, 10 U.S.C. §866 [hereinafter UCMJ]. We find error in the
findings of the court-martial as described below.
Appellant was charged with violating a lawful general order by
wrongfully possessing pornography (Specification of Charge I), and
wrongfully viewing or possessing images of children under the age of 18
engaging in sexual acts (Specification of Charge II),[1] between on or
about 1 August 2006 and 21 April 2007 at Camp Arifjan, Kuwait, in violation
of Articles 92 and 134, UCMJ, respectively. Appellant’s providence inquiry
does not support his pleas to an inception date of 1 August 2006, since he
did not possess any pornography prior to his arrival in Kuwait on 13
October 2006. Accordingly, we amend the findings of guilty in the
Specification of Charge I and the Specification of Charge II by deleting
the date “1 August 2006” and substituting therefor the later inception date
of “13 October 2006” to which appellant is provident. We affirm the
findings of guilty to the specifications as amended.
The remaining findings of guilty are affirmed. Reassessing the
sentence on the basis of the error noted, the entire record, and applying
the principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and
United States v. Moffeit, including Judge Baker’s concurring opinion, 63
M.J. 40, 43 (C.A.A.F. 2006), the court affirms the sentence.
Judge HOFFMAN took no part in the decision of this case.
FOR THE COURT:
MALCOLM H. SQUIRES, JR.
Clerk of Court
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[1] He pled and was found guilty, by exceptions and substitutions, to
possessing and viewing images of “individuals appearing to be under the age
of 18.”