United States v. Private First Class WAYNE C. VILLARREAL JR.

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, CAMPANELLA, and CELTNIEKS
Appellate Military Judges
UNITED STATES, Appellee
v.
Private First Class WAYNE C. VILLARREAL JR.
United States Army, Appellant
ARMY 20130730
Headquarters, 7th Infantry Division
Jeffery D. Lippert and David L. Conn, Military Judges
Lieutenant Colonel Michael S. Devine, Staff Judge Advocate
For Appellant: Colonel Kevin Boyle, JA; Major Robert N. Michaels, JA; Captain
Michael J. Millios, JA (on brief).
For Appellee: Colonel John P. Carrell, JA; Major Daniel D. Derner, JA; Captain
Daniel M. Goldberg, JA (on brief).
13 February 2015
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SUMMARY DISPOSITION
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Per Curiam:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of two specifications of possessing digital images of child
pornography, one specification of possessing digital images of child erotica
depicting minors in sexually suggestive positions, and one specification of
possessing photo shop art depicting superimposed photographs of the appellant with
photographs of young girls, in violation of Article 134 Uniform Code of Military
Justice, 10 U.S.C. § 934 (2006) [hereinafter UCMJ]. The military judge sentenced
appellant to a bad-conduct discharge, confinement for ten months, forfeiture of all
pay and allowances, and reduction to the grade of E-1. The convening authority
approved the sentence as adjudged.
Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate counsel assigned three errors to this court, and appellant personally raised
matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). The
assigned errors warrant discussion and relief. The matters raised pursuant to
Grostefon are without merit.
VILLARREAL—ARMY 20130730
First, appellant alleges Specifications 3 and 4 of The Charge are void for
vagueness because appellant was not given fair notice that the charged conduct of
possessing child erotica and photo shop art depicting himself with minors was
forbidden and subject to criminal action. Second, appellant argues that there is a
substantial basis in law to question appellant’s guilty plea to Specification 4 alleging
he possessed “photo art of himself with minors.” Third, appellant argues that the
constitutionally protected conduct of Specifications 3 and 4 did not have a direct and
palpable impact on the military mission. The government concedes that
Specifications 3 and 4 were erroneously charged and must be dismissed.
In light of the government’s concession and our superior court’s recent
decisions regarding child erotica, see United States v. Merritt, 72 M.J. 483
(C.A.A.F. 2013); United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013); United States
v. McKim-Burwell, 73 M.J. 231 (C.A.A.F. 2014) (summ. disp.); United States v.
Moon, 73 M.J. 382 (C.A.A.F. 2014), we set aside the findings of guilty for those
specifications and dismiss both.
CONCLUSION
Upon consideration of the entire record, the findings of guilty of
Specifications 3 and 4 of The Charge are set aside and dismissed. The remaining
findings of guilty are AFFIRMED. Reassessing the sentence on the basis of the
errors noted, the entire record, and in accordance with the principles of United
States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales, 22
M.J. 305 (C.M.A. 1986), we affirm only so much of the sentence as extends to a
bad-conduct discharge, confinement for nine months, forfeiture of all pay and
allowances, and reduction to the grade of E-1. All rights, privileges, and property,
of which appellant has been deprived by virtue of that portion of the findings and
sentence set aside by this decision, are ordered restored. See UCMJ arts. 58a(b),
58b(c), and 75(a).
FORTHE
FOR THECOURT:
COURT:
MALCOLM
MALCOLMH. H.SQUIRES,
SQUIRES,JR.
JR.
Clerk of Court
Clerk of Court
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