United States v. Sergeant KEVIN M. DUPONT

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and SCHASBERGER
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant KEVIN M. DUPONT
United States Army, Appellant
ARMY 20180481
Headquarters, 1st Special Forces Command (Airborne)
Fansu Ku and Charles L. Pritchard, Jr., Military Judges
Lieutenant Colonel Scott T. Ayers, Staff Judge Advocate
For Appellant: Captain Benjamin J. Wetherell, JA; Captain Timothy G. Burroughs,
JA.
For Appellee: Pursuant to A.C.C.A. Rule 15.4, no response filed.
14 March 2019
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SUMMARY DISPOSITION
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FEBBO, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of viewing child pornography, in violation
of Article 134 of the Uniform Code of Military Justice, 10 U.S.C. § 934 [UCMJ].
This case is before us for review pursuant to Article 66, UCMJ. Appellant
does not raise any assigned errors. We, however, have identified one error and
provide appellant with two months of sentence relief.
BACKGROUND
Appellant was a twenty-six-year-old Sergeant assigned to Elgin Air Force
Base. Between 2012 and 2017, appellant used the internet to search for and view
child pornography. He used search terms such as “Brazilian preteen,” “jailbait,”
“slutty preteen pics,” and “nude toddlers.”
DUPONT—ARMY 20180481
Around December 2016, appellant sent a message through the Kik messenger
application to his fifteen-year-old niece. He had known his niece since she was a
baby, found his niece sexually attractive, and wanted to obtain naked pictures of his
niece. During an exchange of text messages with his niece, appellant sent the
message, “I have an idea, I want to see your body.” Surprised, his niece asked what
he meant by the text. Appellant replied, “That’s not right” and “I just asked you for
a naked photo. Please delete that.” He asked her to delete the message because he
knew the message was wrong and was worried he would get in trouble.
Appellant’s niece informed her father—appellant’s brother—about appellant’s
message and the U.S. Army Criminal Investigation Command (CID) initiated an
investigation. During the investigation, CID obtained a search warrant for
appellant’s computers and found appellant’s stored child pornography. Appellant
was charged with possession of child pornography under Article 134, sexual abuse
of a child under sixteen years of age by committing a lewd act through indecent
language under Article 120b(c), and abusive sexual contact of a fellow soldier under
article 120(d).
Appellant and the convening authority entered into a pretrial agreement.
Appellant agreed to plead guilty to possessing child pornography under Article 134
and sexual abuse of a child under Article 120b(c). Appellant agreed to plead not
guilty to the abusive sexual contact charge under Article 120(d) but guilty of the
“lesser included offense” of assault consummated by a battery under Article 128. 1 In
exchange, the convening authority agreed to disapprove any confinement in excess
of twelve months.
In May 2018, appellant was arraigned and offered a plea of guilty pursuant to
his pretrial agreement. During the Care inquiry, the military judge found
appellant’s plea was not provident as to the offenses of sexual abuse of a child and
assault consummated by a battery. 2 The military judge entered a plea of not guilty
for appellant and granted a request to continue the trial.
1
As the military judge noted, the pre-trial agreement incorrectly referenced the
assault consummated by a battery charge as lesser-included offense of abusive
sexual contact. The elements of the former offense are not necessarily included in
the later offense. United States v. Armstrong, 77 M.J. 465, 467 (C.A.A.F. 2018).
2
During the Care inquiry, appellant explained that it was not unusual for him to
throw his hands and feet around in the unit. He stated he did not remember touching
the female soldier’s back but may have done so unintentionally. The military judge
properly found the appellant was not provident to the assault consummated by a
battery charge.
2
DUPONT—ARMY 20180481
In June 2018, appellant entered into a new pretrial agreement with the
convening authority. Appellant agreed to plead guilty to viewing child pornography
and not guilty to the sexual abuse of a child and assault consummated by a battery
charges. The convening authority agreed to disapprove any confinement in excess of
fourteen months.
In July 2018, appellant pleaded guilty to viewing child pornography and was
found provident to the charge. 3 The military judge sentenced appellant to a
dishonorable discharge, eighteen months of confinement, and reduction to the grade
of E-1.
Based on the pretrial agreement, the convening authority approved only so
much of appellant’s sentence as provided for a dishonorable discharge, fourteen
months of confinement, and reduction to the grade of E-1. This was two months
more confinement than appellant’s original agreement with the convening authority.
In other words, because his initial plea was rejected, appellant’s sentence was
increased.
LAW AND DISCUSSION
Although not raised as an assigned error, we consider whether the military
judge should have accepted appellant’s guilty plea during the first hearing.
We review a military judge’s acceptance of an accused’s guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “The providence of a
plea is based not only on the accused’s understanding and recitation of the factual
history of the crime, but also on an understanding of how the law relates to those
facts.” United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008) (citing United
States v. Care, 40 C.M.R. 247, 250-51 (C.M.A. 1969).
Prior to the Care inquiry at the first hearing, the military judge conducted a
session under Rule for Courts-Martial 802. The military judge “expressed concerns”
about whether appellant could “be provident” to the charge under Article 120b(c)
and “whether the charged language is indecent as a matter of law.”
The military judge asked the parties to provide cases to support the
proposition that asking to see the nude body of a minor child followed by a request
to delete the text was a lewd act. The defense counsel cited two cases from our
superior court, United States v. Greene, 68 M.J. 266 (C.A.A.F. 2010) and United
States v. French, 31 M.J. 57 (C.M.A. 1990), which supported the conclusion that
context matters when assessing whether language is indecent. The defense counsel
3
A different military judge conducted the second Care inquiry.
3
DUPONT—ARMY 20180481
argued that the military judge should accept the plea as the language was of “a
nature that is calculated to corrupt the morals or incite libidinous thought” and
violated community standards. In support of appellant’s plea, the government
counsel cited to United States v. Baker, ARMY 20140396, 2016 CCA LEXIS 341, *6
(Army Ct. Crim. App. 13 May 2016) (“there is no question that wrongfully asking a
minor for a nude photo can be criminally sanctioned. Indeed, the government could
arguably have charged appellant’s misconduct as Article 120b(c), UCMJ (2012),
Sexual Abuse of a Child, under a ‘lewd act’ theory.”).
Appellant explained to the military judge that he knew his niece was fifteen
years old. He asked to see a picture of her naked for his sexual gratification. He
explained his intent was to “gratify a sexual intent in order to get a nude photo of
her, or a sexually explicit photo.” He explained the text violated community
standards as it was wrong to ask for sexually explicit pictures from a fifteen-year-
old, especially a niece. After sending the text, he knew it was wrong. Appellant’s
statements on the record were consistent with the stipulation of fact and he did not
equivocate or deny the wrongfulness of his actions. In the stipulation of fact,
appellant further stated he found his niece “attractive and wanted to see her nude.”
The military judge found appellant was not provident to the Article 120b(c)
offense. The military judge never explicitly explained why she found appellant
improvident. In the context of the Care inquiry, and the military judge’s subsequent
ruling on the government’s motion for her recusal, we find the military judge
concluded the charged language was not indecent as a matter of law. We disagree.
We easily conclude that appellant was provident to the offense of sexual
abuse of a child by committing a lewd act. There are circumstances where telling a
fifteen-year-old relative “I want to see your body” would not be indecent. Such
circumstances were not present in appellant’s case. Appellant specifically admitted
that his statement was a request for nude photos to satisfy his sexual attraction to a
child. Appellant’s request was plainly indecent. In his own words, appellant
“intended to corrupt her.” Appellant’s fifteen-year-old niece clearly understood that
appellant’s message violated community standards as she immediately reported
appellant’s conduct.
Appellant’s subsequent request that his niece delete his indecent
communication did not remedy his wrong. Appellant’s crime was complete the
moment his niece received his message asking for a picture of her naked. When
appellant asked his niece to delete his message he was not rendering the text
exchange harmless. Rather, he was asking her to delete evidence of his crime.
A military judge normally has broad discretion in conducting a providence
inquiry and accepting or rejecting a guilty plea. Inabinette, 74 M.J. at 480. “The
abuse of discretion standard calls for more than a mere difference of opinion.”
4
DUPONT—ARMY 20180481
United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014) (citations and internal
quotation marks omitted). Whether a specification states an offense, however, is a
question of law reviewed de novo. United States v. Crafter, 64 M.J. 209, 211
(C.A.A.F. 2006).
The specification alleging appellant violated Article 120b(c) stated an
offense, and based on appellant’s statements during the Care inquiry, the charged
language was, indeed, indecent under the circumstances. As a result, the military
judge abused her discretion by rejecting appellant’s plea of guilty as to the Article
120b(c) charge. The military judge’s erroneous rejection of appellant’s plea
contributed to appellant not satisfying the terms of his first pretrial agreement with
the convening authority. We conclude appellant was materially prejudiced because,
as a result of the military judge’s refusal to accept his plea, the convening authority
ultimately approved two months more confinement than he would have approved
under appellant’s original pretrial agreement. 4 We will reassess appellant’s sentence
in our decretal paragraph accordingly.
CONCLUSION
Having found no substantial basis in law or fact to question appellant’s pleas,
the findings are AFFIRMED.
Reassessing the sentence on the basis of the error noted and the entire record,
we AFFIRM only so much of the sentence as provides for a dishonorable discharge,
twelve months of confinement, 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 sentence set aside by this decision, are ordered restored.
Senior Judge MULLIGAN and Judge SCHASBERGER concur.
FOR
FORTHE
THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM
Clerk of CourtH. SQUIRES, JR.
Clerk of Court
4
We do not mean to suggest that an accused has a right to enter into a pretrial
agreement, or a right to plead guilty without being provident to such a plea. See,
e.g., Care at 253. In this case, however, the military judge erroneously rejected
appellant’s lawful and provident plea, and thus forced appellant to breach his lawful
pretrial agreement with the convening authority. As this error inured to appellant’s
detriment, we grant relief.
5