United States v. Private (E-2) STUART H. CLARK

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
HAIGHT, PENLAND, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Private (E-2) STUART H. CLARK
United States Army, Appellant
ARMY 20140312
Headquarters, Maneuver Support Center of Excellence and Fort Leonard Wood
Gregory B. Batdorff, Military Judge
Colonel Robert F. Resnick, Staff Judge Advocate
For Appellant: Lieutenant Colonel Charles D. Lozano, JA; Major Aaron R.
Inkenbrandt, JA; Captain Amanda R. McNeil, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Major A.J. Courie III, Major Daniel
D. Derner, JA; Captain James P. Curtin, JA (on brief).
16 December 2015
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SUMMARY DISPOSITION
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WOLFE, Judge:
A general court-martial composed of a military judge convicted appellant,
consistent with his pleas, of one specification of sexual abuse of a child, two
specifications of producing child pornography, and two specifications of possessing
child pornography in violation of Articles 120b and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 920b and 934 (2012) [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge, confinement for six years, and a
reduction to the grade of E-1. Pursuant to a pretrial agreement, the convening
authority reduced the confinement to sixteen months and approved the remainder of
the sentence.
Appellant’s case is before this court for review under Article 66, UCMJ.
Appellant assigns two allegations of error, one of which merits discussion but not
relief.
CLARK—ARMY 20140312
Background
During the summer and early fall of 2013, appellant met two unrelated
children online - girls aged 13 and 16. During a series of emails and chats, he
independently convinced both of them to take graphic photos of themselves in
various stages of undress and nudity. Despite knowing their age, appellant sent each
child emails directing them on how to take additional photos, how to position
themselves, and how to better display their genitals for his sexual pleasure. Both
children complied and sent appellant a series of pictures. Appellant copied and
stored the pictures and reviewed them weekly for the purpose of sexual gratification.
Appellant pleaded guilty to one specification of sexual abuse of a child for
communicating indecent language to the 13-year old child, including telling her to
use two fingers to spread open her labia. Appellant pleaded guilty to two
specifications of producing child pornography for directing both children to create
child pornography that did not previously exist. * Appellant pleaded guilty to two
specifications of possessing child pornography for copying the images he was sent
on to various media devices so he could view them later.
Unreasonable Multiplication of Charges
On appeal, for the first time, appellant argues that the charges are
unreasonably multiplied, and that the military judge abused his discretion in not
merging the specifications. We disagree.
As an initial matter, we note that appellant specifically waived this issue
when he agreed to waive all waivable motions under the exact same circumstances as
were presented in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). While this
court can notice a waived error, see Article 66(c), UCMJ, we decline to do so in this
case for two independent reasons.
First, appellant’s convictions address three separate criminal acts, each
designed to avoid different societal harms. When appellant indecently
communicated graphic sexual language to children, the offense was completed
regardless of whether the children eventually complied with his direction to provide
sexual photos. When the children took the photos at appellant’s direction, appellant
produced child pornography. When appellant copied and saved the images and
reviewed them on a regular basis for the purpose of sexual gratification, the
victimization of the children continued. Appellant stipulated that child pornography
*
Appellant’s providence inquiry was detailed and lengthy and included admissions that he was
giving directions on how to pose in the same manner as a photographer would direct a model.
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CLARK—ARMY 20140312
is not a victimless crime and to the unknown future impact his offenses may have on
his victims.
Second, it important to note that appellant’s pleas were part and parcel of a
negotiated guilty plea. That is, in exchange for a substantial limit to the
confinement appellant would serve, appellant agreed to plead guilty to all charges
and specifications. If, for example, appellant had raised the issue of unreasonable
multiplication of charges at trial, he would have violated his agreement with the
convening authority and risked losing the benefit of the deal. Alternatively, had
appellant negotiated to plead guilty to only some of the offenses, or to have the
offenses merged, it is far from certain that the parties would have arrived at the
same deal. Appellant fails to provide any reason to disturb this negotiated
agreement, and our independent review of the record finds none.
Conclusion
After considering the entire record and the submissions of the parties, the
findings of guilty and the sentence are AFFIRMED.
Senior Judge HAIGHT and Judge PENLAND concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHN
Chief P. TAITT
Deputy Clerk of Court
Deputy Clerk of Court
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