Filed: Nov. 19, 2018
Latest Update: Mar. 03, 2020
Summary: Although the judge properly determined the SV images were, not evidence of Appellants knowing and thus criminal possession of child, pornography—because Appellant did not know SV was 16 years old at the, time—the images were, in plain-language terms, child pornography pos-, sessed by Appellant.
U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39242
________________________
UNITED STATES
Appellee
v.
James L. DONOHO
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 19 November 2018
________________________
Military Judge: Marvin W. Tubbs, II (trial); Tiffany J. Williams (post-
trial motion).
Approved sentence: Dishonorable discharge, confinement for 66
months, forfeiture of all pay and allowances, and reduction to E-1.
Sentence adjudged 30 January 2017 by GCM convened at Grand Forks
Air Force Base, North Dakota.
For Appellant: Major Patricia Encarnación Miranda, USAF; Captain
Dustin J. Weisman, USAF; David P. Sheldon, Esquire; Tami L. Mitch-
ell, Esquire.
For Appellee: Colonel Katherine E. Oler, USAF; Lieutenant Colonel
Joseph J. Kubler, USAF; Lieutenant Colonel G. Matt Osborn, USAF;
Mary Ellen Payne, Esquire.
Before MAYBERRY, HUYGEN, and POSCH, Appellate Military Judg-
es.
Senior Judge HUYGEN delivered the opinion of the court, in which
Chief Judge MAYBERRY and Judge POSCH joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
United States v. Donoho, No. ACM 39242
HUYGEN, Senior Judge:
Appellant pleaded guilty, pursuant to a pretrial agreement (PTA), to one
specification each of abusive sexual contact, indecent visual recording, pos-
session of child pornography on divers occasions, and distribution of child
pornography on divers occasions, in violation of Articles 120, 120c, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 920c, 934. 1 The
military judge sentenced Appellant to a dishonorable discharge, confinement
for 66 months, forfeiture of all pay and allowances, and reduction to the grade
of E-1. The convening authority approved the sentence as adjudged.
Appellant raises on appeal seven issues: (1) whether the omission of the
three images of SV in Attachment 3 of the stipulation of fact renders the rec-
ord of trial incomplete; (2) whether Appellant’s guilty pleas to possession and
distribution of child pornography are not provident because, during the guilty
plea inquiry, Appellant referenced images that are not “child pornography;” 2
(3) whether the references in the stipulation of fact to “suspected child por-
nography” and “child erotica” and the inclusion of “innocent pictures of chil-
dren” and “child erotica” in Attachment 2 of the stipulation of fact constitute
improper aggravation evidence; (4) whether the military judge abused his
discretion by considering for sentencing the three images of SV that he could
not and did not consider to find Appellant guilty of possession of child por-
nography; (5) whether the military judge abused his discretion by considering
SV’s testimony as it related to the impact of Appellant’s offenses on AC; (6)
whether Appellant’s sentence, including a dishonorable discharge and 66
months of confinement, is inappropriately severe; 3 and (7) whether Appellant
is entitled to relief for lack of timely appellate review. We find no prejudicial
error and affirm the findings and sentence.
1Appellant pleaded not guilty to one specification of production of child pornography,
which the Government withdrew and dismissed in accordance with the PTA.
2 Appellant originally raised this issue pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), and framed it as whether Attachments 2 and 3 of the stipu-
lation of fact contain images that do not qualify as child pornography. No analysis
was included. Later, counsel raised the issue as re-stated.
3 Although Appellant does not raise an issue regarding the staff judge advocate’s rec-
ommendation (SJAR), we note the SJAR erroneously advised the convening authority
that Appellant was found guilty of, inter alia, “Charge III and its three specifica-
tions.” Appellant was found guilty of two specifications of Charge III; the third speci-
fication was withdrawn and dismissed. Under the facts of this case, we find no color-
able showing of possible prejudice caused by this error. See United States v. Scalo,
60
M.J. 435, 436–37 (C.A.A.F. 2005) (citation omitted).
2
United States v. Donoho, No. ACM 39242
I. BACKGROUND
In July 2015, Appellant’s friend, RS, introduced him to AC and SV. AC,
an 18-year-old female, and SV, a 16-year-old female, would “hang out” at RS’s
residence and drink alcoholic beverages with RS, Appellant, and others. On
20 July 2015, AC was at RS’s residence and fell asleep, fully clothed. While
AC was sleeping on her stomach, Appellant pulled down her pants, exposed
her buttocks, touched her buttocks with his hand, and used his Apple iPod
device to photograph her buttocks and his hand touching her buttocks.
Appellant also saved on his iPod one image of SV manually stimulating
his penis and two images of SV performing oral sex on him. The three images
of SV were dated 27 July 2015.
From November 2014 to November 2015, Appellant used peer-to-peer file
sharing software to download child pornography from other users of the same
software and stored the child pornography on his personal computer. He dis-
tributed the child pornography he possessed by making it available for other
users to download it from his computer.
In October 2015, the Minnesota Child Exploitation Task Force contacted
the North Dakota Bureau of Criminal Investigations, which contacted the Air
Force Office of Special Investigations about Appellant’s suspected possession
and distribution of child pornography. Subsequently, law enforcement
searched Appellant’s on-base dormitory room and off-base apartment and
seized his computer and iPod, both of which contained suspected child por-
nography.
Pursuant to the PTA, Appellant signed a stipulation of fact that described
his abusive sexual contact and indecent visual recording of AC 4 and his pos-
session and distribution of child pornography. The stipulation specified that
the Defense Computer Forensics Laboratory (DCFL) “created a report featur-
ing 23 images and a video of child pornography” (Paragraph 26) and that Ap-
pellant “possessed at least 26 images and videos of child pornography among
both his laptop computer and iPod” (Paragraph 27). Paragraph 27 of the stip-
ulation also described a folder titled “Sandra” that Appellant created on his
computer, and Paragraph 28 provided the file names and graphic descrip-
tions of three images of child pornography from the folder (hereinafter the
“Sandra” images). Paragraph 29 described three images of SV manually and
orally stimulating Appellant’s penis (hereinafter the SV images) but did not
4 The guilty pleas and findings for abusive sexual contact and indecent visual record-
ing of AC are not at issue on appeal.
3
United States v. Donoho, No. ACM 39242
specify that Appellant possessed the images on his iPod. The stipulation
listed four attachments as follows:
1. Sanitized DCFL Report, dated 28 July 2016, 16 pages
2. CD [compact disc] containing images and a video listed in
Attachment 1
3. CD containing images of S.V.
4. Printed photos of A.C. 5
At trial, the military judge incorporated the stipulation of fact in the
guilty plea inquiry, and he and Appellant specifically discussed the “Sandra”
images that were saved on Appellant’s computer and named and described in
Paragraph 28 of the stipulation. Appellant confirmed that Paragraph 29 de-
scribed the SV images saved on Appellant’s iPod. Appellant also confirmed
that SV was 16 years old at the time the images were made. Through follow-
up questions, the judge elicited from Appellant that he did not know SV’s age
at the time the images were made and did not think the images of SV “look
like” a minor engaging in sexually explicit conduct.
The military judge recessed the court-martial for a Rule for Courts-
Martial (R.C.M.) 802 session. After the session, the military judge asked Ap-
pellant several more questions and then stated, “I’m not going to utilize the
iPod images [of SV] with respect to determining your guilt on this particular
specification, because I’m not sure you have demonstrated to me that you
knowingly possessed child pornography with regard to those.” (Emphasis
added.)
Appellant verified that he kept 23 of the 26 images specified in Paragraph
27 on his computer, with the other three images being the SV images on his
iPod. When the military judge asked if the 23 images were “images of a minor
or what appeared to be a minor engaging in sexually explicit conduct,” Appel-
lant answered “yes” but then added, “I remember at least those images being
exhibition.” Appellant confirmed that, by “exhibition,” he meant “lascivious
exhibition of the genitals or pubic area” and that the “Sandra” images de-
scribed in Paragraph 28 depicted sexual acts.
After the military judge and Appellant discussed Appellant’s guilty plea
for distribution of child pornography, the judge clarified with trial and de-
fense counsel and then Appellant that,
5 These eight photographs were taken by Appellant and evidence his abusive sexual
contact and indecent visual recording of AC. These photographs are not at issue on
appeal.
4
United States v. Donoho, No. ACM 39242
[W]ith regard to [possession of child pornography], I’m only
considering the 23 images on the computer, I’m not utilizing
the three images [of SV] on the iPod to make a determination
as to whether [Appellant’s] plea is provident and to make a de-
termination as to whether I find him guilty.
The military judge accepted the PTA and Appellant’s guilty plea and ad-
mitted the stipulation of fact as Prosecution Exhibit 1.
II. DISCUSSION
A. Complete Record of Trial
Appellant asserts that the omission of the three images of SV in Attach-
ment 3 of the stipulation of fact renders the record of trial incomplete; we
disagree.
1. Additional Background
On 8 February 2018, Appellant filed his assignments of error, which iden-
tified that the three images of SV in Attachment 3 of the stipulation of fact
were missing from the original record of trial. 6 In the original record, At-
tachment 1 of the stipulation of fact is a printed copy of the DCFL report; it is
labeled “sanitized” and all images were removed from it before it was printed.
Attachment 2, listed in the stipulation as a “CD containing images and a vid-
eo listed in Attachment 1,” is a CD containing an electronic, non-sanitized
copy of the DCFL report with the images included. Attachment 3, listed in
the stipulation as a “CD containing images of S.V.,” is a CD containing 23
images and one video. The 23 images include the three “Sandra” images
named and described in Paragraph 28 of the stipulation of fact. No attach-
ment to the stipulation contains the three images of SV.
From February until June 2018, the Government attempted to correct the
record of trial. Ultimately, the military judge determined that he could not
issue a certificate of correction, and the record was returned to the court with
the three images of SV still missing from it. 7
6Attachments 2 and 3 of the stipulation of fact were sealed by the military judge. As
a result, they were placed only in the original record of trial and not in any copy.
7 Although we are affirming the findings and sentence in Appellant’s case, we are
greatly troubled at the Government’s mishandling of child pornography. The images
of SV were not just omitted from the record; they were lost. Yet again, we remind Air
Force personnel whose responsibilities include post-trial processing to exercise care
in the execution of their duties.
5
United States v. Donoho, No. ACM 39242
2. Law
A general court-martial with an adjudged sentence that includes a dis-
charge or any other punishment that exceeds that which may be adjudged by
a special court-martial requires a complete record of the proceedings. Article
54(c)(1)(A), UCMJ, 10 U.S.C. § 854(c)(1)(A). A complete record of trial of a
general court-martial includes, inter alia, exhibits. R.C.M. 1103(b)(2)(D)(v).
Whether a record of trial is complete is a question of law we review de no-
vo. United States v. Henry, 53 M.J. 108, 110 (C.A.A.F. 2000); see also United
States v. Gaskins,
72 M.J. 225, 229 (C.A.A.F. 2013). “The requirement that a
record of trial be complete . . . is one of jurisdictional proportion that cannot
be waived.”
Henry, 53 M.J. at 110 (citations omitted). “A substantial omission
renders a record of trial incomplete and raises a presumption of prejudice
that the Government must rebut. Insubstantial omissions from a record of
trial do not raise a presumption of prejudice or affect that record’s characteri-
zation as a complete one.”
Id. at 111 (citations omitted). Examples of substan-
tial omissions include a prosecution exhibit “used to show mens rea,”
id. (cit-
ing United States v. McCullah,
11 M.J. 234, 237 (C.M.A. 1981)), and three
defense exhibits for sentencing,
id. (citing United States v. Stoffer,
53 M.J. 26
(C.A.A.F. 2000)). Examples of insubstantial omissions include prosecution
exhibits of “sexually explicit literature . . . from which [the appellant who was
convicted of rape and adultery] could order pornographic videos to show to
the victim,”
id., and prosecution exhibits of “photographic exhibits of stolen
property,”
id. (citing United States v. Carmans,
9 M.J. 616 (A.C.M.R. 1980)).
3. Analysis
The record of Appellant’s trial is complete. That it is missing the three
images of SV purportedly contained in Attachment 3 of the stipulation of fact,
or Prosecution Exhibit 1, is a vexing omission, but it is not a substantial one.
The transcript of the guilty plea inquiry makes apparent that, at the time of
trial, Attachments 2 and 3 were what they were purported to be—a CD con-
taining a video and 23 images (including the “Sandra” images) and a CD con-
taining the SV images, respectively. More importantly, the military judge re-
peatedly made clear that, because Appellant did not knowingly possess child
pornography when he possessed the SV images, the judge would not and did
not use the SV images to accept Appellant’s guilty plea and find Appellant
guilty of possession of child pornography. The evidence omitted from the rec-
ord was offered to prove Appellant’s guilt, but the trier of fact did not actually
use it to find Appellant guilty. As a result, we conclude the omission is not
substantial and the record is complete.
6
United States v. Donoho, No. ACM 39242
B. Provident Guilty Plea
Appellant claims that his guilty pleas to possession and distribution of
child pornography on divers occasions are not provident because, during the
guilty plea inquiry, he referenced images that are not “child pornography.”
We are not persuaded.
1. Additional Background
The stipulation of fact contains four references to “child erotica”—a re-
view of Appellant’s computer “found over 4,500 files of suspected child por-
nography and erotica” (Paragraph 3); “several images and videos of child por-
nography and erotica” in a folder on Appellant’s computer (Paragraph 19);
“several images and videos of child pornography and erotica” in the “Docu-
ments folder” on Appellant’s computer (Paragraph 25); and “The Sandra fold-
er contained several images of child erotica and child pornography” (Para-
graph 28).
During the inquiry concerning Appellant’s guilty plea for possession of
child pornography on divers occasions, the military judge addressed Appel-
lant, listed the elements of the offense, and defined, inter alia, “divers,” “child
pornography,” “minor,” “sexually explicit conduct,” and “lascivious.” Appel-
lant acknowledged his understanding of the elements and definitions before
explaining that, on multiple dates, he used peer-to-peer file sharing software
to search for and download child pornography that he then saved on his com-
puter. When asked by the judge what specific child pornography Appellant
possessed, he answered, “As discussed in the stipulation of fact, some of the
photos had a young girl with either a sex toy or a penis inserted into her anus
or vagina. Another involved a girl touching a live penis and giving it oral
sex.” Trial defense counsel pointed to Paragraphs 28 and 29 of the stipula-
tion. Appellant confirmed that Paragraph 28 described “three different and
specific images” from the “Sandra” folder on his computer and that “the three
images described in paragraph 28 all describe images of a child engaging in
sexually explicit conduct.”
During the inquiry concerning Appellant’s guilty plea for distribution of
child pornography on divers occasions, Appellant explained that the software
he used to search and download child pornography from other computers “al-
so allows other computers to search and download files from my computer.”
He described that, on or about 28 July 2015, a law enforcement official using
the software downloaded 13 files of child pornography from his computer.
Through follow-up questions from the military judge, Appellant confirmed
that the 13 files were separate files of “videos of prepubescent and pubescent
girls engaging in sexual acts” that had to be downloaded individually.
7
United States v. Donoho, No. ACM 39242
2. Law
[W]e review a military judge’s decision to accept a guilty plea
for an abuse of discretion and questions of law arising from the
guilty plea de novo. In doing so, we apply the substantial basis
test, looking at whether there is something in the record of tri-
al, with regard to the factual basis or the law, that would raise
a substantial question regarding the appellant’s guilty plea.
United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
The elements of possession of child pornography, as charged in Appel-
lant’s case, are (a) that Appellant knowingly and wrongfully possessed child
pornography on divers occasions and (b) that, under the circumstances, the
conduct was of a nature to bring discredit upon the armed forces. See Manual
for Courts-Martial, United States (2016 ed.), pt. IV, ¶ 68b.b.(1). “Child por-
nography” is explained as “material that contains either an obscene visual
depiction of a minor engaging in sexually explicit conduct or a visual depic-
tion of an actual minor engaging in sexually explicit conduct.” Id. ¶ 68b.c.(1).
“Sexually explicit conduct” includes, inter alia, actual or simulated sexual in-
tercourse or sodomy, masturbation, and “lascivious exhibition of the genitals
or pubic area of any person.”
Id. ¶ 68b.c.(7).
The elements of distribution of child pornography, as charged in Appel-
lant’s case, are (a) that Appellant knowingly and wrongfully distributed child
pornography to another on divers occasions and (b) that, under the circum-
stances, the conduct was of a nature to bring discredit upon the armed forces.
See
id. ¶ 68b(b)(3). The explanations of child pornography for possession also
apply to distribution.
3. Analysis
As a factual matter, Appellant accurately states that the guilty plea in-
quiry and, by incorporation, the stipulation of fact referenced images that do
not qualify as child pornography. In addition, we agree with Appellant (1)
that the CD that was discussed at trial as containing 23 images of child por-
nography found on Appellant’s computer—and that should have been labeled
Attachment 2 to the stipulation of fact—was inserted in the original record of
trial as Attachment 3 and (2) that the CD inserted as Attachment 2 contains
images that do not qualify as child pornography. Furthermore, when the mil-
itary judge asked Appellant if the 23 images were “images of a minor or what
appeared to be a minor engaging in sexually explicit conduct,” Appellant
qualified his “yes” answer as “at least those images being exhibition.” Howev-
er, Appellant’s guilty pleas to possession and distribution of child pornogra-
phy on divers occasions are provident.
8
United States v. Donoho, No. ACM 39242
Appellant’s guilty plea to possession of child pornography on divers occa-
sions is provident, in part, because when Appellant qualified his “yes” an-
swer, he confirmed that, by “exhibition,” he meant “lascivious exhibition of
the genitals or pubic area,” which in turn meant the images met the defini-
tion of child pornography. Appellant also verified that the three “Sandra” im-
ages depicted a minor engaged in sexual acts. Not only are the “Sandra” im-
ages described in Paragraph 28 of the stipulation of fact in specific terms that
qualify the images as child pornography, but they are also identifiable by
name and description on the CD that was supposed to be Attachment 2 but
was at some point inserted in the record as Attachment 3.
To accept Appellant’s guilty pleas for possession and distribution of child
pornography, the military judge required evidence that Appellant possessed
and distributed child pornography. That evidence was offered through the
stipulation of fact and guilty plea inquiry. The stipulation also provided evi-
dence that Appellant possessed images of children that do not qualify as child
pornography, 8 but that evidence neither negated the evidence of Appellant’s
crimes nor undermined the basis for the judge to accept Appellant’s pleas and
find him guilty.
Considering both the stipulation of fact signed by Appellant and the re-
sponses given by Appellant during the guilty plea inquiry, especially with re-
gard to the three “Sandra” images depicting a minor engaged in sexual acts,
the military judge had a more than adequate factual basis to accept Appel-
lant’s guilty plea for possession of child pornography. See United States v.
Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (holding that, when determining if a
guilty plea is provident, the military judge may consider both the stipulation
of fact and the guilty plea inquiry). Notably, the judge identified the apparent
inconsistency between the stipulation and Appellant’s responses with regard
to the SV images, held an R.C.M. 802 conference, subsequently asked Appel-
lant more questions, and resolved the inconsistency by not considering the SV
images. Even with the SV images excluded from consideration, the judge was
presented sufficient information that Appellant possessed more than one im-
age of child pornography on more than one occasion to accept Appellant’s plea
and find him guilty of possession of child pornography on divers occasions.
8The original record of trial now contains, as Attachment 2 to the stipulation of fact,
a CD with child pornography as well as images that do not qualify as child pornogra-
phy. There is no indication this particular CD was used as Attachment 2 or for any
other purpose at any point during Appellant’s trial. Even if it was, the images that do
not qualify as child pornography do not raise a substantial question regarding the
providence of Appellant’s guilty pleas.
9
United States v. Donoho, No. ACM 39242
The military judge also had a more than adequate factual basis to accept
Appellant’s guilty plea for distribution of child pornography. Both the stipu-
lation of fact and the guilty plea inquiry provided the necessary facts, specifi-
cally, that Appellant made available for download more than one image of
child pornography on more than one occasion, as demonstrated by the 28 July
2015 download of 13 video files from Appellant’s computer.
We acknowledge that the record contains images and references to images
that are not child pornography, including the “child erotica” referenced in the
stipulation of fact. Still, we find nothing in the record of trial with regard to
the factual basis or the law that raises a substantial question regarding Ap-
pellant’s guilty pleas for possession and distribution of child pornography on
divers occasions. Thus, we conclude the military judge did not abuse his dis-
cretion when he accepted those pleas.
C. Proper Sentencing Evidence
Appellant argues three-fold error involving sentencing evidence—(1) the
references in the stipulation of fact to “suspected child pornography” and
“child erotica” and the inclusion of “innocent pictures of children” and “child
erotica” in Attachment 2 9 of the stipulation constitute improper aggravation
evidence; (2) the military judge abused his discretion by considering the SV
images for sentencing; and (3) the military judge abused his discretion by
considering SV’s testimony as it related to the impact of Appellant’s offenses
on AC. We find no such error.
1. Additional Background
The military judge stated on the record that, if the stipulation of fact was
admitted, he would use it first to determine Appellant’s guilt and second to
determine an appropriate sentence. Appellant acknowledged his understand-
ing and agreement to these uses, as did trial and defense counsel.
The military judge declared that he would not use the SV images to de-
termine Appellant’s guilt for possession of child pornography, but Paragraph
29 describing the SV images and the images themselves were not removed
from the stipulation of fact.
During sentencing, the Government called SV as a witness to testify that
Appellant knew she was 16 years old when he took the three photographs of
her contained in Attachment 3 to the stipulation of fact. The Defense object-
9 In the assignment of error, Appellant refers to “Attachment 2,” meaning the CD
that is currently in the original record of trial as Attachment 2, not the CD that was
discussed at trial as Attachment 2.
10
United States v. Donoho, No. ACM 39242
ed. The military judge initially overruled the objection because, “while [the
three images of SV] weren’t used as the basis for [Appellant’s] guilty plea [for
child pornography possession], [that he knew SV was 16] still could be an ag-
gravating factor with regard to the offense.”
Once SV was on the stand, the Government also asked her if Appellant
had ever talked to her about AC. The Defense objected. The Government ar-
gued that SV would testify Appellant “told her he was interested in [AC] ro-
mantically;” that the information was relevant as “facts and circumstances of
the offense” of abusive sexual contact of AC; and that the information consti-
tuted “a matter in aggravation because . . . [t]he fact that [Appellant] would
sexually assault someone who he viewed as a friend and someone he’s at-
tracted to, it’s more aggravating than sexually assaulting a stranger.” The
military judge applied the Mil. R. Evid. 403 balancing test and overruled the
objection. SV’s testimony on the issue consisted of one sentence: “[Appellant]
asked me about [AC’s] relationship status, if she was single, if he maybe had
a chance with her.”
After numerous attempts by both trial counsel to elicit from SV that Ap-
pellant knew she was 16 years old when he photographed her—all of which
failed—the military judge reconsidered the Defense’s initial objection and
sustained it. The judge specified that he would consider SV’s testimony of
what Appellant said to SV about AC but that he would not consider SV’s tes-
timony “with regard to the issue of [her] age related to the [SV] photos on the
iPod.”
2. Law
We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion. United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F.
2008) (citing United States v. Ayala,
43 M.J. 296, 298 (C.A.A.F. 1995)). “An
abuse of discretion occurs when the trial court’s findings of fact are clearly
erroneous or if the court’s decision is influenced by an erroneous view of the
law.”
Id. (citation omitted). “Further, the abuse of discretion standard of re-
view recognizes that a judge has a range of choices and will not be reversed so
long as the decision remains within that range.”
Id. (quoting United States v.
Gore,
60 M.J. 178, 187 (C.A.A.F. 2004)).
Evidence in aggravation, or “evidence as to any aggravating circumstanc-
es directly relating to or resulting from the offenses of which the accused has
been found guilty,” includes, inter alia, evidence of impact on any person who
was the victim of an offense committed by the accused. R.C.M. 1001(b)(4).
“Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of con-
sequence in determining the action.” Mil. R. Evid. 401. Relevant evidence is
11
United States v. Donoho, No. ACM 39242
generally admissible. Mil. R. Evid. 402. The military judge may exclude rele-
vant evidence if its probative value is substantially outweighed by a danger of
unfair prejudice, confusing the issues, misleading the court members, undue
delay, wasting time, or needlessly presenting cumulative evidence. Mil. R.
Evid. 403.
Evidence that otherwise would be inadmissible under the Mili-
tary Rules of Evidence may sometimes be admitted at trial
through a stipulation, if the parties expressly agree, if there is
no overreaching on the part of the Government in obtaining the
agreement, and if the military judge finds no reason to reject
the stipulation “in the interest of justice.”
United States v. Clark, 53 M.J. 280, 281–82 (C.A.A.F. 2000) (quoting United
States v. Glazier,
26 M.J. 268, 270 (C.M.A. 1988)).
3. Analysis
a. “Child Erotica” and Other Images
To the extent “child erotica” and other images that do not qualify as child
pornography were referenced in the stipulation of fact and then used as evi-
dence in aggravation, that use was proper. 10 Aggravation evidence includes
evidence of “any aggravating circumstances directly relating to” the convicted
offenses. R.C.M. 1001(b)(4). Appellant was convicted of possession of child
pornography for contraband he downloaded with file sharing software and
saved on his computer. The referenced “child erotica” involved images of chil-
dren that Appellant found in his searches for child pornography, downloaded
in the same groups of files, and saved in the same folders on his computer
with the child pornography he possessed. While the images do not constitute
child pornography, they do constitute evidence of the aggravating circum-
stances of Appellant’s possession (and subsequent distribution) of child por-
nography because they demonstrate Appellant’s clear intent to obtain erotic,
or sexually suggestive, images of children, not adults.
Even if the “child erotica” and other images that are not child pornogra-
phy were not admissible as evidence in aggravation, we find no error. Other-
wise inadmissible evidence may be admitted through a stipulation of fact.
Clark, 53 M.J. at 281–82 (citation omitted). Moreover, if a stipulation is une-
10 As previously noted, there is no indication in the record that “child erotica” and
other images that do not qualify as child pornography were attached to the stipula-
tion of fact at the time of trial. Even if we assume arguendo that such images were
attached to the stipulation, we still find no error.
12
United States v. Donoho, No. ACM 39242
quivocal that the parties “agree not only to the truth of the matters stipulat-
ed but that such matters are admissible in evidence against the accused, . . .
there can be no doubt as to the full agreement and understanding of the par-
ties.” Glazier, 26 M.J. at 270. Appellant signed a stipulation that began with
the phrase “the following facts are true and admissible for any and all pur-
poses.” Appellant understood and agreed to the military judge’s use of the
stipulation first to determine Appellant’s guilt and second to determine an
appropriate sentence. The “child erotica” and other images that were refer-
enced in that stipulation were found in Appellant’s possession along with the
child pornography he was convicted of possessing, and it was not overreach-
ing for the Government to include them in the stipulation. See
Clark, 53 M.J.
at 281–82. Furthermore, there was no reason for the military judge to reject
the stipulation and its references to and attachment of “child erotica” and
other images, and the judge did not abuse his discretion by not rejecting the
stipulation “in the interest of justice” or for any other reason. See
id.
b. Images of SV
The military judge did not abuse his discretion by considering the images
of SV for sentencing, even though he specifically excluded them for accepting
Appellant’s guilty plea and finding Appellant guilty of possession of child
pornography. The record leaves no doubt that the images of SV are child por-
nography because they depict a minor, 16-year-old SV, engaged in sexual acts
with Appellant. Although the judge properly determined the SV images were
not evidence of Appellant’s knowing and thus criminal possession of child
pornography—because Appellant did not know SV was 16 years old at the
time—the images were, in plain-language terms, child pornography pos-
sessed by Appellant. The images of SV were also available for use during sen-
tencing by the terms of the stipulation in which they were referenced and to
which they were attached, specifically, that the stipulated facts were “admis-
sible for any and all purposes.” Additionally, Appellant explicitly understood
and agreed to the military judge’s uses of the stipulation to determine guilt
and an appropriate sentence.
c. Testimony of SV
The military judge did not abuse his discretion by considering SV’s testi-
mony about Appellant’s offenses against AC, which consisted of a single sen-
tence: Appellant asked SV if AC “was single, if he maybe had a chance with
her.” The judge applied the Mil. R. Evid. 403 balancing test and allowed the
evidence as evidence in aggravation. We find no clear error and no erroneous
view of the law by the judge, who had a range of choices and made a decision
to allow the testimony that fell within that range.
13
United States v. Donoho, No. ACM 39242
D. Appropriate Sentence
Appellant complains that his sentence, including a dishonorable discharge
and 66 months of confinement, is inappropriately severe; it is not.
This court “may affirm only such findings of guilty, and the sentence or
such part or amount of the sentence, as it finds correct in law and fact and
determines, on the basis of the entire record, should be approved.” Article
66(c), UCMJ, 10 U.S.C. § 866(c). We review sentence appropriateness de no-
vo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (footnote omitted). “We
assess sentence appropriateness by considering the particular appellant, the
nature and seriousness of the offense, the appellant’s record of service, and
all matters contained in the record of trial.” United States v. Anderson,
67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted).
While we have great discretion to determine whether a particular sentence is
appropriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad,
69 M.J. 138, 144–48 (C.A.A.F. 2010).
Appellant puts forward two bases to request sentence relief—(1) that the
military judge considered improper sentencing evidence and (2) that Appel-
lant’s guilty plea is improvident, he is not guilty, and so any sentence is too
severe. We address both bases above. We add here that we are confident the
military judge did not consider for sentencing SV’s testimony that Appellant
knew SV was 16 years old at the time her images were made because the
judge ultimately sustained the Defense objection to any such testimony by
SV. Moreover, no such testimony was elicited from SV.
Appellant faced a maximum sentence that included 42 years of confine-
ment. The Government asked for 13 years, and Appellant negotiated a PTA
limit of 10 years. The military judge decided on 66 months, which the conven-
ing authority approved. Considering Appellant, the nature and seriousness of
his offenses of abusive sexual contact, indecent visual recording, and posses-
sion and distribution of child pornography on divers occasions, Appellant’s
seven-year record of service, and all matters contained in the record of trial,
we conclude his sentence, including a dishonorable discharge and 66 months
of confinement, is appropriate.
E. Timely Appellate Review
We review de novo whether an appellant has been denied the due process
right to a speedy post-trial review and appeal. A presumption of unreasona-
ble delay arises when appellate review is not completed and a decision is not
rendered within 18 months of the case being docketed before the court. Unit-
ed States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). When a case is not
completed within 18 months, such a delay is presumptively unreasonable and
triggers an analysis of the four factors laid out in Barker v. Wingo,
407 U.S.
14
United States v. Donoho, No. ACM 39242
514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of the right to timely review and appeal; and (4)
prejudice.”
Moreno, 63 M.J. at 135.
Appellant’s case was originally docketed with the court on 27 April 2017.
The delay in rendering this decision is presumptively unreasonable. Howev-
er, we determine no violation of Appellant’s right to due process and a speedy
post-trial review and appeal.
Analyzing the Barker factors, we find the length of the delay—three
weeks—is short. The reasons for the delay include the time required for Ap-
pellant to file his brief on 8 February 2018, the Government to make three
attempts to correct the record and then file its answer on 7 June 2018, and
Appellant to reply on 12 June 2018. In addition, Appellant requested leave to
file supplemental assignments of error on 11 June 2018 and then, on 1 Au-
gust 2018, requested reconsideration of the court’s denial. The court is issu-
ing its opinion five months after Appellant’s reply.
On 17 August 2018, Appellant asserted his right to speedy appellate re-
view “so as to avoid serving additional unlawful confinement.” Appellant be-
gan his 66 months of confinement on 30 January 2017. The court is affirming
the sentence. We find no prejudice to Appellant resulting from the delay for
the court to complete its review of his case.
Finding no Barker prejudice, we also find the delay is not so egregious
that it adversely affects the public’s perception of the fairness and integrity of
the military justice system. As a result, there is no due process violation. See
United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). In addition, we de-
termine that Appellant is not due relief even in the absence of a due process
violation. See United States v. Tardif,
57 M.J. 219, 223–24 (C.A.A.F. 2002).
Applying the factors articulated in United States v. Gay,
74 M.J. 736, 744
(A.F. Ct. Crim. App. 2015), aff’d,
75 M.J. 264 (C.A.A.F. 2016), we find the de-
lay in completing appellate review justified and relief for Appellant unwar-
ranted.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
15
United States v. Donoho, No. ACM 39242
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED. 11
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
11The court-martial order is missing the phrase “or what appears to be minors” in
Specification 1 of Charge III. It also contains two extraneous and inaccurate refer-
ences to the plea and finding of “Charge III: Article 134” and a superfluous “mem-
bers” in the description of the adjudged sentence. We direct the publication of a cor-
rected court-martial order.
16
