A military judge sitting as a general court-martial convicted the appellant, consistent with his pleas, of one specification of larceny, in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. The military judge also found him guilty, contrary to his pleas, of wrongfully possessing child pornography, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The appellant was sentеnced to confinement for 15 months, reduction to pay grade E-l, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged.
The appellant submitted two assignments of error. He first avers that the evidence was legally and factually insufficient to sustаin a conviction for possession of child pornography, in violation of Article 134, clauses 1 and 2. He specifically contends that the terminal elements of the alleged violations i.e., that his conduct was prejudicial to good order and discipline and service discrediting, were not proven beyond a reasonable doubt. Second, the appellant argues that a sentence which included a dishonorable discharge was inappropriately severe.
We have considered the record of trial, the pleadings of the parties, and the oral argument presented in this matter. We find that the evidence contained in this record is legally and factually sufficient to support a conviction of Article 134, UCMJ, under a clause 2 theory of liability. Specifically, we find that possession of child pornography absent legal justification is per se service discrediting conduct. As to the remaining findings and sentence, we find them to be correct in law and fact and that there are no errors materiаlly prejudicial to the substantial rights of the appellant. Arts. 59(a) and 66(c), UCMJ.
Factual Background
The appellant was assigned to Combat Logistics Regiment 37, 3d Marine Logistics Group, Okinawa, Japan. While the subject of an investigation conducted by the Naval Criminal Investigative Service (NCIS) on an unrelated larceny charge, the appellant agreed to a consent search of his barracks room to include his personal laptop computer. After the NCIS agent executed the appropriate paperwork for the consent search of his room, the appellant made a statement to the NCIS agent to the effect that he had “previously or recently downloaded or accidentally downloaded a few images which might be child pornography.” Record at 113. Based on this disclosure, the NCIS agent advised the appellant that he was broadening his search to include evidence of possession of child pornography and made a modification to the permissive search form whiсh the appellant acknowledged. Id. at 114-15. When the NCIS agent and the appellant arrived at his barracks room, the laptop was on and running a program in which numerous files were in various stages of downloading. The NCIS agent was able to view some of the titles as they downloaded which included age and sexual descriptions. Id. at 116— 17. An examination of the appellant’s computer by a Defense Computer Forensics Laboratory examiner determined that it contained child pornography.
In addition to the larceny charge to which the appellant pleaded guilty, he was charged with a single specification of violating Article 134, UCMJ, under both clauses 1 and 2; sрecifically, “knowingly and wrongfully possessing] visual depictions of minors engaging in sexual explicit conduct, which conduct was prejudicial to good order and discipline in the armed forces and service discrediting.” At trial, the Government’s evidence consisted of testimony from the NCIS agent who seized the computer and took the appellant’s statement, and testimony from the computer examiner who confirmed the presence of child pornography on the appellant’s laptop computer.
On appeal, the appellant avers that because he was charged with a violation under both clause 1 and 2 theories of liability, the Government was required to prove that his conduct was both prejudicial to good order and discipline and service discrediting. As to the clause 1 theory of liability, he argues that since his misconduct happened in his barracks room when his roommate was away for three months in a temporary additional duty status, and that no one from the
Legal and Factual Sufficiency
Article 66(c), UCMJ, requires a de novo review of the legal and factual sufficiency of each approved finding of guilt. United States v. Washington,
Analysis and Discussion
The statutory elements that the Government must prove beyond a reasonable doubt are: (1) That the accused did or failed to do certain acts; and (2) That under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was a nature to bring discredit upon the armed forces. Manual for Courts Martial, United States (2005 ed.), Part IV, ¶ 60b.
We first address the appellant’s contention that since he was charged under Article 134, clauses 1 and 2 in the conjunctive, the Government had a greater burden in that it had to prove beyond a rеasonable doubt that the appellant’s conduct was both pi’ejudicial to good order and discipline and service discrediting. The appellant seems to argue that clause 1 and clause 2 violations are separate offenses with separate terminal elements. We disagree. The terminal “element” language in clause 1 and 2 specifications are not separate elements that define different offenses, but are rather alternate theories of liability contained within the same element, even if charged in the conjunctive. This position is supported by the Court of Appeals for the Armed Forces (CAAF) in United States v. Wilcox,
Having established that violations charged under clauses 1 and 2 of Article 134 are theories of liability vice separate offenses, we next consider the appellant’s argument that the evidence adduced at triаl was insufficient to sustain a conviction for an Article 134 violation under either theory of liability beyond a reasonable doubt.
There has been no bright-line rule established by military appellate courts as to what evidence is required to prove the second element of clause 2 offenses. It is, however, well-established that there is no requirement that thе Government show actual damage to the reputation of the military. United States v. Hartwig,
While this may be a case of first impressiоn for this court, our sister service appellate courts have grappled with these questions and are at different ends of the judicial spectrum regarding the first question, or the requirement that the public actually have knowledge of the misconduct and the military status of the offender in order to satisfy the terminal element in clause 2 spеcifications. The Army Court of Military Review took the position that in order to prove service discrediting conduct, the public must be aware of the behavior and the military status of the offender. United States v. Green,
The CAAF appears to employ a totality of the circumstances tеst surrounding the alleged offense, to include the offense itself, in determining whether the appellant’s misconduct has a tendency to bring discredit upon the armed forces. For example in United States v. Davis,
In determining whether an offense has a tendency to discredit the Armed Forcеs, we consider factors such as whether the misconduct is generally recognized as illegal under the common law or most statutory penal codes, or whether the misconduct taken outside the context of the military would be lawful. The appellant was convicted of, inter alia, knowingly possessing child pornography. The Child Pornography Prevеntion Act (CPPA) makes it a criminal offense to possess or receive child pornography.
We join with the Air Force and Coast Guard courts in concluding that actual public awareness of the service member’s misconduct and his military status is not requirеd in order to establish that possession of child pornography is service discrediting. We find that a reasonable trier of fact, under the circumstances of this case, would find the appellant’s misconduct to be service discrediting. We additionally note that this was a judge alone trial and we presume the military judge knew of his responsibility to make an independent judgment on each and every element of the offense. United States v. Raya,
We affirm only that part of the specification alleging a violation of clause 2 of Article 134, i.e., thаt the appellant’s conduct is service discrediting. As such, we leave for another day the matter of whether like conduct would be prejudicial to good order and discipline, a clause 1 violation, without specific proof of the terminal element.
Sentence Appropriateness
In his final assignment of error, the appellant avers that the punishment which includes a dishonorable discharge is inappropriately severe. The child pornography visual images contained on the appellant’s computer included at least one video clip of a female purported to be 12 years old engaging in sexual intercourse with a mature male. After reviewing the record and аll of the evidence, including the forensic evidence seized from the appellant’s computer, we are convinced that the sentence in this case is appropriate for this offender and these offenses. United States v. Baier,
Conclusion
The findings of the military judge on the Charge (violation of Article 134) and speeifi-
Notes
. Because we find that clauses 1 and 2 are alternate theories of liability, we need only address the question of whether all of the elements under either theory of liability have been proven beyond a reasonable doubt. The analysis and decision in this case is limited to that part of the speсification which pertains to the Article 134, clause 2 violation. As such, we need not and do not address whether the appellant’s conduct was
. In Guerrero, based upon the aforementioned factors, the CMA did, however, find that appel
. The appellant would have, in all likelihood, been charged with a violation of the CPPA, 18 U.S.C. § 2252(A)(a)(5)(A), under clause 3 of Article 134, had this misconduct occurred in the United States. The appellant was charged with possessing child pornography while he was stationed in Okinawa, Japan. While the CPPA has no extraterritorial application, the lack of jurisdiction hardly transforms the nature of the appellant’s behavior.