              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                               No. ACM S32351
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                          Dustin C. BERRY
           Airman First Class (E-3), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                          Decided 9 February 2017
                          ________________________

Military Judge: Joshua E. Kastenberg.
Approved sentence: Bad-conduct discharge, confinement for 45 days, for-
feiture of $700 pay per month for 6 months, reduction to E-1, and a
reprimand. Sentence adjudged 10 July 2015 by SpCM convened at F. E.
Warren Air Force Base, Wyoming.
For Appellant: Major Lauren A. Shure, USAF.
For Appellee: Lieutenant Colonel Roberto Ramírez, USAF; Gerald R.
Bruce, Esquire.
Before DREW, J. BROWN, and SANTORO, Appellate Military Judges
Judge SANTORO delivered the opinion of the Court, in which Chief
Judge DREW and Senior Judge J. BROWN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                       ________________________
SANTORO, Judge:
    A military judge sitting as a special court-martial convicted Appellant, con-
trary to his plea, of attempting to record the private areas of a fellow Airman
                     United States v. Berry, No. ACM S32351


with his cellular telephone in violation of Article 80, UCMJ, 10 U.S.C. § 880. 1
The adjudged and approved sentence was a bad-conduct discharge, confine-
ment for 45 days, forfeiture of $700 pay per month for 6 months, reduction to
E-1, and a reprimand.
    Appellant submits two assignments of error for our consideration, both pur-
suant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). First, he argues
that the Government failed to offer sufficient evidence to corroborate his con-
fession. Second, he argues that the evidence is factually and legally insufficient
to support his conviction. We disagree and affirm.

                                   I. BACKGROUND
     The victim, Airman First Class (A1C) NMP, and Appellant were both mis-
sile security forces personnel assigned to missile alert facility (MAF) duties.
While on shift, they and six to eight other Airmen worked 12 hours on, 12 hours
off, for a four-day period, monitoring alarms and providing other security sup-
port to the missile launch facilities within their area of operations.
    The MAF relevant to this case contained a common room and dormitory-
style bedrooms. The victim and Staff Sergeant (SSgt) CG were the only two
women working that particular shift and were assigned as roommates. The
room to which the victim and SSgt CG were assigned had an adjoining bath-
room for their exclusive use.
    On the date of the offense, the victim’s shift was nearing its end. She went
to her room, disrobed, went into the bathroom to shower, and returned to her
room wearing only a towel. She removed her towel and was nude for several
minutes as she dressed. During that time, she heard a cellular telephone ring
with a country-music style ringtone.
    The victim initially did not think much of it but became more suspicious
when the phone rang a second time. She investigated and found a cellular tel-
ephone facing her and propped up on SSgt CG’s bed. The victim finished dress-
ing, went to the common area, and told SSgt CG that her phone was ringing.
SSgt CG told the victim that her phone was not in the room and both women
returned to their room. By the time they got back to their room, the phone that
had been on SSgt CG’s bed was gone.



1Appellant was acquitted of willful dereliction of duty in violation of Article 92, UCMJ,
10 U.S.C. § 892, and the greater offense of creating a recording of his victim in violation
of Article 120c, UCMJ, 10 U.S.C. §920c. The court-martial order erroneously states
that Appellant was found guilty of the dereliction charge. We order promulgation of a
corrected court-martial order.


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                      United States v. Berry, No. ACM S32351


   The victim and SSgt CG returned to the common area. The victim worked
her way around the MAF observing the other Airmen’s cellular phones. She
identified Appellant’s as the phone that was in her room while she changed.
    Appellant was interviewed as part of the ensuing investigation. He admit-
ted that he entered the victim’s bedroom and set his telephone up to record her
as she came out of her shower. He also admitted that he did so hoping to record
her naked. He told investigators, however, that he felt guilty and deleted the
video before watching it. Although a forensic examination of Appellant’s cell
phone was unable to locate any evidence of a recording, an investigator testi-
fied that it was possible a recording had, in fact, been made.

                                    II. DISCUSSION
A. Corroboration of Appellant’s Confession
    Appellant moved to suppress his confession, arguing that the Government
lacked independent evidence to corroborate its essential elements. See United
States v. Adams, 74 M.J. 137 (C.A.A.F. 2015). 2 The military judge agreed that
there was insufficient independent evidence to corroborate that a recording
had actually been made. However, he found that the Government did have suf-
ficient evidence to corroborate that portion of Appellant’s confession that
amounted to an attempt to make a recording. The military judge thereafter
admitted the corroborated portions of the confession, but only with respect to
establishing the elements of the lesser-included offense of attempt under Arti-
cle 80, UCMJ, 10 U.S.C. § 880.
   Before us, Appellant argues that his confession was erroneously admitted
because there was no independent evidence that he intended to film the victim
naked. We review the military judge’s decision to admit that portion of the
confession for an abuse of discretion. Adams, 74 M.J. at 139.
    The military judge did not abuse his discretion. The prosecution introduced
evidence that the incident occurred at shift change, a time when Airmen as-
signed to the MAF changed into or out of their uniforms. The victim testified


2 After Appellant's trial, Executive Order 13,730 amended Mil. R. Evid. 304(c) to re-
move the individual corroboration requirement for “essential facts” and instead require
corroboration only for the confession or admission as a whole. Exec. Order 13,730, 81
Fed. Reg. 33,350-51 (26 May 2016). For example, Mil. R. Evid. 304(c)(2) currently reads
in part: “Not every element or fact contained in the confession or admission must be
independently proven for the confession or admission to be admitted into evidence in
its entirety.” Id. at 33,350. Thus the analysis of the prior version of Mil. R. Evid. 304(c)
in United States v. Adams, 74 M.J. 137 (C.A.A.F. 2015), while appropriately guiding
the military judge’s ruling in Appellant's trial, has been rendered moot for current trial
practice.


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                   United States v. Berry, No. ACM S32351


that the cellular phone was pointed at her bed and partially concealed by
clothes. Both the victim and SSgt CG testified that the phone was no longer in
their room when they returned to it. That circumstantial evidence amply sup-
ports a conclusion that whoever put the phone in the victim’s room did so to
record an occupant of that room changing clothes, and specifically wanted to
record the victim because the phone was pointed at her bed.
B. Legal and Factual Sufficiency
    Appellant next argues that the evidence is both legally and factually insuf-
ficient to sustain his conviction. We review issues of legal and factual suffi-
ciency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
The test for legal sufficiency is “whether, considering the evidence in the light
most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Humph-
erys, 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner, 25 M.J.
324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw every
reasonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001); see also United
States v. McGinty, 38 M.J. 131, 132 (C.M.A. 1993).
    The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are] convinced of [Appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325. In conducting this unique appellate role, we
take “a fresh, impartial look at the evidence,” applying “neither a presumption
of innocence nor a presumption of guilt” to “make [our] own independent de-
termination as to whether the evidence constitutes proof of each required ele-
ment beyond a reasonable doubt.” Washington, 57 M.J. at 399. The term rea-
sonable doubt, however, does not mean that the evidence must be free from
conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993).
    While the prosecution’s case (aside from Appellant’s confession) was largely
circumstantial, it was powerful. The victim’s description of the phone’s location
in her bedroom was strong evidence that whoever placed the phone in her room
did so to record her as she dressed. The victim also conclusively identified the
telephone she saw in her room as Appellant’s after she observed the phones of
the other Airmen in the missile alert facility. Although neither the victim nor
any other witness saw Appellant place the phone in the victim’s room, there
was also no evidence that Appellant ever lost control of his phone, that another
Airman had taken his phone from him, or that anyone other than Appellant




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                   United States v. Berry, No. ACM S32351


reasonably could have placed the phone in the victim’s room. Appellant’s con-
fession, the reliability of which we have no reason to question, eliminates any
doubt that Appellant committed the offense of which he was convicted.
    Considering the evidence in the light most favorable to the prosecution, we
find the evidence legally sufficient to support his conviction for attempting to
record the victim’s private areas, without her consent, under circumstances in
which she had a reasonable expectation of privacy. Moreover, after making al-
lowances for not having personally observed the witnesses and paying partic-
ular attention to the matters raised by Appellant, we are, ourselves, convinced
of his guilt beyond a reasonable doubt.

                              III. CONCLUSION
    The findings and sentence are correct in law and fact, and no error materi-
ally prejudicial to the substantial rights of Appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and
sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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