          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201600338
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                        KEVIN C. EMBLETON
                Navy Diver First Class (E-6), U.S. Navy
                              Appellant
                       _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

  Military Judge: Commander Arthur L. Gaston III, JAGC, USN.
     Convening Authority: Commander, Navy Region Hawaii,
                            JBPHH, HI.
 Staff Judge Advocate’s Recommendation: Lieutenant Commander
                   Louis E. Butler, JAGC, USN.
  For Appellant: Commander Richard E.N. Federico, JAGC, USN.
 For Appellee: Lieutenant Jetti L. Gibson, JAGC, USN; Lieutenant
                   Robert J. Miller, JAGC, USN.
                      _________________________

                          Decided 28 March 2017
                          _________________________

Before C AMPBELL , H UTCHISON , and JONES, Appellate Military Judges
                      _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   HUTCHISON, Judge:

    A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of one specification of possession of anabolic
steroids, one specification of wrongful use of anabolic steroids, and one
specification of wrongful possession of child pornography, in violation of
Articles 112a and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
                     United States v. Embleton, No. 201600338


§§ 912a and 934. The convening authority (CA) approved the adjudged
sentence of 20 months’ confinement, reduction to pay grade E-1, and a
dishonorable discharge.
    In two assignments of error, the appellant alleges: (1) the military judge
abused his discretion by admitting victim impact evidence that was not
directly related to or resulting from the appellant’s misconduct; and (2) the
staff judge advocate’s recommendation (SJAR) was deficient because it failed
to notify the CA that he retained authority under Article 60, UCMJ, to grant
the relief requested in clemency. We disagree and conclude that the findings
and sentence are correct in law and fact and that no error materially
prejudicial to the substantial rights of the appellant occurred. Arts. 59(a) and
66(c), UCMJ.
                                   I. BACKGROUND
    The appellant entered into a stipulation of fact, which included a compact
disc “containing 124 images and 11 videos of child pornography that [the
appellant] knowingly and intentionally downloaded and stored on [his] . . .
laptop computer.”1 During presentencing, the government sought to introduce
victim impact evidence from one of the victims depicted in two images found
on the appellant’s laptop. The material included an impact statement from
the victim, a letter from the victim’s attorney, and a statement from a
forensic psychologist regarding the impact on the victim.2 Over defense
objection, the military judge admitted the material, subject to his review, and
subsequently limited his consideration of the material to only that which he
considered appropriate as matters in aggravation.3


   1   Prosecution Exhibit (PE) 1 at 2.
   2   PE 2.
   3  Record at 64. The military judge limited his consideration of the evidence as
follows:
             On Page 1[,] I considered the title, all of page—all of the first
         paragraph, the first sentence of the second paragraph, all of the third
         paragraph that’s not redacted, and the first two sentences of the
         fourth paragraph. I did not consider the remainder of page 1.
              Of Page 2[,] I considered the header, the title. I considered the
         first two sentences of the first paragraph, all of the second paragraph,
         all of the third paragraph, none of the fourth paragraph, all of the
         fifth paragraph, and the first sentence of the sixth paragraph.
             The report that constitutes Pages 3 through 6[,] I considered all of
         that report. Of the report that constitutes Pages 7 through 15, I
         considered none of that report except for on Page 13[,] I considered
         the sentence in the top paragraph[,] “[s]he lives in constant fear that

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                     United States v. Embleton, No. 201600338


    On 23 August 2016, the CA’s staff judge advocate (SJA) provided the
requisite written recommendation, advising the CA that “action is a matter
within [the CA’s] discretion.”4 The SJA enclosed a copy of the report of results
of trial and a copy of the pretrial agreement entered into between the CA and
the appellant with his recommendation. Finally, the SJA recommended the
CA “approve the sentence as adjudged and order it executed . . . in accordance
with the pretrial agreement, UCMJ, M[anual for ]C[ourts ]M[artial], and
applicable regulations.”5 On 16 September 2016, trial defense counsel (TDC)
submitted matters in clemency, requesting the CA suspend all confinement
in excess of 14 months, and explaining that recent amendments to Article 60,
UCMJ, did not limit the CA’s authority to grant the requested relief.6 On 20
September 2016, the SJA provided an addendum to his recommendation,
enclosing TDC’s clemency request, and restating his recommendation that
the CA approve the sentence as adjudged.
                                    II. DISCUSSION
A. Evidence in aggravation
    The appellant alleges the military judge erred in admitting the victim
impact evidence because it did not directly relate to his offense or, in the
alternative, that its probative value was outweighed by the danger of unfair
prejudice. We review a military judge’s decision to admit or exclude
sentencing evidence for an abuse of discretion. United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009).
    The government may present evidence of aggravating circumstances
“directly relating to or resulting from the offenses of which the accused has
been found guilty[,]” to include “social, psychological, and medical impact on
or cost to any person or entity who was the victim of an offense committed by
the accused[.]” RULE FOR COURTS-MARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (MCM) (2016 ed.). “The phrase ‘directly
relating to or resulting from the offenses’ imposes a ‘higher standard’ than
‘mere relevance.’” United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)
(quoting United States v. Gordon, 31 M.J. 30, 36 (C.M.A. 1990)). However, we


         the people viewing the pornographic films and pictures of her will
         look for her, capture her, and expect her to continue the same
         behaviors that she was forced to portray in the films.” That’s the only
         sentence I considered out of pages 7 through 15.”
   Id. at 74-75.
   4   Staff Judge Advocate, Navy Region Hawaii ltr 5814 of 23 Aug 16 at 1.
   5   Id. at 2.
   6 Trial   Defense Counsel ltr of 16 Sep 2016.

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                     United States v. Embleton, No. 201600338


have noted that “[t]he impact on children who are used in the child
pornography business is sufficiently directly related to the offense of
possessing child pornography to assist the sentencing authority.” United
States v. Evans, No. 201300174, 2014 CCA LEXIS 368, at *23, unpublished
(N-M. Ct. Crim. App. 26 Jun 2014) (citing United States v. Anderson, 60 M.J.
548, 555-56 (A. F. Ct. Crim. App. 2004) (noting the impact upon the children
used in the production of the pornography is sufficiently direct as to properly
assist the sentencing authority in evaluating the consequences of the
appellant’s criminal behavior)).
    The focus of the appellant’s argument seems to be that the military judge
failed to follow the appropriate legal framework, admitting the evidence
without determining that the victim impact material introduced at trial was
evidence “directly relating to or resulting from [the appellant’s] offenses.”7 We
disagree. The appellant pleaded guilty, inter alia, to possessing two images of
the victim whose impact statement was admitted in aggravation. The
evidence admitted included a written statement from the victim wherein she
relates:
         I know that my image is being downloaded and watched . . . all
         across the country. I worry that [the individuals downloading
         her images] know who I am. I worry that they will come and
         look for me. I worry that they will come and hurt my family.
         I’m terrified that someone is stalking me. I have changed my
         appearance so they can’t find me, but I still have panic attacks
         when I think someone is looking at me because they recognize
         me from the internet. I have difficulty working or being in
         public because of anxiety and want to hide somewhere safe.8
    Consequently, we conclude the victim impact evidence was directly
related to the appellant’s crime and was, therefore, admissible under R.C.M.
1001(b)(4).
    This does not end our analysis, however, as sentencing evidence is subject
to the balancing test of MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 403,
MCM (2012 ed.). Stephens, 67 M.J. at 236. When the military judge conducts
a proper balancing test, on the record, under MIL. R. EVID. 403, his ruling will
not be overturned absent a clear abuse of discretion. United States v. Ruppel,
49 M.J. 247, 251 (C.A.A.F. 1998). However, he receives less deference if he
does not articulate his balancing analysis on the record, and no deference if
he fails to conduct the 403 balancing. United States v. Manns, 54 M.J. 164,


   7   Appellant’s Brief and Assignments of Error of 19 Dec. 2016, at 10.
   8   PE 2 at 2.

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                     United States v. Embleton, No. 201600338


166 (C.A.A.F. 2000). Because the military judge in this case did not conduct a
403 balancing test, we examine the record ourselves. Id.
    In doing so, we find that the information contained within the victim
impact material highly probative. The evidence highlighted the psychological
trauma the appellant’s child pornography victim went through, as she faced
the continual fear that her abuse would be replayed and viewed by the
appellant and others. See R.C.M. 1001(b)(4) (stating that aggravation
evidence includes evidence of psychological impact on the victim). At the
same time, the danger of unfair prejudice is mitigated when sentencing is
before a military judge, who is “presumed to know the law and apply it
correctly[.]” United States v. Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008).
Indeed, the military judge limited his consideration of the evidence to only
those portions of the victim impact material directly related to the appellant’s
possession of the two images of the victim. Consequently, we find no abuse of
discretion in admitting the material as relevant aggravating evidence of
victim impact.
   Regardless, even assuming the evidence was admitted in error, as noted
supra, “judges are presumed to be able to filter out inadmissible evidence,
and presumed not to rely upon inappropriate evidence when making
decisions as to . . . sentence.” United States v. Salcido, No. 201300143, 2014
CCA LEXIS 89, at *16, unpublished op. (N-M. Ct. Crim. App. 20 Feb, 2014)
(per curiam). As a result, we find that the appellant has failed to establish
any material prejudice to his substantial rights. See Art. 59(a), UCMJ.
B. Deficient SJAR
    The appellant argues that the SJAR was deficient because the SJA failed
to “provide any legal guidance or statement of the law at all” with regard to
the CA’s authority to act on the sentence in this case.9 The appellant’s
argument is misplaced because the SJAR did in fact provide the CA with
appropriate guidance.
    As the appellant correctly points out, the National Defense Authorization
Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013),
substantially changed the authority of CAs to take action on findings and
sentences under Article 60, UCMJ. Following the changes, CAs can no longer
disapprove, commute, or suspend, in whole or in part, an adjudged sentence
of confinement for more than six months or a sentence of dismissal,
dishonorable discharge, or bad-conduct discharge unless certain exceptions
exist. However, the changes did not become effective until 24 June 2014. The
National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-


   9   Appellant’s Brief at 16 (footnote omitted).

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                     United States v. Embleton, No. 201600338


291, 128 Stat. 3292 (2014), provided clarification for courts-martial, such as
the appellant’s, which involved offenses that straddle the effective date:
         With respect to the findings and sentence of a court-martial
         that includes both a conviction for an offense committed before
         [24 June 2014] and a conviction for an offense committed on or
         after that effective date, the convening authority shall have the
         same authority to take action on such findings and sentence as
         was in effect on the day before such effective date[.]
Id. at 3365.
    Therefore, “[s]ince the appellant’s offenses ‘straddled’ the effective date of
the changes to Article 60, UCMJ, the CA had the unfettered ability to
disapprove findings or grant relief in clemency.” United States v. Bannister,
No. 201600056, 2016 CCA LEXIS 686, at *7, unpublished op. (N-M. Ct. Crim.
App. Nov 30, 2016). The appellant relies on this court’s holdings in United
States v. Levrie, No. 201500375, 2016 CCA LEXIS 401, unpublished op. (N-M.
Ct. Crim. App. 12 Jul 2016) (per curiam) and Bannister, arguing we should
find post-trial error from the SJA’s failure to provide sufficient guidance to
the CA. In Levrie, we remanded an Article 60, UCMJ, “straddling” case for
new post-trial processing after the SJA incorrectly advised the CA that the
changes to Article 60, UCMJ, prevented action on the findings. 2016 CCA
LEXIS 401, at *3-4. In Bannister, another “straddling” case, we remanded
after the TDC submitted clemency matters erroneously conceding that
changes to Article 60, UCMJ, removed the CA’s authority to act on the
findings and limited the authority to act on the sentence. 2016 CCA LEXIS
686, at *10. The SJA in Bannister did not comment on the TDC’s affirmative
misstatement of the law and, effectively, ratified it.
    The appellant’s case is markedly different. Here, the appellant’s TDC
correctly stated the law in his clemency petition and requested appropriate
relief. Moreover, the SJA did, in fact, properly advise the CA regarding the
authority to take action on the case when he noted that “action is a matter
within your discretion.”10 This statement is a concise, accurate
pronouncement of the CA’s unfettered authority to take whatever action he
desires on the findings and sentence.11 Finding error in neither the TDC’s
clemency submission nor the SJAR, we are convinced that the CA was not
misled regarding his authority to grant the sentencing relief requested by the
appellant.




   10   SJAR at 1.
   11   See R.C.M. 1106(d)(3).

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             United States v. Embleton, No. 201600338




                         III. CONCLUSION
The findings and the sentence as approved by the CA are affirmed.
Senior Judge CAMPBELL and Judge JONES concur.

                                  For the Court



                                  R.H. TROIDL
                                  Clerk of Court




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