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

                              No. 201600241
                          _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.

                            ISAAC PADILLA
       Aviation Machinist’s Mate Third Class (E-4), U.S. Navy
                             Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

     Military Judge: Captain David M. Harrison, JAGC, USN.
 Convening Authority: Commander, U.S. Naval Forces, Yokosuka,
                              Japan.
 Staff Judge Advocate’s Recommendation: Commander Timothy D.
                        Stone, JAGC, USN.
         For Appellant: Captain James S. Kresge, USMCR.
   For Appellee: Major Cory A. Carver, USMC; Captain Sean M.
                          Monks, USMC.
                     _________________________

                       Decided 29 September 2017
                        _________________________

  Before M ARKS , J ONES , and W OODARD , 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.
                        _________________________

   PER CURIAM:
    A military judge sitting as a special court-martial convicted the appellant,
pursuant to his pleas, of a single specification of possession of child
pornography in violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934, (2012). The military judge sentenced the appellant
to 12 months’ confinement, reduction to pay grade E-1, and a bad-conduct
                         United States v. Padilla, No. 201600241


discharge. The convening authority approved the sentence as adjudged and,
except for the punitive discharge, ordered it executed.
   The appellant asserts one assignment of error: the court committed plain
error by admitting testimony describing photos as child erotica in
aggravation at sentencing. We find no error materially prejudicial to the
substantial rights of the appellant and affirm. Arts. 59(a), 66(c), UCMJ.
                                     I. BACKGROUND
   Undercover investigation of peer-to-peer networks1 led Naval Criminal
Investigative Service (NCIS) special agents to suspect the appellant of
downloading and possessing child pornography in August 2014. Pursuant to a
command search authorization, NCIS seized electronic devices from the
appellant’s barracks room and his person. The appellant’s Toshiba hard drive
contained four still images and 19 videos depicting child pornography. Child
pornography was on one of the appellant’s iPhones as well.
    The appellant pleaded guilty to possessing child pornography. During the
providence colloquy with the military judge, the appellant explained that he
used a single software application to search for pornography online and
download it en masse. Among his search results were files identifiable as
child pornography by their titles. Knowing he had accessed child
pornography, the appellant nevertheless selected individual titles,
downloaded the files, and later viewed them.
   As part of the government’s presentencing case, trial counsel presented
exhibits documenting the NCIS investigation and forensic analysis of the
appellant’s electronic devices.2 The appellant did not object to their
admission. An NCIS investigative action reported that one of the appellant’s
iPhones “contained 12,241 images and 82 videos. The phone contained
numerous images depicting adult pornography, bestiality, child erotica, and
other images of children in suggestive poses.”3 An NCIS special agent testified
at presentencing that “[o]ne of those phones didn’t have child pornography
but had thousands of images of child erotica, and the phone that did have the
two images of child pornography also had images of child erotica but not as
many.”4 The special agent defined “child erotica” as “short of lewd and

   1 The Defense Computer Forensics Laboratory defines “peer-to-peer” networks as
networks of “computer systems that are connected to each other directly via the
Internet and can share files between them without the need for a central server.”
Prosecution Exhibit (PE) 3 at 13.
   2   PE 2, 3, and 4.
   3   PE 4 at 1 (emphasis added).
   4   Record at 86.


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                         United States v. Padilla, No. 201600241


lascivious display of the genitals or a child engaged in a sex act. . . . nude
children or children that can be clothed either partially or fully and in some
sort of provocative pose.”5 Trial defense counsel did not object to this
testimony. In his closing argument, the trial counsel mentioned, “there’s also
erotica on these phones; and on these phones he had about 19,000 pieces of
what may have been in some cases legal pornography, but he had those
images of erotica.”6
    As part of the appellant’s presentencing case, trial defense counsel
submitted a treatment summary and risk assessment from the appellant’s
clinical psychologist.7 According to the psychologist, the appellant reported
child sexual abuse by family members beginning at age ten. “He began
watching adult pornography as a teen and became addicted and wanted to
see all types. Eventually as an adult he began to view pornography with
increasingly younger participants. He stated that he was curious to
understand more about how he was abused and how other young people felt
about it.”8
                                    II. DISCUSSION
A. Evidence of child erotica in presentencing
    The appellant alleges plain error in the military judge’s admission of
testimony about the appellant’s possession of child erotica in presentencing
because it did not directly relate to or result from his offenses, as required by
RULE FOR COURTS-MARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR COURTS-
MARTIAL, UNITED STATES (2016 ed.).
   When an appellant does not object to the admission of evidence at trial,
we review the issue for plain error. United States v. Hardison, 64 M.J. 279,
281 (C.A.A.F. 2007). Of note, the appellant waived any objection to relevant
documentary exhibits, including “relevant [NCIS] evidentiary material,” as
part of his pretrial agreement.9 Although the NCIS agent’s testimony
primarily repeated information from the NCIS reports, one notable difference
was the agent’s testimony that “thousands of images of child erotica” were on
one of the appellant’s iPhones.10 Such quantification did not appear in the
admitted NCIS reports. Under these unique circumstances, we will assume

   5   Id. at 86.
   6   Id. at 116.
   7   Defense Exhibit B.
   8   Id. at 2.
   9   Appellate Exhibit (AE) III at 2.
   10   Record at 86.


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without deciding that the appellant forfeited rather than waived any
objection to the evidence of child erotica and will review the appellant’s claim
under the plain error standard of whether “(1) an error was committed; (2)
the error was plain, or clear, or obvious; and (3) the error resulted in material
prejudice to substantial rights.” Hardison, 64 M.J. at 281 (citation omitted).
“When the issue of plain error involves a judge-alone trial, an appellant faces
a particularly high hurdle. A military judge is presumed to know the law and
apply it correctly [and] is presumed capable of filtering out inadmissible
evidence[.]” United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000)
(citation omitted).
    The appellant asserts the military judge erred in his application of R.C.M.
1001(b)(4), which allows trial counsel to “present evidence as to any
aggravating circumstances directly relating to or resulting from the offense of
which the accused has been found guilty.” In addition to a direct nexus to the
charged offense, aggravation evidence must pass the MILITARY RULE OF
EVIDENCE (MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2016 ed.) test. The military judge must balance “the probative value
of any evidence against its likely prejudicial impact.” Hardison, 64 M.J. at
281 (citation omitted).
   1. Direct relationship between child erotica and child pornography
    Child erotica differs primarily from child pornography in that (1)
possession of child erotica is not explicitly prohibited under the UCMJ,11 and
(2) child erotica portrays something less than sexually explicit conduct. Our
court has previously adopted a definition of child erotica applied in Article III
federal courts: “‘material that depicts young girls [or boys] as sexual objects
or in a sexually suggestive way, but is not sufficiently lascivious to meet the
legal definition of sexually explicit conduct[.]’” United States v. Lancina, No.
201600242, 2017 CCA LEXIS 436, *21, unpublished op. (N-M. Ct. Crim. App.
30 Jun 2017) (quoting United States v. Rapp, No. 201200303, 2013 CCA
LEXIS 355, *24 n.15, unpublished op. (N-M. Ct. Crim. App. 30 Apr 2013)).
The Manual for Courts-Martial defines child pornography as “material that
contains either an obscene visual depiction of a minor engaging in sexually
explicit conduct or a visual depiction of an actual minor engaging in sexually
explicit conduct.” MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part IV, ¶
68b.c(1) (2016 ed.).
   The relationship between child erotica and child pornography appears in
military case law in multiple contexts. In Lancina, we “agree[d] that the

   11  Under certain circumstances, possession of child erotica may theoretically be in
violation of Article 134, UCMJ, under clause 1 or clause 2 theories of liability.
MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part IV, ¶ 60.a.-c. (2016 ed.).


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                     United States v. Padilla, No. 201600241


presence of child erotica can be, at minimum, a factor in finding a substantial
basis for probable cause to suspect the appellant committed a child
pornography offense under the totality of the circumstances.” Id. at *23. In
United States v. Griffing, the Air Force Court of Criminal Appeals upheld a
military judge’s decision to admit child erotica to prove a fact of consequence
regarding possession of child pornography. No. 38443, 2015 CCA LEXIS 101,
*33, unpublished op. (A. F. Ct. Crim. App. 23 Mar 2015). The Air Force court
relied in part on United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013), in which
“[o]ur superior court has cited, with approval, a decision by the United States
Court of Appeals for the Third Circuit holding that in a prosecution for
possession of child pornography, images of ‘child erotica,’ while legal to
possess, may nonetheless be admitted to show intent to commit the charged
offense.”Griffing, 2015 CCA LEXIS 101, *34 (quoting Warner, 73 M.J. at 3)
(citing United States v. Vosburgh, 602 F.3d 512, 538 (3d Cir. 2010)).
    Under most circumstances, possession of child erotica is not misconduct.
Nevertheless, the direct relationship required by R.C.M. 1001(b)(4) is often
defined in the context of uncharged misconduct. Uncharged misconduct is
considered directly related when it is not isolated but “closely related in time,
type, and/or often outcome, to the convicted crime.” Hardison, 64 M.J. at 282.
See also United States v. Nourse, 55 M.J. 229, 232 (C.A.A.F. 2001) (noting
“that when uncharged misconduct is part of a continuous course of conduct
involving similar crimes and the same victims, it is encompassed within the
language ‘directly relating to or resulting from the offenses of which the
accused has been found guilty’ under RCM 1001(b)(4)”); United States v.
Metz, 34 M.J. 349, 351 (C.M.A. 1992) (finding “[a]n additional basis for logical
relevance” when the uncharged acts are “part of the res gestae” of the offense
and help place the evidence of identity and intent in context).
    The appellant simultaneously possessed child pornography and child
erotica, downloaded from the internet. In his providence colloquy, the
appellant admitted to downloading the pornography from a single application
that served as a one-stop shop for materials intended to satisfy sexual
desires. Scrolling down a screen listing search results, the appellant selected
file titles that appealed to him without knowing exactly what he was
downloading.
   In a similar case before the Air Force Court of Criminal Appeals, an
“appellant repeatedly went to the Internet to search for child pornography
and then downloaded over 1,400 files that either contained images of children
engaging in sexually explicit conduct or depicted children as sexual objects or
in a sexually suggestive way.” United States v. Mullings, No. 38623, 2015
CCA LEXIS 405, *14-15, unpublished op. (A. F. Ct. Crim. App. 30 Sep 2015).
Our sister court found that Mullings’ possession of child erotica, while lawful,


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was “closely related in time, type, and outcome to his possession of child
pornography, and thus was admissible under R.C.M. 1001(b)(4).” Id. at *15.
While the appellant in the case before us denied explicitly searching for child
pornography, he acknowledged intentionally selecting titles clearly
advertising the portrayal of children and downloading them.
    Despite the appellant’s contentions, child erotica’s status as lawful,
protected expression does not isolate it from child pornography. The
similarities inherent in the sexualized depiction of children and the co-
existence of child pornography and child erotica on websites and in personal
digital collections, along with the case law, support finding that
contemporaneous possession of child erotica is directly related to possession
of child pornography and thus admissible under R.C.M. 1001(b)(4).
   2. Prejudice
    Although it is debatable whether evidence of child erotica constituted
evidence of uncharged misconduct in this case, Hardison requires us to apply
MIL. R. EVID. 403 and balance the probative value of aggravating evidence
against its potential prejudicial effect. 64 M.J. at 281. The test for plain
error—assuming, arguendo, that there was plain error—also requires us to
determine whether the appellant suffered material prejudice to a substantial
right. Id. In the presentencing context, we ask whether the erroneous
admission “substantially influenced the adjudged sentence,” United States v.
Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005) (citations omitted), and employ the
Saferite test to analyze:
       (1) the probative value and weight of the evidence (including
       the ‘content and tone’ of testimonial evidence);
       (2) the importance of the evidence in light of other sentencing
       considerations, including the military judge’s instructions;
       (3) the danger of unfair prejudice resulting from the
       evidentiary ruling; and
       (4) the sentence actually imposed, compared to the maximum
       and to the sentence the trial counsel argued for.
Id. at 413 (Crawford, J., dissenting) (citing United States v. Saferite, 59 M.J.
270, 274-75 (C.A.A.F. 2004)).
   First, the probative value and weight of the evidence of the appellant’s
possession of child erotica was minimal. None of the images of child erotica
was admitted for the military judge’s or this court’s review. The record
contained no description of the images characterized as child erotica. The
appellant’s child erotica had neither content nor tone. Its probative value
presumably lay in demonstrating the breadth and depth of the appellant’s


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interest in sexualized depictions of children and rebutting any suggestions
that he did not seek child pornography but merely accepted it when it was
presented to him.
    In light of the other evidence presented in sentencing, by the government
and the appellant, the evidence of child erotica was unimportant. The
military judge’s obligation to view and ability to consider four images and 19
videos of children engaged in sexually explicit conduct overshadow his more
abstract awareness that the appellant also possessed thousands of images of
children not engaged in sexually explicit acts. The NCIS reports, which the
appellant accepted as evidence as part of his pretrial agreement, referred to
his possession of more than 12,000 images, some of which were child erotica.
With regard to a potential predilection toward children, the appellant
acknowledged, through his psychologist’s report, that his pornography
addiction had evolved to include viewing children. Presumably for
extenuation and mitigation, the appellant attributed this to his own history
of sexual abuse as a child.
    For the reasons cited above, the danger of unfair prejudice from
admission of the testimony about child erotica is negligible, if not non-
existent.
    The military judge awarded the appellant 12 months’ confinement, the
maximum amount available at a special court-martial. But the adjudged
sentence must be considered in light of the appellant’s agreement to plead
guilty in return for referral to a lesser forum.12 The appellant’s sentence falls
far short of the authorized maximum punishment of ten years’ confinement
and a dishonorable discharge and is well within the appropriate range of
punishment for the volume of child pornography possessed.
   Not only was the testimony about the appellant’s possession of child
erotica directly related to his charged possession of child pornography, but
even its minor probative value far outweighed its potential prejudicial effect.
   While this court finds no error, much less plain, clear, or obvious error, in
the NCIS agent’s testimony, there was also no material prejudice to the
appellant’s sentence or his substantial rights.
B. Correction of court-martial order
    The appellant pleaded guilty to possessing child pornography “between on
or about 24 April 2013 to 3 December 2014.”13 The court-martial order
reflects possession until about December 2014 but omits the day of the


   12   AE III and IV.
   13   Charge Sheet.


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                     United States v. Padilla, No. 201600241


month. The appellant is entitled to official records that correctly reflect the
results of his proceeding. United States v. Crumpley, 49 M.J. 538, 539 (N-M.
Ct. Crim. App. 1998). Accordingly, we order corrective action in our decretal
paragraph.
                              III. CONCLUSION
   The finding of guilty and the sentence as approved by the convening
authority are affirmed.
   The supplemental court-martial order shall reflect that the offense
occurred “between on or about 24 April 2013 to 3 December 2014.”


                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




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