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

                            No. ACM 38977
                        ________________________

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

       Appeal from the United States Air Force Trial Judiciary
                         Decided 6 June 2017
                        ________________________

Military Judge: Wendy Sherman (arraignment); James R. Dorman
(trial).
Approved sentence: Dishonorable discharge, confinement for 6 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 3 September 2015 by GCM convened at Sheppard Air Force Base,
Texas.
For Appellant: Major Lauren A. Shure, USAF; Captain Patrick A. Clary,
USAF.
For Appellee: Major G. Matt Osborn, USAF; Major Mary Ellen Payne,
USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and SPERANZA, Appellate Military
Judges.
Senior Judge JOHNSON delivered the opinion of the court, in which
Senior Judge MAYBERRY and Judge SPERANZA 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   This is an unpublished opinion and, as such, does not serve as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. Thomas, No. ACM 38977


JOHNSON, Senior Judge:
    A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of one specification of attempting to commit a lewd act
on a child under the age of 16 years in violation of Article 80, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 880. 1 The court-martial sentenced Appel-
lant to a dishonorable discharge, confinement for six months, total forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority approved the sentence as adjudged.
    Before us, Appellant raises a single assignment of error: that the evidence
was legally and factually insufficient to sustain his conviction. In addition, we
consider whether Appellant is entitled to relief due to a facially unreasonable
delay in the post-trial processing of his case. 2 Finding no relief is warranted on
either count, we affirm the findings and sentence.

                                      I. BACKGROUND
    Appellant was in training at Sheppard Air Force Base (AFB), Texas, when
a personal advertisement in the “Casual Encounters” section of the Craigslist
website attracted his attention. The author purported to be a dependent look-
ing for “an Air Force man” in Wichita Falls, Texas. Appellant responded to the
ad and began an electronic correspondence with “Tina,” a fictional 14-year-old
female dependent residing on Sheppard AFB who was created by Air Force


1 The court-martial found Appellant not guilty of attempting to persuade, induce, or
entice a child under the age of 18 years to engage in criminal sexual activity by using
a means or facility of interstate commerce, in violation of Article 134, UCMJ, 10 U.S.C.
§ 934.
2   This court specified the following issue for the parties to brief:
          DOES THE PRESUMPTIVELY UNREASONABLE DELAY BE-
          TWEEN THE CONCLUSION OF APPELLANT’S TRIAL AND THE
          CONVENING AUTHORITY’S ACTION CONSTITUTE A VIOLA-
          TION OF APPELLANT’S DUE PROCESS RIGHT TO SPEEDY POST-
          TRIAL AND APPELLATE REVIEW OR OTHERWISE WARRANT
          RELIEF FROM THIS COURT? UNITED STATES V. MORENO, 63
          M.J. 129, 142 (C.A.A.F. 2006) (PRESUMPTION OF UNREASONA-
          BLE DELAY TRIGGERING FOUR-FACTOR ANALYSIS WHERE
          CONVENING AUTHORITY ACTION IS NOT TAKEN WITHIN 120
          DAYS OF TRIAL); UNITED STATES V. TARDIF, 57 M.J. 219, 224
          (C.A.A.F. 2002) (COURTS OF CRIMINAL APPEALS HAVE AU-
          THORITY UNDER ARTICLE 66(C), UCMJ, TO GRANT RELIEF FOR
          EXCESSIVE POST-TRIAL DELAY WITHOUT FINDING A DUE
          PROCESS VIOLATION OR ACTUAL PREJUDICE TO THE APPEL-
          LANT).


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                  United States v. Thomas, No. ACM 38977


Office of Special Investigations (AFOSI) Special Agent (SA) TK, stationed in
Quantico, Virginia.
   When Appellant initially responded to “Tina’s” ad, she informed him that
she was only 14 years old, but if he was “still interested” she advised him to
contact her on Yahoo! Messenger. Appellant did so. Their month-long corre-
spondence eventually turned sexually explicit. Appellant described various
sexual acts he wanted to perform with “Tina,” and he sent her a photo of his
penis as well as seven videos of himself masturbating.
   Appellant pressed “Tina” to agree to meet with him for a sexual encounter.
Eventually they arranged to meet on a weekday morning when she purportedly
would not be going to school and would be alone. After Appellant parked by the
on-base residence “Tina” identified, several AFOSI agents emerged from the
house and apprehended him.

                                II. DISCUSSION
A. Legal and Factual Sufficiency of the Evidence
    We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). Our assessment 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).
    The test for legal sufficiency of the evidence 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. Turner, 25 M.J. 324, 324 (C.M.A. 1987); see also United States v. Hum-
pherys, 57 M.J. 83, 94 (C.A.A.F. 2002). The “reasonable doubt” standard does
not require that the evidence be free from conflict. United States v. Lips, 22
M.J. 679, 684 (A.F.C.M.R. 1986). “[I]n resolving questions of legal sufficiency,
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).
    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 the [appellant]’s guilt beyond a reasonable
doubt.” Turner, 25 M.J. at 325; see also United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). In conducting this unique appellate role, we take “a fresh, im-
partial look at the evidence,” applying “neither a presumption of innocence nor
a presumption of guilt” to “make [our] own independent determination as to
whether the evidence constitutes proof of each required element beyond a rea-
sonable doubt.” Washington, 57 M.J. at 399.

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                  United States v. Thomas, No. ACM 38977


    Appellant was convicted of a single specification under Article 80, UCMJ,
alleging an
      attempt to commit a lewd act upon a child who had not attained
      the age of 16 years, to wit: by intentionally communicating inde-
      cent language, and transmitting video of his exposed genitalia to
      an undercover AFOSI agent, who he believed to be a 14 year old
      girl, with an intent to gratify the sexual desire of [Appellant].
As the military judge instructed the members, in order to secure a conviction
the Prosecution was required to prove:
       (1) That . . . [Appellant] did certain acts, that is: intentionally
       communicating indecent language and transmitting video of his
       exposed genitalia to an undercover [AFOSI] agent who he be-
       lieved to be a 14-year-old girl;
       (2) That the acts were done with the specific intent to commit
       the offense of sexual abuse of a child;
       (3) That the acts amounted to more than mere preparation; that
       is, they were a substantial step and a direct movement toward
       the commission of the intended offense; and
       (4) That such acts apparently tended to bring about the commis-
       sion of the offense of sexual abuse of a child; that is, the acts
       apparently would have resulted in the actual commission of the
       offense of sexual abuse of a child, except for a circumstance un-
       known to [Appellant] that the actual recipient of the alleged
       communications was an [AFOSI] agent, a fact which prevented
       completion of the offense.
       ...
       The elements of sexual abuse of a child are:
       (1) That [Appellant] committed a lewd act upon a child, to wit:
       intentionally communicating indecent language and transmit-
       ting video of his exposed genitals; and
       (2) That at the time, the child had not attained the age of 16
       years.
       ...
       “Lewd act” means:
       (A) intentionally exposing one’s genitalia . . . to a child by any
       means, including via any communication technology, with an in-
       tent to arouse or gratify the sexual desires of [Appellant]; or


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                    United States v. Thomas, No. ACM 38977


       (B) intentionally communicating indecent language to a child by
       any means, including via any communication technology, with
       an intent to arouse or gratify the sexual desires of [Appellant].
See 10 U.S.C. §§ 880, 920b; Department of the Army Pamphlet 27-9, Military
Judges’ Benchbook, ¶ 3–4–1 and ¶ 3–45–7.
    At trial, the Prosecution introduced the testimony of SA TK, who created
and impersonated “Tina”; the testimony of several AFOSI agents at Sheppard
AFB involved in the investigation and apprehension of Appellant; and a stipu-
lation of expected testimony from the Defense Computer Forensics Laboratory
examiner who recovered Appellant’s Yahoo! Messenger chat log with “Tina”
from Appellant’s phone. The Prosecution also introduced the communications
between Appellant and “Tina,” which included Appellant’s graphic descrip-
tions of various sexual acts he wanted to perform on and with her. In addition,
the Prosecution introduced the seven masturbation videos and one penis photo
Appellant sent “Tina.”
    Appellant does not deny that he communicated with “Tina,” that she told
him she was only 14 years old, or that his messages and videos were “lewd.”
Rather, his argument is the same one he made at trial: he never believed “Tina”
was actually a 14-year-old girl. He contends he thought “Tina” was an adult
playing the role of an underage girl. In support of this contention, Appellant
testified at trial regarding eight prior occasions when he used Craigslist “Cas-
ual Encounters” listings to arrange sexual encounters with strangers. Appel-
lant testified that on each of these occasions he met with adults, two of whom
substantially misrepresented their actual identity: a woman who portrayed
herself as substantially younger and thinner than she was, and a man who
portrayed himself as a woman. However, Appellant testified he had not previ-
ously encountered an adult who portrayed himself or herself as a child on
Craigslist.
    We find Appellant’s argument unconvincing. “Tina” was consistently por-
trayed as 14 years old. Her initial response to Appellant’s contact stated: “I am
a dependent but probably not what your [sic] thinking. I’m a 14 year old, very
mature, blond hair, blue eyed, petite cutie looking for a mature Air Force man
to nurture and teach my [sic] . . . If your [sic] still interested lets [sic] chat (ya-
hoo messenger [username]) . . .” Later, when Appellant asked her what she did
“for a living,” “Tina” responded “lol this is where the discussion ends. haha im
[sic] a student 14.” Appellant responded “Wow ur 14?! Ur into older guys huh?
Lol.” At Appellant’s persistent request, “Tina” later sent Appellant two photos




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                    United States v. Thomas, No. ACM 38977


purportedly depicting her face. 3 On cross-examination, Appellant acknowl-
edged receiving them and that they appeared to depict a girl under the age of
16. Appellant responded to the first of these by text: “U look good baby, I can’t
wait to f[*]ck u, u sure u can’t sneak out tonight for a bit?”
    Appellant admitted on cross-examination that in a text conversation that
spanned a month and consisted of over 500 messages, at no point did he at-
tempt to clarify that “Tina” was in fact an adult rather than a child, nor was
there any indication in the messages that “Tina” was anything other than a
14-year-old girl. To the contrary, “Tina” repeatedly referred to her school
schedule, and Appellant requested that she “skip” school and “sneak out” of
her house to meet with him. We are not persuaded by Appellant’s self-serving
testimony that, despite the absence of any suggestion in the messages that he
doubted “Tina’s” age, he nevertheless did not believe she was 14 years old.
     Furthermore, we are not moved by Appellant’s claims that he is attracted
to more mature women. The texts evince no hesitation on Appellant’s part in
sharing explicit sexual images and messages and attempting to arrange a sex-
ual encounter with someone purporting to be a 14-year-old child. In fact, rather
than shifting his attention to the pursuit of older females, Appellant was nota-
bly persistent in continuing to text “Tina” even when she fell silent for periods
of five, and later ten, consecutive days before resuming the exchange. Regard-
less of Appellant’s professed preferences, we are convinced he sent his indecent
messages and videos to someone he believed to be 14 years old.
    Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” Barner, 56 M.J. at 134, the evidence was legally sufficient to
support a finding beyond a reasonable doubt that Appellant intentionally
transmitted indecent language and videos of his exposed genitalia to someone
he believed to be a child under the age of 14 years, with the intent to gratify
his sexual desires. Moreover, having weighed the evidence in the record of trial
and having made allowances for not having personally observed the witnesses,
we are convinced of Appellant’s guilt beyond a reasonable doubt. See Turner,
25 M.J. at 325. Appellant’s conviction is therefore both legally and factually
sufficient.
B. Post-Trial Delay
   Appellant’s court-martial concluded on 3 September 2015 at Sheppard
AFB, Texas. The convening authority, located at Keesler AFB, Mississippi,
took action 145 days later on 26 January 2016. In United States v. Moreno, 63
M.J. 129, 142 (C.A.A.F. 2006), our superior court established a presumption of


3As SA TK explained, these were not pictures of an actual child but photos of a female
AFOSI agent that had been digitally “age regressed” to a target age of 13.


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                   United States v. Thomas, No. ACM 38977


facially unreasonable post-trial delay when the convening authority does not
take action within 120 days of trial.
    Because there is a facially unreasonable delay, we examine the four factors
set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the
delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to
a timely review; and (4) prejudice to the appellant. Moreno, 63 M.J. at 135
(citing United States v. Jones, 61 M.J. 80, 83 (C.A.A.F. 2005), United States v.
Toohey, 60 M.J. 100, 102 (C.A.A.F. 2004)). “No single factor is required for find-
ing a due process violation and the absence of a given factor will not prevent
such a finding.” Id. at 136 (citing Barker, 407 U.S. at 533). However, where an
appellant has not shown prejudice from the delay, there is no due process vio-
lation unless the delay is so egregious as to “adversely affect the public’s per-
ception of the fairness and integrity of the military justice system.” United
States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006).
    As to the first factor—the length of the delay—the 145 days that elapsed
from the conclusion of Appellant’s trial until the convening authority took ac-
tion exceeded the Moreno standard by 25 days. This weighs moderately in Ap-
pellant’s favor.
    As to the second factor—the reasons for the delay—the Government has
offered the declarations of the staff judge advocate (SJA) at Sheppard AFB and
the chief of military justice in the office of the convening authority’s SJA, which
provide a detailed timeline for the post-trial processing of Appellant’s case. The
Government points to the high military justice workload at Sheppard AFB in
the four months following Appellant’s court-martial and to the number of cases
being processed by the convening authority’s SJA at the end of 2015 as reasons
for the delay. The Government also points to the 29 days that elapsed between
the court reporter sending the transcript to the military judge for review and
the military judge’s completion of that review. Although we are not convinced
Appellant’s case could not have been processed somewhat more rapidly, abso-
lute efficiency is not the test for due process. We find the delay is primarily
attributable to the volume of work at the base legal office and the office of the
convening authority’s SJA, to reasonable decisions regarding the prioritization
of that work, and to a lesser extent to the military judge. Under the circum-
stances the delay attributable to the Government was not excessive, and thus
this factor weighs in favor of the Government.
   As to the third factor—Appellant’s assertion of his right to timely review—
Appellant notes and the Government acknowledges that Appellant, through
counsel, complained of the post-trial delay in his clemency submission dated
13 January 2016. However, waiting until clemency to raise the concern, after
132 days had already elapsed and less than two weeks before the convening



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                   United States v. Thomas, No. ACM 38977


authority took action, minimized the complaint’s significance. We find this fac-
tor does not weigh substantially in Appellant’s favor.
    Turning to the fourth factor—prejudice—we note Moreno identified three
types of prejudice arising from post-trial processing delay: (1) oppressive incar-
ceration; (2) anxiety and concern; and (3) impairment of the appellant’s ability
to present a defense at a rehearing. 63 M.J. at 138–39. Where, as here, an
appellant does not prevail on the substantive grounds of his appeal, there is no
oppressive incarceration. Id. at 139. Similarly, where Appellant’s substantive
appeal fails, his ability to present a defense at a rehearing is not impaired. Id.
at 140. However, under the facts of this case, we do find Appellant had a “par-
ticularized anxiety or concern that is distinguishable from the normal anxiety
experienced” by appellants awaiting an appellate decision. See id. Specifically,
Appellant’s clemency request asked the convening authority to “disapprove or
commute a portion of the adjudged [six-month term of] confinement.” Although
the convening authority could have disapproved some or all of Appellant’s con-
finement even if it had been served in full, 4 Appellant nevertheless had an
interest in having the convening authority act on his request sooner rather
than later in order to potentially minimize the amount of time he actually
spent in confinement. Moreover, “[a]n appellant may suffer constitutionally
cognizable anxiety regardless of the outcome of his appeal.” Id.
   Yet, while cognizable, the weight of the prejudice is slight in this case. As
noted, the convening authority’s ability to disapprove some portion of confine-
ment was not impacted by the delay. In addition, Appellant faced a maximum
possible punishment that included 15 years of confinement; in the face of this
and the SJA’s recommendation that the sentence be approved as adjudged, the
convening authority was unlikely to find Appellant’s request persuasive. Ulti-
mately, the convening authority evidently did not find Appellant’s clemency
presentation sufficiently compelling to warrant any relief.
   Although the issue is a close one, considering all the factors together we do
not find a violation of Appellant’s due process right to timely post-trial pro-
cessing and appeal.
    Recognizing our authority under Article 66(c), UCMJ, we have also con-
sidered whether relief for excessive post-trial delay is appropriate in this case
even in the absence of a due process violation. See United States v. Tardif, 57
M.J. 219, 225 (C.A.A.F. 2002). After considering the factors enumerated in
United States v. Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J.

4See United States v. Jones, No. ACM 39140, 2017 CCA LEXIS 310, at *6 (A.F. Ct.
Crim. App. 28 Apr. 2017) (unpub. op.).




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                    United States v. Thomas, No. ACM 38977


264 (C.A.A.F. 2016), 5 we conclude it is not. On the whole, the processing of
Appellant’s case has not been subjected to extensive post-trial delay, and we
perceive no substantial harm to Appellant, prejudice to the interests of justice
or discipline, or erosion of this court’s ability to conduct our review or grant
appropriate relief that would move us to modify an otherwise fitting sentence.

                                  III. CONCLUSION
    The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                   FOR THE COURT



                   KURT J. BRUBAKER
                   Clerk of the Court




5 These factors include: (1) how long the delay exceeded the standards set forth in
Moreno; (2) what reasons, if any, the Government set forth for the delay, and wheth-
er there is any evidence of bad faith or gross indifference to the overall post-trial pro-
cessing of this case; (3) whether there is evidence of harm (either to the appellant or
institutionally) caused by the delay; (4) whether the delay has lessened the disciplinary
effect of any particular aspect of the sentence, and is relief consistent with the dual
goals of justice and good order and discipline; (5) whether there is any evidence of in-
stitutional neglect concerning timely post-trial processing, either across the service or
at a particular installation; and (6) given the passage of time, whether this court can
provide meaningful relief in this particular situation. 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).


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