           UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                         UNITED STATES

                                                     v.

                        Staff Sergeant JEREMIAH L. THOMPSON
                                  United States Air Force

                                              ACM 38269

                                             17 June 2014

         Sentence adjudged 29 November 2012 by GCM convened at Joint Base
         Lewis–McChord, McChord Field, Washington. Military Judge: Martin T.
         Mitchell (sitting alone).

         Approved Sentence: Dishonorable discharge, confinement for 2 years,
         forfeiture of all pay and allowances, and reduction to E-1.

         Appellate Counsel for the Appellant: Major Nicholas D. Carter.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Daniel J. Breen; Major John M. Simms; and Gerald R. Bruce,
         Esquire.

                                                  Before

                           MARKSTEINER, HECKER, and WEBER
                                Appellate Military Judges

                                    OPINION OF THE COURT

                    This opinion is subject to editorial correction before final release.



WEBER, Judge:

       A military judge sitting as a general court-martial convicted the appellant, contrary
to his pleas, of three specifications of knowingly and wrongfully possessing one or more
visual depictions of minors engaging in sexually explicit conduct, in violation of
Article 134, UCMJ, 10 U.S.C. § 934. He was also convicted of one specification of the
knowing and wrongful receipt of such material, also in violation of Article 134, UCMJ.
The adjudged and approved sentence consisted of a dishonorable discharge, confinement
for 2 years, forfeiture of all pay and allowances, and reduction to E-1.
       The appellant raises four issues for our consideration: (1) whether his convictions
for knowingly and wrongfully possessing such material are factually and legally
sufficient; (2) whether his conviction for knowingly and wrongfully receiving such
material is factually and legally sufficient; (3) whether his convictions must be set aside
because several depictions offered in support of the specifications are constitutionally
protected, and it is impossible to determine whether such constitutionally-protected
depictions contributed to the general verdict of guilt; and (4) whether the military judge
erred by admitting a peer-to-peer report that listed file names that were not found on the
appellant’s computer. We find no error materially prejudicial to a substantial right of the
appellant and affirm.

                                       Background

       The Air Force Office of Special Investigations (AFOSI) learned from a civilian
law enforcement agency in 2011 that the appellant had, in 2007, subscribed to a website
suspected of containing child pornography. AFOSI agents interviewed the appellant after
advising him of his rights under Article 31(b), UCMJ, 10 U.S.C. § 831(b). The appellant
waived his rights and provided a statement to investigators. He told agents he had an
interest in “young and developing” girls, and later defined his age of interest as ranging
from 13 to 16 years old. He admitted to subscribing to the website in question for one
month, during which he repeatedly viewed depictions of underage girls and would
masturbate while viewing these depictions. He stated that he did not renew his
membership to the site after a month, but instead conducted internet searches and visited
another website that displayed images of children and families in stages of undress.
Again, he masturbated while viewing these images. The appellant admitted to a “dark,
sick attraction to the developing woman” and admitted that he “definitely” viewed nude
images and videos of girls under the age of 18.

        Despite these admissions, the appellant repeatedly insisted his interest was
restricted to nudist and naturalist images or videos of girls in their teenage years. He
stated that these websites depicting nudist and naturalist material did not depict explicit
sexual activity. He also stated that while searching for such material, he would
sometimes find other sites that displayed younger children engaged in explicit sexual
activity. When he came across such websites, he stated he would “turn the other way.”
He denied intentionally looking at material that depicted girls who were not yet
beginning to develop or who were involved in explicit sexual activity.

       AFOSI agents seized several media devices the appellant owned, including two
laptop computers and a desktop computer. A forensic analysis of these devices revealed
numerous images depicting minors engaged in sexually explicit conduct, along with a
smaller number of videos depicting such conduct. The Government charged the
appellant with knowingly and wrongfully possessing 216 such images and videos on six
items of computer hardware. The military judge convicted the appellant of three of the


                                             2                                   ACM 38269
charges that encompassed the appellant’s two laptop computers and his desktop
computer. The military judge also convicted the appellant of knowingly receiving visual
depictions of minors engaging in sexually explicit conduct; this specification was not
specific to any particular piece of computer hardware.

                              Factual and Legal Sufficiency

       The appellant contends his convictions for possession and receipt of visual
depictions of minors engaging in sexually explicit conduct are factually and legally
insufficient. We address his two alleged errors involving the possession and receipt
specifications together. As to the possession specifications, the appellant alleges his
convictions should not stand because the images and videos were found exclusively in
areas of the hard drives inaccessible to the appellant, and because the evidence does not
demonstrate he knew of the existence of the files on his computers. As to the receipt
specification, the appellant alleges the evidence did not demonstrate he viewed or
knowingly received any of the material found on his computers.

      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).

       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 accused’s guilt beyond a reasonable doubt.” United States v.
Turner, 25 M.J. 324, 325 (C.M.A. 1987). 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 determination as
to whether the evidence constitutes proof of each required element beyond a reasonable
doubt.” Washington, 57 M.J. at 399.

       “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. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002) (citation and internal quotation marks omitted). “[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) (citations omitted).

       The elements of the specifications alleging the appellant wrongfully possessed
visual depictions of minors engaged in sexually explicit conduct are as follows:




                                             3                                   ACM 38269
        (1) That at or near Papa Air Base, Hungary, between on or about
            1 August 2007 and on or about various dates in mid-2011,1 the appellant
            knowingly and wrongfully possessed one or more visual depictions of
            minors engaging in sexually explicit conduct; and

        (2) That, under the circumstances, the appellant’s conduct was prejudicial
            to good order and discipline in the armed forces and was of a nature to
            bring discredit upon the armed forces.2

Manual for Courts-Martial, Part IV, ¶ 60.b. (2008 ed.).

       The elements of the specification alleging that the appellant knowingly and
wrongfully received visual depictions of minors engaged in sexually explicit conduct are
identical to the elements for possession, except the first element requires proof that the
appellant knowingly and wrongfully received such material on divers occasions between
on or about 1 August 2007 and on or about 16 August 2011.

       We acknowledge, as did trial counsel in his closing argument, that “the forensic
evidence by itself has a lot of gaps in it.” The prosecution exhibits and the testimony of a
computer forensics expert establish that nearly all the charged files were found in
unallocated space on the appellant’s computer hard drives or through a shadow volume
copy. A user would not have had access to these areas without specialized knowledge
and software. In addition, the majority of the charged files consisted of “thumbnail”
images that are typically placed on a user’s hard drive through an internet cache without
the user taking any active steps to download the images. Of the 216 charged files, the
Government’s computer forensics expert could only determine that one was accessed by
a user of the computer; that image was several years old and was in the computer’s
recycle bin. Finally, the forensic review of the appellant’s computer hard drives revealed
no evidence a user employed any internet search terms indicative of child pornography.

       Despite these gaps, we conclude the appellant’s conviction is factually and legally
sufficient. The forensic evidence may not have been dispositive, but it contained
significant evidence of the appellant’s knowing and wrongful receipt and possession of
visual depictions of minors engaged in sexually explicit conduct. The fact that the
appellant’s computer hard drives contained such images and videos in unallocated space
suggests that they were once in a logical file accessible by the user, according to the
computer forensics expert’s testimony. Other charged files were restored from a shadow

1
  Specification 1, involving the appellant’s Apple MacBook Pro laptop computer, employs an end date of on or
about 11 July 2011. Specification 4, involving the appellant’s Gateway laptop computer, employs an end date of on
or about 2 August 2011. Specification 5, involving the appellant’s Hewlett-Packard desktop computer, employs an
end date of on or about 16 August 2011.
2
  The Government charged the appellant in the conjunctive, meaning it needed to prove that his conduct met the
terminal elements of both Clauses 1 and 2 of the General Article of Article 134, UCMJ, 10 U.S.C. § 834.


                                                       4                                            ACM 38269
volume copy, which is a system backup of the accessible computer system at a given
point in time. This means these images and videos were accessible by the appellant at the
time the shadow volume copy was made. The forensic evidence also rules out the
appellant’s assertion that the “thumbnail” images could have been automatically cached
without his knowledge when he visited legal websites. The amount, nature, and names of
the files on the appellant’s computer hard drives, combined with the fact that the videos
and some images were not thumbnails, rule out any reasonable possibility of an accident.
In addition, despite the lack of any specific internet search terms for child pornography,
the forensic review of the appellant’s hard drives demonstrates he visited webpages with
graphic names that easily would have put him on notice that he was encountering child
pornography. The appellant simply could not have located, received, and possessed such
graphic materials by visiting innocent, legal websites, and he cannot claim that he did not
know he was venturing into sites containing illegal material.

       The appellant’s confession firmly shores up any remaining gaps in the forensic
evidence. When confronted by AFOSI, the appellant repeatedly denied knowledge of
any reason why he might be suspected of receiving and possessing child pornography.
Eventually, though, he began to haltingly admit misconduct. He admitted to subscribing
to an internet “magazine” for one month that contained nude images of underage girls as
young as 15 to 16 years old. He conceded that he did not know how such images “fall
under you guys’ laws,” and stated he was looking for something “extreme” and different
from adult pornography. While he first denied that he was more attracted to girls under
the age of 18 than adult women, he later admitted he was “partial” to girls ranging from
13 to 16 years old. He also admitted that his desire for girls of that age was still present,
and that he masturbated while viewing images and videos of underage girls on the
internet magazine. Confronted again by AFOSI agents, he disclosed that he currently
subscribed to a similar website that contained nude images of families, including girls
under the age of 18. He repeatedly denied intentionally viewing images or videos of
explicit sexual conduct involving underage girls or depictions of girls under the
age of 13. However, he stated that if he encountered such files, it was in the course of
trying to locate his internet magazine website, and he would navigate away from such
websites. He also admitted to some degree of knowledge that images he viewed on the
internet would be saved in his temporary internet files, and he excluded any possibility
that other people used the computers in question. Finally, the appellant admitted that he
had a “dark, sick attraction to the developing woman” and that he knew his actions were
wrong and he felt bad about them.

       The combination of the forensic evidence and the appellant’s confession convinces
us that the appellant’s convictions for receipt and possession of visual depictions of
minors engaged in sexually explicit conduct is factually and legally sufficient. More than
200 graphic sexual images of young children were found on the appellant’s computer
hard drives. The appellant also visited web pages with graphic terms associated with
child pornography. All these files were at one point in accessible portions of the


                                              5                                    ACM 38269
appellant’s computer hard drives, and even if many of them were placed there through an
internet cache process, the appellant admitted to at least some knowledge that images he
viewed would be saved to his computer hard drives. The appellant admitted to an
attraction to underage girls and to masturbating to nude images of girls as young as 13
years old. His confession does not wholly align with the images and videos found on his
computer hard drives, but we are nonetheless convinced that the forensic evidence and
the appellant’s confession jointly demonstrate the appellant knowingly and wrongfully
received and possessed the charged files.

                                General Verdict of Guilt

       The appellant next urges us to set aside his convictions because several of the
charged files do not contain child pornography and are constitutionally protected.
Relying primarily on United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012), he asserts
the military judge’s general verdict may not stand because it is impossible to determine
whether he was convicted based in part on his receipt and possession of the
constitutionally protected files.

       The military justice system employs a presumption in favor of general verdicts;
such verdicts will not ordinarily be set aside even if there are alternate or multiple
theories of guilt. See United States v. Rodriguez, 66 M.J. 201, 204 (C.A.A.F. 2008).
However, “[w]here a general verdict of guilt is based in part on conduct that is
constitutionally protected, the Due Process Clause requires that the conviction be set
aside.” Barberi, 71 M.J. at 128 (citing Stromberg v. California, 283 U.S. 359, 368-70
(1931)).

       The appellant’s contention is that some of the charged files do not constitute
“child pornography” within the definition of the Child Pornography Prevention Act of
1996 (CPPA), 18 U.S.C. §§ 2252A-2260. The appellant was charged with violating
Clauses 1 and 2 of Article 134, UCMJ, not the CPPA. In this military judge-alone case,
no instructions were required or issued to indicate whether the CPPA’s definitions were
to be made applicable to this case. However, the interaction between the military judge
and counsel, combined with the language of the specification, convinces us that the
provisions of the CPPA were employed in this case. Counsel for both sides used
language from the CPPA to argue why certain files did or did not meet the definition of
child pornography, and the charged language “visual depictions of minors engaged in
sexually explicit conduct” mirrors the criminal prohibitions of 18 U.S.C. § 2252A.
Therefore, in order for the charged images and videos to be criminal and fall outside
constitutional protection, they must meet the definition of “child pornography” in the
CPPA.

      The CPPA defines “child pornography” as “any visual depiction, including any
photograph, film, video, picture, or computer or computer-generated image or picture . . .


                                            6                                   ACM 38269
of sexually explicit conduct, where . . . the production of such visual depiction involves
the use of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8).
“Sexually explicit conduct” is defined as actual or simulated sexual intercourse,
bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the
genitals or pubic areas of any person. 18 U.S.C. § 2256(2). Therefore, where the
depiction does not involve any of the first four defined types of sexually explicit conduct,
the appellant may not be convicted unless an image or video: (1) contained an exhibition
of the genitals or pubic area of any person; and (2) the exhibition was “lascivious.”

       To determine whether the charged images and videos in this case contained a
lascivious exhibition of the genitals or pubic area, we employ the test set forth in
United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal. 1986), aff'd sub nom. United States
v. Wiegand, 812 F.2d 1239 (9th Cir. 1987). This Court adopted the widely-accepted Dost
factors in United States v. Pullen, 41 M.J. 886 (A.F. Ct. Crim. App. 1995). See also
United States v. Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006) (wherein our superior court
applied the Dost factors to the military justice arena). Under this approach, if the images
do not depict the genital or pubic area, we stop our analysis. If those specific areas are
depicted, we apply the following factors:

       1) whether the focal point of the visual depiction is on the child’s genitalia
       or pubic area;

       2) whether the setting of the visual depiction is sexually suggestive, i.e., in
       a place or pose generally associated with sexual activity;

       3) whether the child is depicted in an unnatural pose, or in inappropriate
       attire, considering the age of the child;

       4) whether the child is fully or partially clothed, or nude;

       5) whether the visual depiction suggests sexual coyness or a willingness to
       engage in sexual activity;

       6) whether the visual depiction is intended or designed to elicit a sexual
       response in the viewer.

Dost, 636 F.Supp. at 832. In United States v. Horn, 187 F.3d 781, 789 (8th Cir. 1999),
the court observed that “[n]udity alone does not fit this description” of the phrase
“lascivious exhibition of the genitals or pubic area.” Instead, “there must be an
‘exhibition’ of the genital area and this exhibition must be ‘lascivious.’” Id.

      The appellant contends that the following files do not meet the definition of child
pornography, and therefore his conviction may not be based upon his receipt or


                                              7                                    ACM 38269
possession of such files:

         Charged file 105, file number 01553330.jpg
         Charged file 125, file number 00156100.jpg
         Charged file 174, file number 01400216.mpg
         Charged file 175, file number 01264297.mpg
         Charged file 176, file number 00450653.jpg
         Charged file 177, file number 00450657.jpg
         Charged file 179, file number 00450652.wmv
         Charged file 180, file number 00450655.wmv
         Charged file 181, file number 00450658.wmv
         Charged file 182, file number 00450660.wmv
         Charged file 206, file number 00300637.jpg
         Charged file 209, file number 00300954.jpg
         Charged file 212, file number 00341174.jpg
         Charged file 213, file number 00341175.jpg
         Charged file 214, file number 00341825.jpg

       We have reviewed all the charged depictions contained in Prosecution Exhibit 25.
We agree with the appellant that the following depictions do not meet the definition of
“child pornography,” and therefore are constitutionally protected: charged files 174, 175,
182, and 214. In addition to the files noted by the appellant, we also find the following
depictions do not meet the definition of “child pornography”: charged files 83 (file
number 00154440.jpg), 99 (file number 00154673.jpg), 142 (file number 00264871.jpg),
and 216 (file number 00317647.mpg).3 We disagree with the appellant concerning the
rest of the files he cites, and we find that these files do meet the definition of “child
pornography.”

       Having found that 8 of the 216 charged files do not constitute child pornography
and therefore are constitutionally protected, we now address the appellant’s argument that
his general verdict cannot stand. In Barberi, our superior court held that a general verdict
convicting an appellant of possessing six images of child pornography was constitutional
error where the Army Court of Criminal Appeals found four of the images were not child
pornography. Barberi, 71 M.J. at 132-33. The Court held, “Because we cannot know
which prosecution exhibits formed the basis for the members’ decision, and their findings
may have been based on constitutionally protected images, the general verdict to the
possession of child pornography must be set aside.” Id. at 132.

3
  The appellant was found not guilty of specifications alleging he possessed files 174, 175, and 182, files we have
found fail to meet the definition of child pornography. However, these files are included in our analysis because the
appellant was found guilty of one specification of receiving child pornography, and this specification encompassed
all 216 charged files. In addition, for clarity’s sake, we note that we found charged file 216 did not meet the
definition of child pornography because the evidence does not conclusively demonstrate that the female performing
a sex act in the video file was under the age of 18.


                                                         8                                              ACM 38269
       Despite the Court’s holding in Barberi, we reject the appellant’s contention that
his general verdict must be set aside. As a starting matter, there is no issue with the
appellant’s conviction on Specification 5 of the Charge, as all of the files contained
within that specification constitute child pornography. As for the remaining three
specifications of which the appellant was convicted, the bill of particulars for each
specification lists some files we have found do not meet the definition of child
pornography. We have no reason to doubt that in this military judge-alone case, the
military judge properly considered the CPPA’s definition of child pornography and the
Dost factors and issued a proper general verdict that did not convict the appellant for any
of the constitutionally-protected images. Nonetheless, based on Barberi, we presume
error in that we do not know exactly which files formed the basis for the appellant’s
conviction, and we proceed to the issue of whether the error was harmless.

       Our decision in United States v. Piolunek, 72 M.J. 830 (A.F. Ct. Crim. App. 2013),
rev’w granted, __ M.J. __ No. 14-0283/AF (Daily Journal 1 April 2014) controls the
outcome on the issue of prejudice. In Piolunek, we distinguished Barberi from
Piolunek’s situation, where we found only 3 of the 22 charged images did not constitute
child pornography. Applying the test set forth in Chapman v. California, 386 U.S. 18,
21-22 (1967), we held that the error in the general verdict was harmless. Piolunek,
72 M.J. at 838-39. Specifically, we noted:

        In deciding Barberi, we do not believe that our superior court intended to
        suggest that a conviction must be set aside in every case where even one
        image offered into evidence as a visual depiction of a minor engaging in
        sexually explicit conduct was later determined to be constitutionally
        protected. Such a reading would result in the absurd outcome of vacating a
        conviction for possessing 10,000 images of minors engaging in sexually
        explicit conduct because one image did not include a lascivious display of
        the genital or pubic area.

Id. at 838.

       Applying the same Chapman test of considering the quantitative strength of the
evidence, qualitative nature of the evidence, and the circumstances surrounding the
offense as they relate to the offense charged, we conclude beyond a reasonable doubt that
the eight constitutionally-protected images were unimportant in relation to everything
else the military judge considered. Thus, any error in the factfinder’s consideration of
these 8 images among the 216 admitted in evidence was harmless. We have found less
than 4 percent of the charged files constitutionally protected,4 compared to the 67 percent
4
  This calculation considers all 216 charged images, recognizing that the specification alleging the appellant
received child pornography was not specific to any particular computer media device, and therefore the specification
encompassed all 216 charged images. For Specification 1 of the Charge, we have found 2 of the 44 charged files do


                                                         9                                             ACM 38269
of images found insufficient in Barberi and the 14 percent of images found lacking in
Piolunek. The images that were not entitled to constitutional protection are also strong
evidence of the harmlessness of the protected images, as the remaining images are stark,
graphic, and blatant, in most instances depicting adults sexually violating young girls.
Finally, as in Piolunek, the circumstances surrounding the receipt and possession of the
files strongly support a conclusion that the admission of the eight constitutionally-
protected images was harmless beyond a reasonable doubt. Therefore, we find that
consideration of the eight images in question did not materially contribute to a finding of
guilt, and that consideration of these images was “unimportant” in relation to everything
else the military judge considered on the question of guilt.             Yates v. Evatt,
500 U.S. 391, 403 (1991). The appellant is not entitled to have his convictions set aside
despite the general verdicts and the existence of some constitutionally-protected
depictions.

                                   Introduction of Peer-to-Peer Report

       The appellant finally alleges that the military judge abused his discretion by
admitting a “Peer-to-Peer Analysis Report,” the probative value of which he asserts was
substantially outweighed by its danger of unfair prejudice. We disagree.

        We review a military judge’s decision to deny a motion to suppress evidence for
an abuse of discretion. United States v. Mott, 72 M.J. 319, 329 (C.A.A.F. 2013)
(citations omitted). “An abuse of discretion occurs when the trial court’s findings of fact
are clearly erroneous or if the court’s decision is influenced by an erroneous view of the
law.” United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008) (citing United States
v. Rader, 65 M.J. 30, 32 (C.A.A.F. 2007)).

        Relevant evidence may be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
members, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Mil. R. Evid. 403. Appellate courts typically exercise great
restraint in reviewing a military judge’s decision to admit or exclude evidence under Mil.
R. Evid. 403. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000). When a
military judge conducts a proper balancing test under this rule, the ruling will not be
overturned unless there is a “clear abuse of discretion.” Id. (quoting United States v.
Ruppel, 49 M.J. 247, 250 (C.A.A.F. 1998).

      We review the admissibility of uncharged misconduct under Mil. R. Evid. 404(b)
using the three-part test articulated in United States v. Reynolds, 29 M.J. 105, 109
(C.M.A. 1989) (citations, ellipses, and internal quotation marks omitted):

not meet the definition of child pornography and are therefore constitutionally protected. For Specification 4 of the
Charge, we have found 3 of the 160 charged files do not meet the definition of child pornography and are therefore
constitutionally protected.


                                                         10                                             ACM 38269
       1. Does the evidence reasonably support a finding by the court members
       that the appellant committed prior crimes, wrongs or acts?

       2. What fact of consequence is made more or less probable by the existence
       of this evidence?

       3. Is the probative value [of the evidence] substantially outweighed by the
       danger of unfair prejudice?

       At trial, the Government introduced Prosecution Exhibit 20, the peer-to-peer
analysis report. This report summarized the forensic reviewer’s findings with respect to
the appellant’s activity on peer-to-peer networks from his Hewlett-Packard desktop
computer. This report demonstrated that the appellant downloaded or shared files on
peer-to-peer networks, and that several of the file names contained terms commonly
associated with child pornography. The report did not demonstrate that the appellant
necessarily employed these search terms to locate the files. The report also did not reveal
where the files were located on the appellant’s desktop computer, or whether the actual
images were consistent with their file names. The forensic review did not recover any of
the actual files; the peer-to-peer analysis report merely demonstrated that at one point the
appellant either downloaded or shared files with the names listed in the report.

       Trial defense counsel objected to the admission of Prosecution Exhibit 20, arguing
the report was not relevant because the file names contained in the report were not part of
the charged misconduct. Trial counsel responded that the report was “more in the nature
of [Mil. R. Evid.] 404(b) evidence of motive and intent to search for child pornography
during the charged time frame.”

       The military judge overruled trial defense counsel’s objection and admitted
Prosecution Exhibit 20. He noted the report contained evidence that the appellant
possessed, searched for, or obtained files with names indicative of sexually explicit
material involving minors. Applying Mil. R. Evid. 403 and 404(b), he recognized the
probative value of the report was “limited,” but that this limited value was not
outweighed by the danger of unfair prejudice or other concerns applicable under the rule.
He ruled:

       It is clear to the court that these files may have been of images other than
       what was described in the file name, but there is still probative value in the
       fact that the files with these file names were contained in peer-to-peer
       network and therefore, defense counsel’s objection is overruled.

       We find no abuse of discretion in the military judge’s ruling. The military judge
applied the appropriate legal tests under Mil. R. Evid. 403 and 404(b), and therefore his


                                             11                                   ACM 38269
ruling was not influenced by an erroneous view of the law. He appropriately recognized
the probative value of the report was somewhat limited, because the report did not reveal
the actual depictions contained in the files. Nonetheless, the fact that the appellant either
downloaded or shared files with such explicit names indicative of child pornography has
some tendency to demonstrate that he committed the charged misconduct. A review of
the entire record convinces us the probative value was not substantially outweighed by
the danger of unfair prejudice, particularly in this military judge-alone trial, where the
military judge is presumed to know the law and weigh the evidence accordingly.
United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000) (“A military judge is
presumed to know the law and apply it correctly, is presumed capable of filtering out
inadmissible evidence, and is presumed not to have relied on such evidence on the
question of guilt or innocence.”).

                                        Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence are

                                       AFFIRMED.



              FOR THE COURT


              STEVEN LUCAS
              Clerk of the Court




                                             12                                    ACM 38269
