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

                                  No. ACM 39573
                            ________________________

                               UNITED STATES
                                   Appellee
                                          v.
                         Christopher G. JENSEN
               Staff Sergeant (E-5), U.S. Air Force, Appellant
                             ________________________

         Appeal from the United States Air Force Trial Judiciary
                              Decided 19 May 2020
                            ________________________

Military Judge: Donald R. Eller, Jr.
Approved sentence: Dishonorable discharge, confinement for 5 years,
and reduction to E-1. Sentence adjudged 24 September 2018 by GCM
convened at Whiteman Air Force Base, Missouri.
For Appellant: Captain M. Dedra Campbell, USAF.
For Appellee: Captain Peter F. Kellett, USAF; Mary Ellen Payne, Es-
quire; Justin A. Miller (legal intern). 1
Before J. JOHNSON, POSCH, and KEY, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Chief Judge
J. JOHNSON and Judge KEY joined.
                            ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 30.4.
                       ________________________
POSCH, Judge:




1Mr. Miller was at all times supervised by an attorney admitted to practice before this
court.
                    United States v. Jensen, No. ACM 39573


    In accordance with Appellant’s pleas of guilty, a general court-martial com-
posed of a military judge found Appellant guilty of one specification each of
possession and distribution, on divers occasions, of child pornography, in vio-
lation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 934. 2 After the military judge accepted Appellant’s pleas, he sentenced Ap-
pellant to a dishonorable discharge, confinement for five years, and reduction
to the grade of E-1. The convening authority approved the adjudged sentence.
    Appellant raises two issues on appeal: (1) whether the military judge
abused his discretion by accepting Appellant’s pleas of guilty without first con-
ducting a statute of limitations waiver inquiry as required by Rule for Courts-
Martial (R.C.M.) 907(b)(2)(B); and (2) whether the military judge committed
plain error during the sentencing hearing by allowing the trial counsel to argue
victim impact resulting from child molestation offenses not directly related to
the offenses of possession and distribution of child pornography.
   We find the military judge abused his discretion in accepting Appellant’s
pleas because the first two months of the charged timeframe of each offense
were barred by the statute of limitations. Finding no substantial basis in law
and fact for questioning Appellant’s guilty pleas to the rest of the charged
timeframes, we modify the language in Specifications 1 and 2 of the sole
Charge accordingly. Having found no other error that materially prejudiced
Appellant’s substantial rights, we affirm the modified findings and the sen-
tence.

                                 I. BACKGROUND
    In December 2017, a Corporal in the Missouri State Highway Patrol
(MSHP) initiated an investigation to identify individuals sharing suspected
child pornography through an online file sharing program. In the course of the
investigation, the MSHP Corporal downloaded approximately 17 files of sus-
pected child pornography from an Internet Protocol (IP) address tied to a resi-
dence on Whiteman Air Force Base (AFB). Records obtained from a MSHP sub-
poena sent to a local Internet service provider connected Appellant to the IP
address.
   In early January 2018, the MSHP Corporal contacted a special agent with
the Air Force Office of Special Investigations (AFOSI) on Whiteman AFB,
which led to the discovery that Appellant possessed and distributed child por-




2 All references in this opinion to the Uniform Code of Military Justice (UCMJ), Rules
for Courts-Martial, and Military Rules of Evidence are to the Manual for Courts-Mar-
tial, United States (2016 ed.).


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                   United States v. Jensen, No. ACM 39573


nography using his electronic media devices. On the day of Appellant’s appre-
hension, 10 January 2018, and again on 12 January 2018, Appellant admitted
to conduct which led the Government to charge Appellant with possession and
distribution of child pornography using his electronic devices.
   Appellant’s convictions are founded on his pleas of guilty to charged
timeframes that exceeded the statute of limitations by two months. Neither
party nor the military judge addressed the potential statute of limitations de-
fense at any point during Appellant’s trial.
   At the sentencing hearing, the Government presented evidence of Appel-
lant’s admissions to the AFOSI agents, evidence of child pornography discov-
ered on Appellant’s electronic devices, and the testimony of a computer forensic
examiner who analyzed Appellant’s media. The military judge also considered
Appellant’s enlisted performance reports, personal data as reflected in his per-
sonnel records, and Appellant’s written unsworn statement.

                               II. DISCUSSION
A. Statute of Limitations
   1. Additional Background
    Appellant was charged with possession and distribution of child pornogra-
phy during a five-year timeframe that ended the day before AFOSI agents ap-
prehended Appellant on 10 January 2018 and seized his electronic devices.
Each specification alleged Appellant’s wrongdoing happened “between on or
about 9 January 2013 and on or about 9 January 2018.” On 9 March 2018—
two months after the last day of the charged timeframe—the Charge and its
two specifications were preferred and were subsequently received by the sum-
mary court-martial convening authority later the same day, thus tolling the
five-year statute of limitations. See Article 43(b)(1), UCMJ, 10 U.S.C.
§ 843(b)(1).
    For the first time on appeal, Appellant asserts, and the Government con-
cedes, that 9 March 2013, and not 9 January 2013, is the first day within the
statute of limitations for both offenses. See id.; United States v. Tunnell, 23
M.J. 110, 117 (C.M.A. 1986) (interpreting statute of limitations and holding
the date of receipt of charges must be excluded in determining whether the
offense occurred more than a specified number of years before the receipt of
sworn charges and specifications by an officer exercising summary court-mar-
tial jurisdiction). We agree and find that the first two months of the charged
timeframe—9 January 2013 to 8 March 2013—are barred by the statute of
limitations. However, we find Appellant was not materially prejudiced by the
military judge’s abuse of discretion in accepting Appellant’s pleas of guilty as
charged by the Government.

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                   United States v. Jensen, No. ACM 39573


   2. Law
    “We review a military judge’s decision to accept a guilty plea for an abuse
of discretion.” United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011) (citing
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). “During a guilty plea
inquiry[,] the military judge is charged with determining whether there is an
adequate basis in law and fact to support the plea before accepting it.” United
States v. Inabinette, 66 M.J. 320, 321–22 (C.A.A.F. 2008) (citation omitted). A
military judge abuses his discretion in accepting a plea when “there exists
‘something in the record of trial, with regard to the factual basis or the law,
that would raise a substantial question regarding the appellant’s guilty plea.’”
United States v. Hayes, 70 M.J. 454, 457 (C.A.A.F. 2012) (quoting Inabinette,
66 M.J. at 322). An appellate court “will not overturn a military judge’s ac-
ceptance of a guilty plea based on a mere possibility of a defense. The record
must show a substantial basis in law and fact for rejecting the plea of guilty.”
United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996) (quoting United
States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)) (internal quotation marks
omitted); see also Hayes, 70 M.J. at 458 (distinguishing a “possible defense”
from the “mere possibility of a defense”).
    Rule for Courts-Martial 907(b)(2)(B) provides that the running of the stat-
ute of limitations under Article 43, UCMJ, 10 U.S.C. § 843, is waivable grounds
for a motion to dismiss. R.C.M. 907(b)(2)(B) further provides “that, if it appears
that the accused is unaware of the right to assert the statute of limitations in
bar of trial, the military judge shall inform the accused of this right.” Our su-
perior court has similarly required that “‘whenever it appears that the statute
of limitations has run against an offense,’ that fact will be brought to the at-
tention of the accused by the court.” United States v. Salter, 20 M.J. 116, 117
(C.M.A. 1985) (quoting United States v. Rodgers, 24 C.M.R. 36, 38 (C.M.A.
1957)).
    When an appellant raises a statute of limitations defense for the first time
on appeal and appears to have been unaware of the right at trial, our superior
court reviews for plain error. United States v. Briggs, 78 M.J. 289, 295
(C.A.A.F. 2019), cert. granted, __ U.S. __, 140 S. Ct. 519 (2019). In a plain error
analysis the “[a]ppellant has the burden of demonstrating that: (1) there was
error; (2) the error was plain or obvious; and (3) the error materially prejudiced
a substantial right of the accused.” United States v. Girouard, 70 M.J. 5, 11
(C.A.A.F. 2011). Waiver, by contrast, “leaves no error to correct on appeal.”
United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (citing United States
v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).




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                   United States v. Jensen, No. ACM 39573


   3. Analysis
     Appellant explained during his plea inquiry that he was a member of online
groups that exchanged files containing child pornography. He intentionally
downloaded child pornography using messaging applications and peer-to-peer
file transfer software. On a few occasions, members of a group would personally
message Appellant and tell him they had lost a specific folder that the person
knew Appellant had downloaded. The member would ask Appellant to return
the folder and Appellant would do so knowing the folder contained child por-
nography. Appellant explained a second way he distributed child pornography
to members of the online groups to which he belonged, “When you’re in a group
the files automatically download to a cache on your phone or your computer.”
    At the start of the plea inquiry for each offense, Appellant read from a pre-
pared statement admitting that the child pornography he possessed and dis-
tributed, respectively, on divers occasions occurred between the beginning and
end dates in the timeframe charged by the Government. Appellant thus
pleaded guilty to two months that were barred by the statute of limitations.
Before accepting Appellant’s pleas, the military judge did not ask Appellant to
specify with greater detail when he committed either offense. Nor did the mil-
itary judge conduct an inquiry required by R.C.M. 907(b)(2)(B), to determine if
Appellant understood that he had a defense to two months of the charged
timeframe for each offense because those months were time-barred by the stat-
ute of limitations. See R.C.M. 910(e), Discussion.
    A plea of guilty does not waive a statute of limitations defense when the
record does not disclose that an accused was aware of the right to assert the
defense. Salter, 20 M.J. at 117. However, neither party nor the military judge
addressed the applicability of the statute of limitations at any point during the
trial. Therefore, the principle of waiver does not apply, and we review for plain
error. Briggs, 78 M.J. at 295. Here, an examination of the charge sheet was
enough to determine that the statute of limitations had run against the two
months. Thus, we find the military judge committed clear and obvious error by
failing to inform Appellant that a five-year period of limitation existed for both
offenses.
    However, we find no material prejudice because evidence that the Govern-
ment presented in its sentencing case supports Appellant’s pleas of guilty to
the portion of the charged timeframe that was not time-barred—between 9
March 2013 and on or about 9 January 2018—for both specifications. In his
first interview with the AFOSI agents on 10 January 2018, Appellant admitted
to downloading several files containing child pornography onto his computer




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                    United States v. Jensen, No. ACM 39573


in late 2017. 3 His admission was confirmed by the testimony of a computer
forensic examiner with the Defense Computer Forensics Laboratory (DCFL)
who analyzed Appellant’s electronic devices. The expert testified Appellant
downloaded images of “potential” child pornography on 10 and 20 December
2017. On 12 January 2018, Appellant admitted to the AFOSI agents that he
downloaded child pornography for the first time “maybe” two or three years
prior to the interview, although he was not certain when. 4 This admission
placed Appellant’s initial possession of child pornography during the 2015 to
2016 time period, which is within the statute of limitations. Forensic analysis
also uncovered that Appellant possessed child pornography on two cell phones
that AFOSI agents seized in January 2018. Forensic analysis discovered that
a portion of the child pornography was transferred to one of Appellant’s phones
in September 2017.
   Turning to the distribution offense, AFOSI Special Agent ZP testified at
sentencing how the investigation identified Appellant’s involvement in “an ex-
change of known child pornography” with the MSHP Corporal. The DCFL ex-
aminer explained that Appellant’s computer file system was set to sharing
mode, which allowed the MSHP Corporal to download approximately 17 child
pornography files from Appellant’s media using Appellant’s IP address. The
DCFL examiner found evidence that Appellant distributed child pornography
using a Bit Torrent Client program that was set to automatically share files.
An affidavit Special Agent ZP prepared that was relied on by the preliminary
hearing officer (PHO), and an affidavit prepared by a MSHP law enforcement




3 Appellant explained he downloaded the files in “late November” or “December” and
did not view the materials until they completely downloaded “days later,” which he
clarified was a “couple of weeks” or “maybe a week” before the AFOSI interview. Pros-
ecution Exhibit 3 at 10:15–11:20, 27:15–30:10 (Appellant’s videorecorded interview
with AFOSI agents on 10 January 2018). A verbatim transcript of the interview was
not included in the record of trial as required by Air Force Manual (AFMAN) 51–203,
Records of Trial, ¶ 12.8 (4 Sep. 2018, as amended by AFGM 2019-01, 9 May 2019)
(“Transcribe verbatim audio or video recordings introduced at trial.”), but this error
did not prejudice Appellant.
4Prosecution Exhibit 4 at 22:08—22:32 (Appellant’s videorecorded interview with
AFOSI agents on 12 January 2018). A verbatim transcript of Appellant’s interview
with the AFOSI agents was not included in the record of trial. Appellant was not prej-
udiced by this error. See n.3 supra.




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                    United States v. Jensen, No. ACM 39573


officer, 5 establish that Appellant’s IP address was used to distribute child por-
nography to the MSHP Corporal on 10 December 2017. 6
    Appellant’s pleas of guilty to the first two months of the five-year
timeframes charged by the Government were improvident, and thus the mili-
tary judge abused his discretion in accepting Appellant’s pleas. Erroneous find-
ings, however, do not reach the providence of an appellant’s pleas which en-
compass acts of misconduct committed within a statutory limit. See United
States v. Lee, 29 M.J. 516, 518 (A.C.M.R. 1989) (time-barred period of a speci-
fication does not “affect the provident portions of guilty pleas encompassing
acts of misconduct committed within the statutory limit”), aff’d, 29 M.J. 446
(C.M.A. 1989) (mem.).
    Based on the evidence in the record, we find Appellant’s plea to be provi-
dent for the period that begins on 9 March 2013 and ends on or about 9 January
2018 for both specifications. Appellant continued to possess child pornography
until it left his dominion and control in January of 2018 when the AFOSI
agents seized his electronic devices. Appellant’s distribution of child pornogra-
phy spanned the period that began when he was downloading the contraband
in 2015–2016 until 10 December 2017. 7 We find the record does not show a
substantial basis in law and fact for rejecting Appellant’s plea of guilty to the
portion of the charged timeframe that encompasses the period between 9
March 2013 and on or about 9 January 2018 for both specifications. See Fair-
cloth, 45 M.J. at 174. The record only established a defense for the two months
preceeding this period that was time-barred by the statute of limitations. Thus,
just two months of the charged timeframes raise a substantial question regard-
ing Appellant’s guilty plea, which the military judge abused his discretion in
accepting. See Hayes, 70 M.J. at 457.



5The affidavit was attached to Appellate Exhibit V, the Government’s response to Ap-
pellant’s motion to suppress statements Appellant made to the AFOSI agents that
were admitted as Prosecution Exhibits 3 and 4.
6 The PHO examined documentation presented at the Article 32, UCMJ, 10 U.S.C.
§ 832, hearing and concluded the charged timeframe for both offenses “should be no
earlier than 10 December 2017 when the MSHP initiated its online investigation.”
However, the PHO did not identify a statute of limitations issue, and the PHO’s rec-
ommendation was not adopted.
7 In her sentencing argument, trial defense counsel pointed out that despite the Gov-
ernment charging Appellant for conduct “back to 2013” after Appellant arrived at
Whiteman AFB, most of the evidence against Appellant was due to “two big downloads”
in 2017, “[a] month before [Appellant] was interviewed [by agents of the AFOSI].”




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                     United States v. Jensen, No. ACM 39573


    This court “may affirm only such findings of guilty . . . as it finds correct in
law and fact and determines, on the basis of the entire record, should be ap-
proved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “This power provides us the
authority to make exceptions and substitutions to the findings on appeal, so
long as we do not amend a finding on a theory not presented to the trier of
fact.” United States v. Hale, 77 M.J. 598, 607 (A.F. Ct. Crim. App. 2018) (cita-
tions omitted) (amending specification to align with the dates of court-martial
jurisdiction), aff’d, 78 M.J. 268 (C.A.A.F. 2019). Therefore, pursuant to our au-
thority to amend specifications to ensure they are correct, the findings of guilty
to Specifications 1 and 2, as modified, can be affirmed on the basis of Appel-
lant’s pleas and the record. 8 We take appropriate action in our decree.
B. Sentencing Argument
    Appellant claims error in that trial counsel’s sentencing argument focused
on victim impact resulting from child molestation offenses not directly related
to Appellant’s conviction for possession and distribution of child pornography.
    1. Additional Background
   During its sentencing case, the Government presented no evidence of vic-
tim impact and no victim presented a statement pursuant to R.C.M. 1001A.
See generally United States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018) (“rights
vindicated by R.C.M. 1001A are personal to the victim in each individual
case”). Trial counsel recommended the military judge sentence Appellant to be
confined for 13 years confinement, a dishonorable discharge, total forfeitures,
and reduction to the grade of E-1.
    In justifying the recommended sentence, trial counsel centered her argu-
ments on the theme that Appellant’s possession and distribution of child por-
nography “is not a victimless crime.” She began her argument by stating,
“[S]exual molestation of a child is arguably the most heinous crime that a hu-
man being can commit. Recording, publication, and distribution of these crimes
can give new and indefinite life to these crimes in shocking ways.” (Emphasis
added). Trial counsel argued that the children recorded in videos found on Ap-
pellant’s media were “[r]eal children; real victims, with lives to live with these
memories.” Trial counsel went on to describe the sexual acts in six videos and

8 Related to this assignment of error, Appellant contends he was prejudiced at sentenc-
ing when the Government admitted, without objection, Prosecution Exhibit 7, which
contained representative child pornography files that the DCFL examiner found on
Appellant’s devices. We reject Appellant’s claim that “potentially all of the files” were
evidence he possessed contraband “during the time-barred period,” finding that the
files were all in Appellant’s possession in January of 2018 when AFOSI agents seized
Appellant’s electronic devices. Therefore, the military judge did not consider miscon-
duct outside the statute of limitations in sentencing as Appellant contends.


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                   United States v. Jensen, No. ACM 39573


the length of time the children depicted in two videos had to endure the sexual
assaults. Then, trial counsel argued that the maximum sentence was “a rea-
sonable punishment for the heinous crimes involved here. These children do
not get a magic button they get to press, to make years of their sentence go away.
Neither should [Appellant].” (Emphasis added).
    While discussing the impact of Appellant’s offenses on the children, trial
counsel argued, “Try telling them that those who collected and watched them
suffer, daily, for years, in the comfort of their own couches, for their own enter-
tainment and enjoyment, . . . what these people did wasn’t serious.” (Emphasis
added). In closing, trial counsel again reminded the military judge that Appel-
lant’s crime is not “victimless.” Trial counsel explained again:
       Remember, these are real children in those files. Real children,
       with real scars, and nightmares they will have to live with for
       the rest of their lives. This is not a victimless crime. Those young
       children have been subjected to a life-sentence. They must live
       the rest of their life [sic] with the scars and memories imposed
       on them, by other people’s choices.
(Emphasis added). At the end of her argument, trial counsel argued Appellant
“is the one who committed these crimes, he is the one with the curious cravings
for children being subjected to the worst of humanity.” (Emphasis added).
   Trial defense counsel did not object during trial counsel’s argument but
chose to rebut it by emphasizing that Appellant cannot be sentenced for com-
mitting the conduct depicted on Appellant’s media:
       Trial counsel continuously highlighted the content of these vid-
       eos, and talked about molestation of children, being the most
       heinous crime out there. That is certainly not what [Appellant]
       is charged with. This was not a production case, he didn’t create
       it. He didn’t cause this damage to these children. These children
       have no idea that [Appellant] even had this material. He doesn’t
       know the people who caused the damage. He didn’t seek out chil-
       dren in anyway. And he didn’t facilitate it happening for others.
    At the close of argument, trial defense counsel maintained, “[A]s tempting
as it is, as the government wants you to do, we ask that you do not sentence
[Appellant] with these children in mind.”
   2. Law
    Whether argument is improper is a question of law we review de novo.
United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014) (citation omitted). If
trial defense counsel fail to object to the argument at trial, we review for plain



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                    United States v. Jensen, No. ACM 39573


error. United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (citation omit-
ted). To establish plain error, an appellant must prove that: “(1) an error was
committed; (2) the error was plain, or clear, or obvious; and (3) the error re-
sulted in material prejudice to substantial rights.” Id. (quoting United States
v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)) (internal quotation marks omit-
ted).
   “[T]rial counsel is at liberty to strike hard, but not foul, blows.” United
States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (quoting United States v.
Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)). Trial counsel is limited to arguing the
evidence in the record and the inferences fairly derived from that evidence. See
R.C.M. 919(b); United States v. Paxton, 64 M.J. 484, 488 (C.A.A.F. 2007);
United States v. White, 36 M.J. 306, 308 (C.M.A. 1993). Whether or not the
comments are fair must be resolved by examining the comments within the
context of the entire court-martial. United States v. Gilley, 56 M.J. 113, 121
(C.A.A.F. 2001) (citation omitted).
    “Where improper argument occurs during the sentencing portion of the
trial, we determine whether or not we can be confident that [an appellant] was
sentenced on the basis of the evidence alone.” Pabelona, 76 M.J. at 12 (altera-
tion in original) (quoting Frey, 73 M.J. at 248 ).
    3. Analysis
    To the extent that the trial counsel argued that possession and distribution
of child pornography is not a victimless crime, her argument was a reasonable
inference and permissible. 9 See generally United States v. Hamilton, 78 M.J.
335, 340 (C.A.A.F. 2019) (quoting Paroline v. United States, 572 U.S. 434, 457
(2014) (“The unlawful conduct of everyone who reproduces, distributes, or pos-
sesses the images of the victim’s abuse . . . plays a part in sustaining and ag-
gravating this tragedy.”)). The continuing harm that the possession of child
pornography causes to victims “is itself settled law.” Barker, 77 M.J. at 384
(citing Osborne v. Ohio, 495 U.S. 103, 111 (1990)) (noting that constant revic-
timization theme is “well known to the law, and thus [is] presumed to have
been known by the military judge”).
    Appellant contends we should find error because trial counsel argued that
Appellant should be sentenced for the acts of child molestation that were de-
picted in files on his electronic devices. We find troubling there were moments
when a reasonable factfinder could not discern if trial counsel was arguing for


9Appellant points out there is no evidence any child was revictimized or even aware
that a particular image was circulated. To the extent trial counsel argued Appellant
could not have possessed and distributed child pornography if real children had not
been sexually abused and videorecorded, this was a reasonable inference.


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                   United States v. Jensen, No. ACM 39573


a heightened sentence based on the facts underlying Appellant’s possession
and distribution of child pornography, a permissible argument, or whether
trial counsel impermissibly argued for a heightened sentence for crimes com-
mitted by others. The argument that recording sexual acts involving minors
can give new life to acts of child molestation was the first and among the clear-
est examples of improper argument. We similarly find troubling that trial
counsel justified her recommended sentence, in part, because children were
victims of a cast of other people who, like Appellant, impose choices on victims
by collecting and watching child pornography. At times, trial counsel’s argu-
ment appeared to hold Appellant to account for producers of child pornography
and others who possess and view it, thereby advocating for a harsher sentence
for acts Appellant did not commit.
    Although it may be a fine line between emphasizing that possession and
distribution of child pornography revictimizes children on the one hand and
ascribing fault to Appellant for the crimes of others on the other, we do not
decide if it was plain, clear, or obvious error for trial counsel to make these
arguments because Appellant has not demonstrated material prejudice to any
substantial right. See Pabelona, 76 M.J. at 11. Appellant was sentenced by a
military judge sitting alone. “Military judges are presumed to know the law
and to follow it absent clear evidence to the contrary.” United States v. Erick-
son, 65 M.J. 221, 225 (C.A.A.F. 2007) (citing United States v. Mason, 45 M.J.
483, 485 (C.A.A.F. 1997)). Our superior court has also recognized, “[a]s part of
this presumption we further presume that the military judge is able to distin-
guish between proper and improper sentencing arguments.” Id.; see also
United States v. Rodriguez, 60 M.J. 87, 90 (C.A.A.F. 2004) (a military judge as
a factfinder is presumed to know the law and apply it correctly, filtering out
objectionable material to reach a proper outcome, “absent clear evidence to the
contrary”).
    The military judge could filter out trial counsel’s objectionable remarks.
Additionally, the comments Appellant now asserts were error constituted just
a portion of the Government’s argument. Trial counsel also focused on the
young ages of the children and comments Appellant made to investigators.
Trial counsel also focused on the number and types of images and videos Ap-
pellant possessed and distributed. She also argued how each component of her
recommended sentence was consistent with Appellant’s offenses and com-
monly accepted principles of sentencing. See R.C.M. 1001(g).
   Upon considering the full context of the sentencing argument in this judge-
alone trial, we can be confident that Appellant was sentenced on the basis of
the evidence alone, see Pabelona, 76 M.J. at 12, and that Appellant’s claimed
errors did not materially prejudice a substantial right. See id.; Article 59(a),
UCMJ, 10 U.S.C. § 859(a).


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                  United States v. Jensen, No. ACM 39573


                              III. CONCLUSION
   The findings of guilty to Specifications 1 and 2 of the Charge are modified
by excepting the date “9 January 2013” and substituting therefor the date “9
March 2013” in each specification. The excepted dates are SET ASIDE and
DISMISSED WITH PREJUDICE. The findings, as modified, and the sen-
tence are AFFIRMED. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a),
866(c).


                    FOR THE COURT



                    CAROL K. JOYCE
                    Clerk of the Court




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