          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                             Senior Airman JUSTIN G. STIPES
                                  United States Air Force

                                             ACM 38421

                                             02 July 2014

         Sentence adjudged 16 July 2013 by GCM convened at Whiteman Air Force
         Base, Missouri. Military Judge: Grant L. Kratz (sitting alone).

         Approved Sentence: Bad-conduct discharge, confinement for 18 months,
         and reduction to E-1.

         Appellate Counsel for the Appellant: Major Matthew T. King.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Major Jason M. Kellhofer; and Gerald R. Bruce, Esquire.

                                                 Before

                             HECKER, MITCHELL, and WEBER
                                 Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



HECKER, Judge:

       A military judge sitting as a general court-martial convicted the appellant,
pursuant to his pleas, of possessing child pornography, in violation of Article 134,
UCMJ, 10 U.S.C. § 934. The appellant was sentenced to a bad-conduct discharge,
confinement for 18 months, and reduction to E-1. The convening authority approved the
sentence as adjudged.

      On appeal, the appellant argues the findings and sentence are legally insufficient
as they were based on images that were either (1) not linked to his guilty plea, or
(2) constitutionally protected. Finding no error that materially prejudices a substantial
right of the appellant, we affirm the approved findings and sentence.

                                         Background

       In April 2012, the appellant’s roommate discovered what appeared to be child
pornography on the appellant’s external hard drive. Following an investigation, the
appellant was charged under Article 134, UCMJ, Clauses 1 and 2, with “knowingly and
wrongfully possess[ing] child pornography, to wit: visual depictions of minors engaging
in sexually explicit conduct, [which] was to the prejudice of good order and discipline in
the armed forces and of a nature to bring discredit upon the armed forces.”

       During the guilty plea inquiry, after being instructed on the elements of the offense
and the various definitions applicable to it, the appellant told the military judge he
regularly downloaded pornography to his computer between November 2011 and
April 2012 while deployed to Kuwait. Using search terms he knew were likely to lead
him to images or videos of minors engaging in sexually explicit conduct, the appellant
said he looked for and obtained images of child pornography and visited websites where
he believed he could find such depictions. After downloading these materials to his
personal computer, the appellant saved them to folders on an external hard drive. He
described the images as follows:

          [T]he images and videos contained footage of minors engaging in sexually
          explicit conduct. They were engaged in sexual intercourse on some
          occasions and others they were exhibiting themselves in lascivious
          manners. They were unclothed in a majority of the images and videos.

          The images and videos were not artistic in nature and were not intended to
          be an artistic depiction of the human body. The females did not have
          mature characteristics, and had little or no public hair and had undeveloped
          breast[s] and bodies.

       In response to questions from the military judge, the appellant said it was
“obvious” to him that the individuals in these materials were females between the ages of
8 and 12 years old, and that they were naked and posed in a sexual way with the focal
point of the images being on their genitals or pubic area. He agreed the depictions were
intended or designed to elicit a sexual response in the viewer. After this colloquy (and
without reviewing any images), the military judge found the appellant guilty of
knowingly and wrongfully possessing child pornography.1



1
    There was no stipulation of fact.


                                               2                                   ACM 38421
       During the Government’s sentencing case, trial counsel offered a report containing
an analysis prepared by a forensic computer laboratory. This report was redacted from its
original form so that it only contained information relating to the 17 items
(10 photographs and 7 videos) that the Government intended to introduce into the
court-martial, consistent with the pretrial notice provided by trial counsel. This report
indicates the user name for the laptop account was justinstipes, and his name was listed as
the “subject” of the report. The defense only objected to the admission of one page of the
forensic report.

       Trial counsel also admitted, without defense objection, a compact disc containing
images found on the appellant’s external hard drive, in the format of a PowerPoint
presentation. The presentation included 17 slides, one for each of the items described in
the forensic report. For the videos, the slide contained still frames taken from the video.

       The appellant now argues there was no evidentiary link made between the conduct
he described in his guilty plea and the images found in the PowerPoint presentation and
therefore the findings and sentence in his case are “legally insufficient” because the
military judge improperly considered those images during the sentencing phase of the
trial. As an alternative argument, the appellant contends the military judge’s
consideration of one particular image violated his constitutional rights, citing
United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012).

       The finding of guilty in this case is clearly legally sufficient. The appellant
acknowledges his plea was provident, and we agree. There is no requirement for the
military judge to compel the Government to submit the pornographic images in the
findings stage of the case in order for a plea to be provident. The military judge had an
obligation to ensure the appellant was convinced of, and was able to describe, all the facts
necessary to establish guilt. Rule for Courts-Martial (R.C.M.) 910(e). After considering
the appellant’s colloquy as well as any inferences that may reasonably be drawn from it,
we find there is nothing in the record of trial that raises a substantial question regarding
the providency of that plea. See United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007)
(reviewing the military judge’s colloquy, and any reasonable inferences, for an abuse of
discretion); United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

        Regarding the legal sufficiency of his sentence, the appellant appears to be arguing
the PowerPoint presentation should not have been admitted because there was
insufficient foundation to link its contents to the conduct described in his guilty plea.
Because he did not object to the admission of this evidence at trial, the appellant has
forfeited appellate review of this issue absent plain error. United States v. Kasper,
58 M.J. 314, 318 (C.A.A.F. 2003). To establish plain error, the appellant must
demonstrate that “(1) an error was committed; (2) the error was plain, clear, or obvious;
and (3) the error resulted in material prejudice to an appellant’s substantial rights.”
United States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007) (citing United States v.


                                             3                                    ACM 38421
Powell, 49 M.J. 460, 463–65 (C.A.A.F. 1998)). We do not find error, plain or otherwise,
in the admission of this document. The images found in this document were clearly
admissible as aggravation evidence “directly relating to” the offense of which the
appellant was found guilty and were not unduly prejudicial. R.C.M. 1001(b)(4);
Mil. R. Evid. 403.

        In his alternative argument, the appellant argues there is “no basis to conclude
definitively” that 1 of the 17 images found in the PowerPoint presentation was child
pornography. That photograph shows the naked body of a female with a sexual device
inserted into her vagina. Although the female’s face is not fully visible, her body has
underdeveloped breasts and minimal pubic hair. Based on her appearance, the female in
this image is likely the same individual depicted in three other photographs within the
presentation. Additionally, all four photographs have file names that include the same
female name (“Bianca”). The appellant does not dispute that the female who is fully
visible in the three photographs is a “minor.” Even assuming, however, that the female in
the questioned image is a different female who is not under the age of 18, the appellant is
not entitled to relief under Barberi or otherwise.

        Because the images themselves were not used to determine the providence of the
appellant’s plea, Barberi is inapplicable. Barberi applies to cases where a conviction is
based on conduct that is constitutionally protected. Barberi, 71 M.J. at 128. In the
present case, the appellant’s conviction is based on his admissions during the guilty plea
inquiry and is not based on the images found in the sentencing exhibit. Furthermore, this
1 image, like the 16 others, was admissible as sentencing evidence after the appellant was
found guilty. A military judge is presumed to know the law and apply it correctly, absent
evidence to the contrary. See United States v. Phillips, 70 M.J. 161, 166 (C.A.A.F. 2011)
(citing United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000)). We have no reason
to believe the military judge considered this image for anything other than its proper
purpose.

                                                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.2 Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000).




2
   The charge sheet alleges the appellant possessed “child pornography,” but the court-martial order (CMO) only
includes the word “pornography.” We order a corrected CMO to remedy this clerical error. Air Force Instruction
51-201, Administration of Military Justice, ¶ 10.10 (6 June 2013).


                                                      4                                            ACM 38421
Accordingly, the approved findings and sentence are

                                     AFFIRMED.


             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




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