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

                               No. ACM 39075
                          ________________________

                             UNITED STATES
                                 Appellee
                                       v.
                       Zachary J. JOHNSTON
             Senior Airman (E-4), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 16 November 2017
                          ________________________

Military Judge: Matthew S. Ward (arraignment); Vance H. Spath.
Approved sentence: Dishonorable discharge, confinement for 10 months,
and reduction to E-1. Sentence adjudged 20 January 2016 by GCM con-
vened at Moody Air Force Base, Georgia.
For Appellant: Major Virgina M. Bare, USAF; Major Annie W. Morgan,
USAF; Brian L. Mizer, Esquire.
For Appellee: Major G. Matt Osborn, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON, and MINK, Appellate Military Judges.
Judge MINK delivered the opinion of the court, in which Senior Judges
MAYBERRY and JOHNSON joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

MINK, Judge:
    A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of two specifications of attempted sexual abuse of a child
under the age of 16 years and one specification of attempted receipt of child
pornography, all in violation of Article 80, Uniform Code of Military Justice
                      United States v. Johnston, No. ACM 39075


(UCMJ), 10 U.S.C. § 880. The adjudged and approved sentence consisted of a
dishonorable discharge, 10 months of confinement, and reduction to E-1. 1
    On appeal, Appellant asserts: (1) the Government was preempted from
charging the attempted Article 134 offense in Specification 3 of the Charge; (2)
the conviction for attempted receipt of child pornography is legally and factu-
ally insufficient; and (3) Appellant’s sentence was inappropriately severe. 2
Finding no error materially prejudicial to a substantial right of Appellant, we
affirm the findings and sentence.

                                      BACKGROUND
    In March 2015, Appellant, a 22-year-old senior airman, responded to a
Craigslist advertisement on the Internet that he believed was posted by a fe-
male named “Julia.” The advertisement had actually been posted by Air Force
Office of Special Investigations (AFOSI) Special Agent CS, a male agent posing
as the 14-year-old female “Julia” as part of “Operation Broken Heart,” an In-
ternet Crimes Against Children (ICAC) undercover investigation. Appellant
then began an extensive conversation with “Julia” by email and text messages
that continued for approximately four days. Shortly after responding to the
advertisement, in the fourth text message sent by Special Agent CS, Appellant
learned that “Julia” was 14 years old. Despite expressing some initial concerns
about her age, Appellant continued the conversation and quickly changed the
focus to sexual topics. During the course of their conversations, Appellant com-
municated indecent language to “Julia,” stating “by f[**]king u till u c[*]m all
over my d[**]k,” “making u c[*]m again and again,” “Want to see my c[**]k,”
and “I want to see your pu[**]y.” Appellant also sent “Julia” a photograph of
his penis and asked “Julia” to send him a photograph of her vagina. Appellant
was charged with attempting to commit the underlying offenses because




1 Pursuant to Article 58b, Section (b), UCMJ, the convening authority waived all man-
datory forfeitures of pay and allowances for a period of six months, release from con-
finement, or expiration of term service, whichever occurred sooner, for the benefit of
Appellant’s dependent spouse and children. In a memorandum dated 5 January 2016,
the convening authority denied Appellant’s request for deferment of mandatory forfei-
tures and reduction in rank but failed to articulate the reasons for the denial as re-
quired by Rule for Courts-Martial 1101(c)(3). See United States v. Jalos, No. ACM
39138, 2017 CCA LEXIS 607, at *5–6 (A.F. Ct. Crim. App. 5 Sep. 2017) (unpub. op.).
Our review of the record of trial reveals no colorable showing of possible prejudice as a
result of the convening authority’s error by failing to articulate the reasons for the
denial and we conclude that no relief is warranted.
2   Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


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                   United States v. Johnston, No. ACM 39075


“Julia” was not an underage girl, but rather a fictitious person portrayed by
Special Agent CS.

                                     DISCUSSION
A. Preemption
   In Specification 3 of the Charge, Appellant was charged with attempting to
knowingly and wrongfully receive child pornography in violation of Article 80,
UCMJ. The underlying offense Appellant was alleged to have attempted to
commit is listed in Article 134, UCMJ. Appellant asserts the Government was
preempted from charging the “assimilated Article 134 offense in this case be-
cause Congress intended to limit prosecution for conduct of this nature in a
complete way to Article 120b(c).”
   We review questions of preemption de novo. United States v. Benitez, 65
M.J. 827, 828 (A.F. Ct. Crim. App. 2007). The preemption doctrine prohibits
application of Article 134 to conduct covered by Articles 80 through 132. Man-
ual for Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 60.c.(5)(a).
    Our superior court has long placed an additional requirement on the appli-
cation of the preemption doctrine that has greatly restricted its applicability:
       [S]imply because the offense charged under Article 134, UCMJ,
       embraces all but one element of an offense under another article
       does not trigger operation of the preemption doctrine. In addi-
       tion, it must be shown that Congress intended the other punitive
       article to cover a class of offenses in a complete way.
United States v. Anderson, 68 M.J. 378, 386–87 (C.A.A.F. 2010) (citing United
States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979)) (alteration in original). The preemp-
tion doctrine “applies only when (1) Congress intended to limit prosecution for
. . . a particular area of misconduct to offenses defined in specific articles of the
Code, and (2) the offense charged is composed of a residuum of elements of a
specific offense.” United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992)
(quotation marks and citations omitted).
    Appellant was charged with attempting to knowingly and wrongfully re-
ceive child pornography under Article 80, UCMJ. The elements of Article 80,
UCMJ, require: (1) that the accused did a certain overt act; (2) that the act was
done with the specific intent to commit a certain offense under the code; (3)
that the act amounted to more than mere preparation; and (4) that the act
apparently tended to effect the commission of the intended offense. MCM, pt.
IV, ¶ 4.b. The “certain offense under the code” Appellant was attempting to
commit was not “an assimilated Article 134 offense,” as claimed by Appellant,




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                  United States v. Johnston, No. ACM 39075


but rather the specifically listed Article 134 offense of receiving child pornog-
raphy. MCM, pt. IV, ¶ 68b. The elements of that offense require: (1) that the
accused knowingly and wrongfully received child pornography, and (2) that,
under the circumstances, the conduct of the accused was of a nature to bring
discredit upon the armed forces. Id.
     In a series of recent cases, we have addressed similar preemption argu-
ments related to the production of child pornography under the same listed
Article 134 offense. We have held: “The changes to Article 120b, UCMJ, have
not incorporated the listed Article 134, UCMJ, offense of child pornography.
Therefore, the preemption doctrine does not apply to Article 134, UCMJ, child
pornography specifications.” United States v. Chambers, No. ACM 38975, 2017
CCA LEXIS 318, at *7 (A.F. Ct. Crim. App. 4 May 2017) (unpub. op.) (quoting
United States v. Costianes, No. ACM 38868, 2016 CCA LEXIS 391, at *19–20
(A.F. Ct. Crim. App. 30 Jun. 2016) (unpub. op.)). We find no meaningful dis-
tinction between Appellant’s case involving the attempted receipt of child por-
nography and our prior decisions addressing production of child pornography,
both of which are under the listed Article 134 offense, that would cause us to
come to a different conclusion here. We conclude that the challenged Article
134 offense underlying the charged Article 80 offense with which Appellant
was charged was not preempted by Article 120b.
B. Legal and Factual Sufficiency
    Appellant also challenges the legal and factual sufficiency of the evidence
supporting his conviction for attempting to knowingly and wrongfully receive
child pornography.
    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 (C.M.A. 1987); see also United States v. Humph-
erys, 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).




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                  United States v. Johnston, No. ACM 39075


    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.
   As discussed above, Appellant was charged with attempting to receive child
pornography in violation of Article 80, UCMJ. Appellant asserts that he nei-
ther had the specific intent to receive child pornography nor did he take a “sub-
stantial step” to do so, as required to prove an attempt under Article 80. We
disagree.
    Shortly after Appellant began communicating with a person he believed to
be a 14-year-old girl, Appellant began asking her for pictures of herself, ini-
tially stating, “Send a sexy one lol” and later, “…u got any naked pics?” As
Appellant continued his dialogue with “Julia,” the topics included where she
lived on base, when her mother would be at work, and the possibility of visiting
“Julia.” The following exchange of text messages then occurred between Ap-
pellant and “Julia”:
       Appellant: “Oh thats cool I cant wait to make u feel good;)”
       Julia: “:)) how u plan om doin thst boy?”
       Appellant: “By f[**]king u till u c[*]m all over my d[**]k”
       Appellant: “And making u c[*]m again and again”
       Julia: “k but im not tryna be on teen mom”
       Appellant: “Thats why condoms were made”
    Two days after this conversation, during his continuing dialogue with
“Julia,” Appellant asked her if she wanted to see his “c[**]k” and then asked
her for a photograph of her vagina, telling her “I want to see ur pu[**]y.” SA
CS, responding as “Julia,” said “im at school how m I gonna take a pu[**]y pic
4 u?” Appellant then said in response, “In the bathroom or ti[**]ies.” Later, as
Appellant was attempting to arrange a meeting with “Julia,” he sent her a text
message stating, “Yeah, just send me some naked pics for motivation.” Appel-
lant then sent “Julia” a photograph of his penis and later a photograph of him-
self in his Air Force uniform. After being apprehended by the AFOSI, Appel-
lant admitted in his written statement that he responded to the Craigslist ad-
vertisement and engaged in continuing conversations with “Julia,” whom he
said he knew was 14 years old.


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                  United States v. Johnston, No. ACM 39075


    “Child pornography” is defined in the UCMJ as “material that contains ei-
ther an obscene visual depiction of a minor engaging in sexually explicit con-
duct or a visual depiction of an actual minor engaging in sexually explicit con-
duct.” MCM, pt. IV, ¶ 68b.c(1). “Sexually explicit conduct” is further defined as
“actual or simulated: …(e) lascivious exhibition of the genitals or pubic area of
any person.” MCM, pt. IV, ¶ 68b.c(7).
    Relying on Appellant’s own words in his messages to “Julia,” a reasonable
factfinder could conclude that Appellant had the specific intent to attempt to
receive child pornography, i.e., the “lascivious exhibition of the genitals or pu-
bic area” of the person he believed to be a 14-year-old girl and took a “substan-
tial step” towards obtaining such by requesting a photograph of her vagina.
    Drawing “every reasonable inference from the evidence of record in favor of
the prosecution,” the evidence is legally sufficient to support Appellant’s con-
viction beyond a reasonable doubt. Barner, 56 M.J. at 134. 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.
C. Sentence Appropriateness
   Lastly, Appellant asserts that his sentence was inappropriately severe and
he requests the court reduce the dishonorable discharge to a bad-conduct dis-
charge. We disagree and decline to do so.
    This court reviews sentence appropriateness de novo. United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty
and the sentence or such part or amount of the sentence, as [we find] correct
in law and fact and determine, on the basis of the entire record, should be ap-
proved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c).
    “We assess sentence appropriateness by considering the particular appel-
lant, the nature and seriousness of the offense[s], the appellant's record of ser-
vice, and all matters contained in the record of trial.” United States v. Sauk, 74
M.J. 594, 606 (A.F. Ct. Crim. App. 2015) (citing United States v. Anderson, 67
M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Though we have great discretion to
determine whether a sentence is appropriate, we have no power to “grant
mercy.” United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
    Appellant was convicted of attempting to sexually abuse a child under 16
years of age by intentionally communicating indecent language and by sending
a picture of his penis to a person he believed was a 14-year-old child. Appellant
was also convicted of attempting to knowingly and wrongfully receive child
pornography from the person he believed was a 14-year-old girl by asking her
to send him sexually explicit photographs.

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                  United States v. Johnston, No. ACM 39075


    We have given individualized consideration to Appellant, the nature and
seriousness of the offenses, Appellant’s record of service, and all other matters
contained in the record of trial. Appellant was subject to a maximum sentence
of 40 years of confinement, reduction to E-1, forfeiture of all pay and allow-
ances, and a dishonorable discharge. His approved sentence of a dishonorable
discharge, 10 months of confinement, and reduction to E-1 was significantly
less than the maximum that could have been imposed. The sentence properly
addressed Appellant’s serious misconduct, was legally appropriate based on
the facts and circumstances of this particular case, and was not inappropri-
ately severe.

                                   CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 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


                 KATHLEEN M. POTTER
                 Acting Clerk of the Court




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