         United States Navy-Marine Corps
             Court of Criminal Appeals
                          _________________________

                            UNITED STATES
                                Appellee

                                       v.

                      Payton A. CHAMORRO,
                 Lance Corporal (E-3), U.S. Marine Corps
                               Appellant

                              No. 201700286

       Appeal from the United States Navy-Marine Corps Trial Judiciary.
                           Decided: 11 March 2019.
                              Military Judge:
               Lieutenant Colonel Brian E. Kasprzyk, USMCR.
   Sentence adjudged 13 June 2017 by a general court-martial convened
   at Marine Corps Air Ground Combat Center, Twentynine Palms,
   California, consisting of a military judge sitting alone. Sentence
   approved by convening authority: reduction to E-1, confinement for
   seven years,1 and a dishonorable discharge.
                            For Appellant:
           Lieutenant Commander Derek C. Hampton, JAGC, USN.
                                For Appellee:
                       Captain Luke Huisenga, USMC;
                        Major Kelli A. O’Neil, USMC.
                          _________________________

          This opinion does not serve as binding precedent, but
               may be cited as persuasive authority under
              NMCCA Rule of Practice and Procedure 30.2.




   1  The Convening Authority suspended confinement in excess of 48 months pursu-
ant to a pretrial agreement.
                       United States v. Chamorro, No. 201700286


                              _________________________

                   Before FULTON, CRISFIELD, and HITESMAN,
                             Appellate Military Judges.

PER CURIAM:
    The appellant was convicted, in accordance with his plea, of one specifica-
tion of possession of child pornography in violation of Article 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2016).
   In his sole assignment of error, the appellant contends that the military
judge erred in admitting the table of contents and forward to “The Pedo-
phile’s Handbook” as aggravation evidence. We disagree.

                                     I. BACKGROUND

    The appellant possessed 34 images of child pornography. In satisfying the
terms of his pretrial agreement, the appellant entered into a stipulation of
fact describing his offense and its circumstances. In this stipulation of fact,
the appellant admitted to finding and electronically bookmarking “The Pedo-
phile’s Handbook.”2 This handbook describes itself as a “very important
toolbox to have along with you when your [sic] about to find, befriend, and
interact with children, especially sexually, all over the world.”3
    During presentencing, the government moved to admit “The Pedophile’s
Handbook” as evidence in aggravation. The appellant objected to the admis-
sion of the handbook on the grounds that it was improper aggravation evi-
dence under RULE FOR COURTS-MARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR
COURTS-MARTIAL UNITED STATES (2016 ed.) (MCM) and that it failed the
MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 403, MCM balancing test. The
military judge sustained the objection.
    Later in the proceeding, as part of his presentencing case, the appellant
made the following unsworn statement: “Through all of this, I never had the
urge to engage in . . . any of the actions in those pictures. I would never, ever
harm a child.”4 The government again offered “The Pedophile’s Handbook,”
this time arguing that it tended to rebut the appellant’s unsworn statement.
The appellant again objected under R.C.M. 1001 and MIL. R. EVID. 403, but



   2   Prosecution Exhibit (PE) 1.
   3   Id. at 3.
   4   Record at 56.


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                       United States v. Chamorro, No. 201700286


this time the trial judge overruled the objection and admitted the handbook
as rebuttal evidence.

                                   II. DISCUSSION

    We review a military judge’s admission or exclusion of evidence for an
abuse of discretion. United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).
“The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be arbitrary, fanciful, clear-
ly unreasonable, or clearly erroneous.” United States v. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010) (citations and internal quotation marks omitted).
    During the presentencing proceedings, the prosecution may rebut matters
presented by the defense. R.C.M. 1001(c)(2)(C). This rebuttal may include ex-
trinsic evidence of prior conduct that rebuts assertions of fact in an accused’s
unsworn statement. United States v. Cleveland, 29 M.J. 361, 363 (C.M.A.
1990); see also United States v. Driver, 36 M.J. 1020 (N.M.C.M.R. 1993).
“[T]he function of rebuttal evidence is to explain, repel, counteract or disprove
the evidence introduced by the opposing party.” United States v. Wirth, 18
M.J. 214, 218 (C.M.A. 1984) (citations omitted).
    In evaluating the military judge’s decision to admit the handbook, we
must first determine whether the relevant part of the appellant’s unsworn
statement qualifies as a statement of fact under R.C.M. 1001(c)(2)(C). Manns,
54 M.J. at 166. Second, we must determine whether or not the probative val-
ue of the proffered evidence was substantially outweighed by its unfair preju-
dice. MIL. R. EVID. 403. We conclude that the appellant’s statement, “Through
all of this, I never had the urge to engage in . . . any of the actions in those
pictures. I would never, ever harm a child,” is a statement of fact within the
meaning of R.C.M. 1001(c)(2)(C).5 See United States v. Partyka, 30 M.J. 242,
247 (C.M.A. 1990). The government’s rebuttal evidence tended to show that
the appellant did in fact have a sexual interest in children. The appellant
bookmarked material that purportedly contained guidance to self-identified
pedophiles in “practicing sex with children”—including topics such as “Hunt-
ing Season” and “Penetration Training.”6 This evidence was introduced to
prove that—at some point—the appellant did have an urge to engage in sex-
ual acts with a child, and the bookmarked handbook provided him with a
readily accessible primer on how to go about satisfying that urge.




   5   Record at 56.
   6   PE 3 at 1-2.


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                  United States v. Chamorro, No. 201700286


    The appellant further argues that the probative value of “The Pedophile’s
Handbook” is substantially outweighed by unfair prejudice. A military judge
enjoys wide discretion in applying MIL. R. EVID. 403. United States v. Harris,
46 M.J. 221, 225 (C.A.A.F. 1997). But the military judge’s balancing test must
be articulated on the record in order to receive this deference. Manns, 54 M.J.
at 166. If the military judge’s balancing test is not articulated on the record,
then they will receive less deference. Id. On the other hand, if the military
judge fails to conduct the balancing test required by Rule 403, then no defer-
ence is afforded his decision. Id. The military judge in this case does not ap-
pear to have conducted a balancing test. Consequently, we examine the rec-
ord de novo. Id.
    MIL. R. EVID. 403 allows the military judge to exclude relevant evidence if
its probative value is substantially outweighed by a danger of unfair preju-
dice. “Where a party opens the door, principles of fairness warrant the oppor-
tunity for the opposing party to respond, providing the response is fair and is
predicated on a proper testimonial foundation.” United States v. Eslinger, 70
M.J. 193, 198 (C.A.A.F. 2011).
    We find that by affirmatively stating that he never had any interest in
personally engaging in sexual acts with a child, the accused opened the door
to evidence tending to demonstrate that he did have such an interest. The
offered evidence fairly responded to the appellant’s statement. Additionally,
the appellant was tried by a military judge alone, and was at less risk for un-
fair prejudice. See Manns, 54 M.J. at 167. We find that the probative value of
the government’s rebuttal evidence is not substantially outweighed by the
danger of unfair prejudice.

                              III. CONCLUSION

    Having carefully considered the appellant’s assigned error, the record of
trial, and the parties’ submissions, we conclude the findings and sentence are
correct in law and fact and that no error materially prejudiced the appellant’s
substantial rights. Arts. 59(a) and 66(c), UCMJ. Accordingly, the findings and
sentence AFFIRMED.


                                    FOR THE COURT:




                                    RODGER A. DREW, JR.
                                    Clerk of Court



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