United States v. Robles ( 2023 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40280
________________________
UNITED STATES
Appellee
v.
Stephen T. ROBLES
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 18 August 2023
________________________
Military Judges: Willie J. Babor (pretrial motions); 1 Mark F. Rosenow
(arraignment); Shad R. Kidd.
Sentence: Sentence adjudged 15 February 2022 by GCM convened at
Buckley Space Force Base, Colorado. Sentence entered by military judge
on 28 March 2022: Bad-conduct discharge, confinement for 325 days,
forfeiture of all pay and allowances, reduction to E-1, and reprimand.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Brit-
tany M. Speirs, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen Payne,
Esquire.
Before RICHARDSON, CADOTTE, and ANNEXSTAD, Appellate Mili-
tary Judges.
Senior Judge ANNEXSTAD delivered the opinion of the court, in which
Senior Judge RICHARDSON and Senior Judge CADOTTE joined.
________________________
1 Pursuant to Article 30a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 830a.
United States v. Robles, No. ACM 40280
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
ANNEXSTAD, Senior Judge:
At a general court-martial, a military judge convicted Appellant, in accord-
ance with his pleas, of one charge and four specifications of willful dereliction
of duty, one charge with one specification of wrongful broadcasting of visual
images of sexually explicit conduct, and one charge and five specifications of
indecent conduct, in violation of Articles 92, 117, and 134, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 917, 934.2 A military judge sen-
tenced Appellant to a bad-conduct discharge, confinement for 325 days, forfei-
ture of all pay and allowances, reduction to the grade of E-1, and a reprimand.
The convening authority took no action on the sentence.
Appellant raises four issues: (1) whether the military judge erred in admit-
ting victim impact statements; (2) whether Appellant’s plea of guilty to Speci-
fication 4 of Charge III is provident; (3) whether a provision in Appellant’s plea
agreement providing that dismissal of certain charges and specifications would
ripen into dismissal with prejudice “upon completion of appellate review where
the findings and sentence have been upheld” is void or otherwise unenforcea-
ble; and (4) whether Appellant’s sentence is inappropriately severe.3
We have carefully considered issue (3) and find Appellant is not entitled to
relief. See United States v. Goldsmith, No. ACM 40148, 2023 CCA LEXIS 8, at
*15 (A.F. Ct. Crim. App. 11 Jan. 2023) (unpub. op.) (finding plea agreement
term—requiring the convening authority to dismiss the additional charges and
specifications with prejudice “upon completion of appellate review where the
findings and sentence have been upheld”—permissible because it does not vio-
late law or public policy).
Finding no error that materially prejudiced a substantial right of Appel-
lant, we affirm the findings and sentence.
2 All references to the UCMJ and the Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2019 ed.).
3 Issue (4) was raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982).
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United States v. Robles, No. ACM 40280
I. BACKGROUND
Appellant joined the Air Force on 8 May 2012. He and MR were married in
2018. On 3 March 2019, Appellant created an account on Tumblr4 where he
uploaded sexually suggestive and sexually explicit photographs of several
women. The username used by Appellant on Tumblr translates to “hot Air
Force wife [M].” “[M]” was MR’s nickname. On the account, Appellant pre-
tended to be his wife so he could curate a fantasy world, through sexually ex-
plicit images and captions, where he was engaged in extramarital, sexual re-
lationships with other women.
To further his fantasy, Appellant took images from the personal Facebook
or Snapchat pages of women (the victims) he knew, to include his wife, and
posted them on Tumblr next to pornographic images of women who resembled
the victims. He would then post captions to the photographs to create the im-
pression that the victims were in a sexual relationship with him. For instance,
SD was Appellant’s sister-in-law. He took an image of her from her Facebook
page and posted it next to images of women performing sexually explicit acts.
He then created the caption, “[H]ubby getting suck by my slutty sister [heart
eyes emoji],” to create the impression that his wife had posted pictures of her
sister performing oral sex on Appellant. Appellant created similar posts for all
the victims and in many cases used the victim’s real names on the public site.
None of the women, except his wife MR, had ever been in an intimate relation-
ship with Appellant.
On the same Tumblr account, Appellant posted actual photographs of MR
exposing her breasts and performing oral sex on him. The photographs were
taken in “the confidence of [their] marriage” and MR did not consent to or know
that Appellant posted the images publicly on the Internet.
Prior to any formal investigation, Appellant was contacted by two victims
regarding the publicly posted images. Appellant repeatedly denied that he was
involved with the Tumblr account. One of the victims, CJ, a prior co-worker of
Appellant, reached out to Appellant via Facebook to ask about the images,
prompting the following conversation:
CJ: I never would send a photo like that so it had to be some-
one who knew me and had a connection to [a mutual friend].
....
4 Tumblr is a microblogging and social networking website that allows users to post
multimedia and other content to a short-form blog.
3
United States v. Robles, No. ACM 40280
Appellant: [AT 5] blames us but I never had any pictures like
that of her. And I would NEVER want pictures of [MR] out
there like that. . . .
....
CJ: [AT] thought it was you?
Appellant: She thought it was [MR] then started to say it was
me.
....
CJ: Someone posted photos of your wife and you accepted that?
Appellant: No!!
CJ: Why would someone do this?
Appellant: I had talked to OSI [Air Force Office of Special In-
vestigations (AFOSI)] and they said since the page was down
there wasn’t much they could do.
....
CJ: This is f[**]ked up. I’m having a hard time believing this
isn’t you because all of these women are connected to you.
Appellant: No way I’d do that!
CJ: Who would?
Appellant: I never knew what [T]umblr was before [AT] told
me.
CJ: Who could it be then? [a mutual friend]? [another mutual
friend]?
Appellant then listed three people both he and CJ knew as possible creators
of the page and said one of them was “scumbag” enough to do it. CJ brought up
that AFOSI would find the creator. Appellant replied, “I hope they do. This has
f[**]ked me and [MR] up for months. What’s f[**]ked up is [people] are blaming
me for this. . . .” When CJ asked him if he created the images and posts,
5 AT was another victim. AT learned of the Tumblr page when a high school friend she
had not spoken to in years reached out to her and sent her the link from Appellant’s
Tumblr page which contained images of her. AT initially believed that MR was the
creator of the account because it was written from her perspective. When AT con-
fronted Appellant, he denied any responsibility for the account.
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United States v. Robles, No. ACM 40280
Appellant stated, “I’m dead serious. I have no clue how this [T]umblr s[**]t
happened. That’s the honest truth . . . I swear to you. I . . . don’t have any
knowledge about [T]umblr before hand [sic] or it even existed. That’s the hon-
est truth.” He also told CJ, “I feel your pain in all of this as [we] went through
it already. Things in day to day remind us of this crazy bulls[**]t and it ruins
our day.” When CJ asked Appellant if he knew anything else because she could
not handle any more surprises, he said, “I even paid for an IP [(Internet proto-
col)] address tracker to see if I could track the pictures. And it would direct me
to New York or Germany.” Once Appellant knew he was being investigated by
AFOSI, he reached out to a prior co-worker, JB. He asked, “Bro you know an-
ything about [T]umblr and some pics of chicks we know from [an Air Force
Base] on there?” JB replied that he was not aware of the account. Despite being
the creator of the posts, Appellant said:
Hmmmm ok. I guess there was some pics of chicks we know.
Now [CJ] and [AT] are blaming me for it. Guess that’s what
[AF]OSI is investigating me for. Yea I had never heard of [T]um-
blr until this. Which f[**]k I would never post pictures like that
online for everyone to see. Besides it being f[**]ked up I’m not
stupid I know you can go to jail for that s[**]t.
On 24 September 2021, the convening authority referred six charges and
fourteen specifications against Appellant. Charge I and its four specifications
alleged Appellant was derelict in the performance of his duties, in violation of
Article 92, UCMJ, when “he willfully failed to refrain from electronically post-
ing descriptions and sexually explicit images on Tumblr, a social networking
platform, to create the appearance that [the victims were] pictured in the sex-
ually explicit images.” Each specification was for one victim: SD, LG, HoP, and
KR.
Charge II alleged Appellant wrongfully broadcasted sexually explicit im-
ages of his wife, MR, without her consent and when she retained a reasonable
expectation of privacy, in violation of Article 117a, UCMJ.
Charge III and its five specifications alleged Appellant committed indecent
conduct, in violation of Article 134, UCMJ, when he electronically posted de-
scriptions and sexually explicit images on Tumblr to create the appearance
that the victims were pictured in the sexually explicit images. Each specifica-
tion was for one victim: JS, AT, HP, MD, and CJ. Specification 1 of Charge III
alleged Appellant’s behavior was to the prejudice of good order and discipline
and of a nature to bring discredit upon the armed forces, while Specifications
2–5 of Charge III alleged his behavior was of a nature to bring discredit upon
the armed forces.
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United States v. Robles, No. ACM 40280
Two additional charges were also referred. Additional Charge I and its
specification alleged Appellant unlawfully wrapped his hands around MR’s
neck in violation of Article 128, UCMJ. Additional Charge II and its two spec-
ifications alleged Appellant tackled MR to the ground with his body and jabbed
her in the neck with his finger, also in violation of Article 128, UCMJ.
On 4 February 2022, Appellant entered into a plea agreement and agreed
to plead guilty to Charge I and its four specifications, Charge II and its speci-
fication, and Charge III and its five specifications. In exchange for his guilty
pleas, the convening authority agreed to withdraw and dismiss Additional
Charge I and its specification and Additional Charge II and its specifications,
initially without prejudice and then later with prejudice upon completion of
appellate review, if the findings and sentence are upheld.
II. DISCUSSION
A. Victim Impact Statements
Appellant contends that the military judge abused his discretion when he
admitted written unsworn statements by HoP, HP, and CJ during presentenc-
ing proceedings over trial defense counsel’s objections. Appellant argues now,
as he did during presentencing, that a victim’s right to be reasonably heard is
“tethered to” the physical presence of the crime victim at the presentencing
proceeding pursuant to Rule for Courts-Martial (R.C.M.) 1001(a)(3)(A). We dis-
agree and find that the military judge did not abuse his discretion and that no
relief is warranted.
1. Additional Background
At the close of the Government’s presentencing case, the military judge
asked if there were any crime victims who wished to be heard. In response,
trial counsel informed the military judge there were ten crime victims who
wished to exercise their right to be heard. HoP, HP, and CJ were not physically
present at the proceeding but chose, along with seven other victims, to exercise
their right to be heard and submitted unsworn victim impact statements. HoP,
HP, and CJ were not represented by a special victims’ counsel.
Trial defense counsel initially objected to portions of the unsworn state-
ments, including statements by HP and CJ. Trial counsel relayed the objec-
tions to HP and CJ, and they chose to redact the objected-to material and re-
submit their statements to the court with redactions. Trial defense counsel
then objected to the unsworn statements of HoP, HP, and CJ in their entirety.
Trial defense counsel first objected to HoP’s unsworn statement due to lack of
authentication because HoP was not present to “ask that [her statement] be
6
United States v. Robles, No. ACM 40280
considered with respect to [Appellant’s] case.” After the trial counsel explained
there was a witness present who could testify that HoP was advised of her right
to be heard and then provided the written unsworn statement in response to
that advisement, trial defense counsel withdrew the objection for lack of au-
thentication.
Trial defense counsel then focused his objection on whether R.C.M. 1001
required that it be “the victim, the [victim’s] representative, or a designee cre-
ated by the military judge” who would “provide” the court with the victim’s
unsworn statement. Trial defense counsel reiterated the same objection to HP’s
and CJ’s unsworn statements when he argued that the victim was not the in-
dividual who actually offered the statement.
In his ruling, the military judge first explained that, procedurally,
R.C.M. 1001(c)(5)(B) required a crime victim who elected to present an un-
sworn statement to first provide a written proffer of the matters to both trial
counsel and trial defense counsel. The military judge noted that procedure oc-
curred. The military judge then explained he did not see a specific requirement
in R.C.M. 1001(c) that a victim had to be personally present in order to provide
a written statement to the court. He explained, “[I]t would seem to undermine
the purpose of the rule to [only] allow a written unsworn statement, if the vic-
tim has to actually come in and testify, or make some verbal statement in order
to give a written unsworn statement.” The military judge then found that HoP,
HP and CJ were all named victims who participated in the case against Appel-
lant, and that each had provided a statement identifying who it was from,
providing details of Appellant’s crimes, describing the impact Appellant’s ac-
tions had on them, and asking the court to consider the statements.
The military judge overruled trial defense counsel’s objections and admit-
ted all three unsworn statements as court exhibits.
2. Law
A military judge’s interpretation of R.C.M. 1001 is a question of law we
review de novo. See United States v. Barker, 77 M.J. 377, 382 (C.A.A.F. 2018)
(citations omitted). However, we review a military judge’s decision to accept a
victim impact statement offered pursuant to R.C.M. 1001 for an abuse of dis-
cretion. See United States v. Edwards, 82 M.J. 239, 243 (C.A.A.F. 2022). A mil-
itary judge “abuses his discretion if his findings of fact are clearly erroneous or
his conclusions of law are incorrect.” United States v. Humpherys, 57 M.J. 83,
90 (C.A.A.F. 2002) (quoting United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995)). 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,
clearly unreasonable, or clearly erroneous.’” United States v. White, 69 M.J.
7United States v. Robles, No. ACM 40280
236, 239 (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J. 95, 99
(C.A.A.F. 2010)).
When considering issues of statutory interpretation, courts first look to the
text of the statute. United States v. Jacobsen, 77 M.J. 81, 84 (C.A.A.F. 2017)
(citations omitted). “When statutory language is unambiguous, the statute’s
plain language will control.” Id. (footnote omitted) (citing United States v.
Schell, 72 M.J. 339, 343 (C.A.A.F. 2013)).
Congress granted crime victims a right to “reasonably be heard” during any
sentencing proceeding related to an offense for which they are a victim. Articles
6b(a)(4) and 6b(a)(4)(B), UCMJ, 10 U.S.C. §§ 806b(a)(4), 806b(a)(4)(B).
Rule for Courts-Martial 1001(c)(2)(A) defines a “crime victim” as “an indi-
vidual who has suffered direct physical, emotional, or pecuniary harm as a re-
sult of the commission of an offense of which the accused was found guilty.” A
crime victim has a “right to make a sworn statement, unsworn statement, or
both.” R.C.M. 1001(a)(3)(A).
“Prior to the conclusion of the presentencing proceeding, the military judge
shall ensure that any such crime victim [is] afforded the opportunity to be rea-
sonably heard.” Id. “[T]he right to be reasonably heard requires that the vic-
tims be contacted, given the choice to participate in a particular case, and, if
they choose to make a statement, offer the statement themselves, through
counsel, or through a ‘victim’s designee’ where appropriate.” United States v.
Hamilton, 78 M.J. 335, 340–41 (C.A.A.F. 2019) (citations omitted). The intro-
duction of statements under this rule is prohibited without, at a minimum,
either the presence or request of the victim. Barker, 77 M.J. at 382.
Statements offered under R.C.M. 1001(c)(3) may include victim impact or
matters in mitigation. “[V]ictim impact includes any financial, social, psycho-
logical, or medical impact on the crime victim directly relating to or arising
from the offense of which the accused has been found guilty.”
R.C.M. 1001(c)(2)(B). “During the presentencing proceedings, there shall be
much greater latitude than on the merits to receive information by means
other than testimony presented through the personal appearance of wit-
nesses.” R.C.M. 1001(f)(1).
Victim impact statements offered under R.C.M. 1001(c) are not “evidence,”
and thus “the balancing test in Mil. R. Evid. 403 is inapplicable to assessing
the reasonable constraints that may be placed upon such statements.” United
States v. Hamilton, 77 M.J. 579, 586 (A.F. Ct. Crim. App. 2017) (en banc) (foot-
note omitted), aff’d, 78 M.J. 335 (C.A.A.F. 2019); see also United States v. Tyler,
81 M.J. 108, 112 (C.A.A.F. 2021) (finding that a victim unsworn statement was
8
United States v. Robles, No. ACM 40280
not “evidence” and not subject to the Military Rules of Evidence). As this court
explained in Hamilton,
Mil. R. Evid. 403 addresses “legal relevance” and provides that
“evidence” may be excluded notwithstanding its logical rele-
vance. In the decision to allow a victim to exercise their right to
be heard on sentencing, a military judge is neither making a rel-
evance determination nor ruling on the admissibility of other-
wise relevant evidence. Instead, the military judge assesses the
content of a victim’s unsworn statement not for relevance, but
for scope. . . .
Id.When there is error regarding the presentation of victim statements under
R.C.M. 1001(c), the test for prejudice “is whether the error substantially influ-
enced the adjudged sentence.” Barker, 77 M.J. at 384 (internal quotation
marks and citation omitted). When determining whether an error had a sub-
stantial influence on a sentence, this court considers the following four factors:
“(1) the strength of the Government’s case, (2) the strength of the defense case,
(3) the materiality of the evidence in question, and (4) the quality of the evi-
dence in question.” United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017). “An
error is more likely to be prejudicial if the fact was not already obvious from
the other evidence presented at trial and would have provided new ammuni-
tion against an appellant.” United States v. Machen, No. ACM 39295, 2018
CCA LEXIS 419, at *12 (A.F. Ct. Crim. App. 29 Aug. 2018) (unpub. op.) (citing
United States v. Harrow, 65 M.J. 190, 200 (C.A.A.F. 2007)).
3. Analysis
Appellant suggests that because the victims were not physically present
and did not personally offer their statements to the military judge, that the
military judged erred by accepting the statements. We find nothing in the plain
language of R.C.M. 1001(c) that requires a victim to personally enter the court-
room and present their statement to the military judge; it merely states that a
victim has the right to be “reasonably heard.” As our superior court has stated,
the offering of a victim statement under this rule requires, “at a minimum,
either the presence or request of the victim . . . .” Barker, 77 M.J. at 382 (em-
phasis added). Here, the record clearly supports that HoP, HP, and CJ, all
named victims in Appellant’s case, requested the court consider their unsworn
statements. Since they were not eligible for representation by a victim’s coun-
sel, they personally offered their written unsworn victim statements to the
court through trial counsel and requested trial counsel deliver their statements
to the military judge. In this sense the trial counsel was a mere instrumentality
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United States v. Robles, No. ACM 40280
of the crime victims’ independently exercising their respective rights to submit
written unsworn statements under R.C.M. 1001(c)(5).
Appellant does not challenge the military judge’s findings of fact, and we
do not find anything in the military judge’s findings of fact that is clearly erro-
neous. As discussed, supra, we also find the military judge’s conclusions of law
were correct. We recognize the abuse of discretion standard is a strict one, and
that it requires more than a mere difference of opinion. We do not find the
military judge’s ruling in this case to be arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous. White, 69 M.J. at 239. We conclude the military judge
did not abuse his discretion in admitting unsworn victim statements from HoP,
HP, or CJ.
B. Providence of Plea
Appellant claims that the military judge abused his discretion in accepting
his guilty plea to Specification 4 of Charge III. Specifically, Appellant contends
that the images at issue are not “sexually explicit” as defined in Articles 117a
and 134, UCMJ, and therefore argues the military judge erred when he ac-
cepted Appellant’s plea. We disagree.
1. Additional Background
Specification 4 of Charge III read as follows:
In that [Appellant] . . . did . . . between on or about 1 March 2019
and on or about 31 October 2019, commit indecent conduct, to
wit: electronically posting descriptions and sexually explicit im-
ages on Tumblr, a social networking platform, to create the ap-
pearance that [MD] was pictured in the sexually explicit images,
and that said conduct was of a nature to bring discredit upon the
armed forces.
(Emphasis added).
Appellant entered into a plea agreement and pleaded guilty to the Article
134, UCMJ, offenses, described supra (Specifications 1–5 of Charge III), among
other charges and specifications. Prior to conducting the plea inquiry with Ap-
pellant, the military judge had a discussion with the parties regarding the def-
inition of the term “sexually explicit” as charged in the Charge I and Charge
III specifications. In referring to the Manual for Courts-Martial, the military
judge first identified the definition of “sexually explicit conduct” from Article
117a, UCMJ, prohibiting the wrongful broadcast or distribution of intimate
visual images, and then the term as defined under Article 134, UCMJ, prohib-
iting child pornography; the definition of the term was slightly different in each
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United States v. Robles, No. ACM 40280
of the two articles. The military judge further expressed that the term used in
the specifications was “sexually explicit” and not “sexually explicit conduct.”
He further remarked that the stipulation of fact did not use the term “sexually
explicit conduct,” nor did it use the definitions found in Articles 117a and 134,
UCMJ. Instead, he highlighted that paragraph 16 of the stipulation of fact
showed the parties agreed that sexually explicit images included photographs
“of nude women, women posing in differing forms of lingerie, and women per-
forming sexual acts.” Finally, the military judge clarified that the parties in-
tended to use a “more common-sensical [definition], common-understanding
approach” to define “sexually explicit” and did not intend to make it a “term of
art.” The military judge then asked the parties if there was a “meeting of the
minds” on that issue. Trial and defense counsel both responded “Yes, Your
Honor.”
Ultimately, the military judge stated he would use the common sense un-
derstanding of the term “sexually explicit” and not the definitions of “sexually
explicit conduct” from the Manual for Courts-Martial. During the colloquy be-
tween the military judge and Appellant during the guilty plea inquiry, the mil-
itary judge defined the term “sexually explicit” to include “sex acts such as ac-
tual or simulated genital to genital contact, oral to genital contact, anal to gen-
ital contact, or oral to anal contact. It also include[d] depictions of uncovered
genitalia, pubic area, buttocks, or a female breast, that lacks serious artistic,
literary, scientific or political value.” He also stated the term included “women
that are nude, posing in lingerie, or engaged in sex acts” as the parties stipu-
lated to in paragraph 16 of the stipulation of fact. Appellant again did not ob-
ject to the definition.
Appellant agreed, in the stipulation of fact, that the photographs were “sex-
ually explicit” because they included images of women posed in lingerie and in
the nude. During the guilty plea inquiry for Specification 4 of Charge III, the
military judge had Appellant view the photographs charged. He asked Appel-
lant if he believed the photographs were “sexually explicit” given the defini-
tions used previously for the Article 92, UCMJ, and the Article 134, UCMJ,
offenses, and Appellant agreed they were. Additionally, in the stipulation of
fact, Appellant agreed that he was guilty to all elements of the offenses.
Specifically, Appellant detailed how he was friends with MD, then an ac-
tive-duty military member, and pulled photographs of MD, some which dis-
played her in uniform, from her Facebook and Snapchat pages. He then posted
those photographs alongside photographs from his pornography collection with
captions to imply MD was the woman in the sexually explicit images. There
were eight images in total—five images of MD, two images of a woman “posing
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United States v. Robles, No. ACM 40280
provocatively” in lingerie and a thong with her buttocks exposed looking over
her shoulder, and one image of woman posing in the nude. In the captions,
Appellant referred to MD as “side chick slut f[**]k buddy,” “side chick slut hot-
wife f[**]k buddy [MD],” and “Hubbies new sex buddy.”
The military judge had also defined the term “indecent.” He explained it
was a “form of immorality relating to sexual impurity, which is grossly vulgar,
obscene, and repugnant to common propriety, and tends to excite sexual desire
or deprave morals with respect to sexual relations.” Appellant said his conduct
was indecent because he publicly posted images of MD, an active-duty military
member, next to pornographic images to suggest that MD was the woman in
all eight pictures. He further explained that when the photographs were
viewed in conjunction with the captions it gave the impression that MD was
engaged in an extramarital relationship with another military member. Appel-
lant stipulated that “[t]he intended false appearance is a form of immorality
relating to sexual impurity which is grossly vulgar, obscene, and repugnant to
common propriety, and tends to excite sexual desire or deprave morals with
respect to sexual relations.”
The military judge found Appellant’s plea provident and accepted his plea
of guilty for Specification 4 of Charge III.
2. Law
We review a military judge’s decision to accept the accused’s guilty plea for
an abuse of discretion. United States v. Riley, 72 M.J. 115, 119 (C.A.A.F. 2013).
“An abuse of discretion occurs when there is ‘something in the record of trial,
with regard to the factual basis or the law, that would raise a substantial ques-
tion regarding the appellant’s guilty plea.’” Id. (quoting United States v. Inabi-
nette, 66 M.J. 320, 322 (C.A.A.F. 2008)).
“The military judge must ensure there is a basis in law and fact to support
the plea to the offense charged.” United States v. Soto, 69 M.J. 304, 307
(C.A.A.F. 2011) (citing Inabinette, 66 M.J. at 321–22) (additional citation omit-
ted). In addition, the military judge must ensure the accused understands and
agrees to the terms of any pretrial agreement or plea agreement in order “to
ensure that [the] accused is making a fully informed decision as to whether or
not to plead guilty.” Id. (citing United States v. King, 3 M.J. 458, 458–59
(C.M.A. 1977)).
“A guilty plea is provident if the facts elicited make out each element of the
charged offense.” Harrow, 65 M.J. at 205 (citations omitted). “[A] military
judge must elicit actual facts from an accused and not merely legal conclu-
sions.” United States v. Price, 76 M.J. 136, 138 (C.A.A.F. 2017).
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United States v. Robles, No. ACM 40280
“[W]hen a plea of guilty is attacked for the first time on appeal, the facts
will be viewed in the light most favorable to the [G]overnment.” United States
v. Arnold, 40 M.J. 744, 745 (A.F.C.M.R. 1994) (citation omitted).
“Once the military judge has accepted a plea as provident and has entered
findings based on it, an appellate court will not reverse that finding and reject
the plea unless it finds a substantial conflict between the plea and the ac-
cused’s statements or other evidence of record.” United States v. Garcia, 44
M.J. 496, 498 (C.A.A.F. 1996).
An appellant bears the burden of establishing that the record shows “a sub-
stantial basis in law or fact to question the plea.” United States v. Phillips, 74
M.J. 20, 21–22 (C.A.A.F. 2015) (citation omitted). Appellate courts will not
speculate on the existence of facts that might invalidate a plea especially where
the matter raised post-trial contradicts an appellant’s express admission on
the record. See United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995).
Whether an accused has waived or instead forfeited an issue is a question
of law this court reviews de novo. United States v. Ahern, 76 M.J. 194, 197
(C.A.A.F. 2017) (citation omitted).
“Waiver is different from forfeiture. Whereas forfeiture is the failure to
make the timely assertion of a right, waiver is the intentional relinquishment
or abandonment of a known right.” United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020) (quoting Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)) (additional
citation omitted). “Consequently, while we review forfeited issues for plain er-
ror, . . . a valid waiver leaves no error” to correct on appeal. Id. (internal quo-
tation marks and citation omitted).
Stated another way: “A forfeiture is basically an oversight; a waiver is a
deliberate decision not to present a ground for relief that might be available in
the law.” United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009) (internal
quotation marks and citation omitted).
The elements of the offense of indecent conduct, as detailed in Charge III,
Specification 4, required that: (1) Appellant engaged in certain conduct, to wit:
electronically posting descriptions and sexually explicit images on Tumblr, a
social networking platform, to create the appearance that MD was pictured in
the sexually explicit images; (2) the conduct was indecent; and (3) under the
circumstances, Appellant’s conduct was of a nature to bring discredit upon the
armed forces. See Manual for Courts-Martial, United States (2019 ed.) (MCM),
pt. IV, ¶ 104.b.
“Indecent,” as used in Article 134, UCMJ, means a “form of immorality re-
lating to sexual impurity which is grossly vulgar, obscene, and repugnant to
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United States v. Robles, No. ACM 40280
common propriety, and tends to excite sexual desire or deprave morals with
respect to sexual relations.” MCM, pt. IV, ¶ 104.c.(1).
3. Analysis
We find that Appellant made a deliberate decision when he agreed that the
definitions of “sexually explicit conduct” used in Articles 117a and 134, UCMJ,
did not apply to the charged offense to which Appellant pleaded guilty. See
Campos, 67 M.J. at 332. The record also details Appellant expressly agreed in
the stipulation of fact that a more “common sense” definition applied to his
offenses. Additionally, during his guilty plea, Appellant agreed that “sexually
explicit” was not a term of art, as applied to the offense to which he pleaded
guilty.
We find the record supports that the military judge ensured Appellant
knew what definition was being used and understood the definition. Further-
more, the military judge confirmed multiple times that it was the parties’ in-
tent to define the term “sexually explicit” more broadly than the definitions of
sexually explicit conduct in Articles 117a and 134, UCMJ. At no point did Ap-
pellant indicate any disagreement with the definition used by the military
judge. Here, Appellant, through counsel, did not just fail to object; he affirma-
tively declined to object to the definition when his counsel answered “Yes, Your
Honor,” acknowledging that Appellant agreed on the definition of “sexually ex-
plicit” to be used. We conclude the record supports that Appellant intentionally
relinquished or abandoned his right to object to the definition used. See Davis,
79 M.J. at 331.
Putting aside Appellant’s failure to object, we find the military judge did
not abuse his discretion accepting Appellant’s guilty plea to Specification 4 of
Charge III. Appellant, in both the stipulation of fact and expressly in his own
words during the guilty-plea inquiry, established sufficient facts to establish
each element of the offense of indecent conduct. We see nothing in the record
of trial, with regard to the factual basis or the law, that would raise a substan-
tial question regarding Appellant’s guilty plea.
Appellant’s lone argument centers around a definition of “sexually explicit”
as used in the specification to describe the images. We note that this definition
is not an element of the offense; it was part of the specification that provided a
description of how Appellant committed the charged conduct. We see no reason
that the parties would be prohibited from agreeing in the plea agreement and
during the guilty plea to the definition to be used in this case. We do not find
that the law requires the military judge to use a definition for “sexually explicit
conduct” found elsewhere in the UCMJ, when the specification itself used the
term “sexually explicit images.” (Emphasis added). Appellant again expressly
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United States v. Robles, No. ACM 40280
agreed on the definition to be used and that his conduct met the agreed-upon
definition. In conclusion, Appellant has not shown the military judge incor-
rectly applied the law or that his acceptance of Appellant’s guilty plea was ar-
bitrary, fanciful, clearly unreasonable, or clearly erroneous. See generally
United States v. Shields, 83 M.J. 226 (C.A.A.F. 2023) (articulating abuse of
discretion standard). Therefore, Appellant’s plea to Specification 4 of Charge
III was provident.
C. Sentence Severity
Appellant contends his sentence is inappropriately severe. He describes
hardships he has faced, remorse he has expressed, and his high rehabilitative
potential. He asks that we use our authority under Article 66(d), UCMJ, 10
U.S.C. § 866(d), to modify his sentence. We are not persuaded Appellant’s sen-
tence is inappropriately severe and find no relief is warranted.
“We review sentence appropriateness de novo.” United States v. Datavs, 70
M.J. 595, 604 (A.F. Ct. Crim. App. 2011) (citing United States v. Baier, 60 M.J.
382, 383–84 (C.A.A.F. 2005)), aff’d, 71 M.J. 420 (C.A.A.F. 2012). “We assess
sentence appropriateness by considering the particular appellant, the nature
and seriousness of the offense[s], the appellant’s record of service, and all mat-
ters contained in the record of trial.” United States v. Anderson, 67 M.J. 703,
705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omitted). While we have
discretion in determining whether a sentence is appropriate, we are not au-
thorized to engage in exercises of clemency. See United States v. Nerad, 69 M.J.
138, 146 (C.A.A.F. 2010) (citation omitted).
We have conducted a thorough review of Appellant’s entire court-martial
record, including his record of service, and all the matters submitted in miti-
gation, including both his oral and written unsworn statements. We find that
the nature and seriousness of the offenses support the adjudged sentence of a
bad-conduct discharge, confinement for 325 days, forfeiture of all pay and al-
lowances, reduction to the grade of E-1, and a reprimand. Understanding we
have a statutory responsibility to affirm only so much of the sentence that is
correct and should be approved, Article 66(d), UCMJ, we conclude the sentence
is not inappropriately severe and we affirm the sentence adjudged.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
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United States v. Robles, No. ACM 40280
Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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