U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
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No. ACM 39980 (f rev)
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UNITED STATES
Appellee
v.
Robert A. MARDIS
Airman (E-2), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 26 April 2022
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Military Judge: Colin P. Eichenberger.
Sentence: Sentence adjudged 19 August 2020 by GCM convened at
Mountain Home Air Force Base, Idaho. Sentence entered by military
judge on 10 September 2020: Dishonorable discharge, confinement for 6
years, forfeiture of all pay and allowances, and reduction to E-1.
For Appellant: Major Ryan S. Crnkovich, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major John
P. Patera, USAF; Mary Ellen Payne, Esquire.
Before KEY, ANNEXSTAD, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge KEY and Judge ANNEXSTAD joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
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United States v. Mardis, No. ACM 39980 (f rev)
MEGINLEY, Judge:
Appellant’s case is before our court for the second time. Initially, Appellant
raised two issues on appeal: (1) whether the record of trial was substantially
complete, and (2) “whether the specification alleging that Appellant committed
a lewd act upon a child by intentionally exposing himself, as amended at trial,
was a lesser included offense of the specification alleging sexual abuse of a
child by causing sexual contact and therefore amounted to a multiplicious pros-
ecution in violation of the double jeopardy clause of the Fifth Amendment.”1,2
Our court remanded this case to the Chief Trial Judge, Air Force Trial Judici-
ary, to resolve Appellant’s first assignment of error, a substantial issue with
the completeness of the record of trial—specifically, missing attachments to
Prosecution Exhibit 1, a stipulation of fact. United States v. Mardis, No. ACM
39980,
2022 CCA LEXIS 10, at *9 (A.F. Ct. Crim. App. 6 Jan. 2022) (unpub.
op.). We deferred deciding Appellant’s second assignment of error until the rec-
ord was returned to court for completion of our review under Article 66(d),
UCMJ,
10 U.S.C. § 866(d). Mardis, unpub. op. at *9–10. On 24 January 2022,
the military judge signed a certificate of correction to the record of trial, and
on 1 February 2022, the record of trial was returned to the court for completion
of appellate review. We find the defects in the record of trial have been cor-
rected. This issue is now moot and we turn to Appellant’s remaining assign-
ment of error.
A general court-martial composed of a military judge sitting alone con-
victed Appellant, in accordance with his pleas and pursuant to a plea agree-
ment, of one specification of sexual abuse of a child who had not attained the
age of 16 years by communicating indecent language to her, one specification
of sexual abuse of a child who had not attained the age of 16 years by inten-
tionally exposing his penis to her, and one specification of sexual abuse of a
child who had not attained the age of 16 years by intentionally causing her to
touch his penis, all in violation of Article 120b, Uniform Code of Military Jus-
tice (UCMJ), 10 U.S.C. § 920b; and one charge and one specification of posses-
sion of obscene visual depictions of minors, as assimilated under 18 U.S.C.
§ 1466A, in violation of Article 134, UCMJ,
10 U.S.C. § 934.3 The military judge
1 U.S. CONST. amend. V.
2 Issue (2) is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982).
3 References in this opinion to Article 120b, UCMJ, 10 U.S.C. § 920b, are to the Manual
for Courts-Martial, United States (2016 ed.). References in this opinion to Article 134,
UCMJ,
10 U.S.C. § 934, are to the Manual for Courts-Martial, United States (2019 ed.)
(2019 MCM). The charges and specifications were referred to trial after 1 January
2019; accordingly, all other references to the UCMJ and Rules for Courts-Martial are
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United States v. Mardis, No. ACM 39980 (f rev)
sentenced Appellant to a dishonorable discharge, confinement for six years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the sentence.
Upon further review, we find no error that materially prejudiced a substan-
tial right of Appellant and affirm the findings and sentence.
I. BACKGROUND
Appellant joined the Air Force in December 2016 and, at the time of his
offenses, was stationed at Mountain Home Air Force Base (AFB), Idaho. As
part of his plea agreement, Appellant entered into a stipulation of fact. The
information provided in the stipulation of fact and in Appellant’s providence
inquiry form the basis for the following factual background.
On 14 April 2018, Appellant was visiting the residence of his mother, KS,
who lived approximately an hour and 20 minutes away from Mountain Home
AFB. At the time, MR and his five-year-old daughter, TR, were temporarily
residing at KS’s home.4 At some point in the day, Appellant went into a bath-
room to masturbate. While Appellant was masturbating on the toilet, TR
walked into the bathroom. Appellant’s penis was erect and exposed in a way
that TR could see it. TR asked Appellant what he was doing. Appellant ex-
plained that he was masturbating and told TR what masturbation was. Alt-
hough the exact words were unknown, according to the stipulation of fact, Ap-
pellant told TR, “[W]hen boys get hard and their penis bothers them, they have
to rub it and relieve themselves by getting stuff to come out of their penis,” or
words to this effect. Appellant demonstrated to TR the motions associated with
masturbation by rubbing his erect penis up and down one time with his hand.
Appellant stated in his providence inquiry, “I found it sexually exciting ex-
plaining what masturbation was to [TR] while I was in the act of masturbating.
I asked [TR] if she understood what I was talking about and she repeated what
I said in her own words.”
TR was about a foot away from Appellant. Appellant described what hap-
pened next:
I reached out with my hand and touched her arm. . . . I guided
her hand and placed it on my penis. She did not try to pull back
. . . I moved her hand up and down on my penis one time. I felt
sexually excited as she touched my penis, although I knew this
to the 2019 MCM. See Exec. Order 13,825, §§ 3, 5,
83 Fed. Reg. 9889, 9889–90 (
8 Mar.
2018).
4 The exact nature of the relationship between MR and KS was not fully developed at
Appellant’s court-martial.
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United States v. Mardis, No. ACM 39980 (f rev)
was wrong and I did not want to feel that way. After I moved her
hand away from my penis, I told her to ask her father any follow-
up questions she may have about what masturbation is and to
leave.
During the incident, TR was in the bathroom with Appellant at least for five
minutes. While TR was in the bathroom, Appellant told her to keep her voice
down.
On 21 April 2018, MR and TR were still at KS’s residence. Appellant was
again present. Much like the previous instance, at some point during the day,
Appellant went to the bathroom to masturbate. While he was doing this, TR
walked into the bathroom three times. While TR was in the bathroom with
Appellant, MR was searching for her and calling her name, but got no response;
TR had previously told MR she was going to brush her teeth. MR went to the
bathroom to see if TR was there, and opened the door to see if TR was alright.
When he opened the door, MR saw Appellant quickly lean forward while Ap-
pellant was sitting on the toilet with his pants down. MR believed Appellant
was “using the bathroom” and did not understand why TR was in there with
him.
KS was not home at the time of the incident but returned shortly thereaf-
ter. MR then told KS that it was not okay for Appellant to be using the bath-
room with TR in there. TR was nearby for this conversation. In an apparent
attempt to correct MR’s version of events, TR stated in front of KS and MR
that Appellant “was in [the bathroom] trying to get stuff out of the part that
every boy has.” MR found and confronted Appellant, who then admitted to MR
that he had been masturbating in the bathroom while TR was also in the bath-
room. MR went after Appellant and had to be physically restrained and pulled
off Appellant by other people in the house. Appellant immediately left the
home. At approximately 1737 hours, MR called 911 to report the incident.
On 31 May 2018, TR was interviewed by Children at Risk Evaluation Ser-
vices at a local hospital in Idaho. In her interview, she stated that she was
“helping [Appellant] get stuff out of his chucker,” and that “he really liked me
that time.” TR stated, “I wanted to (help him) and he let me.” She also stated
Appellant’s penis felt like “skin” and when she moved her hand on his
“chucker,” it felt weird.
Also on 31 May 2018, Appellant was interviewed by local police and by
agents with the Air Force Office of Special Investigations (AFOSI). During his
interview with AFOSI, Appellant consented to a search of his electronic devices
in his dorm room. Agents seized over 100 items. During the search, agents also
found a pink pair of children’s underwear; it was later determined the under-
wear belonged to TR. DNA testing reported that a DNA mixture found in the
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United States v. Mardis, No. ACM 39980 (f rev)
crotch area of the underwear was “14 trillion times more like to have come from
[Appellant] and [TR] than if it originated from [Appellant and] an unknown
individual.”
The search of Appellant’s electronic devices yielded 14,618 images and 330
videos of animated or computer-generated imagery (CGI) depictions of minors
engaged in sexually explicit conduct. Some of the images, GIFs,5 and videos
depicted babies and toddlers in apparent pain and confusion, wherein the child
is asking for the other party to stop. Other files depicted adults educating the
animated or CGI minor about how to perform a sexual act. However, no im-
ages, GIFs, or videos of child pornography depicting an actual minor were
found on Appellant’s devices.
In February 2020, Appellant’s dormitory building was selected for a ran-
dom inspection. After the inspecting official searched Appellant’s room and
found illustrations of “possibly sexually under-developed [females] or minors,
engaging in sexual acts,” the Government obtained a search authorization for
Appellant’s electronic devices in his room. The search of these electronic de-
vices yielded an additional 10,313 images, GIFs, and videos depicting what
appeared to be animated or computer-generated images of minors engaged in
sexually explicit conduct. These images and videos were less “cartoonish” in
nature and more realistic than those found on Appellant’s seized devices in
2018. Approximately 4,127 images, GIFs, and videos depicting animated or
CGI images were downloaded on 8 February 2020.
II. DISCUSSION
A. Additional Background
Specification 2 of Charge I alleged that on divers occasions, between 14
April 2018 and 21 April 2018, Appellant committed a lewd act upon TR, by
exposing his penis to her, with an intent to arouse or gratify his sexual desires.
After hearing Appellant’s providence inquiry on this specification, the military
judge advised trial and defense counsel he would not be able to find Appellant’s
plea to be provident with regard to the 21 April 2018 exposure. After some
discussion between trial and defense counsel, the words “on divers occasions”
were stricken by trial counsel with the convening authority’s approval, and
Appellant pleaded guilty to a single instance of exposing his penis to TR on 14
April 2018. Appellant now argues that when the military judge found Appel-
lant guilty of the 14 April 2018 indecent exposure, this offense was a lesser
included offense (LIO) of Specification 3 of Charge I, alleging sexual abuse of a
5 A GIF is an image file that can be either still or animated.
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United States v. Mardis, No. ACM 39980 (f rev)
child by causing sexual contact, and therefore “amounted to a multiplicious
prosecution.”
B. Law
The elements of sexual abuse of a child by sexual contact involving the
touching of the genitalia are: (1) that Appellant committed a lewd act upon TR,
by intentionally causing TR to touch, directly, his penis; (2) that at the time,
TR had not attained the age of 16 years; and (3) that Appellant did so with an
intent to arouse or gratify his sexual desire. See Manual for Courts-Martial,
United States (2016 ed.) (2016 MCM), pt. IV, ¶¶ 45b.b.(4)(a), 45b.a.(c),
45b.a.(h)(4).
The elements of sexual abuse of a child involving indecent exposure are: (1)
that Appellant committed a lewd act upon TR, by intentionally exposing his
penis to TR by any means; (2) that at the time, TR had not attained the age of
16 years; and (3) Appellant did so with an intent to arouse or gratify his own
sexual desire. See 2016 MCM, pt. IV, ¶¶ 45b.b.(4)(c), 45b.a.(c), 45b.a.(h)(4).
In determining whether one offense is an LIO of another offense, the United
States Court of Appeals for the Armed Forces (CAAF), in United States v.
Jones, articulated the “elements test,” stating:
Under the elements test, one compares the elements of each of-
fense. If all of the elements of offense X are also elements of of-
fense Y, then X is an LIO of Y. Offense Y is called the greater
offense because it contains all of the elements of offense X along
with one or more additional elements.
68 M.J. 465, 470 (C.A.A.F. 2010).
In United States v. Armstrong, the CAAF provided additional guidance,
stating that a court could apply the elements test in two ways:
The first way is by comparing the statutory definitions of the two
offenses. An offense is a lesser included offense of the charged
offense if each of its elements is necessarily also an element of
the charged offense. The second way is by examining the speci-
fication of the charged offense. An offense can also be a lesser
included offense of the charged offense if the specification of the
charged offense is drafted in such a manner that it alleges facts
that necessarily satisfy all the elements of each offense.
77 M.J. 465, 469–70 (C.A.A.F. 2018) (citations omitted).
“The prohibition against multiplicity is grounded in compliance with the
‘constitutional and statutory restrictions against Double Jeopardy.’” United
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United States v. Mardis, No. ACM 39980 (f rev)
States v. Gladue,
67 M.J. 311, 313 (C.A.A.F. 2009) (citing United States v. Qui-
roz,
55 M.J. 334, 337 (C.A.A.F. 2001)).
“An unconditional guilty plea waives a multiplicity issue unless the of-
fenses are facially duplicative, that is, factually the same.” United States v.
Pauling,
60 M.J. 91, 94 (C.A.A.F. 2004) (internal quotation marks and citation
omitted). “Whether two offenses are facially duplicative is a question of law
that we will review de novo.”
Id. (citing United States v. Palager,
56 M.J. 294,
296 (C.A.A.F. 2002)). “Two offenses are not facially duplicative if each ‘requires
proof of a fact which the other does not.’”
Id. (quoting United States v. Hudson,
59 M.J. 357, 359 (C.A.A.F. 2004)).
An appellant’s “express waiver of any waivable motions” as part of a pre-
trial agreement or plea agreement “extinguishe[s] his right to raise these is-
sues on appeal” unless the waiver is of a fundamental right. Gladue, 67 M.J.
at 314. An accused “may knowingly and voluntarily waive many of the most
fundamental protections afforded by the Constitution. That includes double
jeopardy, the basis of the multiplicity objection.” Id. (citations omitted). “[A]
guilty plea does not foreclose or relinquish consideration of all legal issues,
particularly double jeopardy claims, which can be decided on the basis of facts
apparent on the face of the record.” United States v. Lloyd,
46 M.J. 19, 24
(C.A.A.F. 1997) (citations omitted). “Nevertheless, if the factual component of
each offense said to be multiplicious is not shown to be the same, appellate
review of the legal aspect of such a claim is not required under our guilty plea
waiver doctrine.”
Id. (citation omitted).
C. Analysis
Appellant expressly waived “all waivable motions” as part of his plea agree-
ment—one that appeared to give him significant benefits, especially as it re-
lated to the maximum period of confinement he would face. In turn, Appellant
waived any legal claims he may have had regarding multiplicity on this appeal,
except for a claim that the offenses are facially duplicative. See Pauling, 60
M.J. at 94.
Reviewing the standard espoused in Pauling, applying the elements test
from Jones, and reviewing this case de novo, we do not find Appellant’s sexual
abuse of a child by indecent exposure offense to be an LIO of sexual abuse of a
child by intentionally causing contact, nor do we find the offenses facially du-
plicative. These are two separate offenses that require different elements, no-
tably exposure for the former and actual physical contact for the latter. Physi-
cal contact can occur while a person’s genitalia are exposed, or in the absence
of exposure (such as through the clothing). In this case, moreover, while not an
extended period of time, there was a gap of time between when Appellant ex-
posed his penis to TR and when he actually guided TR’s hand to his penis.
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United States v. Mardis, No. ACM 39980 (f rev)
Furthermore, having reviewed Appellant’s providence inquiry and the stipula-
tion of fact, Appellant described and admitted to two distinct and separate of-
fenses.
Regarding any other claims of multiplicity or “multiplicious prosecution,”
these claims are waived. At Appellant’s court-martial, the military judge asked
trial defense counsel what motions the Defense would have made but for the
plea agreement provision. Defense counsel did not say that a multiplicity mo-
tion was a motion he considered filing with the trial court. Appellant argues
that because “no mention was made of a motion to dismiss on the basis of either
multiplicity or even an unreasonable multiplication of charges” to the military
judge, that “any such waiver of this issue on the part of Appellant was less
than all-knowing.”
Nonetheless, before the military judge accepted Appellant’s pleas, he con-
ducted an appropriate inquiry with Appellant about the waiver provision in
the plea agreement, making sure Appellant understood this provision of his
agreement. Appellant’s defense counsel also informed the military judge that
the Defense originated the waiver provision of the plea agreement. We find
that Appellant’s waiver was knowing and voluntary. Accordingly, we decline
to exercise our authority under Article 66, UCMJ, to pierce Appellant’s waiver.
See United States v. Chin,
75 M.J. 220, 222–23 (C.A.A.F. 2016).
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). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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