United States v. Carlile ( 2022 )

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40053
________________________
UNITED STATES
Appellee
v.
Joseph B. CARLILE
Airman (E-2), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 21 September 2022
________________________
Military Judge: Bryon T. Gleisner (pretrial motions and arraignment);
Mark W. Milam.
Sentence: Sentence adjudged on 4 November 2020 by GCM convened at
Scott Air Force Base, Illinois. Sentence entered by military judge on 9
December 2020: Dishonorable discharge, confinement for 540 days, re-
duction to E-1, and a reprimand.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major
Cortland T. Bobczynski, USAF; Major John P. Patera, USAF; Mary El-
len Payne, Esquire.
Before KEY, ANNEXSTAD, and GRUEN, Appellate Military Judges.
Judge GRUEN delivered the opinion of the court, in which Senior Judge
KEY and Judge ANNEXSTAD joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Carlile, No. ACM 40053
GRUEN, Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
sistent with his pleas, of one charge and two specifications of sexual abuse of a
child (Charge I) in violation of Article 120b, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920b.1 Appellant was also convicted, contrary to his pleas,
of one charge and two specifications of indecent conduct (Charge III) in viola-
tion of Article 134, UCMJ, 10 U.S.C. § 934.2 The military judge sentenced Ap-
pellant to a dishonorable discharge, confinement for 540 days, reduction to the
grade of E-1, and a reprimand.3
Appellant raises four issues on appeal: (1) whether the military judge erred
in allowing the Government to make multiple changes to five specifications
after referral and over the Defense’s objection; (2) whether the Government
was preempted from charging indecent conduct under Article 134, UCMJ; (3)
whether the indecent conduct convictions were legally and factually insuffi-
cient; and (4) whether his sentence is inappropriately severe.
We find no error materially prejudicial to a substantial right of Appellant
and affirm the findings and sentence.
I. BACKGROUND
Appellant’s convictions for sexual abuse of a child arose from him sending
pictures of his genitals, on more than one occasion, and a sexually explicit mes-
sage via electronic means to a female child then 14 years of age. His convictions
for indecent conduct arose from him sending pictures of his genitals via
1 Appellant’s convictions relate to misconduct occurring between on or about 1 Novem-
ber 2016 and on or about 18 October 2017. As such, references to the punitive articles
of the UCMJ are to the Manual for Courts-Martial, United States (2016 ed.). Unless
otherwise specified, all other references to the UCMJ and the Rules for Courts-Martial
are to the Manual for Courts-Martial, United States (2019 ed.).
2 Appellant was found not guilty of two specifications of sexual assault (Charge II) in
violation of Article 120, UCMJ, 10 U.S.C. § 920. Before trial, the convening authority
withdrew and dismissed four specifications of sexual abuse of a child (Charge I) in
violation of Article 120b, UCMJ, and five specifications of indecent conduct (Charge
III) in violation of Article 134, UCMJ.
3 To clarify any ambiguity in the entry of judgment (EoJ), Appellant was awarded a
total of 332 days’ credit against his sentence. We recognize that the military judge did
not enter the judicially ordered credit separate from the pretrial confinement credit.
The EoJ should read 221 days were awarded for pretrial confinement credit, and an-
other 111 days for judicially ordered credit, totaling 332 days of credit. Appellant has
not alleged error or prejudice, and we find none.
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United States v. Carlile, No. ACM 40053
electronic means to two other females, each of whom was 16 years of age at the
time of receipt.
A. Sexual Abuse of a Child
1. Additional Background
Appellant graduated from high school in the spring of 2016. He entered
active-duty service in the United States Air Force on 27 September 2016. He
became 19 years old in December 2016. During the Care4 inquiry into the prov-
idence of Appellant’s guilty pleas to the sexual abuse of a child specifications,
he admitted that while he was in technical school at Keesler Air Force Base,
Mississippi—around May or June 2017—he friended5 a girl named SO on In-
stagram whom he had previously seen on his younger brother’s Instagram ac-
count.6 Appellant’s brother was 14 years old at that time, a fact which led Ap-
pellant to assume SO was around the same age. During conversations with SO,
Appellant learned that she was, in fact, 14 years old and would be a freshman
in high school in the fall of 2017. Appellant testified that he thought SO was
cute. Even though SO lived in his hometown and Appellant claimed she helped
him with his low self-esteem, they had never met in person.
2. Sexually Explicit Images Sent to SO
Appellant and SO later began communicating over Snapchat.7 At first, the
communications were cordial and the topics comprised of how each was doing
in their daily lives. The messages eventually turned sexual in nature. Appel-
lant admitted to sending SO a picture of his penis through Snapchat on at least
two occasions. He told the military judge he knew it was wrong and that he
should not have sent the pictures for two reasons: first, because SO never asked
him to send pictures of his penis, and second, because she was only 14 years
old. Further, when he asked SO if she wanted pictures of his penis, she told
him “no,” she did not want to receive such images. He admitted that he sent
the pictures with the intent to arouse his sexual desires.
SO testified at presentencing and recalled that Appellant sent her at least
five pictures of his genitals and one video. The video depicted him masturbat-
ing in his bed. When SO told Appellant that she was 14 years old, he responded
4 United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).
5 In this context, when Appellant “friended” SO he added her to his list of contacts on
social media such as Snapchat. See OXFORD ADVANCED LEARNER’S DICTIONARY,
friended, https://www.oxfordlearnersdictionaries.com/us/definition/eng-
lish/friend_2?q=friended (last visited 9 Sep. 2022).
6 Instagram is a photo and video sharing social networking service.
7 Snapchat is a messaging platform in which messages and images are automatically
deleted after they are viewed or otherwise expire, unless saved.
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United States v. Carlile, No. ACM 40053
“that he d[id]n’t care.” Appellant asked for sexual photos of SO, which she de-
clined to send. Appellant responded by getting angry or threatening to commit
suicide. SO claimed that when she received the pictures and video from Appel-
lant, she “was mainly confused but [she] was also angry and sometimes sad.”
She was confused because she knew he was aware of her age and she knew it
was wrong, so she wondered if he knew it was wrong. She was angry because
it frustrated her to repeatedly tell the Appellant “no,” yet he continued to send
her unwanted images. She felt the images were gross, she did not want to see
them at her age, and they made her uncomfortable. SO felt sad because she
wanted to keep her childish innocence as long as possible, and she felt Appel-
lant took that from her when he sent unsolicited and unwanted pictures of his
penis and a video of him masturbating. She testified that she grew up a lot
faster than she should have, opining that “[no]body expects that for a child.”
3. Sexually Explicit Language Sent to SO
Also during his Care inquiry, Appellant told the military judge he commu-
nicated with SO via Snapchat from about 28 May 2017 until sometime in Au-
gust or September 2017. According to Appellant, he arrived to his new duty
station in the Republic of Korea in July 2017. Sometime after arriving in Korea
he sent a Snapchat message to SO that stated words to the effect of,
I’d kiss you, then kiss your neck, then start to kiss your body and
finger you while I suck your nipples. Then I’d start licking your
p[**]sy until you beg me to f[**]k you. Then I’ll slide my 9-inch
c[**]k into your p[**]sy, making you scream and f[**]k you until
you can’t walk
After SO received the message, she and Appellant got into an argument about
the message’s content. SO responded rather quickly with “what the h[**]l,” or
words to that effect, and asked Appellant not to send messages like that to her.
It was the last time they communicated. Appellant repeated to the military
judge that he knew SO was not yet 16 years old when he sent the message.
Appellant admitted he sent the message to arouse his sexual desire and agreed
the message was grossly offensive to the community sense of modesty, decency,
and propriety.
B. Indecent Conduct
1. Sexually Explicit Images Sent to JH
At trial, JH testified she met Appellant in 2014 when she was a freshman
at the high school they both attended. Appellant was two years older than JH
and in eleventh grade at the time. However, by the spring of 2016 they had not
been in close contact for some time. There was no particular reason they
stopped having regular contact—JH said she just had different friends and the
group of friends that previously included both her and Appellant “just
4
United States v. Carlile, No. ACM 40053
disintegrated throughout [her] sophomore year.” JH and Appellant did not re-
sume contact until November 2016, after Appellant graduated from Air Force
Basic Military Training (BMT) and he reached out to JH by adding her to his
Snapchat account.
When she added him back, that enabled him to directly message her. JH
testified their intial Snapchat conversations were casual wherein the commu-
nications were basically “catching up, how are you, how’s high school, how was
basic [BMT], things like that.” The conversations “slowly began to get sexual.”
Specifically, Appellant began making non-sexual comments about JH’s looks,
to which she responded with statements like “thanks.” This progressed to Ap-
pellant sending messages that included sexually charged compliments, telling
JH that she “[had] a nice ass, nice breasts, things [ ] of that nature.” JH did
not appreciate the sexual comments and told Appellant “to not say things like
that.” Appellant would respond by apologizing, but he did not stop sending sex-
ual messages to JH.
Instead of stopping, Appellant asked her if she wanted to see his penis. JH
testified that she “declined,” but Appellant sent the picture via Snapchat re-
gardless. JH described the picture as showing Appellant’s erect penis laying
on what she believed was his bathroom sink. After JH received the picture, she
ignored Appellant. JH testified that she did not respond to Appellant because
the picture “wasn’t wanted and [she] didn’t really know what to say.” She
thought it was “gross” and it made her feel weird. She wanted to “forget it ever
happened.” After asking her mother for advice, JH blocked Appellant from in-
teracting with her on Snapchat.
JH testified Appellant used a different account to add her on Snapchat
again in February 2017. She added him back, once again giving Appellant the
ability to directly message her. Their conversations progressed similarly as de-
scribed above—initially casual, then complimentary, and finally unwanted
sexual advances by Appellant. JH again told Appellant that compliments with
sexual connotations made her uncomfortable,8 yet he again proceeded to ask
her if she wanted to see his penis. JH once again declined, but Appellant ig-
nored the declination and sent her a picture of his penis via Snapchat. JH re-
called that Appellant was in his bed which had “a navy blue blanket” and she
“could see him holding his erect penis up” and she could see “part of his leg.”
After JH received this picture, she blocked Appellant for the second time.
8 JH testified that while she never used the exact words “I am uncomfortable,” when
explaining to Appellant that his sexual messages were unwanted, she did express to
him that his sexual messages made her uncomfortable by saying things like, “Hey, let’s
not say that,” or “How about we not say those things.”
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United States v. Carlile, No. ACM 40053
In March 2017, Appellant added JH on Snapchat using a third account he
had created. JH added him back. The course of their communications followed
the same pattern as the two previous times—the messages eventually turned
sexual, JH asked him to stop sending those types of messages, Appellant asked
if she wanted to see his genitals, JH declined once again, and once again Ap-
pellant sent a picture of his penis anyway. JH described this third picture as
similar to the one sent in February, but from a different angle. After JH re-
ceived this picture, she immediately blocked Appellant.
JH testified that at no time had she asked for pictures of Appellant’s penis
and that she was offended each time she received these pictures. JH explained
she added Appellant back on Snapchat the second and third time because she
did not know it was Appellant until after she added him and began communi-
cating with him because he was using new accounts. At all times relevant to
the indecent conduct specifications involving JH, she was 16 years old and a
high school student.
2. Sexually Explicit Images Sent to JW
JW testified that she met Appellant online when she was a freshman in
high school. At the time, Appellant was a junior at the same high school and
two years older than JW. JW did not meet Appellant in person. She knew who
he was, but they did not actually meet online until Appellant added JW on
Facebook. Appellant and JW began messaging each other on Facebook until
Appellant asked JW for her Snapchat account, which she provided. They then
began communicating over Snapchat. The two communicated for about three
months until their communications dwindled to a stop. JW cited no specific
reason they stopped communicating at that time.
In the winter of 2016 or early 2017, Appellant messaged JW on Snapchat
and they again began communicating. In April or May 2017, after casual com-
munications, Appellant sent JW pictures of his genitals.9 JW described that
Appellant was “either in his bed or in a tub” when he took the pictures and
that he took them from a downward angle with “[h]is phone . . . in his chest
area.” JW described Appellant “holding his penis towards the sky” in the pic-
tures. JW recalled Appellant sent “[m]ore than one[, but] no more than three.”
When she received the pictures from Appellant, JW would “click out of them
immediately because [she] didn’t want to see it.” She also replied with state-
ments such as, “[w]hat the f[**]k?” or, “[w]hy did you send that to me?”
9 JW testified that Appellant sent pictures in April or May 2017. She also testified that
these pictures were sent from the spring of 2017 to around August 2017. Upon further
clarification, JW testified that the period over which Appellant sent the pictures in
issue was the fall of 2016 until her birthday in August of 2017.
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United States v. Carlile, No. ACM 40053
Appellant responded by either apologizing, saying they were meant for his girl-
friend, or claiming that he did not mean to send them to JW.
JW explained that in her experience, when using Snapchat, “you can send
messages and save them in the chat. But, if you don’t save them, they disap-
pear.” She continued, “With the Snapchat function you take a picture and it
disappears after a few seconds and then it’s lost to the world, basically.” On
cross-examination, JW testified that she saved her Snapchat messages with
everybody she communicated with on Snapchat, to include Appellant, by tak-
ing a screenshot of the messages. JW testified she was offended by the pictures
because she had “been through some traumatic experiences, and that stuff
doesn’t sit well with [her].” She also stated that she found the pictures offensive
because “it was a penis that [she] did not want to see and did not consent to
see.” When asked on cross-examination if it was common for her to receive un-
solicited penis pictures, JW responded affirmatively. However, she explained
that when Appellant sent her pictures of his penis, it was more offensive be-
cause she knew him; whereas, she did not know the other individuals who sent
her “unwelcomed, unsolicited photos of male genitalia.” Although JW consid-
ered the pictures offensive, she continued to communicate with Appellant until
she was interviewed by the Air Force Office of Special Investigations and real-
ized Appellant was under investigation. She explained that she did not block
Appellant on Snapchat because she did not “have a lot of friends” and she still
considered him a friend, at that time. JW testified that she regretted not block-
ing him. At all times relevant to the indecent conduct specifications involving
JW, she was 16 years old and a high school student.
II. DISCUSSION
A. Amendments to Specifications
On appeal, Appellant claims the military judge erred in allowing the Gov-
ernment to make multiple changes to specifications after referral and over the
Defense’s objection. The changes included amendments to the location of the
offenses, the charged timeframes, and removal of charged language. Appellant
claims he is entitled to relief even if this court agrees with the military judge
that the changes were “minor,” because his ability to defend himself was sub-
stantially prejudiced by changes when considered collectively.
1. Additional Background
On 10 December 2019, three charges with multiple specifications were re-
ferred to a general court-martial. Appellant was arraigned on 2 September
2020, but deferred entry of pleas. On 23 September 2020, trial counsel filed a
motion for appropriate relief to amend various charges and their specifications,
asserting that each proposed amendment constituted a “minor change” under
Rule for Courts-Martial (R.C.M.) 603. On 30 September 2020, trial defense
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United States v. Carlile, No. ACM 40053
counsel responded, objecting to the majority of the proposed changes. On 8 Oc-
tober 2020, the military judge issued a written ruling which permitted the Gov-
ernment to amend the specifications after he had concluded each proposed
change was minor, and no material right of the accused was prejudiced. The
Defense did not seek reconsideration, a continuance, a bill of particulars, or
other alternative relief as a result of the military judge’s ruling or the Govern-
ment’s changes to the specifications accomplished on 29 October 2020. The
court-martial commenced on 2 November 2020.
The proposed changes and trial defense counsel’s response to those changes
are addressed in turn below.10
a. Charge III, Specification 211
Appellant was accused of indecent conduct in violation of Article 134,
UCMJ. The specification initially read as follows:
Specification 2: In that [Appellant]. . . did, at or near the world,
between on or 1 November 2016 and on or about 31 December
2017, wrongfully commit indecent conduct, to wit: intentionally
exposing his genitalia in an indecent manner by sending a pic-
ture of his penis to [JW], and that said conduct was of a nature
to bring discredit upon the armed forces.
The Government moved to amend the following: (1) period of criminality
from “between on or about 1 November 2016 and on or about 31 December
2017” to “between on or about 1 April 2017 and on or about 2 August 2017;”
and (2) to exclude “intentionally exposing his genitalia in an indecent manner”
without substitution.
Defense counsel did not oppose amendment (1), but did object to amend-
ment (2). Specifically, the Defense argued that deleting the proposed language
was an attempt by the Government “to reduce their burden to prove an element
10 Although Appellant invited this court to consider amendments made to specifica-
tions that were either dismissed before trial or resulted in an acquittal, we decline to
do so. Appellant contests certain amendments to Charge I. However, his uncondi-
tional guilty plea waived those matters for appellate review. See United States v.
Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) (“An unconditional plea of guilty waives all
nonjurisdictional defects . . . .”). We have the ability to pierce that waiver, but we de-
cline to do so. See United States v. Hardy, 77 M.J. 438, 443 (C.A.A.F. 2018) (acknowl-
edging a Court of Criminal Appeals can pierce waiver to correct a legal error if it
chooses to do so).
11 Originally Specification 5 of Charge III, but renumbered as Specification 2 of Charge
III.
8
United States v. Carlile, No. ACM 40053
of intent” and that “the proposed change is likely to mislead [the accused] as
to the offense charged.”
b. Charge III, Specification 312
Appellant was accused of indecent conduct in violation of Article 134,
UCMJ. The specification initially read as follows:
Specification 3: In that [Appellant]. . . did, at or near Osan Air
Force [sic] Base, between on or 1 May 2017 and on or about 31
[sic] September 2017, wrongfully commit indecent conduct, to
wit: intentionally exposing his genitalia in an indecent manner
by sending a picture of his penis to [JH], and that said conduct
was of a nature to bring discredit upon the armed forces.
The Government moved to amend the following: (1) the location where the
offense occurred from “Osan Air Force Base” to “the continental United States;”
(2) the period of criminality from “between on or about 1 May 2017 and on or
about 31 September 2017” to “between on or about 1 November 2016 and on or
about 31 March 2017;” and (3) to exclude “intentionally exposing his genitalia
in an indecent manner” without substitution.
Defense counsel objected to all changes. The Defense stated simply that
they opposed the location change but provided no additional reasoning and re-
iterated the rationale provided in Sections II(A)(1)(a) and II(A)(1)(c), supra, for
opposing amendments (2) and (3).
2. Law
“Whether a change made to a specification is minor is a matter of statutory
interpretation and is reviewed de novo.” United States v. Reese, 76 M.J. 297,
300 (C.A.A.F. 2017) (citing United States v. Atchak, 75 M.J. 193, 195 (C.A.A.F.
2016)).
“R.C.M. 603(a) provides that ‘[m]inor changes in charges and specifications
are any except those which add a party, offenses, or substantial matter not
fairly included in those previously preferred, or which are likely to mislead the
accused as to the offenses charged.”’ Reese, 76 M.J. at 300 (alteration in origi-
nal) (citation omitted). “After arraignment, the military judge may, upon mo-
tion, permit minor changes in the charges and specifications at any time before
findings are announced if no substantial right of the accused is prejudiced.”
R.C.M. 603(e).
“A major change is one that adds a party, an offense, or a substantial mat-
ter not fairly included in the preferred charge or specification, or that is likely
12 Originally Specification 6 of Charge III, but renumbered as Specification 3 of Charge
III.
9
United States v. Carlile, No. ACM 40053
to mislead the accused as to the offense charged.” R.C.M. 603(b)(1). Major
changes made after referral “may not be made over the objection of the accused
unless the charge or specification affected is withdrawn, amended, and re-
ferred anew,” regardless of any demonstration of prejudice. R.C.M. 603(d)(1);
see also Reese, 76 M.J. at 301–02.
“A specification is sufficient if it alleges every element of the charged of-
fense expressly or by necessary implication . . . .” R.C.M. 307(c)(3). In order for
Appellant to be found guilty of child abuse by indecent exposure in violation of
Article 120b, UCMJ, the Government was required to prove beyond a reason-
able doubt that (1) Appellant intentionally exposed his genitalia to a child by
any means, and (2) he 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.a.(h)(5). In order for Appellant to be found guilty of indecent con-
duct in violation of Article 134, UCMJ, the Government had the same burden
but was required to prove: (1) Appellant engaged in certain conduct, (2) it was
indecent, and (3) it was service discrediting. See 2016 MCM, pt. IV, ¶¶ 90.b.(1)–
(3).
3. Analysis
a. Language
The required elements of the alleged indecent conduct are stated within the
specifications as originally drafted. As such, the specifications are sufficient
under R.C.M. 307(c)(3). Article 134, UCMJ, pleadings required proving Appel-
lant’s conduct was indecent and service discrediting. See 2016 MCM, pt. IV,
¶¶ 90.b.(1)–(3). The Prosecution’s concern for changing the original specifica-
tions was not due to inadequate pleading, but instead conforming the specifi-
cations to the evidential proof.
Removing the words “intentionally exposing his genitalia in an indecent
manner by” from the specifications of Charge III constitutes a minor change
because such changes do not add a new offense, party, or “a substantial matter
not fairly included in the preferred charge.” See R.C.M. 603(b)(1). It is hard to
conclude the specifications, as amended, were not “fairly included” in the initial
specifications as the resulting language was already there. Simply put, even
after removing the words in issue, the specifications alleged facts included
within, rather than in addition to or at variance with the original specifica-
tions. For the same reasons, the changes were not “likely to mislead the ac-
cused as to the offense[s] charged.” Id. Deleting the surplus references to Ap-
pellant’s intent does not call into question what offenses were alleged and there
was no indication from the Appellant or his trial defense counsel that he did
not understand the offenses with which he was charged.
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United States v. Carlile, No. ACM 40053
b. Date
Our superior court’s predecessor, the United States Court of Military Ap-
peals, has held that if the statute of limitations is not implicated, changes to
the dates of alleged offenses are generally permissible. United States v. Arbic,
36 C.M.R. 448 (C.M.A. 1966); United States v. Hartzog, ACM No. 29055, 1992
CMR LEXIS 794, at *9 (A.F.C.M.R. 9 Nov. 1992) (unpub. op.) (“Changes to the
dates of alleged offenses have generally been treated as minor.” (citations omit-
ted)). Where time is of the essence of the crime, allegations concerning the date
of the offense become matters of substance. However, if the amended dates of
the offense are within the statute of limitations, the court has found the charge
was sufficiently specific to prevent a retrial for the same offense. United States
v. Brown, 16 C.M.R. 257, 261–62 (C.M.A. 1954). The statute of limitations was
not an issue in Appellant’s case, and no other reason exists for concluding time
was of the essence with respect to these specifications. Accordingly, no new
offense was created by the challenged amendments. Moreover, Specification 2
of Charge III was modified to condense the charged timeframe, so the modified
specification was wholly within the dates of the original specification.
Even so, we are mindful that the United States Court of Appeals for the
Armed Forces (CAAF) recently found that when analyzing any amendment un-
der R.C.M. 603 to the date(s) of any charged offense, they would rely on mate-
rial variance case law. United States v. Simmons, 82 M.J. 134, 138–39
(C.A.A.F. 2022). Any amendment to the charged timeframe beyond the “on or
about” aperture discussed in material variance case law must be analyzed un-
der the “totality of the circumstances . . . to determine whether that material
variance resulted in a ‘major change’ under R.C.M. 603.” Id. at 139. The CAAF
and its predecessor, have held the phrase “on or about” includes several weeks
on either side of the alleged date(s). See, e.g., United States v. Barner, 56 M.J.
134, 137 (C.A.A.F. 2001) (noting “on or about” connotes a range of days to
weeks); United States v. Hunt, 37 M.J. 344, 347 (C.M.A. 1993) (finding no ma-
terial variance when there was a three-week difference between the date of the
offense charged and the date of the offense proven when the pleadings used the
phrase “on or about”); United States v. Brown, 34 M.J. 105, 110 (C.M.A. 1992)
(concluding post arraignment change by seven days constituted a minor
change). The CAAF further concluded that any change to the date of a charged
offense—after arraignment and over defense objection—which is a different
date reasonably near to the date originally charged “only constitutes a minor
change” if “no substantial right of the accused is prejudiced.” Simmons, 82 M.J.
at 139; cf. United States v. Wray, 17 M.J. 375 (C.M.A. 1984) (finding a date
11
United States v. Carlile, No. ACM 40053
change of less than three weeks “a material and nonpermissible variance”
based upon the “particular facts” of the case).13
A change that extends a charged time frame beyond the “on or about” win-
dow constitutes a material variance. If a material variance is in issue, “a total-
ity of the circumstances analysis must then be conducted in order to determine
whether that material variance resulted in a ‘major change’ under R.C.M. 603
because, for example, the amendment was ‘likely to mislead the accused as to
the offenses charged.’” Simmons, 82 M.J. at 139. (citation omitted); see also
United States v. Cochran, 697 F.2d 600, 604 (5th Cir. 1983) (holding the fact
that the indictment was off by two months as to the date of the conspiracy was
not a fatal variance and did not prejudice appellants).
In Specification 3 of Charge III, the period of criminality was changed from
“between on or about 1 May 2017 and on or about 31 September 2017” to “be-
tween on or about 1 November 2016 and on or about 31 March 2017.” This
change extended the charged timeframe on the beginning dates from 1 May
2017 to 1 November 2016, adding 181 days—or approximately 6 months—to
the period of criminality. The ending dates were lessened in that the difference
between “31 September 2017” and 31 March 2017 is 184 days, or approximately
6 months.14 The extended charged timeframes were more than a few days or
weeks. We find that the changed timeframe of criminality extended beyond the
“on or about” window and culminated in a material variance.
We must now conduct a totality of the circumstances analysis in order to
determine whether that material variance resulted in a “major change” under
R.C.M. 603. A major change is one that “adds a party, an offense, or a substan-
tial matter not fairly included in the preferred charge or specification, or that
is likely to mislead the accused as to the offense charged.” Unlike in Simmons,
the Government did not wait to make the changes until after the evidence was
presented at trial and they rested their case. 82 M.J. at 136. In Appellant’s
case, the Government moved to change dates prior to trial, the matter was fully
litigated, and the military judge issued his ruling approximately one month
before trial on the merits commenced. Essentially, had the date changes not
been made to the extortion charge in Simmons, the Government would not
have been able to prove the extortion specification. Another distinguishing fac-
tor is that in Simmons, the CAAF found that “the Government’s amendment
to the charge sheet made it so that the charged extortion dates preceded the
13 In Wray, the date was not amended via a motion to amend the charge sheet after
referral. Instead, the members returned from their findings having excepted and sub-
stituted the period of criminality. United States v. Wray, 17 M.J. 375, 375 (C.M.A.
1984).
14 We note there are not 31 days in September, but only 30.
12
United States v. Carlile, No. ACM 40053
charged sexual assault dates, thereby enabling the Government to argue that
the sexual assault was accomplished via extortion.” Id. at 139. Moreover, in
Simmons, the changes prejudiced the accused because the amended dates “ar-
guably increased the seriousness of the offenses with which Appellant was
charged.” Id. at 140. The CAAF further concluded that “this change in the Gov-
ernment’s theory of the case, which was directly predicated on—and inextrica-
bly linked with—the amended dates in the charge sheet, likely misled the ac-
cused as to the offenses which he needed to defend against.” Id. at 140–41. In
this case, we do not find that the date changes, having been made before trial
commenced on the merits, would have changed the way Appellant investigated
or prepared for his case. We are similarly unconvinced that the amended dates
affected what evidence Appellant produced at trial or how the Defense cross-
examined witnesses.
Ultimately, we find that the date changes were not likely to mislead the
accused as to the offenses charged. The conclusion that the Defense was not
misled to its detriment or impeded in any way is supported by the record. Ap-
pellant knowingly and voluntarily pleaded guilty to two of the specifications at
issue, after the amendments were approved and without seeking any further
clarification. Additionally, the record indicates trial defense counsel were fully
prepared to defend under the remaining amended and litigated specifications,
did so vigorously, and also did so without seeking further clarification or addi-
tional time to prepare. Therefore, we find that the material variances in the
changed dates did not amount to major changes.
c. Location
The specifications in issue conformed with R.C.M. 307 by alleging the re-
quired elements. The Discussion to R.C.M. 307 suggests that a specification
should “enable the accused to understand the particular act or omission to de-
fend against.” R.C.M. 307(c)(3), Discussion (D)(i). The place of the offense, how-
ever, is not an element and it has no additional significance beyond that re-
quired by due process. As noted earlier, in response to the military judge’s rul-
ing, Appellant’s counsel did not claim that he lacked notice of the criminal con-
duct with which he was charged. Instead, counsel asserted “the new location
effectively remove[d] the Government’s need to prove any location at all.”
While this may be true, we are not convinced that such a change to the location
in light of the totality of circumstances in this case, negatively affected Appel-
lant’s ability to understand the particular act to defend against or his due pro-
cess rights and therefore was not a major change.
13
United States v. Carlile, No. ACM 40053
For these reasons, we find that the military judge did not err in allowing
the minor changes be made to the charges and specifications in issue.15
B. Preemption and Prosecution Under Article 134, UCMJ
Appellant alleges the Government charged Appellant’s indecent conduct
under Article 134, UCMJ, rather than Article 120c, UCMJ, 10 U.S.C. § 920c,
to ease its evidentiary burden at trial. Specifically, Appellant alleges the Gov-
ernment’s charging decision was based on Article 134, UCMJ, being easier to
prove because it requires general intent, whereas Article 120c, UCMJ, requires
specific intent to be proved. While ease of proof may have been a factor in the
Government’s charging decision, the doctrine of preemption does not compel
the Government to pursue the more challenging charging scheme when faced
with two lawful charging choices.
1. Law
“Whether an offense is preempted depends on statutory interpretation,
which is a question of law we review de novo.” United States v. Wheeler, 77 M.J.
289, 291 (C.A.A.F. 2018) (citing United States v. Cooley, 75. M.J. 247, 257
(C.A.A.F. 2016)); see also United States v. Robbins, 52 M.J. 159, 160 (C.A.A.F.
1999) (holding that the preemption doctrine precludes assimilation if two ques-
tions are answered in the affirmative). “The ‘preemption doctrine’ limits the
general article’s expansive scope, prohibiting ‘application of Article 134 to con-
duct covered by Articles 80 through 132.’” United States v. Avery, 79 M.J. 363,
366 (C.A.A.F. 2020) (quoting Manual for Courts-Martial, United States (2012
ed.), pt. IV, ¶ 60.c.(5)(a)); see also 2016 MCM, pt. IV, ¶ 60.c.(5)(a); Manual for
Courts-Martial, United States (2019 ed.), pt. IV, ¶ 91.c.(5)(a).
In United States v. Kick, the CMA defined the preemption doctrine as the
legal concept that where Congress has occupied the field of a
given type of misconduct by addressing it in one of the specific
punitive articles of the code, another offense may not be created
and punished under Article 134, UCMJ, by simply deleting a vi-
tal element. However, simply 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 preemp-
tion doctrine. In addition, it must be shown that Congress in-
tended the other punitive article to cover a class of offenses in a
complete way.
15 In light of our determination that the amendments to the charges were minor, we
add that Appellant waived his claims of error regarding Charge I and its specifications
when he entered unconditional guilty pleas to the same.
14
United States v. Carlile, No. ACM 40053
7 M.J. 82, 85 (C.M.A. 1979) (citations omitted); see also United States v. Erick-
son, 61 M.J. 230, 233 (C.A.A.F. 2005) (finding no congressional intent to limit
prosecution; therefore, the doctrine of preemption did not prevent punishing
servicemembers under Article 134, UCMJ, for wrongfully using mind-altering
substances which were not covered by Article 112a, UCMJ, 10 U.S.C. § 912a).
Accordingly, the preemption doctrine only precludes prosecution under Ar-
ticle 134, UCMJ, where two criteria are met: “(1) ‘Congress intended to limit
prosecution for . . . a particular area’ of misconduct ‘to offenses defined in spe-
cific 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) (omission in original) (quoting United States v. McGuinness, 35
M.J. 149, 151–52 (C.M.A. 1992)); We will “only find a congressional intent to
preempt in the context of Article 134, UCMJ, where Congress has indicated
‘through direct legislative language or express legislative history that particu-
lar actions or facts are limited to the express language of an enumerated arti-
cle.’” Avery, 79 M.J. at 366 (quoting United States v. Anderson, 68 M.J. 378,
387 (C.A.A.F. 2010)).
“The application of the preemption doctrine is not triggered solely because
the act charged under Article 134, UCMJ, contains a subset of the elements of
an enumerated offense.” United States v. Seeto, No. ACM 39247, 2018 CCA
LEXIS 518, at *22 (A.F. Ct. Crim. App. 26 Oct. 2018) (unpub. op.) (citations
omitted).
We find that Article 120c, UCMJ, does not cover offenses where the expo-
sure is via a picture of genitalia sent by electronic communications. Thus, pros-
ecuting such conduct under Article 134, UCMJ, is not preempted by Article
120c, UCMJ.
2. Analysis
The first step in our preemption analysis is to determine whether Congress
intended to limit prosecution for a particular area of misconduct to offenses
defined in specific articles of the UCMJ. See Curry, 35 M.J. at 360–61. As we
see it, the “particular area of misconduct” in this case is sending photos of ex-
posed genitalia to recipients 16 years of age or older via electronic communica-
tions. We observe no “direct legislative language or express legislative history,”
see Avery, 79 M.J. at 366, in the applicable version of Article 120c, UCMJ, to
conclude that Congress intended to limit this type of offense to prosecutions
under the 120c punitive article. Conversely, we find Article 120c, UCMJ, does
not cover this particular area of misconduct. Both this court and the Army
court have concluded Article 120c, UCMJ, requires the “exposure to occur in
the actual presence of the victim or public” and thus, “exposure committed
through digital technology outside the presence of a victim does not constitute
the offense of indecent exposure.” United States v. Miller, No. ACM 39747 2021
15
United States v. Carlile, No. ACM 40053
CCA LEXIS 95, at *20–21 (A.F. Ct. Crim. App. 3 Mar. 2021) (unpub. op.) (quot-
ing United States v. Williams, 75 M.J. 663, 668 (A. Ct. Crim. App. 2016)), rev.
denied, 81 M.J. 334 (C.A.A.F. 2021).
Moving to the second step in the preemption analysis, the indecent conduct
charged under Article 134, UCMJ, does not compose a residuum of elements of
Article 120c, UCMJ. Article 120c, UCMJ, indecent exposure, requires live and
temporal indecent exposure. Moreover, Article 120c, UCMJ, does not incorpo-
rate the listed elements from Article 134, UCMJ. This court has previously
found that Congress did not intend to address the offense of indecent conduct,
specifically sending pictures of genitalia to an adult recipient through elec-
tronic communications, in Article 120c, UCMJ. Miller, unpub. op. at *20–21.
Thus, the charged conduct does not compose a residuum of elements of Article
120c, UCMJ.
For these reasons, Appellant’s Article 120c, UCMJ, preemption claim fails.
It was permissible for the Government to charge the indecent conduct of Ap-
pellant under Article 134, UCMJ.
C. Indecent Conduct—Legal and Factual Sufficiency
Appellant challenges his indecent conduct convictions for Specifications 2
and 3 of Charge III (indecent conduct) under Article 134, UCMJ, as being le-
gally and factually insufficient. Specifically, Appellant alleges the Government
failed to prove two things beyond a reasonable doubt—that he engaged in the
conduct alleged and that his conduct was indecent.
1. Law
a. Legal and Factual Sufficiency
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). We only af-
firm findings of guilty that are correct in law and fact and, “on the basis of the
entire record, should be approved.” Article 66(d)(1), UCMJ, 10 U.S.C.
§ 866(d)(1). 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) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every
16
United States v. Carlile, No. ACM 40053
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) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted). “The [G]overnment is free to meet its
burden of proof with circumstantial evidence.” Id. (citations omitted).
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 ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
conducting this unique appellate role, we take ‘a fresh, impartial 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 reasonable doubt.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
b. Indecent Conduct
Specifications 2 and 3 of Charge III allege that Appellant wrongfully com-
mitted indecent conduct by sending a picture of his penis to JW and JH, re-
spectively. The elements of indecent conduct as charged in this case under Ar-
ticle 134, UCMJ, required the Government to prove beyond a reasonable doubt
that: (1) Appellant engaged in certain conduct; (2) that conduct was indecent;
and (3) that under the circumstances the conduct was of a nature to bring dis-
credit upon the armed forces. See 2016 MCM, pt. IV, ¶ 90.b. “Indecent” means
“that 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.” 2016 MCM, pt. IV,
¶ 90.c.(1).
When analyzing indecency, the “totality of the circumstances approach rec-
ognizes that the definition of indecency requires consideration of both the cir-
cumstances of the act itself and the ‘societal standards of common propriety.’”
United States v. Walton, Misc. Dkt. No. 2009-11, 2010 CCA LEXIS 250, at *6
(A.F. Ct. Crim. App. 25 Jan. 2010) (order) (citation omitted). “The determina-
tion of whether an act is indecent requires examination of all the circum-
stances, including the age of the victim, the nature of the request, the relation-
ship of the parties, and the location of the intended act.” United States v. Rol-
lins, 61 M.J. 338, 334 (C.A.A.F. 2005) (citation omitted).
17
United States v. Carlile, No. ACM 40053
2. Analysis
a. Charge III, Specification 2 -- Pictures sent to JW
Appellant raises a number of arguments as to how the Government failed
to establish his guilt beyond a reasonable doubt. He first contends there is in-
sufficient evidence to establish the offense occurred. In support of this theory,
Appellant points to the fact that JW was unable to definitively say when she
received the pictures of Appellant’s penis. Appellant additionally claims that
the Government failed to enter any of the indecent photos into evidence. Fur-
thermore, Appellant claims that because the military judge acquitted him of
Specification 1 of Charge III, which included the same victim and similar con-
duct as Specification 2 of Charge III, this is proof that he should have also been
acquitted of the specifications of which he was convicted.16 Lastly, Appellant
argues the conduct of which he was convicted was not indecent.17 We disagree
on all points.
The Government was required to prove that Appellant sent a photo of his
genitals to JW “between on or about 1 April 2017 to on or about 31 August
2017.” While JW was not able to recall the exact dates Appellant sent the pic-
tures of his penis, she did testify that Appellant sent pictures in April or May
2017. She also testified that these pictures were sent from the spring of 2017
to around August 2017. Upon further clarification, JW testified that the period
over which Appellant sent the pictures was fall of 2016 to her birthday in Au-
gust 2017. Here, any inability to precisely identify when the acts occurred does
little to contradict JW’s description and consistent recollection of the events
and does not, in itself, equate to reasonable doubt. JW’s testimony is sufficient
to find that Appellant sent “a picture of his penis” to her during the charged
timeframe. We also note that “beyond a reasonable doubt” does not mean that
the evidence must be free from conflict. See Lips, 22 M.J. at 684.
Appellant next contends the Government was required to enter into evi-
dence either the indecent pictures, or JW’s written responses to the pictures.
We do not agree with Appellant’s contention. JW testified that in her experi-
ence, when using Snapchat, “you can send messages and save them in the chat.
But, if you don’t save them, they disappear.” Moreover, “[w]ith the Snapchat
function you take a picture and it disappears after a few seconds and then it’s
lost to the world, basically.” With respect to the pictures, there is no reason to
believe this evidence existed at the time of trial. On cross-examination, JW
16 This issue provides no grounds for relief. We have considered Appellant’s contention
and find it does not warrant further discussion. See United States v. Matias, 25 M.J.
356, 361 (C.M.A. 1987).
17 The issue of whether Appellant’s conduct was indecent is covered in the following
subsection.
18
United States v. Carlile, No. ACM 40053
testified that while she was in high school she saved her Snapchat messages
with everybody she communicated with, to include Appellant. However, there
was no evidence presented as to whether the messages existed at the time of
trial. Whether the messages did or did not exist makes no difference to our
analysis. JW’s testimony was credible and is sufficient, without additional ev-
idence, to support the charged offense. As an evidentiary standard, proof be-
yond a reasonable doubt does not require more than one witness to credibly
testify. See United States v. Rodriguez-Rivera, 63 M.J. 372, 383 (C.A.A.F. 2006)
(holding the testimony of a single witness may satisfy the Government’s bur-
den to prove every element of a charged offense beyond a reasonable doubt).
b. Charge III, Specification 3— Pictures sent to JH
Appellant claims that with respect to JH, “just as with [JW], the Govern-
ment failed to prove beyond a reasonable doubt that [Appellant] committed
this offense.” Appellant bases this claim on the lengthy friendship of JW and
JH, similarity between JW’s and JH’s testimony, and the fact that JH’s mother
did not testify at trial. Appellant concludes that the similarities in JW’s and
JH’s descriptions of the pictures in issue make “it reasonable to infer that [JH]
and [JW] colluded with one another regarding their testimony.” Appellant as-
serts JH’s mother should have been called by the Government at trial to cor-
roborate JH’s testimony. We disagree on all points.
We recognize JW and JH had known each other almost 15 years, since pre-
kindergarten, and were good friends. JH admitted that JW talked her into tes-
tifying. We do not agree with Appellant that this friendship resulted in them
colluding with one another regarding testimony provided at trial. While there
were some similarities regarding their descriptions of how the Appellant
reached out to them on Snapchat and the content of the sexual pictures, there
were also many differences. Specifically, JH knew Appellant personally
through a mutual friend group. JW had never met Appellant in person. JH
sought advice from her mother and then blocked Appellant a total of three
times before ceasing communications. JW never blocked Appellant and only
ceased communications when she found out that Appellant was under investi-
gation. Additionally, Appellant responded to JW’s rebuke by claiming on at
least one occasion that the pictures were not meant for her, a response he never
provided to JH. This court also notes neither JH nor JW knew SO, yet she
described similar facts as JH and JW with regard to how she began communi-
cating with Appellant. SO also gave similar testimony when describing the pic-
tures that Appellant sent her. The facts support that Appellant engaged in
similar conduct with all three victims, rather than the supposition that JW and
JH colluded in their testimony and, therefore, rendered such testimony unre-
liable.
19
United States v. Carlile, No. ACM 40053
c. Indecent Conduct
Whether something is indecent requires “an examination of all the circum-
stances, including the age of the victim, the nature of the request, the relation-
ship of the parties, and the location of the intended act.” Rollins, 61 M.J. at
334. “This totality of the circumstances approach recognizes that the definition
of indecency requires consideration of both the circumstances of the act itself
and the ‘societal standards of common propriety.’” Walton, order at *6 (citation
omitted).
Both JW and JH testified that they found the sexual pictures Appellant
sent offensive because, among other reasons, the pictures were unsolicited and
unwanted. They were both clear with Appellant that they did not want the
pictures, yet he sent them anyway. Some of the indecency of the conduct in this
case stems from Appellant’s total disregard for the age of his recipients and his
lack of respect for their wishes. Both JW and JH were only 16 years old when
Appellant sent them pictures of his genitalia. Both knew him from high school.
He was not in a dating relationship with either JW or JH. Appellant accessed
them through Snapchat messaging where they could be reached in the privacy
of their own homes, but still not safe from Appellant’s exploitative reach. We
find that a rational factfinder could conclude Appellant’s conduct, under these
circumstances, offends societal standards of common propriety and thus, was
indecent.
d. Service Discrediting Conduct
Service discrediting conduct is conduct “which has a tendency to bring the
service into disrepute or which tends to lower it in public esteem.” 2016 MCM,
pt. IV, ¶ 60.c.(3). In United States v. Phillips, 70 M.J. 161, 165 (C.A.A.F. 2011),
the CAAF held that “[w]hether any given conduct violates clause 1 or 2 is a
question for the trier of fact to determine, based upon all the facts and circum-
stances; it cannot be conclusively presumed from any particular course of ac-
tion.”18 Appellant argues that
[a] member of the public considering [JW’s] age (16 years old),
[Appellant’s] age (19 years old), [Appellant’s] lack of intent in
sending the photograph to [JW], the long-distance nature of his
consensual, sexual relationship with his then-girlfriend . . . and,
the fact that these types of pictures have become common place
18 Article 134, UCMJ, makes punishable acts in three categories of offenses (referred
to as clauses), not specifically in another article of the UCMJ. Clause 1 of Article 134,
UCMJ, addresses conduct that is to the prejudice of good order and discipline in the
armed forces, and Clause 2 of Article 134, UCMJ, addresses conduct of a nature to
bring discredit upon the armed forces. See Manual for Courts-Martial, United States
(2019 ed.), pt. IV, ¶ 91.c.(1).
20
United States v. Carlile, No. ACM 40053
on social media applications like Snapchat, would not find this
conduct of a nature to lower the service in the public’s esteem.
Appellant makes similar conclusions regarding his conduct towards JH, citing
her willingness to communicate with Appellant after blocking him and her re-
luctance to participate in the investigative process. We are not convinced.
Appellant sent unwanted, unsolicited pictures of his penis to 16-year-old
high school students whom he contacted over Snapchat and with whom he had
little other interaction at the time he committed his offenses, save for his social
media communications. He gained the trust of JW and JH and then sent im-
ages to them, which they both testified were unwanted and offensive. It holds
little weight that we now live in a world where pictures of nude genitalia are
often sent over social media. We find under the circumstances of this case, a
rational factfinder could conclude Appellant’s conduct had a tendency to bring
the service into disrepute and tends to lower it in public esteem.
We have reviewed the record thoroughly. After viewing the evidence in the
light most favorable to the Prosecution, we find a rational trier of fact could
have found the essential elements of indecent conduct beyond a reasonable
doubt. See Robinson, 77 M.J. at 297–98. Additionally, after weighing the evi-
dence in the record of trial and making allowances for not having personally
observed the witnesses, we are ourselves convinced of the Appellant’s guilt be-
yond a reasonable doubt. See Turner, 25 M.J. at 325. Therefore, we conclude
that Appellant’s convictions for indecent conduct under Article 134, UCMJ, are
legally and factually sufficient.
D. Severity of Appellant’s Sentence
Appellant argues the sentence imposed by the military judge was inappro-
priately severe given the nature of the offenses and Appellant’s age at the time
of his offenses. He points to the fact that the judge was not obligated to adjudge
a dishonorable discharge and could have adjudged no punitive discharge.
While this observation is accurate, we do not agree that Appellant’s sentence
was inappropriately severe.
1. Additional Background
Appellant introduced no evidence in presentencing. Appellant provided an
unsworn statement in a question-and-answer form, where he accepted respon-
sibility for his crimes, expressed remorse for his actions, and apologized to his
victims. Appellant also described his family situation—how his mother remar-
ried when he was 5 years old and divorced again shortly before he joined the
Air Force. He described the effects that had on him, his younger sister, and his
younger brother, and how the divorce placed a burden on him to take care of
his siblings. Appellant also mentioned how hard it was to leave his family when
21
United States v. Carlile, No. ACM 40053
he joined the Air Force and that he sometimes regretted joining the service
when he did.
2. Law
We review issues of sentence appropriateness de novo. See United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). Our authority to review a case for sentence appropriate-
ness “reflects the unique history and attributes of the military justice system,
[and] includes but is not limited to, considerations of uniformity and evenhand-
edness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (citations omitted). We may affirm only as much of the sen-
tence as we find correct in law and fact and determine should be approved on
the basis of the entire record. Article 66(d)(1), UCMJ. “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense[s], the appellant’s record of service, and all matters con-
tained in the record of trial.” United States v. Sauk, 74 M.J. 594, 606 (A.F. Ct.
Crim. App. 2015) (en banc) (per curiam) (alteration in original) (quoting United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam)).
Although we have 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).
3. Analysis
The maximum sentence Appellant faced for his convictions included a dis-
honorable discharge, 40 years’ confinement, reduction to the lowest pay grade,
total forfeitures of pay and allowances, reprimand, and a fine. Trial counsel
recommended a dishonorable discharge, four years’ confinement, reduction to
the grade of E-1, and total forfeitures. The military judge sentenced Appellant
to a dishonorable discharge, 540 days’ confinement, reduction to E-1, and a
reprimand.
In addition to his indecent conduct convictions for sending unwanted im-
ages of his genitalia to two 16-year-old high school girls, Appellant was con-
victed, according to his guilty pleas, of two specifications of Article 120b,
UCMJ, for committing lewd acts upon SO, a child 14 years of age. SO was
called during presentencing and testified about pictures of Appellant’s genita-
lia that he sent after she told him repeatedly she did not want them. While
Appellant told the military judge that he sent SO only two pictures of his gen-
italia, she recalled he sent “at least five.” Additionally, she testified that Ap-
pellant sent her a video of him masturbating. SO testified that Appellant
sought sexually explicit pictures from her, but she declined to provide them.
Appellant then engaged in a form of emotional extortion by either getting an-
gry or threatening to commit suicide. Appellant knew SO was only 14 years
old, yet he made clear that “he d[id]n’t care.” SO stated that Appellant’s
22
United States v. Carlile, No. ACM 40053
conduct made her feel sad because she felt that he unfairly took her innocence
from her and took it from her before she was ready to lose it. She further ex-
plained that she “grew up a lot faster than [she] should have.”
With respect to JH and JW, both 16 years old at the time of Appellant’s
misconduct, each testified during presentencing and described the negative im-
pact his conduct had on them. JH said that receiving those pictures from Ap-
pellant made her “feel like an object,” and that Appellant “didn’t really care
about [her] feelings or anything.” She pointed out Appellant “was very aware”
that she didn’t want anything more than a platonic friendship with him; she
informed Appellant that she was “completely uninterested in him” and wanted
“nothing sexual” from him. JW said when she received the messages and pic-
tures from Appellant she felt “[j]ust disgusted” and “violated.” She explained
that she had trusted him as a friend but “he took [her] trust and used it in a
way that he shouldn’t have.”
We have conducted a thorough review of Appellant’s court-martial record.
We conclude that the nature and seriousness of the offenses support the sen-
tence as entered. Here, Appellant intentionally sought out young females, one
of whom was only 14 years old, and sent multiple sexually explicit photos, a
video, and a lewd message. His criminal behavior showed a complete disregard
for the impact his actions had on his victims. We find that Appellant’s points
on appeal largely reiterate matters that were before the military judge when
he decided the sentence, and we are confident the military judge afforded these
points appropriate weight during his deliberations. Appellant submitted no
matters in clemency for the convening authority to consider, and failed to spe-
cifically explain to this court why his sentence is inappropriately severe for
sexual abuse towards a child and conducting himself indecently on divers oc-
casions with multiple victims. Understanding we have a statutory responsibil-
ity to affirm only so much of the sentence that is correct and should be ap-
proved, Article 66(d), UCMJ, 10 U.S.C. § 866(d), we conclude that the sentence
is not inappropriately severe and we affirm the sentence as entered.
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).
23
United States v. Carlile, No. ACM 40053
Accordingly, the findings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
24