United States v. Shafer ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, J.S. SMITH
Appellate Military Judges
UNITED STATES OF AMERICA
v.
CHRISTOPHER A. SHAFER
MACHINERY REPAIRMAN THIRD CLASS (E -4),
NMCCA 201400120
GENERAL COURT-MARTIAL
Sentence Adjudged: 21 December 2013.
Military Judge: CDR Marcus Fulton, JAGC, USN.
Convening Authority: Commander, Navy Region Hawaii, Pearl
Harbor, HI.
Staff Judge Advocate's Recommendation: LCDR J.S. Ayeroff,
JAGC, USN.
For Appellant: Capt Jason Wareham, USMC.
For Appellee: CDR James Carsten, JAGC, USN; LT Ian D.
Maclean, JAGC, USN.
23 October 2014
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of receiving child pornography and one
specification of possessing child pornography, each in violation
Articles 134, Uniform Code of Military Justice, 10 U.S.C. § 934.
The appellant was sentenced to a bad-conduct discharge,
confinement for 300 days, forfeiture of all pay and allowances,
and reduction to pay grade E-1. Prior to taking action, the CA
exercised clemency and disapproved all confinement in excess of
240 days. The convening authority later took action approving
240 days confinement and the remainder of the sentence as
adjudged and, except for the bad-conduct discharge, ordered it
executed.
The appellant raises one assignment of error, averring that
a bad-conduct discharge is unjustifiably severe given that
evidence was presented that the appellant suffers from a medical
disability.1 We disagree and decline to grant relief.
“Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves.” United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). This requires “‘individualized
consideration’ of the particular accused ‘on the basis of the
nature and seriousness of the offense and the character of the
offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A.
1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81
(C.M.A. 1959)).
Over a seven-month period of time the appellant utilized
his laptop computer to access two separate peer-to-peer online
computer networks and utilized search terms which he knew would
return images and videos containing child pornography. He then
downloaded multiple images and videos which he knew to contain
actual child pornography and stored them on both his computer
and on an IPod portable media player so that he could view the
images and videos on repeated occasions. The appellant then
viewed the files to satisfy his own sexual curiosity and
gratification. While the appellant presented expert testimony
from a psychologist who evaluated him regarding his medical
diagnosis, this same expert testified that the appellant’s
disorder did not make him incompetent to stand trial, nor did
simply having it mean that an individual would commit crimes, or
even be more likely to commit crimes.
After de novo review of the entire record, we find that the
sentence is appropriate for this offender and his offenses.
United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005);
Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268. Granting
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Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
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sentence relief at this point would be to engage in clemency, a
prerogative reserved for the CA, and we decline to do so.
Healy, 26 M.J. at 395-96. We note that, presented with the same
arguments made on appeal, the CA elected to exercise clemency
and disapproved a substantial period of adjudged confinement
prior to taking action.
We recognize that the CA’s action erroneously reflects that
the appellant was found guilty in Specification 3 of the Charge
of wrongfully possessing child pornography “on divers occasions
between on or about 7 November 2012,” vice “on or about 7
November 2012.” The appellant raises no error and we find no
prejudice. However, the appellant is entitled to accurate court
martial records. United States v. Crumpley, 49 M.J. 538, 539
(N.M.Ct.Crim.App. 1998). Accordingly, we shall order the
necessary corrective action in our decretal paragraph.
We conclude that the findings and the sentence are correct
in law and fact and that no error was committed that was
materially prejudicial to the substantial rights of the
appellant. Arts. 59(a) and 66(c), UCMJ. We affirm the findings
and sentence as approved by the CA. The supplemental court-
martial order will reflect as to Specification 3 of the Charge
that the offense was committed “on or about 7 November 2012.”
For the Court
R.H. TROIDL
Clerk of Court
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