United States v. Parr

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38878
________________________
UNITED STATES
Appellee
v.
Devon K. Parr
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 7 February 2017
________________________
Military Judge: Vance H. Spath (sitting alone)
Approved sentence: Dishonorable discharge, confinement for 36 months, total
forfeiture of pay and allowances, and reduction to E-1. Sentence adjudged 7
May 2015 by GCM convened at Kadena Air Base, Okinawa, Japan.
For Appellant: Lieutenant Colonel Anthony D. Ortiz, USAF and Captain Lau-
ren A. Shure, USAF.
For Appellee: Major Jeremy D. Gehman, USAF; Major Rebecca A. Magnone,
USAF; and Gerald R. Bruce, Esquire.
Before DUBRISKE, HARDING, and C. BROWN, Appellate Military Judges
Judge C. BROWN delivered the opinion of the court, in which Senior Judge
DUBRISKE and Judge HARDING joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
________________________
C. BROWN, Judge:
At a judge-alone general court-martial, Appellant was convicted, consistent
with his pleas, of knowingly and wrongfully possessing child pornography in
violation of Article 134, UCMJ, 10 U.S.C. § 934. The military judge sentenced
United States v. Parr, No. ACM 38878
Appellant to a dishonorable discharge, confinement for 48 months, total forfei-
ture of all pay and allowances, and reduction to E-1. Pursuant to pretrial agree-
ment, the convening authority approved 36 months of confinement and the re-
mainder of the sentence as adjudged.
On appeal, Appellant asserts two errors: (1) that the military judge erred
when, in presentencing, he admitted three written unsworn victim impact
statements from individuals identified in the child pornography Appellant pos-
sessed; and (2) that his sentence is inappropriately severe as it includes a dis-
honorable discharge. Finding no relief is warranted on either issue, we affirm
the findings and sentence.
I. BACKGROUND
Appellant, by his own admission, knowingly and intentionally downloaded
more than 500 images or videos depicting minors engaged in sexually explicit
conduct. In September 2014, the Air Force Office of Special Investigations
(AFOSI) conducted peer-to-peer undercover operations and identified Appel-
lant’s internet protocol address as downloading suspected images of child por-
nography. After obtaining a probable cause search authorization, AFOSI
searched Appellant’s residence and seized digital media, including a laptop,
thumb drives, and seven computer hard drives belonging to Appellant.
The Defense Computer Forensic Laboratory analyzed the digital media and
discovered several hundred suspected images of minors engaged in sexually
explicit conduct, including the 50 files Appellant stipulated were child pornog-
raphy at his court-martial. Of those 50 charged files, 12 images and 14 video
files involved child victims who have been identified by the National Center for
Missing and Exploited Children (NCMEC). 1 At trial, Appellant stipulated that
he preferred images of girls between 9 – 14 years old and that he downloaded
the images and videos to gratify his sexual desires, watching them and mas-
turbating to them on a nearly daily basis. He also stipulated that five to ten
percent of his child pornography collection consisted of videos of toddlers as
young as two years old in sexual situations.
1 NCMEC, in conjunction with law enforcement, have confirmed certain persons por-
trayed in images and videos are actual minors by locating the individuals seen in the
images and videos.
2
United States v. Parr, No. ACM 38878
II. DISCUSSION
A. Admissibility of Unsworn Victim Impact Statements
Appellant asserts the military judge erred in considering, over defense ob-
jection, the written unsworn statements from the NCMEC-identified victims
appearing in the child pornography possessed by Appellant. We disagree.
In his ruling admitting three of the four unsworn victim impact statements,
the military judge put on the record that he was persuaded that the intent of
the Crime Victims’ Rights Act (CVRA), 18 U.S.C § 3771, was to allow for such
evidence. The National Defense Authorization Act for Fiscal Year 2014 (FY
2014 NDAA) 2 incorporated the CVRA into Article 6b, UCMJ, with immediate
implementation taking place on 26 December 2013. This statutory provision
includes the right of all crime victims to be “reasonably heard” at sentencing.
The military judge noted the following: the persons providing the unsworn
statements clearly fell within the definition of a victim as defined in the CVRA
and Article 6b, UCMJ; both the CVRA and Article 6b, UCMJ, gave victims a
right to be “reasonably heard” at sentencing; and that federal courts have in-
terpreted this term to mean allowing an unsworn victim impact statement in
sentencing. 3 He further stated he believed Congress intended to put victims on
equal footing with the accused in terms of allowing an unsworn statement in
sentencing and that the accused was free to rebut any statement of fact con-
tained within the victims’ unsworn statements.
Finally, the military judge addressed what he termed “Mil. R. Evid. 403
concerns” and did not admit a fourth victim impact statement focused on the
effects the sexual abuser had on the victim. Similarly, the military judge stated
he would only consider the portions of victim impact statements that detailed
the impact of the victims knowing their images were still available on the in-
ternet and being viewed by others, but would not consider anything within
those exhibits stating the effects the actual abuser had on the victims.
We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion. United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000)). The admission of evidence in aggravation during sentencing
is controlled by Rule for Courts-Martial (R.C.M.) 1001(b)(4), which states:
2 Pub. L. No. 11333, § 1701(b)(2)(A) (2013).
3As there were no military cases defining the right to be “reasonably heard,” the mili-
tary judge looked to federal cases, citing Kenna v. United States Dist. Court, 435 F.3d
1011 (9th Cir. 2006).
3
United States v. Parr, No. ACM 38878
The trial counsel may present evidence as to any aggravating
circumstances directly relating to or resulting from the offenses
of which the accused has been found guilty. Evidence in aggra-
vation includes, but is not limited to, evidence of financial, social,
psychological, and medical impact on or cost to any person or
entity who was the victim of an offense committed by the accused
....
Furthermore, sentencing evidence is subject to the requirements of Mil. R.
Evid. 403. United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F. 2001) (citing
United States v. Rust, 41 M.J. 472, 478 (C.A.A.F. 1995)). When the military
judge conducts a proper balancing test under Military Rule of Evidence (Mil.
R. Evid.) 403 on the record, the ruling will not be overturned absent a clear
abuse of discretion; the ruling of a military judge who fails to do so will receive
correspondingly less deference. Hursey, 55 M.J. at 36; Manns, 54 M.J. at 166.
The limited content of the three victims’ unsworn statements considered by
the military judge in this case was proper aggravation evidence under R.C.M.
1001(b)(4) as it related to the “social, psychological, and medical impact” on the
three victims. The military judge addressed the Mil. R. Evid. 403 balancing
test in his ruling, effectively redacting the information in the statement by not
considering the information which he determined to be unfairly prejudicial.
The military judge is presumed to know the law and apply it correctly absent
clear evidence to the contrary. United States v. Bridges, 66 M.J. 246, 248
(C.A.A.F. 2008); United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007);
United States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)). We find no such
evidence in this case.
Notwithstanding our determination that the restricted information in the
victim impact statements was evidence in aggravation, we must still determine
whether the military judge erred in allowing the evidence to be presented in
an unsworn format. Generally, the prosecution must present statements from
witnesses in the form of sworn testimony. Mil. R. Evid. 101, 802, 1101. But
there are exceptions to this, including when the rules or federal statutes appli-
cable to courts-martial provide otherwise. Mil. R. Evid. 802.
The military judge found that the CVRA, as incorporated into the UCMJ,
indeed provided otherwise. Appellant was sentenced on 7 May 2015. On 17
June 2015, the President signed Executive Order 13696 4 enacting R.C.M.
1001A. R.C.M. 1001A(b)(4)(B) defines the right to be reasonably heard as in-
cluding the right for a victim to make an unsworn statement during sentencing
proceedings in a non-capital case. While this Presidential rule implementing
4 Exec. Order No. 13,696, 80 Fed. Reg. 119, 35,819-20 (22 June 2015).
4
United States v. Parr, No. ACM 38878
Article 6b, UCMJ, was not yet effective at the time Appellant was sentenced,
the statutory provision itself was, and included a victim’s right to be “reasona-
bly heard.” Art. 6b, UCMJ, 10 U.S.C. § 806b; see also LRM v. Kastenberg, 72
M.J. 364, 370 (C.A.A.F. 2013) (recognizing a victim’s right to be heard). Article
6b, UCMJ, mirrors the victims’ rights afforded under the CVRA, and federal
courts have interpreted these rights to include giving statements at sentencing
hearings without being placed under oath. 5
Even though the President had not yet amended the Rules for Courts-Mar-
tial to expressly give the victims the right to be heard in such a manner at the
time of Appellant’s trial, the military judge assessed that was the intent of the
applicable federal statute. We find that this ruling and the admission of rele-
vant victim impact evidence in the form of unsworn statements under R.C.M.
1001(b)(4) was not an abuse of his discretion.
Even were we to consider the military judge’s admission of the victims’ un-
sworn statements an abuse of discretion, Appellant has failed to show preju-
dice. The test for prejudice is whether the error substantially influenced the
adjudged sentence. United States v. Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009);
United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005); United States v.
Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001). Prior to announcing sentence, the mil-
itary judge noted that he would have imposed the same sentence regardless of
whether he considered the three prosecution exhibits at issue.
B. Sentence Appropriateness
Appellant alleges that a sentence which includes a dishonorable discharge
is unreasonably severe punishment for his offense. He contends there is little
evidence of aggravation in this case and that the Government failed to present
any evidence that Appellant’s duty performance or unit effectiveness was im-
pacted by his crime.
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (2006). We “may affirm only such findings of guilty and the sentence
or such part or amount of the sentence, as [we find] correct in law and fact and
determine, on the basis of the entire record, should be approved.” Article 66(c),
UCMJ, 10 U.S.C. § 866(c). “We assess sentence appropriateness by considering
5Some of the federal cases addressing this issue include: United States v. Grigg, 434
F. App’x 530, 533 (6th Cir. 2011) (unpub. op.) (citing United States v. Myers, 402 F.
App’x 844, 845 (4th Cir. 2010)); United States v. Swenson, 2014 U.S. Dist. LEXIS
115402, at *3-4 (D. Idaho Aug. 18, 2014); United States v. Shrader, 2010 U.S. Dist.
LEXIS 121766, at *7–8 (S.D. W. Va. Nov. 16, 2010); and United States v. Marcello, 370
F. Supp. 2d 745, 750 (N.D. Ill. 2005).
5
United States v. Parr, No. ACM 38878
the particular appellant, the nature and seriousness of the offenses, the appel-
lant’s record of service, and all matters contained in the record of trial.” United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009). Although we
are accorded great discretion in determining whether a particular sentence is
appropriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
The maximum authorized sentence was dishonorable discharge, confine-
ment for 10 years, total forfeiture of all pay and allowances, and reduction to
E-1. Appellant negotiated a pretrial agreement limiting confinement to 36
months. The approved sentence of dishonorable discharge, confinement for 36
months, total forfeiture of all pay and allowances, and reduction to E-1 was
clearly within the discretion of the convening authority.
We have given individualized consideration to this Appellant, his conduct,
his military career and accomplishments, and the other relevant matters
within the record of trial. While Appellant has a fairly good military record,
this mitigating factor must be balanced against the seriousness and deviant
nature of the offense Appellant committed. This includes Appellant’s own ad-
mission that he preferred to download and watch videos of 9 to 14 year-old girls
being sexually abused because they “were old enough to know that sex acts
were being performed on them.” We find the approved sentence is not inappro-
priately severe.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no er-
ror materially prejudicial to the substantial rights of Appellant occurred. Arti-
cles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the ap-
proved findings and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
6