United States v. Nestor

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40250
________________________
UNITED STATES
Appellee
v.
Charles S. NESTOR
Technical Sergeant (E-6), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 30 June 2023
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Military Judge: Matthew P. Stoffel.
Sentence: Sentence adjudged on 8 October 2021 by GCM convened at
Kadena Air Base, Japan. Sentence entered by military judge on 2 No-
vember 2021: Dishonorable discharge, confinement for 16 months, and
reduction to E-1.
For Appellant: Major David L. Bosner, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major Mor-
gan R. Christie, USAF; Captain Olivia B. Hoff, USAF; Mary Ellen
Payne, Esquire.
Before RICHARDSON, CADOTTE, and ANNEXSTAD, Appellate Mili-
tary Judges.
Judge ANNEXSTAD delivered the opinion of the court, in which Senior
Judge RICHARDSON and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
ANNEXSTAD, Judge:
United States v. Nestor, No. ACM 40250
At a general court-martial, a panel of officer and enlisted members con-
victed Appellant, contrary to his pleas, of one specification each of wrongfully
possessing and distributing child pornography in violation of Article 134, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 934.1 A military judge sen-
tenced Appellant to a dishonorable discharge, confinement for 16 months, and
reduction to the grade of E-1. The convening authority took no action on the
sentence.
Appellant raises seven issues which we have reordered and reworded: (1)
whether the military judge abused his discretion when he permitted the Gov-
ernment to introduce certain character evidence under Mil. R. Evid. 404(b); (2)
whether the military judge committed reversible error in his instructions to
the members; (3) whether Appellant’s conviction for possession of child pornog-
raphy (Specification 1) is legally and factually sufficient; (4) whether Appel-
lant’s conviction for distribution of child pornography (Specification 2) is le-
gally and factually sufficient; (5) whether the findings of guilty constituted an
unreasonable multiplication of charges; (6) whether Appellant’s convictions of
Specifications 1 and 2 are legally and factually sufficient as to the terminal
element; and (7) whether Appellant is entitled to a unanimous verdict under
the Fifth and Sixth Amendments.2,3
With respect to issues (5), and (7), we have carefully considered Appellant’s
contentions and find they do not require discussion or warrant relief. See
United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987).
We consolidate issues (3), (4), and (6) since they concern the legal and fac-
tual sufficiency of both specifications. We find error and provide relief for issue
(4). We affirm the remaining findings of guilty and the sentence, as reassessed.
I. BACKGROUND
As part of a Joint Crimes Against Children Task Force in June of 2020,
Naval Criminal Investigative Service (NCIS) investigators discovered Appel-
lant’s use of an Internet protocol (IP) address associated with suspected child
pornography. NCIS Special Agent (SA) GH described at trial how he used in-
vestigative peer-to-peer software to search for child pornography on a
1All references to the UCMJ, the Military Rules of Evidence, and the Rules for Courts-
Martial are to the Manual for Courts-Martial, United States (2019 ed.).
2 U.S. CONST. amend. V and VI.
3 On 29 March 2023, Appellant withdrew one additional issue for our consideration
alleging that the record of trial was incomplete.
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United States v. Nestor, No. ACM 40250
particular peer-to-peer file sharing network.4 He explained that peer-to-peer
file sharing networks rely on individual users to download and share files, and
that when a user downloads a file using peer-to-peer software, the software by
“default” automatically begins sharing the file—or pieces thereof—with other
network users.
SA GH testified he used peer-to-peer software designed specifically for law
enforcement agents (modified software) to conduct an undercover child pornog-
raphy investigation on 23 June 2020. He explained that the modified software
differed from the publicly available software (standard software) in several re-
spects, including two features significant to this case. First, unlike the stand-
ard software, the modified software did not share any downloaded files. Sec-
ond, the modified software connected to only one IP address at a time—mean-
ing the entire file is downloaded from one individual instead of pieces of a file
from many. Using these features, SA GH downloaded a suspected child por-
nography video from an IP address in Okinawa, Japan—belonging to Appel-
lant—which was serviced by a local Japanese Internet service provider (ISP).
The downloaded video, hereinafter referred to as the spanking video, was ad-
mitted as a prosecution exhibit5 at trial and SA GH described it as follows:
It depicts a – it’s a living room-type setting, what looked like
appeared to be an ottoman. There was a – what appeared to be
a low-teen, preteen child bent over, couldn’t tell if it was male or
female, with what appeared to be an adult, white male, spanking
the unclothed bare bottom of the other individual.
SA GH sent a request to the Japanese ISP to determine the registered
owner of the IP address in question. The Japanese ISP responded with “Tech
Sergeant Charles Nestor” and provided the registered owner’s work location.
After identifying Appellant as an Air Force member, SA GH turned over the
investigation to the Air Force Office of Special Investigations (AFOSI).
On 9 July 2020, AFOSI, led by SA JR, along with Okinawan police, ob-
tained a search authorization for Appellant’s off-base residence where they
subsequently seized 27 electronic devices, including, inter alia, a Lenovo laptop
and a ThinkPad laptop. The devices were sent to the Department of Defense
Cyber Crime Center Cyber Forensics Laboratory (DC3/CFL) for analysis,
where it was determined that Appellant was the registered owner and a
4 Without objection, the military judge recognized Special Agent GH as an expert in
the fields of “digital forensics” and “peer-to-peer software.”
5 The video was admitted as Prosecution Exhibit 5.
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United States v. Nestor, No. ACM 40250
regular user for both laptops. It also revealed Appellant had password-pro-
tected both laptops, and they both contained evidence relevant to the question
of whether the Appellant knowingly possessed child pornography and know-
ingly distributed a child pornography video between December 2019 and July
2020.6
Mr. TB, a cyber forensics examiner from DC3/CFL, conducted the forensic
analysis on Appellant’s two laptops and testified at trial as an expert in the
field of digital forensics. Mr. TB testified that he discovered—in a subfolder
located on the Lenovo laptop—a commercially produced foreign film entitled
“Maladolescenza,” which featured three different minors engaging in sexually
explicit conduct. He also found two additional videos depicting a preteen girl
masturbating with a water faucet in a bathtub. Mr. TB stated these files were
downloaded using Appellant’s user profile beginning in December 2019 and all
the files had to be specifically placed in the subfolder by Appellant.
Mr. TB further testified the Lenovo laptop contained: (1) 28 additional files
with filenames indicative of child pornography; and (2) 72 other movies or video
files “that contained scenes with children, at some stage [of] undress[ ],” in-
cluding videos depicting what appeared to be children changing clothes at a
beach house, showering, and engaging in sexual activity. In addition to items
(1) and (2), supra, Mr. TB stated that he discovered three additional video clips
of scenes spliced together in VLC media player that exhibited a child in some
stage of undress, including an adult female bathing a nude prepubescent fe-
male and a teenage male and female who are both topless. He stated two of the
three video clips were recorded scenes from a commercially produced German
movie and the video clips captured the limited scenes in the film where a child
was undressed to some degree.
In addition to the Lenovo laptop, Mr. TB also testified that he found 97
deleted files with filenames indicative of possible child pornography on the
ThinkPad laptop data drive. He stated that while he could still see the file-
names, the files themselves were empty. Mr. TB indicated the filenames in-
cluded “preteen hardcore” and explicit and lascivious references to sexual acts
involving minors. He also stated that the operating system on Appellant’s com-
puter, based on Appellant’s interaction with the files, had created shortcut
links to filenames in his “recent” folder containing the term “preteen hardcore”
where additional filenames suggesting child pornography were also discovered.
Mr. TB explained that in order to create the shortcut link, the user would have
6The rest of the devices seized from Appellant’s residence contained no relevant infor-
mation concerning the charged offenses.
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United States v. Nestor, No. ACM 40250
opened the files at one point in time. He also stated that the globally unique
identifier (GUID) for the standard software on the ThinkPad was the same
GUID listed by NCIS for the standard software from which the spanking video
was obtained. Finally, Mr. TB confirmed the files were downloaded on both
laptops between December 2019 and July 2020, but later deleted.
Contrary to his pleas, a panel of officer and enlisted members convicted
Appellant of one specification of knowingly and wrongfully possessing child
pornography, and one specification of knowingly and wrongfully distributing
child pornography.
II. DISCUSSION
A. Mil. R. Evid 404(b)
Appellant argues the military judge abused his discretion by permitting the
Government to introduce character evidence under Mil. R. Evid. 404(b). We
find that the military judge did not abuse his discretion and that Appellant is
not entitled to relief.
1. Additional Background
On 29 July 2021, the Defense submitted a request for a bill of particulars
to the Government. Specifically, the Defense requested a list of the media file-
names that the Government was alleging were child pornography and in Ap-
pellant’s possession. On 9 August 2021, the Government responded with a
chart containing 41 total filenames. On 1 October 2021, the Government
amended its response by adding one more filename to the chart for a total of
42 files. These 42 files consisted of the three videos taken from the Lenovo
laptop, one video taken from the Thinkpad laptop (the spanking video), and 38
other filenames that were in the recycling and recent folders on the Thinkpad
laptop.7
On 11 August 2021, the Government provided the Defense with notice of
its intent to offer evidence under Mil. R. Evid. 404(b). On 2 October 2021, two
days before trial the Defense moved to exclude certain material from being of-
fered under Mil. R. Evid. 404(b). The Government opposed the motion. The
evidence the Government sought to introduce under Mil. R. Evid. 404(b), for
the purpose of showing that Appellant had knowledge of possession and distri-
bution of child pornography, included: (1) 28 child erotica videos and a foreign
movie featuring scenes of unclothed children that were found on Appellant’s
7The videos from the Lenovo laptop included the “Maladolescenza” video and the two
videos depicting a preteen girl masturbating in a bathtub.
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United States v. Nestor, No. ACM 40250
Lenovo laptop; (2) evidence that Appellant possessed short VLC clips of scenes
involving nude minors from various movies on his Lenovo laptop; and (3) an
additional 97 deleted files with filenames indicative of child pornography on
Appellant’s ThinkPad laptop. On 4 October 2021, the military judge received
additional evidence and heard arguments on the motion during an Article
39(a), UCMJ, 10 U.S.C. § 839(a), session. During argument, Government coun-
sel clarified that evidence found on Appellant’s laptops included the 42 charged
files as well as files they were attempting to offer under Mil R. Evid. 404(b).
On 5 October 2021, the military judge issued a written ruling denying the de-
fense motion.
a. Child Erotica
We first address the 28 files of child erotica found on Appellant’s Lenovo
laptop. The military judge determined the Lenovo laptop was owned and reg-
ularly used by Appellant; had one user-created profile with a username of
“Charl”—the first portion of Appellant’s name; the files were found on a device
seized from Appellant’s residence; and “there [was] no indication that Appel-
lant did not have access to the device at the time files were downloaded.” Fur-
thermore, the military judge determined the only other occupants in Appel-
lant’s residence were his wife and two daughters. The military judge stated the
evidence reasonably supported Appellant’s possession and viewing of these
files.
The military judge also determined the evidence was relevant to Appel-
lant’s knowing possession and distribution of child pornography, in that it may
establish Appellant’s sexual interest in minors, particularly minors engaged in
sexual conduct, and that Appellant had a motive to have the files in his pos-
session. He also found the filenames were relevant circumstantial evidence
that Appellant knew he possessed child pornography. The military judge found
the probative value of the evidence was high due to the lack of other evidence
in the case supporting Appellant’s knowing possession and distribution. He
found the danger of unfair prejudice was moderate, due in part to the number
of files that contained alleged child erotica (28) as compared to the small num-
ber of files that contained alleged child pornography (3)—that is, the
“Maladolescenza” film and two videos of a preteen girl in a bathtub. The mili-
tary judge concluded, “Put more finely, the evidence contained in each [erotica]
video file will become somewhat cumulative at a certain point, such that the
danger of unfair prejudice may reach the point of substantially outweighing
the collective probative value of the evidence . . . .”
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b. VLC Video Clips
Next, we consider the three VLC video clips found on Appellant’s Lenovo
laptop indicating that Appellant spliced together movie clips of children in var-
ious stages of undress. The military judge found evidence supported a finding
that Appellant used video editing software to compile short video clips of scenes
involving nude minors. Consistent with his analysis of the child erotica, and
supported by the testimony of Mr. TB, the military judge found that Appellant
was responsible for either creating these clips using VLC software, or pos-
sessing these clips found on his computer. Again the military judge stated the
evidence was relevant to the issue of whether Appellant knowingly possessed
and distributed child pornography. The military judge determined the proba-
tive value of the evidence was high as it demonstrated that Appellant had
knowledge of the content of at least some of the files in question at or near the
time the child pornography was downloaded onto his devices. The military
judge assessed the danger of unfair prejudice from this evidence to be low.
c. Filenames of Deleted Files
Concerning the 97 deleted files with filenames indicative of child pornogra-
phy found on Appellant’s ThinkPad laptop data drive, the military judge incor-
porated the analysis above that the evidence indicated Appellant possessed
files indicative of child pornography between December 2019 and July 2020 on
his computer. He also concluded the evidence was relevant as it may demon-
strate that Appellant had a sexual interest in minors, which would make his
knowing possession and distribution more likely. He also determined that the
fact the files were deleted went to the weight of the evidence. The military
judge found the probative value of this evidence was moderate, noting that
while the contents of the files would have offered a higher probative value,
there was probative value in that the deleted files were located on the same
laptop as the video downloaded by law enforcement using the modified soft-
ware. The military judge assessed the danger of unfair prejudice as low to mod-
erate, and ultimately concluded that the danger of unfair prejudice did not
substantially outweigh the probative value of the evidence.
2. Law
A military judge’s ruling under Mil. R. Evid. 404(b) and Mil. R. Evid. 403
will not be disturbed except for a clear abuse of discretion. United States v.
Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999) (citation omitted). “A military judge
abuses his discretion when: (1) the findings of fact upon which he predicates
his ruling are not supported by the evidence of record; (2) [ ] incorrect legal
principles were used; or (3) [ ] his application of the correct legal principles to
the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344
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United States v. Nestor, No. ACM 40250
(C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F.
2008) (per curiam)). Stated another way, an abuse of discretion occurs when
the military judge’s decision is “outside the range of choices reasonably arising
from the applicable facts and the law.” United States v. Miller, 66 M.J. 306,
307 (C.A.A.F. 2008) (citation omitted).
Mil. R. Evid. 404(b) provides that evidence of a crime, wrong, or other act
by a person is not admissible as evidence of the person’s character in order to
show the person acted in conformity with that character on a particular occa-
sion. Moreover, it cannot be used to show predisposition toward crime or crim-
inal character. United States v. Staton, 69 M.J. 228, 230 (C.A.A.F. 2010). How-
ever, such evidence may be admissible for another purpose, including to show,
inter alia, motive, intent, plan, absence of mistake, or lack of accident. Id.; Mil.
R. Evid. 404(b)(2). The list of potential purposes in Mil. R. Evid. 404(b)(2) “is
illustrative, not exhaustive.” United States v. Ferguson, 28 M.J. 104, 108
(C.M.A. 1989).
We apply a three-part test to review the admissibility of evidence under
Mil. R. Evid. 404(b): (1) Does the evidence reasonably support a finding by the
factfinder that Appellant committed the other crime, wrong, or act? (2) Does
the evidence of the other act make a fact of consequence to the instant offense
more or less probable? (3) Is the probative value of the evidence of the other
act substantially outweighed by the danger of unfair prejudice under Mil. R.
Evid. 403. United States v. Reynolds, 29 M.J. 105, 109 (C.A.A.F. 1989) (cita-
tions omitted). “If the evidence fails to meet any one of these three standards,
it is inadmissible.” Id.Concerning the third Reynolds prong, our superior court has instructed
that “the military judge enjoys wide discretion when applying [the] Mil. R.
Evid. 403” balancing test. United States v. Tanksley, 54 M.J. 169, 176 (C.A.A.F.
2000) (internal quotation marks and citations omitted), overruled in part on
other grounds by United States v. Inong, 58 M.J. 460 (C.A.A.F. 2003). They
have also made clear that they will exercise great restraint in reviewing the
decision and will give the decision maximum deference in determining whether
there is a clear abuse of discretion when a military judge conducts Mil. R. Evid.
403 balancing on the record. Id. at 176–77.
3. Analysis
On appeal, Appellant contends that the military judge’s application of legal
principles to the facts was unreasonable. Specifically, Appellant argues the
military judge reached the wrong conclusion concerning the third prong of the
Reynolds test in finding the evidence’s probative value was not substantially
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United States v. Nestor, No. ACM 40250
outweighed by the danger of unfair prejudice. We find that the military judge
did not abuse his discretion.
In his written ruling, the military judge applied the first Reynolds prong—
whether the evidence reasonably supported a finding that Appellant engaged
in other acts—and was satisfied the factfinder could reasonably determine Ap-
pellant was the person responsible for possessing the child erotica, video clips,
and the deleted files found on the two devices that he owned and regularly
used. We find the military judge’s factfinding on the first Reynolds prong was
supported by the evidence of record. Thus, we conclude that the military judge
properly applied the first Reynolds prong.
The military judge applied the second Reynolds prong—whether the evi-
dence of the other acts makes a fact of consequence to the instant offenses more
or less probable—and found the uncharged acts were evidence of Appellant’s
sexual interest in minors and motive to have the files in his possession. The
military judge properly recognized that primary facts of consequence in this
litigated case were Appellant’s knowing possession and distribution of child
pornography. Evidence of Appellant’s sexual interest in children, his posses-
sion of child erotica, video clips of children in various stages of undress, and
deleted files with filenames indicative of child pornography made the facts that
Appellant knowingly and wrongfully possessed child pornography more prob-
able. Thus, we conclude that the military judge’s application of the second
Reynolds prong was not clearly unreasonable.
Applying the third Reynolds prong, the military judge found the probative
value of the evidence was not substantially outweighed by the danger of unfair
prejudice. Here, the military judge provided written assessments of both the
probative value and the potential prejudice on each of the individual pieces of
uncharged evidence the Government sought to introduce. Exercising great re-
straint and providing maximum deference to the military judge’s decision, we
find the military judge’s written analysis is not outside the range of choices
reasonably arising from the specific facts of this case and the law. See Miller,
66 M.J. at 307.
The military judge did not abuse his discretion in ruling the evidence that
Appellant possessed 28 files of child erotica and spliced VLC clips showing chil-
dren in various stages of undress, and that his laptop showed filenames of de-
leted files that were indicative of child pornography, was admissible for the
limited purposes of showing Appellant’s intent and motive to knowingly pos-
sess and distribute child pornography. His findings of fact were supported by
the record and therefore were not clearly erroneous. Appellant has not shown
the military judge incorrectly applied the law or that his ruling was arbitrary,
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United States v. Nestor, No. ACM 40250
fanciful, clearly unreasonable, or clearly erroneous. See United States v.
Shields, ___ M.J. ___, No. 22-0279, 2023 CAAF LEXIS 270, at *9 (C.A.A.F. 28
Apr. 2023) (articulating abuse of discretion standard); see also Morrison, 52
M.J. at 122.
B. Military Judge’s Instructions
Appellant claims the military judge erred by providing a list of charged
filenames that the Government alleged constituted child pornography in his
instructions to the members. He claims that this instruction created confusion
between which files were charged and which files were admitted solely pursu-
ant to Mil. R. Evid. 404(b). We find Appellant waived any objections to the
military judge’s instructions and we are not persuaded to pierce waiver in this
case.
1. Additional Background
During an Article 39(a), UCMJ, session concerning instructions, the mili-
tary judge asked trial counsel if there were “any additional requests for special
instructions” other than an unopposed request for an instruction on the defini-
tion of “masochism.” To alleviate a concern expressed by trial defense counsel
at an earlier hearing regarding the particular files meeting the definition of
child pornography, trial counsel suggested highlighting the files on two prose-
cution exhibits—14 and 15—which would clarify what files the Government
alleged met the definition of child pornography. The Government further sug-
gested that highlighting the charged files would also clarify to the members
that the non-highlighted files in the two exhibits were the uncharged files ad-
mitted only for Mil. R. Evid. 404(b) purposes. The military judge responded
that he would rather provide the members with only a list of the charged files
in his instructions. Trial defense counsel did not object or propose an alterna-
tive course of action to the military judge’s proposal.
During a recess after discussing instructions, the military judge conducted
a Rule for Courts-Martial (R.C.M.) 802 conference with counsel. Back on the
record, the military judge described that during the conference both “counsel
requested some clarification as far as the court’s expectations as it relate[d] to
the [P]rosecution’s request to how best to identify what they are alleging as
child pornography.” Trial defense counsel did not voice a desire to supplement
the military judge’s summary of the conference, nor did they raise any issues
or lodge any objections with respect to the identification of the charged child
pornography. The military judge then indicated that he was going to take a
long recess to finalize the instructions and would provide the instructions to
the parties for review. The military judge referenced trial counsel’s request to
include the specific filenames in the written instruction: “As we had discussed,
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United States v. Nestor, No. ACM 40250
I believe trial counsel indicated they were going to provide files, filenames that
are at issue in this case to the court, to include in the written instructions. I’ll
be sure to include those once I receive them.” Trial defense counsel again did
not object, raise any issue, or lodge any objections to the military judge’s pro-
posed plan to insert the filenames in his written instructions to the members.
The military judge then asked trial defense counsel, “[A]re there any other
matters that we need to take up regarding instructions?” Trial defense counsel
responded, “No, Your Honor.” Subsequently, both trial and trial defense coun-
sel had an opportunity to review the final instructions. Trial defense counsel
did not express any objection to the list of filenames in the instructions.
The military judge provided the members a list of 42 filenames that the
Government alleged met the definition of child pornography. After reading the
instructions, and before the members retired to deliberate, the military judge
asked, “Do counsel object to the instructions given or request additional in-
structions?” Trial defense counsel responded, “No, Your Honor.”
2. Law
“Failure to object to an instruction or to omission of an instruction before
the members close to deliberate forfeits the objection.” R.C.M. 920(f). We re-
view forfeited issues for plain error. United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020). “[T]o establish plain error an appellant must demonstrate (1)
error, (2) that is clear or obvious at the time of the appeal, and (3) prejudicial.”
United States v. Long, 81 M.J. 362, 369–70 (C.A.A.F. 2021) (internal quotation
marks and citation omitted).
In contrast to forfeiture, an appellant waives a right to raise the issue on
appeal where he “affirmatively declined to object to the military judge’s in-
structions and offered no additional instructions.” Davis, 79 M.J. at 331.
“Whether an appellant has waived an issue is a legal question we review de
novo.” Id.
Generally, an affirmative waiver leaves “nothing left” to correct on appeal.
Id. However, pursuant to Article 66(d)(1), UCMJ, Courts of Criminal Appeals
(CCAs) have the unique statutory responsibility to affirm only so much of the
findings and sentence that they find are correct and “should be approved.” 10
U.S.C. § 866(d)(1). This includes the authority to address errors raised for the
first time on appeal despite waiver of those errors at trial. See, e.g., United
States v. Hardy, 77 M.J. 438, 442–43 (C.A.A.F. 2018). A CCA assesses the en-
tire record and determines “whether to leave an accused’s waiver intact, or to
correct the error.” United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (ci-
tation omitted).
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United States v. Nestor, No. ACM 40250
“The military judge has an independent duty to determine and deliver ap-
propriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)
(citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A. 1990)).
3. Analysis
The threshold question is whether Appellant preserved, forfeited, or waived
his allegation of error in the military judge’s instructions. Trial defense counsel
did not object to the challenged instructions, even when the military judge
asked, so the issue was waived, and we decline to pierce that waiver.
The military judge involved counsel in the drafting and tailoring of his in-
structions. He listened to the concerns of counsel and determined what type of
instructions counsel wanted, provided counsel with draft instructions, and so-
licited objections to and requests for additional instructions. After the military
judge provided the instructions to the court members, he again asked counsel
if they objected to any of the instructions, and received none. Because trial
defense counsel affirmatively declined to object to the findings instructions and
offered no additional instructions, Appellant expressly and unequivocally ac-
quiesced to them, constituting waiver. See United States v. Rich, 79 M.J. 472,
476 (C.A.A.F. 2020) (citations omitted).
Finding waiver, we next consider whether to pierce Appellant’s waiver re-
lating to the instructions. Having reviewed the entire record, and mindful of
our mandate to “approve only that which ‘should be approved,’” we have deter-
mined to leave intact Appellant’s waiver of the alleged error. See Chin, 75 M.J.
at 223.
C. Legal and Factual Sufficiency
Appellant contends that the evidence is legally and factually insufficient to
support the findings of guilty for both specifications. As discussed below, we
find the evidence supporting Appellant’s conviction for possession of child por-
nography is both legally and factually sufficient. However, we find the evidence
to support Appellant’s conviction for distribution of child pornography is le-
gally and factually insufficient.
1. Law
Issues of legal and factual sufficiency are reviewed de novo. United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our as-
sessment of legal and factual sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021)
(citing United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied, 82
M.J. 312 (C.A.A.F. 2022).
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United States v. Nestor, No. ACM 40250
“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 rea-
sonable 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), cert. denied, 139 S. Ct. 1641 (2019).
The test for legal sufficiency “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” United States v.
Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (internal quotation marks omitted) (quot-
ing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“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,’ [this] court is ‘convinced of the [appellant]’s guilt beyond a rea-
sonable doubt.’” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (quoting
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).
As an evidentiary standard, proof beyond a reasonable doubt does not re-
quire more than one witness to testify “as long as the members find that the
witness’s testimony is relevant and is sufficiently credible.” United States v.
Rodriguez-Rivera, 63 M.J. 372, 383 (C.A.A.F. 2006).
To find Appellant guilty of possession of child pornography in violation of
Article 134, UCMJ, the members were required to find the following elements
beyond a reasonable doubt: (1) that between on or about 8 December 2019 and
on or about 9 July 2020, at or near Kadena Air Base, Okinawa, Japan, Appel-
lant knowingly and wrongfully possessed child pornography, that is, visual de-
pictions of minors, or what appears to be minors, engaging in sexually explicit
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United States v. Nestor, No. ACM 40250
conduct; and (2) that under the circumstances, Appellant’s conduct was of a
nature to bring discredit upon the armed forces. See Manual for Courts-Mar-
tial, United States (2019 ed.) (MCM), pt. IV, ¶ 95.b.(1).
To find Appellant guilty of distribution of child pornography in violation of
Article 134, UCMJ, as charged, the members were required to find the follow-
ing elements beyond a reasonable doubt: (1) that between on or about 8 De-
cember 2019 and on or about 9 July 2020, at or near Kadena Air Base, Oki-
nawa, Japan, Appellant knowingly and wrongfully distributed child pornogra-
phy, that is, a visual depiction of a minor, or what appears to be a minor, en-
gaging in sexually explicit conduct; and (2) that under the circumstances, Ap-
pellant’s conduct was of a nature to bring discredit upon the armed forces. See
MCM, pt. IV, ¶ 95.b.(3).
Child pornography is “material that contains either an obscene visual de-
piction of a minor engaging in sexually explicit conduct or a visual depiction of
an actual minor engaging in sexually explicit conduct.” MCM, pt. IV, ¶ 95.c.(4).
“Sexually explicit conduct” means actual or simulated:
(a) sexual intercourse or sodomy, including genital to genital,
oral to genital, anal to genital, or oral to anal, whether between
persons of the same or opposite sex;
(b) bestiality;
(c) masturbation;
(d) sadistic or masochistic abuse; or
(e) lascivious exhibition of the genitals or pubic area of any per-
son.
MCM, pt. IV, ¶ 95.c.(10). A minor is “any person under the age of 18 years.”
MCM, pt. IV, ¶ 95.c.(7).
To be convicted of possession or distribution of child pornography, an ap-
pellant must be “aware that the images were of minors, or what appeared to
be minors, engaged in sexually explicit conduct. Awareness may be inferred
from circumstantial evidence such as the name of a computer file or folder . . .
[or] the number of images possessed” by the appellant. MCM, pt. IV, ¶ 95.c.(5).
Our court recently addressed service discrediting conduct as the terminal
element:
“Whether any given conduct [is service discrediting] is a ques-
tion for the trier of fact to determine, based upon all the facts
and circumstances; it cannot be conclusively presumed from any
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United States v. Nestor, No. ACM 40250
particular course of action.” “[T]he degree to which others be-
came aware of the accused’s conduct may bear upon whether the
conduct is service discrediting,” but actual public knowledge is
not a prerequisite. “The trier of fact must determine beyond a
reasonable doubt that the conduct alleged actually occurred and
must also evaluate the nature of the conduct and determine be-
yond a reasonable doubt that [the appellant]’s conduct would
tend to bring the service into disrepute if it were known.”
United States v. Heppermann, 82 M.J. 794, 801 (A.F. Ct. Crim. App. 2022) (al-
terations in original) (quoting United States v. Phillips, 70 M.J. 161, 165, 166
(C.A.A.F. 2011)) (additional citation omitted), rev. denied, 83 M.J. 103(C.A.A.F. 2022).
2. Analysis
a. Wrongful Possession of Child Pornography (Specification 1)
Appellant contends his conviction for possession of child pornography is
both legally and factually insufficient. Specifically, Appellant argues (1) the
deleted files had no content; (2) the spanking video did not constitute child
pornography; (3) compelling circumstantial evidence indicated that any pos-
session of child pornography was unknowing; and (4) no evidence was pre-
sented to prove the terminal element of the offense. We find the evidence le-
gally and factually sufficient and that no relief is warranted.
Our review of the record finds that the Government introduced convincing
evidence for a rational factfinder to find beyond a reasonable doubt Appellant
guilty of possessing child pornography between 8 December 2019 and 9 July
2020. At trial, the Government provided sufficient evidence that Appellant pos-
sessed three videos containing child pornography, specifically the “Maladoles-
cenza” video and the videos of a preteen girl masturbating in a bathtub. We
address the spanking video in more detail below. Most significant was the tes-
timony of the Government’s digital forensic expert (Mr. TB) who testified that
the videos were found on two password-protected devices owned and primarily
used by Appellant. Furthermore, the expert testified his forensic examination
showed that Appellant individually downloaded the three videos on separate
days and saved the videos to a separate folder on his computer. Furthermore,
he testified that Appellant interacted with the videos by clicking on the files,
opening the files, and moving the files to a separate folder—thus creating a
“link file” on the computer’s directory. The three videos in question plainly
show visual depictions of minors, or what appear to be minors, engaged in sex-
ually explicit behavior. The Government also presented other evidence in the
form of multiple files and videos of child erotica, spliced video clips of children
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United States v. Nestor, No. ACM 40250
in various stages of undress, and deleted files with filenames indicative of child
pornography on Appellant’s devices. This circumstantial evidence allowed the
members to find Appellant had a sexual interest in children and a motive to
possess child pornography, and helped establish that Appellant knowingly pos-
sessed child pornography.
We next turn to Appellant’s more specific contentions. First, Appellant con-
tends that he cannot be sure which videos he was ultimately convicted of pos-
sessing, and that it is possible that he was convicted of possessing the deleted
files that did not have any content on the basis of their filenames. We find
Appellant’s argument unpersuasive. Under the general verdict rule, this court
does not require the factfinder in a child pornography case to specify which
videos generated the guilty verdict. See United States v. Piolunek, 74 M.J. 107,
111–12 (C.A.A.F. 2015) (citing United States v. Rodriguez, 66 M.J. 201, 204
(C.A.A.F. 2008)) (additional citations omitted) (discussing the deep-rooted com-
mon law rule that when a factfinder returns a guilty verdict on an indictment
charging several acts, the verdict stands if the evidence was sufficient with
respect to any one of the acts charged). Here, the members did not have to
specify which videos constituted child pornography, as long as they found that
one of the videos amounted to child pornography.
Appellant also argues there was compelling circumstantial evidence that
demonstrated his possession of child pornography was unknowing. Specifi-
cally, Appellant argues the fact that only 2 of the 27 devices seized contained
child pornography is compelling circumstantial evidence that his possession of
the three videos was unknowing. A rational factfinder could have determined
that Appellant knew he possessed child pornography, based on the testimony
of the Government’s forensic examiner and the substantial other-acts evidence
offered at trial that tended to show Appellant had a sexual interest in children
and a motive to possess child pornography. Appellant also states the Govern-
ment did not show that he interacted with the three videos. However, the tes-
timony from the Government’s forensic expert disputes such an argument and,
in fact, provides direct evidence that Appellant did interact with videos.
Finally, Appellant argues the Government offered no evidence to support
that Appellant’s possession of child pornography “was of a nature to bring dis-
credit upon the armed forces.” Appellant states that he raises this issue as an
attempt to have our superior court reevaluate its decision in Phillips.
In Phillips, the United States Court of Appeals for the Armed Forces found
that for an offense charged in violation of Clause 2 of Article 134, UCMJ, “proof
of the conduct itself may be sufficient for a rational trier of fact to conclude
beyond a reasonable doubt that, under all the circumstances, it was of a nature
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United States v. Nestor, No. ACM 40250
to bring discredit upon the armed forces.” Phillips, 70 M.J. at 163. Appellant
claims the factfinder could not just infer from the facts and circumstances sur-
rounding the offense that the Clause 2 language was met beyond a reasonable
doubt in his case. He claims the factfinder was required to be presented with
direct evidence.
We begin our analysis by noting we disagree with Appellant’s contention
that only direct evidence is sufficient to prove the terminal element of the
charged offense. In this case, the members were presented with evidence that
Appellant was a member of the United States Air Force, living in a local com-
munity off-base in Japan, and that Appellant used a civilian Japanese ISP to
find and download child pornography. The evidence also demonstrated that
Appellant provided his military rank and work location on Kadena Air Base
when he signed up for Internet service. Additionally, the evidence showed local
Okinawan police participated in the lawful search of Appellant’s residence,
where two laptops were seized that contained evidence of child pornography.
The factfinder could use this evidence to determine whether Appellant’s con-
duct tended to discredit the service.
Moreover, the factfinder could consider evidence of the crimes themselves
in determining whether Appellant’s conduct tended to discredit the service,
including the content of the videos found on Appellant’s laptop. See United
States v. Anderson, 60 M.J. 548, 555 (A.F. Ct. Crim. App. 2004) (finding, after
its review of graphic images of child pornography, that they “remove any rea-
sonable doubt that they are . . . of a nature to bring considerable discredit upon
the armed forces”); see also United States v. Richard, 82 M.J. 473, 477–79
(C.A.A.F. 2022) (finding evidence that only tends to prejudice good order and
discipline is not sufficient proof of that element, in contrast to conduct of a
nature to bring discredit upon the armed forces in a case involving Article 134,
UCMJ). We find the members had a sufficient basis from the evidence intro-
duced at trial to determine beyond a reasonable doubt that Appellant’s conduct
was of a nature to bring discredit upon the armed forces.
In conclusion, when viewing the evidence offered at trial in the light most
favorable to the Government, a rational factfinder could readily find the essen-
tial elements of the offense—possession of child pornography—for which Ap-
pellant was convicted beyond a reasonable doubt. We therefore conclude the
evidence is legally sufficient to support Appellant’s conviction. See Robinson,
77 M.J. at 297−98. Additionally, giving the appropriate deference to the trial
court’s ability to see and hear the witnesses, and after our own independent
review of the record, we ourselves are convinced of Appellant’s guilt beyond a
reasonable doubt. See Reed, 54 M.J. at 41.
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United States v. Nestor, No. ACM 40250
b. Wrongful Distribution of Child Pornography (Specification 2)
Appellant alleges the finding of guilty for wrongful distribution of child por-
nography is both legally and factually insufficient. Appellant argues, inter alia,
that the spanking video does not constitute child pornography in that it does
not depict a minor engaged in sexually explicit conduct. We agree.
Our review of the evidence offered at trial, including our objective review
of the spanking video, finds that the video itself does not depict a minor en-
gaged in sexually explicit conduct as defined in the MCM, to include sadistic
or masochistic abuse. As described earlier, the video in question depicts an
adult male spanking the bare bottom of what appears to be a child. The view
of the camera is from the side. Nothing in the video suggests that either party
in the video is receiving any sexual gratification from the spanking. Therefore,
viewing the evidence offered at trial in the light most favorable to the Govern-
ment, we conclude that a rational factfinder could not find the essential ele-
ments—that Appellant wrongfully distributed child pornography, that is a vis-
ual depiction of a minor, or what appears to be a minor, engaging in sexually
explicit conduct—beyond a reasonable doubt. Furthermore, after our own in-
dependent review of the record, we ourselves are not convinced of Appellant’s
guilt beyond a reasonable doubt. Accordingly, we conclude Appellant’s convic-
tion for distribution of child pornography is both legally and factually insuffi-
cient and we set aside Appellant’s conviction of that offense.
Having set aside Appellant’s conviction for Specification 2, we have consid-
ered whether we may reliably reassess Appellant’s sentence in light of the fac-
tors identified in United States v. Winckelmann, 73 M.J. 11, 15–16 (C.A.A.F.
2013). We conclude that we can.
First, we find that setting aside Appellant’s conviction for distribution of
child pornography results in a dramatic change to the penalty landscape and
Appellant’s exposure, as our action reduces the maximum imposable term of
confinement for the combined convictions from 30 years to 10 years; the re-
maining elements of the maximum punishment are unchanged. Here Appel-
lant’s distribution of child pornography conviction carried the highest maxi-
mum term of confinement—20 years. The military judge imposed 16 months’
confinement for that offense, to be served concurrently with the term of con-
finement for the possession of child pornography conviction. The possession
conviction carried a 10-year maximum term of confinement, for which the mil-
itary judge also imposed 16 months’ confinement. See MCM, pt. IV, ¶ 93.d.
That said, we find the remaining Winckelmann factors favor reassessment.
First, Appellant was sentenced by a military judge alone, who, as stated above,
imposed specific terms of confinement for each offense—16 months—to be
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United States v. Nestor, No. ACM 40250
served concurrently. Next, we find the affirmed offense fairly “capture[s] the
gravamen of [the] criminal conduct included within the original offenses,”
namely conduct involving child pornography. Winckelmann, 73 M.J. at 16. Fi-
nally, the remaining offense is a type with which the judges of this court have
“experience and familiarity.” Id. Accordingly, we are confident we can deter-
mine what sentence the military judge would have imposed had Appellant been
convicted of only the possession of child pornography offense. See id. at 15(holding CCAs may reassess a sentence if it “can determine to its satisfaction
that, absent any error, the sentence adjudged would have been of at least a
certain severity”) (quoting United States v. Sales, 22 M.J. 305, 308 (C.M.A.
1986)).
Based on our experience and familiarity, and taking all factors into consid-
eration, we conclude that the military judge would have imposed a sentence of
at least 16 months’ confinement, a bad-conduct discharge, and reduction to E-
1 for Appellant’s possession of child pornography conviction. Accordingly, we
reassess the sentence to consist of a bad-conduct discharge, confinement for a
total of 16 months, and reduction to the grade of E-1.
III. CONCLUSION
The finding of guilty as to Specification 2 of the Charge is SET ASIDE.
Specification 2 of the Charge is DISMISSED WITH PREJUDICE. We reas-
sess the sentence to a bad-conduct discharge, confinement for 16 months, and
reduction to the grade of E-1. The remaining findings of guilty and the sen-
tence, as reassessed, are correct in law and fact, and no other error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the remaining findings
and the reassessed sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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