U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM S32577
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UNITED STATES
Appellee
v.
Joshua SHEARS
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 3 September 2020
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Military Judge: Joseph S. Imburgia.
Approved sentence: Bad-conduct discharge, confinement for 45 days, re-
duction to E-1, and a reprimand. Sentence adjudged 28 January 2019
by SpCM convened at Kadena Air Base, Japan.
For Appellant: Major Yolanda D. Miller, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Mary Ellen
Payne, Esquire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge MEGINLEY delivered the opinion of the court, in which Senior
Judge POSCH and Judge RICHARDSON joined.
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This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
MEGINLEY, Judge:
A special court-martial composed of a military judge sitting alone convicted
Appellant, in accordance with his pleas and a pretrial agreement (PTA), of one
specification of wrongfully endeavoring to interfere with one or more special
United States v. Shears, No. ACM S32577
agents of the Naval Criminal Investigative Service (NCIS) in the performance
of their official duties, and two specifications of communicating indecent lan-
guage, both in violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934. 1 The military judge sentenced Appellant to a bad-
conduct discharge, confinement for 45 days, reduction to the grade of E-1, and
a reprimand. The convening authority deferred the reduction in grade from 11
February 2019 until action and deferred the mandatory forfeitures from 11
February 2019 until Appellant’s release from confinement. Otherwise, the con-
vening authority approved the sentence as adjudged. The PTA limited confine-
ment to two months and had no impact on the sentence that the convening
authority could approve.
On appeal, Appellant personally raises two issues pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) whether the military judge
abused his discretion in admitting certain personnel records during presen-
tencing; and (2) whether his sentence is inappropriately severe. We find no
error that materially prejudiced Appellant’s substantial rights and affirm.
I. BACKGROUND
Appellant entered active duty in July 2010. At the time of the offenses al-
leged in the Charge and its specifications, he was stationed at Kadena Air Base
(AB), Okinawa, Japan. Between 10 March 2017 and 4 January 2018, special
agents of the NCIS sought to identify and apprehend military members at-
tempting to commit sexual offenses against children on the Internet. Those
agents posted ads on Craigslist, an advertising website, where the agents
posed as minors, or as adults facilitating sexual activity with children of mili-
tary personnel assigned to installations in Japan. These operations were rec-
ognized by Appellant as similar to the “To Catch a Predator” (TCAP) television
series.
At trial, Appellant stipulated with the Government that before engaging in
the charged conduct, he was aware of TCAP investigations, having seen videos
on a website maintained by a civilian defense attorney who represented ser-
vicemembers accused of soliciting minors at Kadena AB. In March 2017, Ap-
pellant took an interest in one of the TCAP Craigslist advertisements. Appel-
lant stipulated that he believed the ads were posted by military law enforce-
1 All references in this opinion to the Uniform Code of Military Justice, the Rules for
Courts-Martial, and the Military Rules of Evidence are to the Manual for Courts-Mar-
tial, United States (2016 ed.).
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United States v. Shears, No. ACM S32577
ment personnel engaging in undercover sting operations, stating to law en-
forcement after he was apprehended, “it was super obvious . . . like shooting
fish in a barrel, no ifs, ands, or buts, these are cops.”
Appellant responded to an advertisement via the “Kik” messenger applica-
tion. Using the username “El_Don23,” Appellant requested the poster’s Kik
user identification via email. On 9 March 2017, an undercover NCIS agent pos-
ing as a minor named “Alexandria Tate” responded to Appellant via email, tell-
ing him she was 14 years old. Over the next four months, Appellant communi-
cated sexually explicit language to “Alexandria,” requested she send him nude
photos, and Appellant made graphic sexual overtures. Appellant admitted in
his guilty plea inquiry that his communications with “Alexandria” were inde-
cent. Appellant stipulated he believed that “Alexandria” was an undercover
agent, and explained his communications with “Alexandria” were with the in-
tent to “mess with” law enforcement. At trial, Appellant further explained his
intent was to “[p]retty much interfere with their job, [and] waste their time.”
On 27 December 2017, Appellant responded to another Craigslist ad posted
by NCIS agents. This ad identified the poster as a “poor teen in need of money.”
Again, Appellant engaged in conversations with an NCIS agent. The NCIS
agent told Appellant she was trying to raise money to buy a phone and identi-
fied herself as a 14-year-old girl. Appellant discussed the services she could
perform, and agreed that she could wash Appellant’s car. Appellant offered to
pay her $200.00 if she would wash and wax his car while wearing a bikini.
Thereafter, the conversations progressed to sexually explicit statements from
Appellant, including indecent propositions to engage in sexual conduct. Like
his earlier conversations with “Alexandria,” Appellant stipulated that he be-
lieved he was communicating with an undercover agent and during his guilty
plea inquiry admitted the language he used was indecent.
Two days later, on 29 December 2017, Appellant again initiated a conver-
sation with an NCIS agent’s persona. This time, the NCIS agent posed as a 32-
year-old military spouse seeking men wanting to have sexual encounters with
her and her 13-year-old daughter. Appellant exchanged messages with the
agent and agreed to meet over coffee before planning future encounters for sex.
On 4 January 2018, Appellant agreed to meet at the Shoppette on Kadena AB.
NCIS agents identified and observed Appellant enter and then depart the area.
When Appellant left the Shoppette, NCIS agents followed him to a Child De-
velopment Center, where he was apprehended. After identifying himself as an
Airman, NCIS brought Appellant to the Air Force Office of Special Investiga-
tions (AFOSI) for questioning.
During questioning, Appellant told the AFOSI agents he knew all along
that the individuals with whom he had been communicating were undercover
agents. He claimed that even after the agents identified themselves as 14-year-
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United States v. Shears, No. ACM S32577
old children, he continued the conversations because he wanted to “f**k with
[them].” In a second interview, Appellant stated he thought it was obvious the
individuals behind the ads were law enforcement and he knew he was inter-
fering with undercover agents working in their official duties. Appellant stip-
ulated that the NCIS agents spent approximately 120 hours working on Ap-
pellant’s case.
II. DISCUSSION
A. Admission of Certain Personnel Records during Sentencing
1. Additional Background
During the sentencing hearing, trial counsel introduced evidence of Appel-
lant’s “rehabilitative potential” related to Appellant’s numerous physical fit-
ness assessment failures. 2 Trial counsel introduced four letters of reprimand
(LORs) (with allied documents including Unfavorable Information File ac-
tions), and one letter of counseling (LOC). Trial defense counsel objected to
these documents “on the basis of relevance to [the] proceeding.” Trial counsel
argued the documents were relevant “to his personal data and character of his
service” and because Appellant had been repeatedly counseled and had not
shown improvement.
Following a discussion on the record about the admissibility of the records
under Rule for Courts-Martial (R.C.M.) 1001(b)(2), the military judge asked
trial defense counsel if he “would agree that’s relevant under the rule?” Trial
defense counsel replied, “Yes, sir. We feel that the rule is broad enough that a
good faith argument could be made that it is relevant.” After conducting a bal-
ancing test under Mil. R. Evid. 403, the military judge admitted the LORs and
LOC.
2. Law
We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion. United States v. Hyppolite, 79
M.J. 161, 166 (C.A.A.F. 2019). “The abuse of discretion standard is a strict one,
calling for more than a mere difference of opinion. The challenged action must
be ‘arbitrary, fanciful, clearly unreasonable,’ or ‘clearly erroneous.’” United
States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000) (citing United States v.
Miller, 46 M.J. 63, 65 (C.A.A.F. 1997); United States v. Travers, 25 M.J. 61, 62
(C.M.A. 1987)). “A military judge abuses his discretion when: (1) the findings
2 The physical fitness assessment failures were marked as Prosecution Exhibits 5–10
for identification. The military judge found Prosecution Exhibits 5–-9 relevant, but
sustained an objection with respect to Prosecution Exhibit 10 for identification, finding
the exhibit was cumulative with the other exhibits.
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United States v. Shears, No. ACM S32577
of fact upon which he predicates his ruling are not supported by the evidence
of record; (2) if incorrect legal principles were used; or (3) if his application of
the correct legal principles to the facts is clearly unreasonable.” United States
v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66
M.J. 198, 199 (C.A.A.F. 2008)).
Rule for Courts-Martial 1001(b)(2) permits trial counsel to introduce an ac-
cused’s personnel record as evidence of the prior service of the accused. These
personnel records include “any records made or maintained in accordance with
departmental regulations that reflect the past military efficiency, conduct, per-
formance, and history of the accused.” Id. Finally, Air Force Instruction 51-
201, Administration of Military Justice, ¶ 12.26.1 (18 Jan. 2019), states rele-
vant material contained in an accused’s unit personnel information file may be
admitted during the sentencing hearing pursuant to R.C.M. 1001(b) if
[c]ounsel provided a copy of the document or made the document
available to opposing counsel prior to trial; and
. . . there is some evidence that:
[(1)] the accused received a copy of the correspondence (a docu-
ment bearing the signature of the accused, or a witnessed state-
ment regarding the accused’s refusal to sign) and had the oppor-
tunity to respond to the allegation; and,
[(2)] the document is not over five years old on the date the
charges were referred to trial.
See also United States v. Decker, No. ACM S32173, 2014 CCA LEXIS 774, *4–
5 (A.F. Ct. Crim. App. 15 Oct. 2014) (per curiam) (unpub. op.) (citing United
States v. Sheridan, 43 M.J. 682, 685 (A.F. Ct. Crim. App 1995), for the propo-
sition that “to be admissible under R.C.M. 1001(b)(2), reprimand need not com-
ply with regulation governing unfavorable information files, but must meet re-
quirements of military justice regulation governing presentencing matters”).
3. Analysis
We conclude that even if Appellant did not waive appellate review of this
issue, the military judge did not abuse his discretion in admitting these rec-
ords. The military judge’s ruling was supported by the record, correct legal
principles were used, and the application of those legal principles to the facts
presented was reasonable. Furthermore, the relevance and probative value of
this evidence with respect to Appellant’s past military efficiency, conduct, per-
formance, and history meet the standards set forth in R.C.M. 1001(b)(2) and
was not outweighed by the danger of unfair prejudice under Mil. R. Evid. 401
and 403. Finally, the records were made and maintained in accordance with
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United States v. Shears, No. ACM S32577
Air Force regulations, there was evidence Appellant had an opportunity to re-
spond, and none of the documents were more than five years old.
B. Sentence Appropriateness
1. Law
We review issues of sentence appropriateness de novo. 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)). We may affirm only as much of the sentence as we find
correct in law and fact and determine should be approved on the basis of the
entire record. Article 66(c), UCMJ, 10 U.S.C. § 866(c). “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) (citing United
States v. Anderson, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009)). Although we
have great discretion to determine whether a sentence is appropriate, we have
no authority to grant mercy. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F.
2010) (citation omitted).
2. Analysis
Appellant asks this court to set aside his bad-conduct discharge because it
is inappropriately severe. Appellant argues he “did not commit lewd acts with
a minor (or someone he thought was a minor),” that, “[h]e also did not inten-
tionally obstruct justice,” and finally, “[h]e is guilty of one general disorder of-
fense that is not enumerated and is not sexual in nature and two enumerated
offenses of communicating indecent language.” In addition to the nature of
these acts being unworthy of a bad-conduct discharge, Appellant notes he had
only two months left before his only enlistment expired.
We are not persuaded that the facts of Appellant’s case do not justify a bad-
conduct discharge. Appellant knew about the nature of TCAP cases. Appellant
pretended to be a child predator interested in engaging in the sexual abuse of
not one, but two 14-year-old children over the course of 10 months, and went
so far as to show up at a military facility, where he pretended to express inter-
est in having sex with a military spouse and her 13-year-old daughter. During
the course of his conversations with NCIS, the record shows Appellant never
revealed that he believed his indecent communications were with law enforce-
ment agents.
Appellant stipulated that his conduct wrongfully interfered with NCIS
agents in the performance of their official duties and that his behavior was
service discrediting. The record shows NCIS agents spent an estimated 120
hours investigating and planning a case that appeared to involve an Airman
who genuinely desired to sexually abuse a child. This further included having
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United States v. Shears, No. ACM S32577
a NCIS polygraph examiner and a NCIS investigative cyber specialist availa-
ble in the event an apprehension was made. Appellant acknowledged in his
unsworn statement he was “ashamed when [he] was interviewed by AFOSI
and was confronted with the amount of work they put in to all investigations,
work that they could have been putting in to find actual individuals who vic-
timize children.”
Further, the language Appellant communicated to the NCIS agents’ 14-
year-old persona, as part of his “entertaining prank,” was planned or intended
to be grossly offensive to the community sense of modesty, decency, or propri-
ety. As trial counsel noted, the texts contain “numerous references to mastur-
bation, vulgar language about and description of hypothetical 14-year-old girls’
bodies, and more than 20 descriptions of and invitations to engage in penetra-
tive sexual acts.”
The maximum sentence included confinement for 12 months, a bad-conduct
discharge, reduction to the grade of E-1, and forfeiture of two-thirds pay per
month for 12 months. The military judge determined a 45-day term of confine-
ment was appropriate, which was below the cap Appellant had agreed to in his
PTA. However, a bad-conduct discharge is “qualitatively different” than con-
finement. United States v. Josey, 58 M.J. 105, 108 (C.A.A.F. 2003). “The issue
of whether a member of the armed forces should or should not receive a puni-
tive discharge reflects a highly individualized judgment as to the nature of the
offense as well as the person’s past record and future potential . . . .” Id. Having
given individualized consideration to Appellant, the nature and seriousness of
the offenses, Appellant’s record of service, and all other matters contained in
the record of trial, we find a punitive termination of Appellant’s military status
is not inappropriately 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 find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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