United States v. Atkinson

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman JACOB A. ATKINSON
United States Air Force

ACM 38617

16 April 2015

Sentence adjudged 8 April 2014 by GCM convened at Ellsworth Air Force
Base, South Dakota. Military Judge: Natalie Richardson (sitting alone).

Approved Sentence: Bad-conduct discharge, confinement for 15 months,
and reduction to E-2.

Appellate Counsel for the Appellant: Lieutenant Colonel Judith A. Walker
and Major Thomas A. Smith.

Appellate Counsel for the United States: Gerald R. Bruce, Esquire.

Before

MITCHELL, WEBER, and CONTOVEROS
Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.

WEBER, Judge:

A military judge sitting as a general court-martial convicted the appellant,
consistent with his pleas, of one specification of knowingly and wrongfully possessing
child pornography, and one specification of knowingly and wrongfully viewing such
material, both in violation of Article 134, UCMJ, 10 U.S.C. § 934. The military judge
sentenced the appellant to a bad-conduct discharge, confinement for 15 months, forfeiture
of all pay and allowances, and reduction to E-2. The convening authority disapproved
the forfeitures but otherwise approved the sentence as adjudged.
 The appellant submitted this case to the court without alleging any specific error.
We note one issue in the record of trial that merits discussion but no relief.

Child Pornography Files

In sentencing, the government called an expert witness in the field of computer
forensic examination. The expert laid the foundation for the prosecution to admit without
objection Prosecution Exhibit 1, a compact disc that purported to contain eight videos of
child pornography found on the appellant’s computer. While the record does not make
this point explicit, it appears these are the eight videos the appellant, in his providence
inquiry, admitted to possessing and viewing.

The disc labeled as Prosecution Exhibit 1 in the record of trial only contains seven
videos. One of these videos could not be viewed; it could be opened using a standard
media player, but no video image appeared. Despite this, we find no relief is warranted.
The appellant was not charged with possessing or viewing child pornography on divers
occasions; thus, the conviction remains legally and factually sufficient even if he only
possessed and viewed the six files we reviewed instead of eight. We also find the
appellant’s sentence appropriate despite this matter.

Conclusion

The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the
sentence are AFFIRMED.

FOR THE COURT

STEVEN LUCAS
Clerk of the Court

2 ACM 38617