U NITED S TATES N AVY –M ARINE C ORPS C OURT OF C RIMINAL A PPEALS _________________________
No. 201800009 _________________________
UNITED STATES OF AMERICA Appellee v.
David J. W. ZORIL Aviation Support Equipment Technician Petty Officer Second Class (E-5), U.S. Navy Appellant _________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Aaron Rugh, JAGC, USN.
For Appellant: Captain Kimberly D. Hinson, JAGC, USNR. For Appellee: Captain Sean M. Monks, USMC; Lieutenant Allyson L Breech, JAGC, USN. _________________________
Decided 22 October 2018 _________________________
Before W OODARD , F ULTON , and J ONES , Appellate Military Judges _________________________
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 four specifications of possession of child pornography and two specifications of distribution of child pornography, in violation of Ar- ticle 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012). United States v. Zoril, No. 201800009
The military judge sentenced the appellant to three years’ confinement and a dishonorable discharge, which the convening authority approved. The appellant asserts the military judge abused his discretion by admit- ting, during the pre-sentencing hearing, nine victim impact statements (VIS). We agree the military judge abused his discretion by admitting two of the nine VIS under R.C.M. 1001(b)(4). We find, however, that the error did not materi- ally prejudice the substantial rights of the appellant. Therefore, we affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). I. BACKGROUND In January 2015, the appellant’s wife reported to the Naval Criminal In- vestigative Service (NCIS) that she found child pornography on the appellant’s computer. Acting on this information, agents searched the appellant’s home and vehicle. Forensic examination of the storage devices seized during the search revealed 159 files containing images of known child pornography vic- tims. The investigation also uncovered a logged Skype chat between the appel- lant and another person to whom the appellant had sent two child pornography videos. The forensic examination of the appellant’s seized electronic devices also revealed his on-line search history documenting visits to chat and file sharing sites where the appellant sent an additional 12 images of child pornog- raphy to another individual. During the pre-sentencing hearing, the government moved to enter Prose- cution Exhibit (PE) 2 under RULE FOR COURTS-MARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2016 ed.). This exhibit contained 18 VIS the government claimed were associated with the child por- nography series found on the appellant’s devices. 1 Of the 18 VIS, 9 were dated. The defense objected to the admission of the VIS on grounds of relevance and improper evidence in aggravation under R.C.M. 1001(b)(4). The military judge admitted PE 2, but only considered the nine dated VIS. Although the government offered the VIS under R.C.M. 1001(b)(4) (evi- dence offered by the government in aggravation), the record suggests that the military judge considered them under R.C.M. 1001A (statements offered by crime victims) as well. The appellant now argues that the military judge erred by considering the VIS under R.C.M. 1001A.
1 Videos of a specific child victim are placed into a series by the National Center for Missing and Exploited Children (NCMEC) that is then identified with a code name.
2 United States v. Zoril, No. 201800009
II. DISCUSSION Our discussion is limited to the nine VIS in PE 2 the military judge consid- ered. We review a military judge’s decision to admit 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)). A military judge abuses his discretion when he admits evidence based on an erroneous view of the law. United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013) (cit- ing United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)).
A. Analysis under R.C.M. 1001A Although the government offered this evidence as evidence in aggravation under R.C.M. 1001(b)(4), the record suggests that the military judge may have considered this evidence under R.C.M. 1001A. To the extent he relied on R.C.M. 1001A as a basis to admit this evidence, the military judge erred. See generally United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018) (military judge abused his discretion by admitting VIS under R.C.M. 1001A where victim or victim’s representative was not present and did not request to provide state- ment). Since the VIS could not have been properly admitted under R.C.M. 1001A, we will consider whether they were properly admitted under the government’s theory of admissibility, as evidence in aggravation under R.C.M. 1001(b)(4). B. Analysis under R.C.M. 1001(b)(4) R.C.M. 1001(b)(4) governs what the prosecution may present as evidence in aggravation during the presentencing phase of courts-martial, and permits trial counsel to “present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty.” United States v. Nourse, 55 M.J. 229, 231, (C.A.A.F. 2001). The appellant asserts that because the dated VIS predated the appellant’s trial they did not directly relate to, or result from, the appellant’s actions. We disagree. Children portrayed in child pornography are victims of those who possess and distribute the pornography. Paroline v. United States, 572 U.S. 434, 439- 40 (2014). The possession and distribution of child pornography is directly re- lated to the effect those crimes have on the portrayed victims, even if the state- ments are not specifically written for the appellant’s court-martial. The vic- tims’ statements in this case describe the ongoing harm they experience as a result of new offenders coming into possession of their images. We have no
3 United States v. Zoril, No. 201800009
difficulty concluding that the harm they describe directly relates to and results from the offenses of which the accused was found guilty. See United States v. Evans, No. 201300174, 2014 CCA LEXIS 368, at *23, (N-M. Ct. Crim. App. 26 Jun 2014) (noting the impact upon the children used in the production of por- nography) (unpub. op.) rev. denied, 74 M.J. 262 (C.A.A.F. 2015). Cf. United States v. Hamilton, 77 M.J. 579, 584-85 (A.F. Ct. Crim. App. 2017) (child por- nography victim’s statement created before accused’s offense nonetheless re- lates to that offense in context of R.C.M. 1001A). We find that all of the dated letters (except two that we will take up below) were directly related to the harm caused by the appellant’s crime. Having concluded that the statements in question qualify as evidence in aggravation under R.C.M. 1001(b)(4), we must determine whether they also pass the balancing test under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). This rule allows the military judge to exclude relevant evidence if its probative value is substan- tially outweighed by unfair prejudice or needlessly presenting cumulative evi- dence.
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U NITED S TATES N AVY –M ARINE C ORPS C OURT OF C RIMINAL A PPEALS _________________________
No. 201800009 _________________________
UNITED STATES OF AMERICA Appellee v.
David J. W. ZORIL Aviation Support Equipment Technician Petty Officer Second Class (E-5), U.S. Navy Appellant _________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Commander Aaron Rugh, JAGC, USN.
For Appellant: Captain Kimberly D. Hinson, JAGC, USNR. For Appellee: Captain Sean M. Monks, USMC; Lieutenant Allyson L Breech, JAGC, USN. _________________________
Decided 22 October 2018 _________________________
Before W OODARD , F ULTON , and J ONES , Appellate Military Judges _________________________
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 four specifications of possession of child pornography and two specifications of distribution of child pornography, in violation of Ar- ticle 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012). United States v. Zoril, No. 201800009
The military judge sentenced the appellant to three years’ confinement and a dishonorable discharge, which the convening authority approved. The appellant asserts the military judge abused his discretion by admit- ting, during the pre-sentencing hearing, nine victim impact statements (VIS). We agree the military judge abused his discretion by admitting two of the nine VIS under R.C.M. 1001(b)(4). We find, however, that the error did not materi- ally prejudice the substantial rights of the appellant. Therefore, we affirm the findings and sentence. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). I. BACKGROUND In January 2015, the appellant’s wife reported to the Naval Criminal In- vestigative Service (NCIS) that she found child pornography on the appellant’s computer. Acting on this information, agents searched the appellant’s home and vehicle. Forensic examination of the storage devices seized during the search revealed 159 files containing images of known child pornography vic- tims. The investigation also uncovered a logged Skype chat between the appel- lant and another person to whom the appellant had sent two child pornography videos. The forensic examination of the appellant’s seized electronic devices also revealed his on-line search history documenting visits to chat and file sharing sites where the appellant sent an additional 12 images of child pornog- raphy to another individual. During the pre-sentencing hearing, the government moved to enter Prose- cution Exhibit (PE) 2 under RULE FOR COURTS-MARTIAL (R.C.M.) 1001(b)(4), MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2016 ed.). This exhibit contained 18 VIS the government claimed were associated with the child por- nography series found on the appellant’s devices. 1 Of the 18 VIS, 9 were dated. The defense objected to the admission of the VIS on grounds of relevance and improper evidence in aggravation under R.C.M. 1001(b)(4). The military judge admitted PE 2, but only considered the nine dated VIS. Although the government offered the VIS under R.C.M. 1001(b)(4) (evi- dence offered by the government in aggravation), the record suggests that the military judge considered them under R.C.M. 1001A (statements offered by crime victims) as well. The appellant now argues that the military judge erred by considering the VIS under R.C.M. 1001A.
1 Videos of a specific child victim are placed into a series by the National Center for Missing and Exploited Children (NCMEC) that is then identified with a code name.
2 United States v. Zoril, No. 201800009
II. DISCUSSION Our discussion is limited to the nine VIS in PE 2 the military judge consid- ered. We review a military judge’s decision to admit 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)). A military judge abuses his discretion when he admits evidence based on an erroneous view of the law. United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013) (cit- ing United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)).
A. Analysis under R.C.M. 1001A Although the government offered this evidence as evidence in aggravation under R.C.M. 1001(b)(4), the record suggests that the military judge may have considered this evidence under R.C.M. 1001A. To the extent he relied on R.C.M. 1001A as a basis to admit this evidence, the military judge erred. See generally United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018) (military judge abused his discretion by admitting VIS under R.C.M. 1001A where victim or victim’s representative was not present and did not request to provide state- ment). Since the VIS could not have been properly admitted under R.C.M. 1001A, we will consider whether they were properly admitted under the government’s theory of admissibility, as evidence in aggravation under R.C.M. 1001(b)(4). B. Analysis under R.C.M. 1001(b)(4) R.C.M. 1001(b)(4) governs what the prosecution may present as evidence in aggravation during the presentencing phase of courts-martial, and permits trial counsel to “present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty.” United States v. Nourse, 55 M.J. 229, 231, (C.A.A.F. 2001). The appellant asserts that because the dated VIS predated the appellant’s trial they did not directly relate to, or result from, the appellant’s actions. We disagree. Children portrayed in child pornography are victims of those who possess and distribute the pornography. Paroline v. United States, 572 U.S. 434, 439- 40 (2014). The possession and distribution of child pornography is directly re- lated to the effect those crimes have on the portrayed victims, even if the state- ments are not specifically written for the appellant’s court-martial. The vic- tims’ statements in this case describe the ongoing harm they experience as a result of new offenders coming into possession of their images. We have no
3 United States v. Zoril, No. 201800009
difficulty concluding that the harm they describe directly relates to and results from the offenses of which the accused was found guilty. See United States v. Evans, No. 201300174, 2014 CCA LEXIS 368, at *23, (N-M. Ct. Crim. App. 26 Jun 2014) (noting the impact upon the children used in the production of por- nography) (unpub. op.) rev. denied, 74 M.J. 262 (C.A.A.F. 2015). Cf. United States v. Hamilton, 77 M.J. 579, 584-85 (A.F. Ct. Crim. App. 2017) (child por- nography victim’s statement created before accused’s offense nonetheless re- lates to that offense in context of R.C.M. 1001A). We find that all of the dated letters (except two that we will take up below) were directly related to the harm caused by the appellant’s crime. Having concluded that the statements in question qualify as evidence in aggravation under R.C.M. 1001(b)(4), we must determine whether they also pass the balancing test under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 403, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). This rule allows the military judge to exclude relevant evidence if its probative value is substan- tially outweighed by unfair prejudice or needlessly presenting cumulative evi- dence. We find that the statements are highly probative evidence to the psy- chological and social harm done by the appellant’s actions, as those VIS were authored by the victims portrayed in the images the appellant pled guilty to possessing and distributing. All of the VIS addressed the social and psycholog- ical harm the victims experienced as a result of having their images continu- ally coming into the possession of new offenders. Here, the military judge did not articulate his MIL. R. EVID. 403 balancing analysis on the record. Therefore, we will do so ourselves. In conducting our analysis, we find that there is a direct relationship between the effects of abuse used to create child pornography and the effects of the viewing. Child pornog- raphy is “a permanent record of the children’s participation” and the trauma to the child is “exacerbated by [its] circulation.” New York v. Ferber, 458 U.S. 747, 759 (1982). The unlawful conduct of every individual who reproduces, dis- tributes, or possesses the images of the victim’s abuse sustains and aggravates the harm suffered by the victim arising from the original abuse. See Paroline, 572 U.S. at 439-40. We further find the probative value of the VIS is not sub- stantially outweighed by the danger of unfair prejudice to the appellant. We conclude that the VIS were directly related to the appellant’s crimes, not cu- mulative, and not unfairly prejudicial. We find the military judge properly ad- mitted seven of the nine dated VIS under R.C.M. 1001(b)(4). We do find, however, that the military judge abused his discretion by ad- mitting two of the nine VIS—those found on pages 21 and 22 of PE 2. These
4 United States v. Zoril, No. 201800009
statements bear no indication of being related to any of the images the appel- lant admitted possessing and distributing. Although the appellant agreed not to object to the exhibit on grounds of foundation or authenticity, there is simply no reason to conclude that these statements are relevant to this case. We find that their admission was error. We have tested this error for prejudice using the four factors announced in United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005): (1) the strength of the government’s case, (2) the strength of the appellant’s case, (3) the materi- ality of the admitted evidence, and (4) the quality of the admitted evidence. We find that this error did not substantially influence the adjudged sentence. See United States v. Gomez, 76 M.J. 76, 80 (C.A.A.F. 2017). C. Error in promulgating order Although not raised as error, we note that the CA’s promulgating order erroneously reflects that the appellant pleaded and was found guilty of Charge I, 2 Specification 6—wrongfully distributing videos of child pornography. How- ever, the appellant actually pleaded and was found guilty of wrongfully dis- tributing images, not videos, of child pornography. The appellant is entitled to accurate court-martial records. United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998) (citation omitted). Accordingly, we order the nec- essary corrective action in our decretal paragraph. III. CONCLUSION The findings and the sentence as approved by the convening authority are affirmed. However, the supplemental promulgating order shall correctly reflect that the appellant pleaded guilty to, and was found guilty of wrongfully dis- tributing child pornography images vice videos in Charge I, Specification 6.
FOR THE COURT
RODGER A. DREW, JR. Clerk of Court
2 There is only one Charge in this case. However, the government labeled the Sole Charge, “Charge I.” For consistency, the supplemental promulgating order shall con- tinue to reflect that the Charge is “Charge I.”