ACCA has published United States v. Conrady. This case continues the appellate look at how prosecutors may, if at all, use possession of child pornography as Mil. R. 414 evidence. The issue of note from the opinion is:
THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING AN IMAGE OF CHILD PORNOGRAPHY AS MILITARY RULE OF EVIDENCE 414 EVIDENCE.
The court found harmless error.
Appellant was convicted at a general court-martial for raping his two stepdaughters, sodomizing his biological son, and committing indecent acts against both his biological son and biological daughter. Prior to appellant’s court-martial in this case, he had been convicted pursuant to his pleas in a 2005 court-martial of disobeying a lawful order by wrongfully possessing child and adult pornography, and wrongfully receiving materials containing images of child pornography through interstate or foreign commerce.
So, the prosecutor went through several steps to have the pornography admitted.
We review a military judge’s decision to admit evidence for an abuse of discretion. United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010). However, the threshold question with respect to the admissibility of the evidence—whether appellant’s possession of the evidence in question constitutes evidence that appellant committed another offense of “child molestation” under Mil. R. Evid. 414—is a
question of law that we review de novo. United States v. Yammine, 69 M.J. 70, 73 (C.A.A.F. 2010).
In Yammine, the Court of Appeals for the Armed Forces considered whether possession of filename evidence associated with child pornography qualified as an offense of “child molestation” under Mil. R. Evid. 414. For an offense to qualify as child molestation under Mil. R. Evid. 414(d)(2), that offense must occur with a child or with children. Citing United States v. Miller, 67 M.J. 87, 90-91 (C.A.A.F. 2008), the court found “for an offense to occur ‘with’ a child, or ‘with’ children, conduct must be in the physical presence of a child or children.” Yammine, 69 M.J. at 76. As such, possession of filenames suggestive of child pornography does not qualify as a child molestation offense sufficient for Mil. R. Evid. 414. Id.