The AFCCA affirmed the findings and sentence of Senior Airman Christopher D. Clark-Bellamy, finding no prejudicial error in Appellant's raised three assignments of error.
Clark-Bellamy opinion here.
Appellant was convicted, in accordance with his pleas and a pretrial agreement (PTA), of one specification of wrongfully and knowingly possessing child pornography. Appellant was sentenced to a dishonorable discharge, confinement for 1 year and 6 months, forfeiture of all pay and allowances, and reduction to the grade of E-1. On appeal, Appellant raises three assignments of error: (1) whether the military judge abused his discretion when he considered a victim impact statement; (2) whether Appellant is entitled to sentence relief because his case was not docketed with this court within 30 days of action by the convening authority; and (3) whether Appellant is entitled to sentence relief because the record of trial is defective and incomplete. However, the third assignment of error was dismissed and, as per the Court, needed no further explanation.
On 8 January 2018, Appellant used his phone to post a child pornography image to a group chat on “Kik,” a messenger application. In March of 2018, Homeland Security Investigations became aware of the message and notified Air Force Office of Special Investigations (AFOSI). Pursuant to a search warrant, AFOSI agents confiscated Appellant’s computer and devices which contained images of child pornography. At trial, the military judge, over defense counsel’s objections, allowed the admission of victim impact statements.
I. The Admission of the Victim Impact Statement
A victim, as the Court explains, has a clear right to be heard. A victim is permitted to make either a sworn or unsworn statement. Additionally, such may be oral, written, or both. Under the Military Rules of Evidence, victim impact statements are not considered evidence and are thus not subject to the balancing test requirement.
Appellant contends that the victim’s statements were improper. However, rejecting that argument, the court found that the military judge did not abuse his discretion. Furthermore, they explained that “[a]uthentication simply requires establishing that the evidence is what the proponent claims it to be.”
Next, Appellant argues that the “plain language” of the law—which states the victim shall be calledby the court-martial—requires the victim to “physically present.” It is clear from the language that “reasonably heard” dictates a witness be physically present. This is a clear legal fiction. As such the Court explains that “we disagree with Appellant's proposition that a victim (or representative) who is not physically present at the sentencing hearing forfeits his or her right to make a statement. R.C.M. 1001A conveys a personal right to the victim and does not expressly mandate physical presence.” Moreover, the Court goes on to explain that “there [was] no evidence to rebut this presumption and we are confident the military judge sentenced Appellant based on the appropriate victim-impact matters and evidence, and as such, did not abuse his discretion.”
II. Post-Trial Docketing
Appellant argues that “he is entitled to relief because his case was not docketed with this court within 30 days of action by the convening authority.” At this, the Court explained in United States v. Livak that 30 days is not a reasonable standard. There, the Court held “the specific requirement in Moreno which called for docketing to occur within 30 days of action no longer helps us determine an unreasonable delay under the new procedural rules. However, we can apply the aggregate standard threshold the majority established in Moreno: 150 days from the day Appellant was sentenced to docketing with this court.” In short, the Court accurately applies the text of the law to Appellant’s case and holds accordingly. It is plainly unreasonable to assert that Appellant was prejudiced. It is not the Court’s problem that Appellant offered a flawed interpretation of the law. In the end, the Court properly rejected Appellant’s attenuated claims.
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