The AFCCA affirmed Staff Sergeant Brian M. Schmitt’s findings and sentence, holding that the conviction was factually and legally sufficient and that his dishonorable discharge was an appropriate punishment.
Schmitt opinion here.
Appellant was found with 50 alleged images of child pornography on his phone. Of the 50 images, only one was determined to be of a minor. Upon conviction for possessing one picture of child pornography, Appellant was sentenced to a dishonorable discharge, six months confinement, total forfeitures, and a reduction to the grade of E-3.
On appeal, Appellant raised two assignments of error. First, whether the conviction was factually and legally insufficient. Second, whether the dishonorable discharge is an inappropriately severe punishment.
Appellant argued that his conviction was factually and legally insufficient because he inadvertently downloaded child pornography, while downloading other photos of celebrity fakes. However, the AFCCA determined that his confession of using search terms that he thought would return images of girls under the age of 18, coupled with the findings in his phone of at least one photo that was certainly of a girl under the age of 18, was enough for a reasonable trier of fact to convict him of knowingly and consciously possessing child pornography. Given these facts, the AFCCA found Appellant’s assignment of error without merit.
Appellant then argued that the sentence of a dishonorable discharge was inappropriate because the Appellant was only found to have one picture of an underage girl out of the 20,000 downloaded photos on his phone. Additionally, the photo that was of the underage girl “depict[ed] a mature teenager rather than an easily identifiable child.” The AFCCA disagreed, citing that while Appellant was a good Airman on duty, off duty he “perpetuated the exploitation” of a minor child, and his seeking it out and saving it for his own pleasure was a serious violation. Even though the AFCCA concluded that Appellant’s sentence was severe, the court concluded that it was “not inappropriately so.” Therefore, meriting no relief.
The 50 alleged images of child pornography could not, except for one, be proven by the government to be images of underage girls. The government’s pediatric forensic expert could not state to a reasonable degree of medical certainty that the images were of underage girls because the faces in many of the pictures were replaced with celebrity faces.
Appellant admitted to using the search terms “Lolita” and “preteen.”
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