United States v. SMITHERMAN

This opinion is subject to administrative correction before final disposition. Before de GROOT, MOSLEY, and HARRIS Appellate Military Judges _________________________ UNITED STATES Appellee v. Adam R. SMITHERMAN, JR. Corporal (E-4), U.S. Marine Corps Appellant No. 202500143 _________________________ Decided: 1 September 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Gable F. Hackman Findings announced 18 November 2024 by a general court-martial tried at Marine Corps Base Camp Lejeune, North Carolina, consisting of members with enlisted representation. Sentence adjudged 19 Novem- ber 2024 by a general court-martial consisting of a military judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1, confine- ment for 24 months, and a dishonorable discharge. For Appellant: Lieutenant Jesse B. Neumann, JAGC, USN For Appellee: Lieutenant K. Matthew Parker, JAGC, USN Major Mary Claire Finnen, USMC  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ de GROOT, Senior Judge: Appellant was convicted, contrary to his pleas, of two specifications of so- licitation to distribute child pornography, one specification of possession of child pornography, and one specification of receipt of child pornography in vi- olation of Articles 82 and 134, Uniform Code of Military Justice (UCMJ).1 Appellant asserts five assignments of error (AOEs): I. Whether Appellant’s conviction for possession of a cached video file is factually and legally sufficient when no evidence was presented that Appellant had knowing control of the video file. II. Whether the Government violated Appellant’s due pro- cess right to fair notice and convicted him on a vari- ance by changing its theory of possession mid-trial. III. Whether Appellant’s conviction for receipt of child por- nography is factually and legally sufficient because there was no evidence that Appellant knowingly re- ceived child pornography. IV. Whether the military judge erred by failing to instruct the members that the Appellant’s post-receipt conver- sation should not be considered when determining whether he knowingly received child pornography. V. Whether Appellant’s conviction for soliciting the dis- tribution of child pornography is factually and legally 1 10 U.S.C. § 882, 934. 2  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court sufficient when no evidence was presented that Appel- lant had the specific intent that the solicited conduct be service discrediting.2 We conclude that the findings and sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of Appellant was com- mitted. I. BACKGROUND In December 2022, a National Center for Missing and Exploited Children CyberTipline Report was sent to the Naval Criminal Investigative Service (NCIS) that contained information regarding a potential incident involving child sexual abuse material that originated from Snapchat.3 In response to a warrant, Snapchat provided information related to Appellant’s account. The information included the username, email address, and phone number linked to Appellant, as well as two message strings. One message string was between Appellant and may_lopez22363 (may_lopez), and the other message string was between Appellant and sendingfun628 (sendingfun). In the chats between may_lopez and Appellant, it shows that may_lopez first asked Appellant if he has “any pics of kids?” to which he replied, “I use to but not anymore wbu,”4 which colloquially means “what about you.”5 Then may_lopez sent an image of a naked child. Appellant asked may_lopez how she knew the child and his age. May_lopez identified the child as her 12-year-old nephew, whom she had catfished.6 Appellant then commented on how sneaky may_lopez was and asked if she had “ever see him cum.”7 2 We have carefully considered the matters raised by Appellant’s second and fourth AOEs and find they do not require discussion or relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). 3 Snapchat is a mobile messaging app for phones that allows the user to send pho- tos, videos, and text to other users. 4 Pros. Ex. 23 at 1. 5 R. at 1185. 6 “ ‘Catfishing’ refers to the creation of a fake online identity, typically for use on dating websites.” United States v. Jules, 777 Fed. Appx. 457, 458 (11th Cir. 2019). 7 Pros. Ex. 23 at 1. 3  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court The messages between Appellant and sendingfun also contained messages in which Appellant asked to see a video of what can be inferred from the mes- sages to be child pornography.8 After discussing sexual fantasies that included children, sendingfun wrote, “I saw a vid of. someone’s little sibling recordings the dude getting a bj,” to which Appellant replied, “F*ck have it?” Sendingfun sent a video, which was subsequently saved, presumably by Appellant, and Appellant wrote back, “F*ck so hot.”9 NCIS Special Agents (SA) Kilo and Foxtrot interviewed Appellant.10 Dur- ing the interview, which was admitted during trial, Appellant said that he was not interested in children, and if he unintentionally received pictures of young girls from a stranger on Snapchat, he would remove the person off his account and the pictures would be deleted along with it.11 Appellant also said if he was texting with a person about sexual fantasies and that person sent him photos of children, he would end the conversation.12 Before the interview ended, Ap- pellant voluntarily provided his phone to SA Kilo. Appellant’s phone was sent to the Defense Cyber Crime Center (DC3), where Mr. Mike, a digital forensic examiner (DFE), did a forensic review of Appellant’s phone. Mr. Mike testified that he found a video of a sexual act com- mitted upon an infant in the photos picker cache folder on the phone. The pho- tos picker extension is attached to the photos library of the phone and allows a user to see the images in the gallery when attaching it to a message or text. Mr. Mike testified that generally, a person cannot access the cache folder on his or her phone, and the person likely does not even know that it is there. Images and video files from the photos library populate in the photos picker cache folder to make it easier for the image or video to load the next time a person accesses his or her photos library to attach a photo or video to a mes- sage. Additional facts are discussed below. 8 Pros. Ex. 7 at 3. 9 Pros. Ex. 7 at 3. 10 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms. 11 Pros. Ex. 10; App. Ex. LIX at 52–56. 12 Pros. Ex. 10; App. Ex. LIX at 62-64. 4  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court II. DISCUSSION A. Standard of review for legal and factual sufficiency We review questions of legal sufficiency de novo.13 “ ‘The test for legal suf- ficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential ele- ments of the crime beyond a reasonable doubt.’ ”14 The Court of Appeals for the Armed Forces (CAAF) has noted that “the term ‘reasonable doubt’ does not mean that evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented,” and “the govern- ment is free to meet its burden of proof with circumstantial evidence.”15 “This legal sufficiency assessment draws every reasonable inference from the evi- dence of record in favor of the prosecution. As such, the standard for legal suf- ficiency involves a very low threshold to sustain a conviction.”16 We review questions of factual sufficiency if an appellant “makes a specific showing of a deficiency in proof.”17 Once this condition is met, this Court “may weigh the evidence and determine controverted questions of fact” subject to “appropriate deference to the fact that the trial court saw and heard the wit- nesses and other evidence; and . . . appropriate deference to findings of fact entered into the record by the military judge.”18 If this “Court is clearly con- vinced that the finding of guilty was against the weight of the evidence, the Court may dismiss, set aside, or modify the finding, or affirm a lesser find- ing.”19 For this Court to be “clearly convinced that the finding of guilty was against the weight of the evidence,” first the Court “must decide that the evi- dence, as [this Court] has weighed it, does not prove that appellant is guilty beyond a reasonable doubt. Second, the [Court] must be clearly convinced of the correctness of this decision.”20 13 United States v. Kearns, 73 M.J. 177, 180 (C.A.A.F. 2014) (citing United States v. Bennitt, 72 M.J. 266, 268 (C.A.A.F. 2013)). 14 United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (quoting United States v. Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014)). 15 Id. 16 Id. (citation modified). 17 Article 66(d)(1)(B)(i), UCMJ, 10 U.S.C. § 866(d)(1)(B)(i). 18 Article 66(d)(1)(B)(ii) (I)–(II), UCMJ. 19 Article 66(d)(1)(B)(iii), UCMJ. 20 United States v. Harvey, 85 M.J. 127, 132 (C.A.A.F. 2024) (emphasis in original). 5  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court B. Appellant’s conviction for possession of child pornography is le- gally and factually sufficient. In order to be found guilty of possession of child pornography under Article 134, UCMJ, the government must prove: (1) that the accused knowingly and wrongfully possessed child pornography; and (2) that the conduct was of a na- ture to bring discredit upon the armed forces.21 During pretrial litigation, Appellant requested a bill of particulars from the Government for the file names of every digital visual depiction that Appellant was accused of possessing.22 The Government provided a description of the file as noted by the DC3 report and the video file name that showed it was found in on Appellant’s phone in the photos picker cache folder.23 Appellant argues that the Government’s bill of particulars limited its ability to prove his crimi- nal liability only to the specific location of the video file of child pornography at the time of the digital forensic analysis. We disagree. A bill of particulars simply puts Appellant on notice of the specific video file the Government ac- cused him of possessing and does not limit how the Government proves Appel- lant’s possession of the file in its case.24 Both the Government expert and Defense expert did testify that Appellant could not access the cache folder and probably did not know it existed.25 How- ever, the Government expert testified that in order for the file to have made it into the photos picker cache folder, the video must have been in Appellant’s iPhone photo gallery before it could have been located in the photos picker cache folder.26 The Defense expert testified more generally about what a cache file is, but when asked about photos picker, he stated as an example that the photos picker extension is used when someone wants to upload an image or file to a message from the photos gallery. It allows the user to see all the files that are available for uploading to the program for which the user wants to use it.27 21 Manual for Courts-Martial, United States (2024 ed.) (MCM), pt. IV, para. 95.b.(1). 22 See App. Ex. XXVII. 23 App. Ex. XXVII at 3. 24 “A bill of particulars should not be used to conduct discovery of the Government’s theory of a case, to force detailed disclosure of acts underlying a charge, or to restrict the Government’s proof at trial.” R.C.M 906 Discussion. 25 R. at 1395, 1465. 26 R. at 1343–44, 1438, 1452. 27 R. at 1461–62. 6  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court The location of the video file in the photos picker cache folder on Appellant’s iPhone, coupled with the testimony of both experts (that photos picker exten- sion cache folder contained files from the phone’s photo gallery), and the De- partment of Defense Cyber Crime Center Lab Report – Supplemental28 give rise to the reasonable inference that Appellant possessed the video file in his iPhone’s photo gallery application on his phone, in which he would have had control and possession of the file. Viewing the evidence in the light most favor- able to the Government, a reasonable factfinder could have found beyond a reasonable doubt that Appellant knowingly and wrongfully possessed child pornography. We find Appellant’s conviction for possession of child pornogra- phy to be legally sufficient. Turning to factual sufficiency, Appellant has made a specific showing of a deficiency of proof. Therefore, we weighed the evidence, giving appropriate def- erence to the fact that the trial court saw and heard the witnesses and all other evidence. We are not clearly convinced that the finding of guilty was against the weight of the evidence. We find Appellant’s conviction for possession of child pornography to be factually sufficient. C. Appellant’s conviction for receipt of child pornography is factually and legally sufficient. In order to be convicted of receipt of child pornography, under Article 134, UCMJ, the government must prove: (1) that the accused knowingly and wrong- fully received child pornography; and (2) that the conduct was of a nature to bring discredit upon the armed forces.29 Appellant has a two-part argument as to why his conviction for receipt of child pornography is legally and factually insufficient. First, the Government was unable to prove knowing receipt because Appellant could not know that may_lopez was going to send him child pornography until he opened the link. Second, Appellant asserts that the image of the naked child does not meet the definition of child pornography under the Dost30 factors, because the image in question was not lascivious in nature. Appellant argues that his actions and statements after receiving the image may support a possession of child pornography charge, but it is not relevant as 28 Pros. Ex. 13. This lab report is the result of the digital forensic analysis done by the DC3 examiner of Appellant’s electronic devices, to include his cellular phone. 29 MCM, pt. IV, para. 95.b.(1). 30 United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986). 7  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court to whether he knowingly received child pornography.31 Both the CAAF and this Court have considered evidence of an appellant’s actions after receipt of child pornography to determine whether the government presented sufficient evi- dence to meet the legal sufficiency standard.32 In this case, Appellant asked if may_lopez had pictures of children. In re- sponse, may_lopez sent a file that was subsequently downloaded. It can be rea- sonably inferred that Appellant was the one who downloaded the image. It can also be inferred from the continued messages between may_lopez and Appel- lant that Appellant did not seem surprised or disturbed to have received the picture. Rather, Appellant asked questions about the child such as whether she had “ever see[n] him cum.”33 Appellant’s actions also contradict the state- ment he made to the NCIS special agents in his interview. Appellant told the special agents that in any conversations, if images of children were exchanged, he would end the conversation, but that was not the case here. The image of the nude 12-year-old boy spurred on further sexually explicit discussion about the child between Appellant and may_lopez. Appellant’s actions from asking may_lopez about whether she had images of children, his subsequent reaction, and the inconsistency of Appellant’s continued engagement with may_lopez with what he had told the NCIS special agents he does when someone sends him child pornography, is enough to demonstrate that he knowingly and wrongfully received child pornography. This chat, to include the messages prior to receiving the picture and after receiving the picture, provided circumstantial evidence that any rational trier of fact could believe beyond a reasonable doubt that Appellant knew he had received child pornography from may_lopez. As to Appellant’s second argument that the image is not child pornography, courts use the factors from Dost to determine whether an image constitutes a 31 Appellant’s Brief at 17. 32 See United States v. Murray, 52 M.J. 423, 425 (C.A.A.F. 2000) (holding that the appellant’s conscious segregation of downloaded files rebutted his contention that he accidentally received the illegal images and immediately deleted them and was suffi- cient to demonstrate his knowing receipt of the material); see also United States v. McMahon, 2008 CCA Lexis 87 (N-M. Ct. Crim. App. Mar. 11, 2008) (holding that evi- dence that illegal images were recovered from appellant’s email account and saved in specific subfolders that were created by the user of the appellant’s computer rebutted the appellant’s claim that the evidence was insufficient to prove he received illegal child pornography images). 33 Pros. Ex. 23 at 1. 8  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court “lascivious exhibition” of the genitals or pubic area of an individual.34 In addi- tion to these six factors, several federal circuit courts “have recognized that ‘although Dost provides some specific, workable criteria, there may be other factors that are equally if not more important in determining whether a pho- tograph contains a lascivious exhibition.’”35 The CAAF has adopted the ap- proach of these other courts to determine whether a particular image contains a “lascivious exhibition” by combining a review of the Dost factors with an over- all consideration of the totality of the circumstances.36 The picture is of a naked 12-year-old boy in what appears to be a private room with stickers on the door. One could infer that this was the boy’s bedroom. The boy’s bare torso and genitalia are the focus of the image as he leans for- ward towards the camera. While the boy may not have been posed in a specific way to show sexual coyness, his facial expression and leaning into the camera, as well as his nudity, could be interpreted to be a willingness to engage in sex- ual activity. This image in fact did elicit a sexual response from Appellant, prompting him to ask if may_lopez had ever seen him “cum.” After reviewing Prosecution Exhibit 8, we believe that when considering the Dost factors and the totality of the circumstances, a rational trier of fact could find beyond a reasonable doubt that this picture contains a lascivious exhibition of the geni- tals of the 12-year-old boy and is child pornography. Drawing all inferences in favor of the Government, a reasonable factfinder could have reached the conclusion that Appellant knowingly and wrongfully received child pornography, and we find Appellant’s conviction for receipt of child pornography to be legally sufficient. Turning to factual sufficiency, Appellant has made a specific showing of a deficiency of proof. Therefore, we weighed the evidence, giving appropriate def- erence to the fact that the trial court saw and heard the witnesses and other evidence. We are not clearly convinced that the finding of guilty was against 34 636 F. Supp. at 832; see also United States v. Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006). The Dost factors are: (1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e. in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. 35 Roderick, 62 M.J. at 429–30 (quoting United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999)). 36 Id. at 430. 9  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court the weight of the evidence. We find Appellant’s conviction for receipt of child pornography to be factually sufficient. D. The Appellant’s conviction for solicitation of child pornography is legally and factually sufficient. In order for Appellant to have been convicted of the two specifications un- der Article 82, UCMJ, the Government had to prove: (1) that Appellant wrong- fully solicited may_lopez and sendingfun to commit the offense of distribution of child pornography in violation of Article 134, UCMJ; and (2) that Appellant did so with the intent that the offense of distribution of child pornography ac- tually be committed.37 In both specifications, the Government charged an ad- ditional element that: Appellant’s conduct was of a nature to bring discredit upon the armed services. As alleged, the offense of distribution of child pornog- raphy under Article 134, UCMJ, requires two elements: (1) that the accused knowingly and wrongfully distributed child pornography, and (2) that under the circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.38 Appellant argues that in order to prove solicitation the Government needed to prove that Appellant specifically intended that may_lopez’s and sendingfun’s conduct was of a nature to bring discredit to the armed forces. We disagree. We look to our sister courts who have examined Article 82 and find their opinions persuasive. In United States v. Heppermann, the Air Force Court of Criminal Appeals (AFCCA) found that under Article 82, the crime of solicita- tion does not require the person solicited to be subject to the UCMJ.39 If a per- son subject to the UCMJ solicits another person to commit an offense that (if committed by one subject to the UCMJ) would be punishable under the UCMJ, the solicitation is a cognizable offense under Article 82(a).40 “The essence of the offense of solicitation is the invitation to engage in criminal conduct.”41 In United States v. Bean, the Army Court of Criminal Appeals (ACCA) found the appellant’s conviction for solicitation of prostitution to be legally and factually 37 MCM, pt. IV, para. 6.b. at IV-8. 38 MCM, pt. IV, para. 95.b.(3) at IV-146. 39 82 M.J. 794 (A.F. Ct. Crim. App. 2022). 40 Id. at 800–01; see also United States v. Robertson, 17 M.J. 846, 851 (N.M.C.M.R. 1984) (holding that the solicitation of another person to commit an offense, which would be punishable under the UCMJ if committed by one subject to the UCMJ, is an offense cognizable under Article 134). 41 Id. at 800. 10  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court sufficient.42 In Bean, the appellant argued that the person solicited must be subject to the UCMJ in order to satisfy the terminal element of the predicate offense, but ACCA disagreed because otherwise soliciting a prostitute would never be a crime unless the prostitute was subject to the UCMJ.43 The ACCA concurred with the AFCCA’s decision in Heppermann that solicitation of a per- son to commit an offense that would be an offense under the UCMJ, if commit- ted by one subject to the UCMJ, is an offense under Article 82(a), “even if the predicate offense is a violation of Article 134 that required proof that the solic- ited conduct be service discrediting.”44 In this case, the intended crime proscribed by Article 82 was Appellant ask- ing may_lopez and sendingfun to send him child pornography, not whether Ap- pellant specifically intended their conduct to be of a nature to discredit the armed forces. Distribution of child pornography is an Article 134 offense under the UCMJ, and if may_lopez and sendingfun were subject to the UCMJ, they could have been charged and convicted of committing that offense. The conduct of distributing child pornography itself, depending on all the circumstances, may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that it was of a nature to bring discredit upon the armed forces.45 Drawing all inferences in favor of the prosecution, a reasonable factfinder could have found beyond a reasonable doubt that Appellant solicited may_lopez and sendingfun to distribute child pornography, and we find Appellant’s con- victions for solicitation to be legally sufficient. As to factual sufficiency, Appellant’s attempted showing of a deficiency of proof was the same argument as to legal insufficiency, that is the Government failed to prove that Appellant specifically intended for may_lopez and send- ingfun’s conduct, respectively, to be service discrediting. As we have found that it is not a legal requirement for the Government to prove that specific intent, accordingly Appellant has failed to make a specific showing of a deficiency of 42 2026 CCA LEXIS 134 at *21–22 (Army Ct. Crim. App. Mar. 19, 2026). 43 Id. at *22. 44 Id. at *22 (citing Heppermann, 82 M.J. at 801); see also United States v. Brondeau, 2014 CCA LEXIS 702 (N-M. Ct. Crim. App. Sep. 23, 2014) (the solicited person’s status as someone not subject to the UCMJ is irrelevant). 45 See United States v. Phillips, 70 M.J. 161, 163 (C.A.A.F. 2011) (servicemember’s possession of child pornography was service discrediting under clause two of Article 134, since evidence of public knowledge of the conduct was not required and the nature of the conduct would have tended to bring discredit upon the service had the public known of it). 11  United States v. Smitherman, NMCCA No. 202500143 Opinion of the Court proof for us to conduct a factual sufficiency review.46 However, if Appellant had met the threshold requirement, we would have found after weighing the evi- dence, giving appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence, that we are not clearly convinced that the finding of guilty was against the weight of the evidence. III. CONCLUSION After careful consideration of the record and briefs of appellate counsel, we have determined that the findings and sentence are correct in law and fact and that no error materially prejudicial to Appellant’s substantial rights oc- curred.47 The findings and sentence are AFFIRMED. FOR THE COURT: MARK K. JAMISON Clerk of Court 46 This Court is aware of United States v. Hunt, No. 25-0257, 2026 CAAF LEXIS 661 (C.A.A.F. Aug. 6, 2026). This case is distinguishable from Hunt in that Appellant’s proposed deficiency of proof is that the Government failed to produce evidence that the persons Appellant solicited possessed a mens rea the Government is not legally re- quired to prove. 47 Articles 59 & 66, UCMJ. 12