United States v. BLEVINS

Before MOSLEY, DAVIS, and HARRIS Appellate Military Judges _________________________ UNITED STATES Appellee v. Colton B. BLEVINS Culinary Specialist First Class Petty Officer (E-6), U.S. Navy Appellant No. 202500276 _________________________ Decided: 26 October 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judges: Adam D. Partridge (arraignment) Kimberly J. Kelly (motions and trial) Sentence adjudged 4 February 2025 by a general court-martial tried at Na- val Air Station Jacksonville, Florida, consisting of enlisted members. Sen- tence in the Entry of Judgment: reduction to E-3, a reprimand, confinement for 10 years, and a dishonorable discharge.  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court For Appellant: Captain Kyle W. Rodewald, USMC For Appellee: Commander John T. Cole, JAGC, USN (argued) Lieutenant K. Matthew Parker, JAGC, USN (on brief) Judge DAVIS delivered the opinion of the Court, in which Senior Judge MOSLEY and Judge HARRIS joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ DAVIS, Judge: Appellant was convicted, contrary to his pleas, of three specifications of sex- ual abuse of a child in violation of Article 120b, Uniform Code of Military Justice (UCMJ).1 Appellant was also convicted of three specifications of obstructing jus- tice in violation of Article 131b, UCMJ, as well as one specification of indecent conduct and six specifications of producing, receiving, or possessing child por- nography in violation of Article 134, UCMJ.2 Appellant asserts five assignments of error (AOEs): (1) the military judge erred by denying Appellant’s motion to suppress his statements to the Naval Criminal Investigative Service (NCIS); (2) the military judge erred in denying Appellant’s motion to suppress evidence seized from Appellant’s computer and hard drive; (3) Specification 1 of Charge II, alleging indecent conduct under Ar- ticle 134, UCMJ, was preempted by Article 120b(c), UCMJ; (4) Appellant’s con- victions for possession of child pornography under Specifications 7, 8, and 10 of Charge II were legally and factually insufficient; and (5) Appellant’s convictions for obstructing justice were legally insufficient because the Government argued uncharged theories of criminal liability. Having considered the record as a whole, the pleadings of the parties, and the oral arguments of counsel presented 1 10 U.S.C. § 920b. 2 10 U.S.C. § 931b; 10 U.S.C. § 934. The three specifications under Article 131b, UCMJ, were merged into two specifications for sentencing purposes. 2  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court at the St. Thomas University College of Law as part of this Court’s outreach program, we find no prejudicial error and affirm the findings and sentence. I. BACKGROUND In August 2020, Appellant, a 33-year-old man posing as a 17-year-old boy, encountered a 14-year-old girl (“Amanda”)3 on the website “teen-chat.org.” From this initial meeting, Appellant and Amanda maintained an online relationship for approximately two years, communicating through applications like Snap- chat and Instagram. Their communications involved text messages and audio messages of a sexual nature, sending nude photographs to one another, ex- changing videos involving masturbation, and engaging in video chats during which they would watch each other masturbate. Appellant also mailed items to Amanda, including sex toys which he concealed in stuffed animals. The communications between Appellant and Amanda were interrupted when Amanda’s foster mother overheard a conversation between Amanda and an adult male. The foster mother ordered Amanda to cease all contact and ulti- mately made a report to the Naval Criminal Investigative Service (NCIS). NCIS agents interviewed Appellant on 15 December 2022. At the outset of the inter- view, Appellant was advised that he was suspected of “possession, distribution, and/or production of child pornography/child sexual assault/solicitation of a mi- nor for sex.”4 Appellant waived his right to remain silent and participated in the interrogation. During the interrogation, Appellant made numerous admissions regarding his communications with Amanda and his interest in child pornography. At the outset of the substantive portion of the interview, Appellant indicated his awareness of the subject of the interrogation, stating: I know I’ve been talking to a lot of people like during my divorce and stuff like that with my -- while I was with my ex. And there was a lot of picture changing with that. And then I did date somebody for a while that was in California, and they turned out to be underage, and I cancelled all of that.5 Appellant followed up this statement by further explaining: 3 All names utilized in this opinion, with the exception of Appellant’s, are pseudo- nyms. 4 App. Ex. XIII at 8. 5 App. Ex. XI at 23. 3  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court We did exchange pictures. We exchanged -- because like I said, we did role playing and stuff like that, which got very heavy in the sexual side, as well as stuff that we would talk and we would do things over the -- a video chat and stuff like that.6 Shortly thereafter, the NCIS agent asked Appellant how the relationship ended, and he responded: After a while it was -- while we were talking, then she called me at like 3:00 in the morning my time, saying, hey, we got to stop talking, my mom - and I’m like whoa, whoa, whoa, your mom? What does your mom have to do with anything? And she’s like I'm 16. And I was like we need to not talk anymore, like please get rid of my messages, please delete pictures. I’m doing the same. Like I can’t have this stuff; you shouldn’t have this stuff. And we need to stop talking.7 In response to the NCIS request to search his phone, Appellant indicated that he had deleted everything. Throughout the interview, Appellant made several other references to deleting evidence of his interactions with Amanda, but was never warned that he was suspected of obstructing justice. In addition to his communications with Amanda, Appellant also revealed that he had an addiction to pornography that was trending toward increasingly younger subjects. Appellant ultimately admitted that he had viewed pornogra- phy involving children as young as 13 years of age. When asked whether he ever used his home computer to access pornography, the following colloquy took place: NCIS: Have you ever used that to look at porn? APPELLANT: Yes. NCIS: Okay. What’s your preference in porn? APPELLANT: Kinky, submissive, being dominated, male being dominated by female or male dominating another male. NCIS: And— APPELLANT: Just about everything. NCIS: Including some of the young stuff? 6 App. Ex. XI at 24. 7 App. Ex. XI at 25. 4  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court APPELLANT: Yeah.8 Appellant was further asked whether he had any hard drives, and he re- sponded that he had a hard drive that was connected to his computer. As it pertains to the hard drive, the following discussion ensued: NCIS: You mentioned that you also had a – (indiscernible) a de- ployment drive that you’ve got porn on? APPELLANT: Yeah. NCIS: What kind of drive is that, that’s the one that, that’s the one attached to the— APPELLANT: Yeah, I think it’s a Passport. NCIS: Okay. APPELLANT: It has – it had a bunch of movies and pictures of my ex and then with the kids. NCIS: Okay. Do you think there’s porn on that? APPELLANT: There’s possibly porn on it.9 In addition to providing consent for the search of his mobile phone, Appel- lant also granted NCIS agents permission to search his home. The search of Appellant’s bedroom resulted in the seizure of Appellant’s computer tower and hard drives. At the time of the seizure, the My Passport Ultra Hard Drive was connected to the computer at Appellant’s desk. On 12 January 2023, Appellant’s civilian defense attorney notified the Government that Appellant was withdrawing any previously provided consent to search his belongings. Trial counsel promptly notified the NCIS agent of Appellant’s decision to revoke his consent to search his items, and the NCIS agent immediately reached out to the digital forensic examiner (DFE) to alert him that Appellant’s consent had been revoked and that any searches should cease. NCIS proceeded to submit a request for a Command Authorization for Search and Seizure (CASS) to the Commanding Officer, Naval Air Station (NAS) Jacksonville (“Commanding Officer”), so that the items seized in the search of Appellant’s home could be examined. The application for the CASS listed the seven items NCIS sought to search, including: Appellant’s Samsung Galaxy cellphone, Appellant’s Be Quiet Computer Tower, and Appellant’s My 8 App. Ex. XI at 89-90. 9 App. Ex. XI at 107. 5  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court Passport Ultra Hard Drive. In support of the application, the NCIS agent sub- mitted an affidavit, articulating the grounds upon which she believed there was probable cause to conduct the search. The affidavit noted: On 28Nov22, NCISRA Kings Bay, GA was notified of allegations of sexual exploitation of a child . . . current foster mother of [Amanda] made a report alleging CSS1 Colton Blevins (S/BLEVINS) . . . a 33-year-old male, has been in a romantic re- lationship with [Amanda] since she was 14; [Amanda] is now 17. S/BLEVINS would communicate with [Amanda] via telephone and social media. On 13Dec22 [Amanda] was interviewed and stated she met S/BLEVINS through the social media application Instagram circa Apr20 when BLEVINS reached out to her and liked a post of hers. [Amanda] reported she and S/BLEVINS would perform acts while video calling through social media applications. On 15Dec22, S/BLEVINS was interviewed . . . and admitted to being involved in an online relationship with [Amanda]. S/BLEVINS subsequently provided consent to search his cell phone which revealed Snap Chat videos appearing to be [Amanda] masturbating with an object or device and approxi- mately 7,000 messages between [Amanda] and S/BLEVINS. Many of the messages were sexual in nature. .... Based on the evidence previously detailed, your affiant asserts there is probable cause to believe S/BLEVINS violated Article 134 (possessing, receiving or viewing child pornography) and Article 120b (indecent communications) of the UCMJ, and evidence of these violations are present on S/BLEVINS electronic media stor- age devices listed in Attachment A.10 Commanding Officer, NAS Jacksonville, signed the authorization on 1 Feb- ruary 2023. Searches of Appellant’s computer and hard drive revealed evidence of possession of child pornography. Additional facts necessary to the resolution of Appellant’s case are included in the discussion of Appellant’s AOEs. 10 App. Ex. XXII at 20-21 6  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court II. DISCUSSION A. The Military Judge Properly Denied Appellant’s Motion to Sup- press Statements Given to NCIS 1. Standard of Review When there is a motion to suppress a statement on the basis that Article 31(b), UCMJ rights were not given, we review “the military judge’s findings of fact on a clearly erroneous standard, and . . . conclusions of law de novo.”11 2. Analysis Here we must resolve whether the rights advisement NCIS provided to Ap- pellant complied with the requirements of Article 31(b), UCMJ, when the NCIS agent failed to specifically inform Appellant that he was suspected of commit- ting the offense of obstructing justice. The statute provides: No person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an of- fense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected . . . .12 “[T]he purpose of informing a suspect or accused of the nature of the accu- sation is to orient him to the transaction or incident in which he is allegedly involved.”13 When notifying a servicemember of the nature of the accusation of which he or she is suspected and will be questioned upon, it is not required that the person providing the notice use “[t]he precision and expertise of an attorney” in describing the nature of the accusation.14 Nor is it necessary to inform the servicemember being questioned of “each and every possible charge under investigation,” as long as the servicemember is put on notice of the “gen- eral nature of the allegation, to include the area of suspicion that focuses the [servicemember] toward the circumstances surrounding” the alleged miscon- duct being investigated.15 11 United States v. Brisbane, 63 M.J. 106, 110 (C.A.A.F. 2006) (quoting United States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000) (citing United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). 12 Article 31(b), UCMJ. 13 United States v. Rice, 11 C.M.A. 524, 526, 29 C.M.R. 340, 342 (1960). 14 United States v. Simpson, 54 M.J. 281, 284 (C.A.A.F. 2000). 15 Id. 7  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court When considering whether an appellant was properly apprised of the na- ture of the allegation, we consider the rights warning in light of the surround- ing circumstances. Among the factors we consider are “whether the conduct is part of a continuous sequence of events[;] whether the conduct was within the frame of reference supplied by the warnings[;] or whether the interrogator has previous knowledge of the unwarned offenses.”16 The military judge issued a written ruling, with detailed findings of fact and conclusions of law, and concluded: . . . the agents were not required to pause mid-interview to ad- vise the accused he was suspected of obstruction of justice. . . . Rather, the rights advisement in this case fully served the pur- pose of Article 31(b) warnings of ‘orient[ing] [the accused] to the transaction or incident in which he is allegedly involved,’ includ- ing to what extent evidence of his online communications with [Amanda] was still present on his phone.17 We agree and find that the military judge properly denied Appellant’s motion to suppress his statements to NCIS. As an initial matter, there is no clear evidence in the record that the NCIS agent(s) had “previous knowledge” of any actions by Appellant that would con- stitute obstruction of justice.18 There is, however, ample evidence in the record to support the military judge’s conclusion that “the conduct was within the frame of reference supplied by the warnings.”19 Appellant immediately recog- nized that the offenses for which he was warned related to his actions toward Amanda, including his actions to dispose of potentially incriminating evidence. When asked whether he had any idea why investigators would want to question him, Appellant’s first response was to reference interactions with an underage person and to state, “I cancelled all of that.”20 As further explanation, he told the NCIS agent that he asked Amanda to “please get rid of my mes- sages, please delete the pictures. I’m doing the same. Like I can’t have this 16 Id. 17 App. Ex. XLIII at 16 (quoting United States v. Delva, 2013 CCA LEXIS 450 at *5-7 (N-M Ct. Crim. App. 2020). 18 Simpson, 54 M.J. at 284. 19 Id. 20 App. Ex. XI at 23. 8  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court stuff; you shouldn’t have this stuff.”21 Given these statements, we cannot con- clude—as argued by Appellant—that the military judge’s ruling in this regard constituted an “erroneous view of the facts.”22 Similarly, we do not find persuasive Appellant’s arguments that obstruct- ing justice is not “part of a continuous sequence of events,” with the offenses for which Appellant was warned.23 Appellant’s crimes began when he met Amanda on teenchat.org, continued as he engaged in sexual activity with Amanda for two years, and ended when the relationship was discovered and he attempted to evade responsibility by deleting evidence of his crimes. The obstruction was not separate or attenuated—it was simply the end of the string. This is a far different case from the unpublished decision of United States v. Blanton,24 which Appellant cites for the proposition that an investigator who learns of new accusations is required to advise a suspect of those new allega- tions before inquiring into them.25 In Blanton, the appellant was warned that he was suspected of “sexual harassment and misconduct,” but he was ulti- mately questioned about allegations of bribery during a second, separate inter- view. While the bribery occurred in the same timeframe and involved a similar pool of victims, this Court found that the offenses were not “closely related” such that they formed a continuous sequence of events.26 Here, we find that obstructing justice was not only closely related—it was directly related to the offenses described in the Article 31(b) warnings. Appellant was not obstructing justice in a vacuum or obstructing justice in an unrelated crime. He was ob- structing justice for the very same crimes for which he had been warned. We find another unpublished case from our Court to be far more persua- sive. In United States v. Carter,27 the appellant was suspected and warned for the offenses of burglary, larceny, and conspiracy, and questioned related to the 21 App. Ex. XI at 25. 22 Appellant’s Brief at 22. 23 Simpson, 54 M.J. at 284. 24 No. 201800185, 2019 CCA LEXIS 198 (N-M. Ct. Crim. App. May 8, 2019). 25 Appellant’s Brief at 19. 26 We further distinguish Appellant’s case from Blanton in that the investigators in Blanton were aware of the bribery allegations prior to the suspect interview—facts not presented here. 27 No. 200601139, 2007 CCA LEXIS 174 (N-M Ct. Crim. App. May 23, 2007). 9  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court victim’s quarters and property.28 During the course of the interrogation, Carter mentioned that he entered a child’s bedroom, and law enforcement officers de- veloped suspicion that Carter may have harmed the child. Without warning Carter that he was suspected of offenses against the child, the officers ulti- mately coaxed a confession to child sexual assault out of Carter.29 Applying Simpson, our Court concluded that even though child sexual assault appears to be a significant departure from burglary and larceny, Carter’s Article 31(b) rights had not been violated. The same result applies here. While obstructing justice is a different of- fense from those warned, it was part of a chain of events that flowed directly from the warned offenses. The warnings focused Appellant on “the area of sus- picion” and “toward the circumstances surrounding the event.”30 No more is required. B. The Military Judge Did Not Abuse Her Discretion by Denying Ap- pellant’s Motion to Suppress Evidence Contained on Appellant’s Com- puter and Hard Drive 1. Standard of Review This Court reviews a military judge’s ruling on a motion to suppress evi- dence under Military Rules of Evidence (Mil. R. Evid.) 311(a) for abuse of dis- cretion.31 When reviewing a military magistrate’s issuance of a search author- ization, we “do not review [the] determination de novo.” Instead, we examine whether a military “magistrate had a substantial basis for concluding that probable cause existed.”32 A substantial basis exists “when, based on the total- 28 Id. at *7. 29 Id. at *8. 30 Simpson, 54 M.J. at 284. 31 United States v. Lattin, 83 M.J. 192 (C.A.A.F. 2023). 32 United States v. Rogers, 67 M.J. 162, 164-65 (C.A.A.F. 2009). 10  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court ity of the circumstances, a common-sense judgment would lead to the conclu- sion that there is a fair probability that evidence of a crime will be found at the identified location.”33 2. Law and Analysis The Fourth Amendment is predicated on “[t]he right of the people to be secure in their persons, houses, papers, and effects.”34 It protects individuals from “unreasonable searches and seizures” and requires warrants to be sup- ported by probable cause.35 These important Fourth Amendment protections are implemented through Mil. R. Evid. 311-317. Under Mil. R. Evid. 311(a), evidence seized without probable cause should be excluded unless an exception applies. In order for there to be probable cause, “a sufficient nexus must be shown to exist between the alleged crime and the specific item to be seized.”36 “The question of nexus focuses on whether there was a ‘fair probability’ that contra- band or evidence of a crime will be found in the particular place.”37 Such a nexus may be inferred based upon the specific facts of a particular case “in- cluding the type of crime, the nature of the items sought, and reasonable infer- ences about where evidence is likely to be kept.”38 a. Probable Cause and the Exclusionary Rule Appellant argues that the affidavit submitted by the NCIS agent in support of the request for a CASS did not establish a nexus between the alleged crimes and Appellant’s computer and hard drive.39 Indeed, the NCIS affidavit makes no specific mention of Appellant’s computer or hard drive whatsoever. Given this shortcoming, we must determine whether the totality of the circum- stances, and the application of common-sense judgment, nonetheless estab- lishes there was a fair probability that evidence of Appellant’s offenses would be found on his computer or hard drive.40 33 Id. at 165. 34 U.S. Const. amend. IV. 35 Id. 36 Nieto, 76 M.J. at 106 (citations omitted). 37 Id. 38 Id. 39 Appellant’s Brief at 26. 40 See Rogers, 67 M.J. at 165. 11  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court The military judge’s ruling is somewhat ambiguous on the question of prob- able cause, stating: This court disagrees that Nieto necessarily dictates a lack of prob- able cause in this case as to the accused’s computer tower. . . . More difficult to distinguish [from Nieto] is the external hard drive recovered from the accused’s home, as the affidavit does not mention that the external hard drive was connected to the com- puter or the accused’s phone nor that there was any evidence the accused downloaded videos, pictures, or communications onto the external hard drive.41 To the extent the military judge found the affidavit contained sufficient in- formation to allow the Commanding Officer to issue the CASS, we disagree. It is undisputed that “[w]e give ‘great deference’ to the magistrate’s probable cause determination because of ‘the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.’”42 Even applying such deference, however, does not convince us that the Commanding Officer in this case had a substantial basis upon which to conclude that probable cause existed with re- spect to the computer or hard drive. While the CASS indicates Appellant would communicate with Amanda via “telephone and social media” it establishes no nexus between the crime alleged and Appellant’s computer and hard drive. The military judge’s ruling—and our assessment of it—is not, however, de- pendent on the military judge’s findings with respect to probable cause. Having failed to reach a definitive conclusion on whether the affidavit provided the Commanding Officer with a substantial basis upon which to find probable cause existed for the search of the hard drive, the military judge ultimately concluded that “[t]o the extent that the CASS was not supported by probable cause or oth- erwise insufficient,” the exclusionary rule should not apply because exclusion “would not result in appreciable deterrence of future Fourth Amendment viola- tions, and the harm of its application would substantially outweigh any bene- fit.”43 We agree and find the military judge’s assessment of these matters was not a clearly unreasonable exercise of discretion.44 Generally speaking, the exclusionary rule is applied “to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the 41 App. Ex. XLIII at 18. 42 Nieto, 76 M.J. at 105 (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)). 43 App. Ex. XLIII at 18. 44 See Lattin, 83 M.J. at 198 (citation omitted). 12  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court victim of police misconduct.”45 However, the exclusionary rule “does not apply every time law enforcement officials violate the Fourth Amendment.”46 In United States v. Davis, the Supreme Court discussed how the deterrence bene- fits of exclusion may vary based upon the degree of culpability of law enforce- ment’s conduct. 47 Where the conduct is “deliberate,” “reckless,” or represents a “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong.48 When, however, law enforcement officers act “with an objectively reasonable good faith” that their conduct is lawful or when their con- duct involves only simple, “isolated negligence,” the deterrence rationale is much weaker.49 These concepts were codified in the Manual for Courts-Martial as Mil. R. Evid. 311(a)(3) and 311(d)(5)(A), which requires judges to assess whether “ex- clusion of the evidence results in appreciable deterrence of future unlawful searches and seizures and the benefits of such deterrence outweigh the costs to the justice system.” Put differently, if “the deterrence of future unlawful searches or seizures is not appreciable or such deterrence does not outweigh the costs to the justice system,” the evidence should not be excluded.50 In resolving the issue, the military judge relied on the standard in Herring v. United States51 and found: [The NCIS agent] in fact had abundant probable cause to support a CASS for the accused’s phone, computer tower, and the external hard drive attached to the tower based upon the interviews of the victim and the accused, even if all of those facts were not included in her affidavit. . . . To the extent [the NCIS agent] omitted facts from her affidavit supporting probable cause for all devices, she certainly did not do so intentionally, nor did her failure to include those facts amount to recklessness or gross negligence. . . . There 45 United States v. Leon, 468 U.S. 897, 910 (1984). 46 Lattin, 83 M.J. at 197. 47 564 U.S. 229, 238 (2011). 48 Id. (citations omitted). 49 Id. (citations omitted). 50 Mil. R. Evid. 311(d)(5)(A). 51 555 U.S. 135, 144 (2009). 13  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court is no evidence that [the NCIS agent] sought to evade rule, statu- tory, or constitutional requirements relating to search and sei- zure of the accused’s electronic devices.52 These findings are well-reasoned and supported by the record. Based upon the interviews of both Appellant and Amanda, we agree that the NCIS agents had probable cause to search and seize Appellant’s computer and hard drive. Appellant stated he had an interest in child pornography and used his home computer to access such material. Additionally, Appellant explained that his My Passport Ultra Hard Drive was connected to his home computer and acknowledged that “there’s possibly porn on it.”53 We further agree that the deficiencies in the affidavit are indicative of sim- ple negligence that does not merit application of the exclusionary rule. Exclu- sion may be warranted where law enforcement knowingly omits facts that would undermine probable cause or deliberately embellishes facts to establish it. The opposite occurred here—law enforcement omitted facts in its possession that would have strengthened its application. As further proof that law enforcement acted neither recklessly nor in bad faith, we consider—as did the military judge—the context in which the CASS was obtained. First, based upon the agent’s testimony on the motion to sup- press, there was at least a subjective belief that she possessed probable cause to seize and search the computer and hard drive.54 Additionally, once Appellant revoked consent for the search of his property, we look favorably upon the im- mediate steps the NCIS agent took to ensure that the DFE discontinued any searches, as well as the consultation she undertook with the Staff Judge Advo- cate to draft the affidavit and submit it to the authorizing official for approval. With this background in mind, we see no appreciable deterrence that could be achieved and view the difficulties associated with this case to be merely the failure of NCIS to include all of the information at its disposal in its affidavit. As such, considering the relatively high cost to the justice system that exclusion would impose in this case, we conclude that the military judge’s exercise of dis- cretion was not clearly unreasonable. 52 App. Ex. XLIII at 18-19. 53 App. Ex. XI at 107. 54 R. at 28. 14  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court C. Appellant’s Conviction on Specification 1, Charge II, for a Violation of Article 134 (Indecent Conduct) Is Not Preempted by Article 120b(c), UCMJ. 1. Standard of Review The question of whether an offense under Article 134, UCMJ is preempted by another statutory provision is one of statutory interpretation, which this Court reviews de novo.55 2. Analysis “The preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132.”56 Application of the preemption doctrine is appropriate when “(1) Congress intended to limit prosecution for . . . a par- ticular area of misconduct to offenses defined in [those] specific articles of the Code, and (2) the offense charged is composed of a residuum of elements of a specific offense.”57 Appellant argues the misconduct for which he was convicted for violating Article 134, UCMJ (Specification 1, Charge II), is preempted by Article 120b(c), UCMJ, because the charged offense is composed of a residuum of elements of Article 120b(c) and because Congress intended Article 120b(c) “to cover the entirety of offenses involving indecent conduct against children.”58 While we concur that the charged offense under Article 134, UCMJ, is com- posed of a residuum of the elements of Article 120b(c), we do not find any ex- press indications that Congress intended to preclude charging the misconduct at issue under Article 134, UCMJ. As such, we conclude that Appellant’s con- viction under Specification 1, Charge II is not preempted. a. Residuum of Elements Specification 1, Charge II, states, “In that CSS1 Colton B. Blevins, USN, on active duty, did, at or near Yulee, Florida, on or about July 2021, commit indecent conduct, to wit: send [Amanda] a stuffed animal containing a sex toy, 55 United States v. Avery, 79 M.J. 363, 366 (C.A.A.F. 2020) (quoting United States v. Wheeler, 77 M.J. 289, 291 (C.A.A.F. 2018)) (quotations omitted). 56 Manual for Courts-Martial, United States (MCM), pt. IV, para. 91.c.(5)(a) at IV- 143. 57 Avery, 79 M.J. at 366 (quoting United States v. Curry, 35 M.J. 359, 360-61 (C.A.A.F. 1992)). 58 Appellant’s Brief at 37. 15  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court and that said conduct was of a nature to bring discredit upon the armed forces.” The elements of this offense under Article 134, UCMJ, are: 1) That the accused engaged in certain conduct; 2) That the conduct was indecent; and 3) That under the circumstances, the conduct of the accused was of a nature to bring discredit upon the armed forces.59 The definition of indecent under Article 134, UCMJ is “that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.”60 The elements of Article 120b(c) are as follows: 1) That the accused committed a lewd act by engaging in inde- cent conduct; 2) That at the time of the lewd act, the victim had not attained the age of 16 years.61 The definition of a “lewd act” under Article 120b(c) is “any indecent conduct, intentionally done with or in the presence of a child, including via any commu- nication technology, that amounts to a form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual re- lations.”62 Generally speaking, the concern with preemption is the removal of a mens rea requirement or the elimination of “vital elements from common law crimes and offenses expressly defined by Congress,” and the prosecution of the re- maining elements as an offense under Article 134.63 Specification 1, Charge II, 59 MCM, pt. IV, para. 104.b at IV-153. 60 MCM, pt. IV, para. 104.c at IV-153. 61 Article 120b(c), UCMJ; 10 U.S.C. § 920b(c) (2024). 62 Id; see also United States v. Schmidt, 82 M.J. 68, 78 (C.A.A.F. 2022) (defining the term “in the presence of” to “simply mean that one person is in the immediate vicinity of another person.”). 63 United States v. Norris, 8 C.M.R. 36, 39 (1953) (holding an Article 134 offense of “wrongful taking” to be preempted by Article 121 because it deleted the element of specific intent). 16  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court placing to the side the terminal element,64 retains the same element of “inde- cent conduct” as Article 120b(c), but removes the element of age and the defi- nitional requirement that the conduct be done “with or in the presence of a child.” We, therefore, agree with Appellant that the charge under Article 134, UCMJ, is a residuum of the elements of Article 120b(c). Importantly, however, “simply because the offense charged under Article 134, UCMJ, embraces all but one element of an offense under another article does not trigger operation of the preemption doctrine. In addition, it must be shown that Congress in- tended the other punitive article to cover a class of offenses in a complete way.”65 b. Legislative History As a starting point, we observe that there is “scant legislative history” re- garding Article 120b, UCMJ.66 Section 541(b) of the National Defense Author- ization Act for Fiscal Year 2012, titled “Rape and Sexual Assault of a Child,” created Article 120b.67 This new Article 120b prohibited the commission of lewd acts upon children.68 The Senate Report accompanying NDAA 2012 generally describes Article 120b, UCMJ, as arising from “recommend[ations] by the Joint Services Com- mittee on Military Justice and the Secretary of Defense to address deficiencies in existing law that have been identified by military courts.”69 The Senate Com- mittee on Armed Services, considering these recommendations, advised the Senate to: separate Article 120, UCMJ, into three separate articles of the UCMJ: Article 120, UCMJ, would apply to the offenses of rape and sexual assault of any person; Article 120b, UCMJ, would ap- ply to sexual offenses against children; and Article 120c, UCMJ, would apply to other non-consensual sexual misconduct of- fenses.70 64 Avery, 79 M.J. at 368 (“For the purposes of [preemption] analysis, we do not consider the terminal element of Article 134, UCMJ.”). 65 United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979). 66 Avery, 79 M.J. at 369. 67 Pub. L. No. 112-81, 125 Stat. 1298, 1407-09 (2011) [hereinafter NDAA 2012]. 68 Article 120b(c), UCMJ, 10 U.S.C. § 920b(c) (2024). 69 S. Rep. No. 112-26, at 115 (2011). 70 Id. at 114-15. 17  United States v. Blevins, NMCCA No. 202500276 Opinion of the Court Such general statements, in our view, do not establish congressional intent to preempt all indecent conduct involving children from being charged under other articles. The text of the statute itself also provides no indication that all indecent conduct involving children is contemplated under Article 120b. To the contrary, there is limiting language in the statute which criminalizes only that conduct which occurs “with or in the presence of a child.”71 As such, the statute does not occupy the field with respect to offenses—such as the charge at issue— in which the Appellant’s actions were not conducted in the presence of a child. We find further support for this conclusion in MCM, Part IV. Para. 104(c)(2), in which the President states, “For child offenses, some indecent con- duct may be included in the definition of lewd act and preempted by Article 120b(c).” This statement ack