UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

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No. 201800009

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UNITED STATES OF AMERICA

Appellee

v.

David J. W. ZORIL

Aviation Support Equipment Technician Petty Officer Second Class 

(E-5), U.S. Navy

Appellant

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Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Commander Aaron Rugh, JAGC, USN.

For Appellant: Captain Kimberly D. Hinson, JAGC, USNR.

For Appellee: Captain Sean M. Monks, USMC; 

Lieutenant Allyson L Breech, JAGC, USN.

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Decided 22 October 2018

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Before WOODARD, FULTON, and JONES, Appellate Military Judges

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This opinion does not serve as binding precedent but may be cited as 

persuasive authority under NMCCA Rule of Practice and Procedure 

18.2.

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PER CURIAM:

A military judge sitting as a general court-martial convicted the appellant, 

pursuant to his pleas, of four specifications of possession of child pornography 

and two specifications of distribution of child pornography, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2012).
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The military judge sentenced the appellant to three years’ confinement and a 

dishonorable discharge, which the convening authority approved.

The appellant asserts the military judge abused his discretion by admitting, during the pre-sentencing hearing, nine victim impact statements (VIS).

We agree the military judge abused his discretion by admitting two of the nine

VIS under R.C.M. 1001(b)(4). We find, however, that the error did not materially prejudice the substantial rights of the appellant. Therefore, we affirm the 

findings and sentence. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).

I. BACKGROUND

In January 2015, the appellant’s wife reported to the Naval Criminal Investigative Service (NCIS) that she found child pornography on the appellant’s 

computer. Acting on this information, agents searched the appellant’s home

and vehicle. Forensic examination of the storage devices seized during the 

search revealed 159 files containing images of known child pornography victims. The investigation also uncovered a logged Skype chat between the appellant and another person to whom the appellant had sent two child pornography 

videos. The forensic examination of the appellant’s seized electronic devices 

also revealed his on-line search history documenting visits to chat and file 

sharing sites where the appellant sent an additional 12 images of child pornography to another individual.

During the pre-sentencing hearing, the government moved to enter Prosecution Exhibit (PE) 2 under RULE FOR COURTS-MARTIAL (R.C.M.) 1001(b)(4), 

MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2016 ed.). This exhibit 

contained 18 VIS the government claimed were associated with the child pornography series found on the appellant’s devices.1 Of the 18 VIS, 9 were dated. 

The defense objected to the admission of the VIS on grounds of relevance and 

improper evidence in aggravation under R.C.M. 1001(b)(4). The military judge 

admitted PE 2, but only considered the nine dated VIS.

Although the government offered the VIS under R.C.M. 1001(b)(4) (evidence offered by the government in aggravation), the record suggests that the 

military judge considered them under R.C.M. 1001A (statements offered by 

crime victims) as well. The appellant now argues that the military judge erred 

by considering the VIS under R.C.M. 1001A.

 1 Videos of a specific child victim are placed into a series by the National Center 

for Missing and Exploited Children (NCMEC) that is then identified with a code name. 
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II. DISCUSSION

Our discussion is limited to the nine VIS in PE 2 the military judge considered. We review a military judge’s decision to admit sentencing evidence for an 

abuse of discretion. United States v. Stephens, 67 M.J. 233, 235 (C.A.A.F. 2009) 

(citing United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)). A military 

judge abuses his discretion when he admits evidence based on an erroneous 

view of the law. United States v. Lubich, 72 M.J. 170, 173 (C.A.A.F. 2013) (citing United States v. Freeman, 65 M.J. 451, 453 (C.A.A.F. 2008)).

A. Analysis under R.C.M. 1001A

Although the government offered this evidence as evidence in aggravation 

under R.C.M. 1001(b)(4), the record suggests that the military judge may have 

considered this evidence under R.C.M. 1001A. To the extent he relied on 

R.C.M. 1001A as a basis to admit this evidence, the military judge erred. See 

generally United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018) (military judge 

abused his discretion by admitting VIS under R.C.M. 1001A where victim or 

victim’s representative was not present and did not request to provide statement). 

Since the VIS could not have been properly admitted under R.C.M. 1001A, 

we will consider whether they were properly admitted under the government’s 

theory of admissibility, as evidence in aggravation under R.C.M. 1001(b)(4). 

B. Analysis under R.C.M. 1001(b)(4)

R.C.M. 1001(b)(4) governs what the prosecution may present as evidence 

in aggravation during the presentencing phase of courts-martial, and permits 

trial counsel to “present evidence as to any aggravating circumstances directly 

relating to or resulting from the offenses of which the accused has been found 

guilty.” United States v. Nourse, 55 M.J. 229, 231, (C.A.A.F. 2001). 

The appellant asserts that because the dated VIS predated the appellant’s 

trial they did not directly relate to, or result from, the appellant’s actions. We 

disagree.

Children portrayed in child pornography are victims of those who possess 

and distribute the pornography. Paroline v. United States, 572 U.S. 434, 439-

40 (2014). The possession and distribution of child pornography is directly related to the effect those crimes have on the portrayed victims, even if the statements are not specifically written for the appellant’s court-martial. The victims’ statements in this case describe the ongoing harm they experience as a 

result of new offenders coming into possession of their images. We have no 
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difficulty concluding that the harm they describe directly relates to and results 

from the offenses of which the accused was found guilty. See United States v. 

Evans, No. 201300174, 2014 CCA LEXIS 368, at *23, (N-M. Ct. Crim. App. 26 

Jun 2014) (noting the impact upon the children used in the production of pornography) (unpub. op.) rev. denied, 74 M.J. 262 (C.A.A.F. 2015). Cf. United 

States v. Hamilton, 77 M.J. 579, 584-85 (A.F. Ct. Crim. App. 2017) (child pornography victim’s statement created before accused’s offense nonetheless relates to that offense in context of R.C.M. 1001A). We find that all of the dated 

letters (except two that we will take up below) were directly related to the harm 

caused by the appellant’s crime. 

Having concluded that the statements in question qualify as evidence in 

aggravation under R.C.M. 1001(b)(4), we must determine whether they also

pass the balancing test under MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 403, 

MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.). This rule allows the 

military judge to exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice or needlessly presenting cumulative evidence. We find that the statements are highly probative evidence to the psychological and social harm done by the appellant’s actions, as those VIS were 

authored by the victims portrayed in the images the appellant pled guilty to 

possessing and distributing. All of the VIS addressed the social and psychological harm the victims experienced as a result of having their images continually coming into the possession of new offenders.

Here, the military judge did not articulate his MIL. R. EVID. 403 balancing 

analysis on the record. Therefore, we will do so ourselves. In conducting our 

analysis, we find that there is a direct relationship between the effects of abuse 

used to create child pornography and the effects of the viewing. Child pornography is “a permanent record of the children’s participation” and the trauma 

to the child is “exacerbated by [its] circulation.” New York v. Ferber, 458 U.S. 

747, 759 (1982). The unlawful conduct of every individual who reproduces, distributes, or possesses the images of the victim’s abuse sustains and aggravates 

the harm suffered by the victim arising from the original abuse. See Paroline, 

572 U.S. at 439-40. We further find the probative value of the VIS is not substantially outweighed by the danger of unfair prejudice to the appellant. We 

conclude that the VIS were directly related to the appellant’s crimes, not cumulative, and not unfairly prejudicial. We find the military judge properly admitted seven of the nine dated VIS under R.C.M. 1001(b)(4).

We do find, however, that the military judge abused his discretion by admitting two of the nine VIS—those found on pages 21 and 22 of PE 2. These 
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statements bear no indication of being related to any of the images the appellant admitted possessing and distributing. Although the appellant agreed not 

to object to the exhibit on grounds of foundation or authenticity, there is simply 

no reason to conclude that these statements are relevant to this case. We find 

that their admission was error.

We have tested this error for prejudice using the four factors announced in

United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005): (1) the strength of 

the government’s case, (2) the strength of the appellant’s case, (3) the materiality of the admitted evidence, and (4) the quality of the admitted evidence. We 

find that this error did not substantially influence the adjudged sentence. See 

United States v. Gomez, 76 M.J. 76, 80 (C.A.A.F. 2017).

C. Error in promulgating order

Although not raised as error, we note that the CA’s promulgating order 

erroneously reflects that the appellant pleaded and was found guilty of Charge 

I,2 Specification 6—wrongfully distributing videos of child pornography. However, the appellant actually pleaded and was found guilty of wrongfully distributing images, not videos, of child pornography. The appellant is entitled to 

accurate court-martial records. United States v. Crumpley, 49 M.J. 538, 539 

(N-M. Ct. Crim. App. 1998) (citation omitted). Accordingly, we order the necessary corrective action in our decretal paragraph.

III. CONCLUSION

The findings and the sentence as approved by the convening authority are 

affirmed. However, the supplemental promulgating order shall correctly reflect 

that the appellant pleaded guilty to, and was found guilty of wrongfully distributing child pornography images vice videos in Charge I, Specification 6. 

FOR THE COURT

RODGER A. DREW, JR.

Clerk of Court

 2 There is only one Charge in this case. However, the government labeled the Sole 

Charge, “Charge I.” For consistency, the supplemental promulgating order shall continue to reflect that the Charge is “Charge I.”