This opinion is subject to administrative correction before final disposition.

Before 

GASTON, STEWART, and HOUTZ

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Adam K. DAVIS

Staff Sergeant (E-6), U.S. Marine Corps

Appellant

No. 202000073

Decided: 30 August 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

K. Scott Woodard

Sentence adjudged 22 November 2019 by a general court-martial convened at Marine Corps Base Camp Lejeune, North Carolina, consisting of a military judge sitting alone. Sentence approved by the convening authority: reduction to E-1, confinement for 10 years,1 and a 

dishonorable discharge.

For Appellant:

Major Brian L. Farrell, USMC

 

1 The convening authority suspended confinement in excess of 48 months pursuant to a pretrial agreement. 
United States v. Davis, NMCCA No. 202000073

Opinion of the Court

2

For Appellee: 

Lieutenant John L. Flynn, JAGC, USN

Major Clayton L. Wiggins, USMC

_________________________

This opinion does not serve as binding precedent, but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

PER CURIAM:

Appellant was convicted, in accordance with his pleas, of two specifications of distributing child pornography and one specification each of producing child pornography, receiving child pornography, possessing child pornography, and indecent visual recording, in violation of Articles 120c and 134, 

Uniform Code of Military Justice [UCMJ].2

In his sole assignment of error [AOE], Appellant contends that the minor 

victim’s designee provided an improper victim impact statement by including 

hearsay conversations with the victim’s non-testifying mother, statements of 

hypothetical future impacts, and argument on behalf of the community. We 

find that Appellant waived the issue and affirm.

I. BACKGROUND

Appellant took pornographic pictures of his eight-year-old daughter, Ashbee,3 traded those images online with another servicemember for pornographic images of the servicemember’s seven-year-old son, and used a hidden 

camera to record the private areas of a fellow Marine without her knowledge 

or consent. In his pretrial agreement, under which he agreed to plead guilty 

to these and other offenses, both parties agreed not to object on various 

grounds, including hearsay, to “relevant unsworn testimony by a crime victim 

 

2 10 U.S.C. §§ 920c, 934.

3 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.
United States v. Davis, NMCCA No. 202000073

Opinion of the Court

3

who exercises the right to be reasonably heard and is called by the courtmartial in accordance with [Rule for Courts-Martial] R.C.M. 1001A.”4

The military judge appointed Ms. Hart to serve as Ashbee’s designee under R.C.M. 801(a)(6), and she gave an unsworn victim impact statement in 

that capacity. In the unsworn statement, Ms. Hart stated that Ashbee “does 

not know what her father did to her,” that “she will not know to protect 

herself if her father was to return home,” and that “[p]lacing [Appellant] back 

in the home would jeopardize Ashbee’s safety and security in the most fundamental way.”5 Ms. Hart also stated that she had

communicated with Mrs. [Dalton], Ashbee’s mother, through a 

series of text messages and Mrs. [Dalton] firmly believes that 

this entire incident was caused by cyber hackers infiltrating 

their online accounts. Mrs. [Dalton] does want what’s best for 

Ashbee, but at this time Mrs. [Dalton] does not feel that she 

has been provided enough evidence to convince her that her 

husband has done anything wrong. 

Mrs. [Dalton] is also very concerned that the family will 

suffer from financial hardship if [Appellant] was found guilty. 

As such, Ashbee’s mother would welcome [Appellant] home upon his release and might continue to believe that all is well.

Due to these factors, as a community, we must step in and provide a voice for an innocent, and do our part to protect Ashbee

from any further harm or exploitation at the hands of [Appellant].6

Prior to Ms. Hart reading the statement aloud at trial, Appellant’s civilian defense counsel informed the military judge that he had had an opportunity to review the statement and when asked whether he had any objection

stated, “No, Your Honor.”7 Later, during Appellant’s unsworn statement, 

Appellant was asked by his defense counsel, “You heard [Ms. Hart’s] state-

 

4 Appellate Ex. VII at 3. The rule regarding a crime victim’s right to be reasonable heard at a sentencing hearing, previously codified at R.C.M. 1001A, is now 

codified at R.C.M. 1001(c).

5 R. at 115–16.

6 R. at 116.

7 R. at 115.
United States v. Davis, NMCCA No. 202000073

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ment, do you agree with what she said in her statement?”8 Appellant responded, “Yes. Completely.”9

During the Government’s sentencing argument, the trial counsel pointed 

out that the military judge had “heard about the current situation in the 

home with the challenges that Mrs. [Dalton] has” and that Mrs. Dalton

“doesn’t understand and fully appreciate the gravity of her husband’s 

crime.”10 The trial counsel mentioned this “to really paint the picture of the 

situation here and the importance of the fact that the only institution positioned to protect [Ashbee] is this court.”11 The Defense did not object to these 

statements.

II. DISCUSSION

We review de novo whether an appellant has waived an issue.12 In distinguishing between waiver and forfeiture, we must assess whether an appellant merely failed to make a timely assertion of a right––forfeiture––or 

whether he intentionally relinquished or abandoned a known right––

waiver.13 We generally do not review waived issues “because a valid waiver 

leaves no error for us to correct on appeal.”14

Pursuant to R.C.M. 1001(c)(3), the contents of victim impact statements 

may only include matters in mitigation and “victim impact,” which is defined 

to include “any financial, social, psychological, or medical impact on the crime 

victim directly relating to or arising from the offense of which the accused has 

been found guilty.”15 “A victim’s statement should not exceed what is permitted under R.C.M. 1001(c)(3),” and “[u]pon objection by either party or sua 

sponte, a military judge may stop or interrupt a victim’s statement that 

includes matters outside the scope of R.C.M. 1001(c)(3).”16 “While the military 

 

8 R. at 138.

9 R. at 138.

10 R. at 146.

11 R. at 146.

12 United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020).

13 Id. (citing United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)).

14 Id. (quoting United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).

15 R.C.M. 1001(c)(2)(B).

16 R.C.M. 1001(c)(5)(B), Discussion.
United States v. Davis, NMCCA No. 202000073

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judge is the gatekeeper for unsworn victim statements, an accused nonetheless has a duty to state the specific ground for objection in order to preserve a 

claim of error on appeal.”17 Moreover, where counsel does not just “fail to 

object,” but “affirmatively decline[s] to object” when the military judge asks

whether there is any objection to a particular matter, our superior court has 

held that the issue is waived, not forfeited.18

Here, Appellant knowingly and intelligently waived any objection to the 

victim impact statement. After the parties agreed not to object to a victim 

impact statement on various grounds—including hearsay which Appellant 

now raises in his AOE—Appellant’s defense counsel expressly told the military judge he had reviewed the statement and when asked whether he had 

any objection stated, “No, Your Honor.” Further, when asked by his counsel 

during his own unsworn statement whether he agreed with “what [Ms. Hart] 

said in her statement,” Appellant responded “Yes. Completely.”19 We find 

that under these circumstances Appellant intentionally relinquished and

abandoned his known right to object to the statement. The issue is therefore 

waived.

We recognize that our duty under Article 66, UCMJ, to approve only findings and sentences that “should be approved” gives us the power to decide

“whether to leave an accused’s waiver intact, or to correct error.”20 In this 

case, not only did his defense counsel affirmatively decline to object after 

reviewing the statement, but Appellant also went so far as to adopt the

statement in toto during his own unsworn testimony. We decline to disregard 

Appellant’s waiver under such circumstances. 

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 

 

17 United States v. Tyler, 81 M.J. 108, 113 (C.A.A.F. 2021).

18 Davis, 79 M.J. at 330-31 (holding that the appellant waived all objections to 

the military judge’s findings instructions where his counsel responded, “No, Your 

Honor,” when the military judge asked whether there were any objections to his 

instructions).

19 R. at 138.

20 United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (quoting Article 66, 

UCMJ).
United States v. Davis, NMCCA No. 202000073

Opinion of the Court

6

fact and that no error materially prejudicial to Appellant’s substantial rights 

occurred.21

However, we note that the Entry of Judgment does not accurately reflect 

the modification of the sentence by the convening authority pursuant to the 

pretrial agreement. Although we find no prejudice, Appellant is entitled to 

have court-martial records that correctly reflect the content of his proceeding.22 In accordance with Rule for Courts-Martial 1111(c)(2), we modify the 

Entry of Judgment and direct that it be included in the record.

The findings and sentence are AFFIRMED.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

 

21 Articles 59 & 66, UCMJ.

22 United States v. Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998).
UNITED STATES

v.

Adam K. DAVIS

Staff Sergeant (E-6)

U.S. Marine Corps

Accused

NMCCA NO. 202000073

ENTRY 

OF

JUDGMENT

As Modified on Appeal

30 August 2021

On 5 August and 22 November 2019 the Accused was tried at Marine Corps Base 

Camp Lejeune, North Carolina, by a general court-martial, consisting of military 

judge sitting alone. Military Judge Kevin S. Woodard, presided. 

FINDINGS

The following are the Accused’s pleas and the Court’s findings to all offenses the 

convening authority referred to trial: 

Charge: Violation of Article 134, Uniform Code of Military Justice, 

10 U.S.C. § 934.

Plea: Guilty.

Finding: Guilty.

Specification 1: Production of Child Pornography between on or about 

26 September 2018 and on or about 19 October 2018.

Plea: Guilty.

Finding: Guilty.

Specification 2: Distribution of Child Pornography between on or 

about 26 September 2018 and on or about 19 October 

2018.

Plea: Guilty.

Finding: Guilty.
United States v. Davis, NMCCA No. 202000073

Modified Entry of Judgment

2

Specification 3: Receipt of Child Pornography between on or about 26 

September 2018 and on or about 19 October 2018.

Plea: Guilty.

Finding: Guilty.

Additional 

Charge I: Violation of Article 120c, Uniform Code of Military Justice, 

10 U.S.C. § 920c.

Plea: Guilty.

Finding: Guilty.

Specification: Indecent Visual Recording on or about 10 and 11 

March 2016.

Plea: Guilty.

Finding: Guilty.

Additional 

Charge II: Violation of Article 134, Uniform Code of Military Justice, 

10 U.S.C. § 934.

Plea: Guilty.

Finding: Guilty.

Specification 1: Possession of Child Pornography between on or about 

2 July 2014 and on or about 17 December 2015.

Plea: Guilty.

Finding: Guilty.

Specification 2: Distribution of Child Pornography between on or 

about 15 October 2018 and on or about 24 October 

2018.

Plea: Guilty.

Finding: Guilty.

SENTENCE

On 22 November 2019, the military judge sentenced the Accused to the following: 

Reduction to pay grade E-1.

Confinement for 10 years.

A dishonorable discharge.
United States v. Davis, NMCCA No. 202000073

Modified Entry of Judgment

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All confinement in excess of 48 months was suspended by the convening authority pursuant to the pretrial agreement.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court