UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, FEBBO, and WOLFE 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant ERIC D. SIMON 

United States Army, Appellant 

ARMY 20160312 

Headquarters, 1st Cavalry Division (Rear)(Provisional) 

Douglas K. Watkins, Military Judge 

Colonel Oren H. McKnelly, Staff Judge Advocate (pretrial) 

Lieutenant Colonel Scott E. Linger, Staff Judge Advocate (post-trial) 

For Appellant: Major Christopher D. Coleman, JA; Captain Joshua G. Grubaugh, JA 

(on brief). 

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Michael E. Korte, JA 

(on brief). 

16 June 2017 

--------------------------------- 

SUMMARY DISPOSITION 

--------------------------------- 

FEBBO, Judge: 

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

pursuant to his pleas, of sexual abuse of a child under 12 years old, possession of 

child pornography and distribution of child pornography, in violation of Articles 

120b and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 (2012) 

[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable 

discharge, confinement for forty-two months, and reduction to the grade of E-1. The 

convening authority approved the adjudged sentence. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises one issue that does not merit detailed discussion or relief.1 Two matters 

 

1

 Appellant seeks relief for dilatory post-trial processing of his case. The 

government took 196 days from sentence to action in a case with a 120-page record 

of trial. We find no due process violation in the post-trial processing of appellant’s 

(continued...) 
SIMON—ARMY 20160312 

2 

personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982)—that his attorney was ineffective during presentencing and the 

actual images of child pornography had to be introduced as evidence to support his 

guilty plea—warrant discussion but no relief. 

BACKGROUND 

Appellant was caught surreptitiously taking pictures of female children at an 

amusement park. A subsequent criminal investigation uncovered more than 200 

images of child pornography, child erotica, and nude pictures of children on 

appellant’s computer. The images of child pornography showed minors, as young as 

two years of age, engaging in sexual intercourse with adults or other minors. The 

images included minors masturbating, engaging in fellatio, anal sodomy, and other 

sexual acts with adults. One of the images included a minor engaging in sexual acts 

with a dog. 

Appellant obtained these images by searching the “dark web” for child 

pornography. Using an instant messaging application, appellant distributed images 

of child pornography. Appellant also committed lewd acts upon a child when he 

photographed his spouse, while in the presence of a child, nude and engaging in 

sexual conduct. 

The charged offenses included possession of more than 20 images of child 

pornography and distribution of 10 images of child pornography. Appellant and the 

convening authority entered into a pre-trial agreement wherein the appellant agreed 

to plead guilty to the offenses and enter into a stipulation of fact with the 

government. 

During appellant’s guilty plea, the government introduced the stipulation of 

fact. The parties did not introduce into evidence the actual images of child 

pornography. As part of the providence inquiry, the military judge had appellant 

describe each of the images of child pornography and explain why he believed he 

knowingly and wrongfully possessed and distributed child pornography. 

 

(...continued) 

 case. Considering the unjustified dilatory post-trial processing and the offenses of 

which appellant was convicted, we nonetheless find the sentence was appropriate. 

UCMJ art. 66(c); United States v. Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002) 

(“[Pursuant to Article 66(c), UCMJ, service courts are] required to determine what 

findings and sentence ‘should be approved,’ based on all the facts and circumstances 

reflected in the record, including the unexplained and unreasonable post-trial delay.”). 

See generally United States v. Toohey, 63 M.J. 353, 362-63 (C.A.A.F. 2006). 
SIMON—ARMY 20160312 

3 

LAW AND DISCUSSION 

1. Ineffective Assistance of Counsel During Presentencing 

We review claims that an appellant did not receive effective assistance of 

counsel de novo. United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015); United 

States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012). “In order to prevail on a claim 

of ineffective assistance of counsel, an appellant must demonstrate both (1) that his 

counsel’s performance was deficient, and (2) that this deficiency resulted in 

prejudice.” United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing 

Strickland v. Washington, 466 U.S. 668, 687 (1984)). 

When assessing Strickland’s second prong for prejudice, we require a showing 

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. That 

requires a “substantial,” not just “conceivable,” likelihood of a different result. 

Harrington v. Richter, 562 U.S. 86, 112 (2011). “An appellant must establish a factual 

foundation for a claim of ineffectiveness; second-guessing, sweeping generalizations, 

and hindsight will not suffice.” United States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 

2005) (citing United States v. Key, 57 M.J. 246, 249 (C.A.A.F. 2002)). 

As far as presentencing procedures, ineffective assistance of counsel can occur 

when counsel fails to introduce evidence that would be of value to the accused in 

extenuation and mitigation. United States v. Boone, 49 M.J. 187, 196 (C.A.A.F. 

1998). 

Appellant provided the court with a sworn affidavit detailing his criticisms of 

his defense counsel for not presenting live in-court testimony during presentencing. 

Appellant claims his counsel never fully explained the importance of presentencing 

character witnesses. Instead, the character letters submitted to the court were 

merely templates that focused on why appellant should stay in the Army instead of 

appellant’s general good character and steps that he had taken to rehabilitate 

himself. Appellant asserts if he had known about the importance of presentencing 

witnesses, he would have requested the individuals that wrote letters to testify in 

person. Appellant states he would have also called his spouse and another 

individual to testify on his behalf. However, the record does not support appellant’s 

assertion that his counsel was ineffective for not presenting live testimony during 

sentencing at trial. 

First, appellant signed an offer to plead guilty and specifically waived 

production of witnesses at government expense from outside a 50-mile radius of the 

trial location. Appellant agreed that telephonic testimony or stipulations of expected 

testimony were an admissible substitute for live witness testimony at trial. 
SIMON—ARMY 20160312 

4 

Second, appellant has not established that the personal appearance of the 

witnesses would have provided anything that was not already contained in the letters 

submitted at trial. The military judge explained to appellant that he could present 

sentencing evidence to include documentary evidence and sentencing witnesses. 

Appellant stated on the record he understood his rights to present extenuation and 

mitigation evidence at trial. 

“[W]hen claiming ineffective assistance of counsel for failure to present the 

testimony of a particular witness, an appellant must specifically allege the precise 

substance of the witness’ missing testimony.” United States v. Clemente, 51 M.J. 

547, 550-51 (Army Ct. Crim. App. 1999) (citing United States Russell, 48 M.J. 139, 

141 (C.A.A.F. 1998); United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997), 

cert. denied, 522 U.S. 1114 (1998)). To support a claim for ineffective assistance of 

counsel, facts must be included in a statement, by someone with personal 

knowledge, that is a sworn affidavit or a declaration made under penalty of perjury 

for this court to consider the statement on appeal. United States v. Cade, 75 M.J. 

923, 929 (Army Ct. Crim. App. 2016), pet. denied, 76 M.J. 133 (C.A.A.F. 2017). 

For the witnesses that already provided statements during sentencing, 

appellant has not provided sworn affidavits or declarations from the witnesses of 

what they would have testified to differently in-person. Similarly, he does not 

provide affidavits or declarations from his spouse and his purported additional 

witnesses about their expected testimony. Since his spouse was a co-actor in the 

sexual abuse of a child, the court notes that his spouse’s sentencing testimony may 

have been subjected to impeachment by the government. Appellant has failed to 

establish his counsel was ineffective for failing to call defense witnesses during 

presentencing. Clemente, 51 M.J. at 550. 

2. Record Incomplete to Conduct Appellate Review 

Appellant asserts that the actual images of child pornography had to be 

introduced as evidence to support his guilty plea. Appellant asserts that without the 

actual images, this court cannot conduct an adequate Article 66, UCMJ review. 

Appellant agreed that the facts contained in the stipulation of fact were true 

and admissible at trial. As an initial matter, it is within the sound discretion of a 

defense counsel, in consultation with their client, to decide which exhibits should be 

attached as part of the stipulation of fact, if any. Strategic and tactical decisions are 

within the sole discretion of the defense counsel. United States v. Dobrava, 64 M.J. 

503, 505 (Army Ct. Crim. App. 2006). Introduction of images of child pornography 

can be far more aggravating than a thousand words describing the images. To 

minimize aggravation evidence, a defense counsel may decide that it is more 

advantageous for their client not to present the actual images of child pornography 

to the court. 
SIMON—ARMY 20160312 

5 

Either way, additional evidence is not required to be attached to a stipulation 

of fact or introduced at trial to provide extrinsic proof of the facts already agreed 

upon by the parties in the stipulation of fact. “The government is not required to 

introduce evidence of appellant’s guilt when an accused enters a plea of guilty.” 

United States v. Updegrove, ARMY 20160166, 2017 CCA LEXIS 36, *3 (Army Ct. 

Crim. App. 23 Jan. 2017), pet. denied, 2017 CAAF LEXIS 581 (C.A.A.F. 5 Jun. 

2017). “Although child pornography images are often admitted as exhibits at trial, 

there is no statutory or regulatory requirement that such images be admitted as 

exhibits in a guilty plea case when the court is otherwise satisfied an accused has 

providently admitted they constitute child pornography.” United States v. Rominger, 

ARMY 20080423, 2009 CCA LEXIS 315, *4-5 (Army Ct. Crim. App. 8 Jun. 2009), 

pet. denied, 68 M.J. 230 (C.A.A.F. 2009). This court routinely conducts Article 66, 

UCMJ reviews of records of “naked guilty pleas” that do not have a stipulation of 

fact or other extrinsic evidence introduced to support the guilty plea. In this case, 

the parties completed a stipulation of fact. 

As the military judge explained and appellant agreed, the “contents of the 

stipulation of fact are true, and if entered into evidence, are uncontradicted facts in 

this case.” Appellant agreed that the stipulation of fact could be used to determine 

if appellant was in fact guilty of the offenses, ordinarily cannot be contradicted, and 

the content was true and correct. Appellant entered a correct and valid plea of guilty 

to the offenses. 

Appellant, using a file name for each image, explained to the military judge 

why each of the twenty-one images he possessed and ten images he distributed, was 

child pornography. Our review of the record establishes that the appellant provided 

sufficient details about the thirty-one images to establish a factual basis that the 

images were both in law and fact child pornography. 

The facts elicited in the providence inquiry were consistent with appellant’s 

stipulation of fact. The colloquy between appellant and the military judge 

adequately established appellant’s guilt to the offenses. 

CONCLUSION 

 The findings of guilty and the sentence are AFFIRMED. 

Senior Judge MULLIGAN and Judge WOLFE concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: