UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

F.D. MITCHELL, J. R. MCFARLANE, M.C. HOLIFIELD

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JEFFREY F. MORRIS

SONAR TECHNICIAN (SUBMARINE) SEAMAN (E-3), U.S. NAVY

NMCCA 201300348

SPECIAL COURT-MARTIAL

Sentence Adjudged: 21 May 2013.

Military Judge: CDR Robert P. Monahan Jr., JAGC, USN.

Convening Authority: Commanding Officer, Naval Submarine 

Support Center New London, Groton, CT.

For Appellant: Capt Jason R. Wareham, USMC.

For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT Ian D. 

MacLean, JAGC, USN.

28 August 2014

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OPINION OF THE COURT 

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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.

PER CURIAM: 

 A military judge, sitting as a special court-martial, 

convicted the appellant, consistent with his pleas, of two 

specifications of possessing media containing child pornography, 

in violation of Article 134, Uniform Code of Military Justice 10 

U.S.C. § 934.1 The military judge sentenced the appellant to 

 

1 The appellant also pled guilty to a charge of communicating a threat under 

Article 134, UCMJ; however, the Government withdrew and dismissed that charge 

prior to findings. Record at 241.
2

confinement for 11 months, reduction to pay grade E-1, and a 

bad-conduct discharge. The convening authority (CA) deferred 

automatic forfeitures until the CA’s action and then waived them 

for a period of six months. He otherwise approved the sentence 

as adjudged, and, except for the bad-conduct discharge, ordered 

it executed. 

 The appellant raises six assignments of error: 1) his guilty 

plea was improvident as to Charge I, Specification 2, because 

one of the images constituted child erotica, not child 

pornography; 2) the search and seizure of his laptop was 

unlawful; 3) his conviction is legally and factually 

insufficient where the evidence against him constituted 

thumbnail files and were acquired due to automatic caching of 

his internet browser; 4) his conviction is legally and factually 

insufficient due to some images not being verified by the 

National Center for Missing and Exploited Children (NCMEC); 5) 

his sentence is inappropriately severe; and, 6) the judge 

violated his duty to remain impartial.2 

After careful examination of the record of trial and the 

pleadings of the parties, we are satisfied that the findings and 

the sentence are correct in law and fact and that no error 

materially prejudicial to the substantial rights of the 

appellant occurred. Arts. 59(a) and 66(c), UCMJ.

Background

 The appellant was charged with and pleaded guilty to, inter 

alia, possessing a computer hard drive containing child 

pornography. Specifically, Charge I, Specification 2 alleged a 

violation of Article 134, UCMJ:

Specification 2: In that [appellant], on active duty, 

did, at or near Naval Submarine Base New London, 

Groton, Connecticut, between on or about 12 January 

2012 and on or about 30 May 2012, knowingly and 

wrongfully possess a computer hard drive containing 

child pornography, to wit: approximately 19 digital 

images of a minor, or what appears to be a minor, 

engaging in sexually explicit conduct, and that said 

conduct was of a nature to bring discredit upon the 

armed forces.

 

2 Assignments of error two through six are summary assignments of error raised 

pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 
3

The Government produced twenty-two (22) images to support 

Specification 2’s charge of “approximately 19 digital images.” 

The military judge sua sponte excluded two of the twenty-two 

images, leaving twenty (20) images of child pornography to which 

the appellant was found guilty of possessing.3 

The appellant acknowledged that the items of media he 

possessed contained child pornography. The appellant also 

agreed that all of the images to which he pled guilty depicted 

real children under the age of eighteen, even though some of the 

children were not able to be verified as such through the NCMEC. 

Record at 83, 92.

The appellant admitted that his possession of media 

containing child pornography was intentional and wrongful, that 

he was capable of avoiding those actions, that he was not forced 

to engage in such conduct, and that he had no legal 

justification or excuse. Id. at 224-25. 

Further facts relevant to the assignments of error are 

developed below. 

 

Improvident Plea

In his initial assignment of error, the appellant contends 

that his plea was improvident to Charge I, Specification 2 

because the image listed in Prosecution Exhibit 11 as Number 19 

with Unique ID number 106470 constituted child erotica under 

United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013), not child 

pornography. 

Child Pornography Defined

Once the military judge elects to use the statutory 

definition of child pornography under 18 U.S.C. § 2256(8), the 

Child Pornography Prevention Act (CPPA), the evidence must meet 

that definition. See United States v. Barberi, 71 M.J. 127, 

129-30 (C.A.A.F. 2012). As part of the providence inquiry, the 

military judge informed the appellant that “child pornography”: 

means material that contains a visual depiction of an 

actual minor engaging in sexually explicit conduct. 

Child pornography also means material that contains an 

obscene visual depiction of a minor engaging in 

 

3 The military judge excluded one image as duplicative and another image 

because he found that it did not constitute child pornography under the 

statutory definition. Record at 108, 119.
4

sexually explicit conduct. Such a depiction need not 

involve an actual minor but instead only what appears 

to be a minor.

Record at 72-73. The military judge used the CPPA’s definition 

of “sexually explicit conduct”: 

actual or simulated (i) sexual intercourse, including 

genital-genital, oral-genital, anal-genital, or oralanal, whether between persons of the same or opposite 

sex; (ii) bestiality; (iii) masturbation; (iv) 

sadistic or masochistic abuse; or (v) lascivious 

exhibition of the genitals or pubic area of any person 

. . . .

18 U.S.C § 2256(2)(A) (emphasis added); see Record at 73-74. 

In explaining what constitutes a “lascivious exhibition,” 

the military judge listed the six Dost factors relied on in 

United States v. Roderick, 62 M.J. 425, 429-30 (C.A.A.F. 2006).4 

In addition, as instructed by the military judge in this case, 

in order to constitute a “lascivious exhibition” as defined by 

the CPPA, the image must depict the genitals or pubic area of 

the child. Record at 85.

A “lascivious exhibition” includes “a depiction which 

displays or brings forth to view in order to attract notice to 

the genitals or pubic area of children, in order to excite 

lustfulness or sexual stimulation in the viewer.” United States 

v. Knox, 32 F.3d 733, 745 (3d Cir. 1994) (emphasis added); see 

also United States v. Clark, 468 Fed. Appx. 102, 103-04 (3d Cir. 

2011); United States v. Grimes, 244 F.3d 375, 381 (5th Cir. 

2001). However, there is no “requirement that the contours of 

the genitals or pubic area be discernible or otherwise visible 

through the child subject's clothing.” Knox, 32 F.3d at 746.

“[L]asciviousness is not a characteristic of the child 

photographed but of the exhibition which the photographer sets 

up for an audience that consists of himself or like-minded 

 

4 The Dost factors are: (1) whether the focal point of the depiction is on the 

genitals or pubic area; (2) whether the setting is sexually suggestive; (3) 

whether the child is depicted in an unnatural pose, or in inappropriate 

attire, considering the child’s age; (4) whether the child is fully or 

partially clothed or nude; (5) whether the depiction suggests sexual coyness 

or a willingness to engage in sexual activity; and (6) whether the depiction 

is intended to elicit a sexual response in the viewer. United States v. 

Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d, 812 F.2d 1231 (9th Cir. 

1987).
5

pedophiles.” United States v. Larkin, 629 F.3d 177, 184 (3d 

Cir. 2010) (citation and internal quotation marks omitted). 

“[T]he focus must be on the intended effect, rather than the 

actual effect, on the viewer.” Id. (citation omitted).

Standard of Review

We review a military judge's decision to accept a guilty 

plea for an abuse of discretion. United States v. Eberle, 44 

M.J. 374, 375 (C.A.A.F. 1996). A decision to accept a guilty 

plea will be set aside if there is a substantial basis in law or 

fact for questioning the plea. United States v. Inabinette, 66 

M.J. 320, 321-22 (C.A.A.F. 2008). We will not reverse a 

military judge’s decision to accept a guilty plea unless we find 

“a substantial conflict between the plea and the accused's 

statements or other evidence of record.” United States v. 

Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996). “A ‘mere possibility’ 

of such a conflict is not a sufficient basis to overturn the 

trial results.” Id. (quoting United States v. Prater, 32 M.J. 

433, 436 (C.M.A. 1991)).

Discussion

The appellant argues that the issue presented in the case 

at bar is similar to that presented in Warner. In Warner, the 

Court of Appeals for the Armed Forces (CAAF) found that the 

appellant, convicted contrary to his pleas, did not have notice 

that possession of images depicting minors “as sexual objects or 

in a sexually suggestive way” without depicting any nudity or 

other sexually explicit conduct was child pornography. Warner, 

73 M.J. at 3. The CAAF went on to say that “. . . although 

child pornography is a highly regulated area of criminal law, no 

prohibition against possession of images of minors that are 

sexually suggestive but do not depict nudity or otherwise reach 

the federal definition of child pornography . . . .” Id. The

appellant contends that because the victim was partially clothed 

in the image listed in Prosecution Exhibit 11 as Number 19 with 

Unique ID number 106470, it constituted child erotica, not child 

pornography and his plea to this charge was therefore 

improvident. We disagree.

In the case sub judice, the military judge conducted a 

thorough providence inquiry into why the appellant believed that 

the image with the Unique ID number 106470 contained a 

“lascivious exhibition” of the minor’s pubic area. The 

appellant stated he was confident that the female in the image 

was under the age of 18 because of her “breast size, lack of 
6

pubic hair, skinny arms and legs and narrow hips.” Record at 

196. He found this picture in his search for child pornography. 

Id. at 195. The appellant conceded that the child’s genitals 

were a “focal point” of the photo because “she is pulling down 

her underwear” and “[h]er legs are spread open wide,” which 

“draws the eye to the pubic area.” Id. at 195, 197-98. The 

caption to the image highlights the fact that the child’s pubic 

area is a focal point: “Daddy...where is your condom?” Id. at 

194. The setting of the image is sexually suggestive in that 

the child is posed on a black background dressed in short 

fingerless sheer gloves, a string bikini, and a feathered boa 

over her shoulders while lying on her back staring at the camera 

with her legs spread apart beyond ninety degrees. Id. 194-95, 

197. The child is in an unnatural pose and in inappropriate 

attire, considering her young age. Id.at 197-98. She is 

topless and pulling back her string bikini, which partially 

exposes her pubic area and draws attention to her genital 

region. Id. at 196, 198. Her feet are drawn together near her 

genital region, further directing the viewer’s attention to that 

area. The depiction clearly suggests willingness to engage in 

sexual activity. Id. at 198-99. Finally, the image itself is 

designed to elicit a sexual response in the viewer, even without 

the caption. Id. at 199. 

We are convinced beyond a reasonable doubt that the image 

with Unique ID number 106470 meets the definition of sexually 

explicit conduct. After thoroughly reviewing the record to 

include the appellant’s responses to the military judge’s 

questions during the Care inquiry, and the stipulation of fact, 

we do not find a substantial basis in law or fact to question 

the plea. Inabinette, 66 M.J. at 321-22. We therefore decline 

to set aside the appellant’s conviction on that specification.

Search and Seizure

In his first summary assignment of error, the appellant 

asserts the search and seizure of his laptop was unlawful. 

The appellant pleaded guilty pursuant to a pretrial 

agreement in which he waived all nonwaivable motions, 

specifically including a motion to suppress any evidence seized 

by the Naval Criminal Investigative Service. Appellate Exhibit 

I, ¶ 16(h). The military judge conducted a substantial inquiry 

into this waiver on the record, where the appellant agreed that 

he was waiving a motion to suppress the search of his laptop and 

that he understood he would not be entitled to appellate relief 

on that motion. Record at 275-76. 
7

Under these circumstances, he waived any claim relating to 

the improper search and seizure of his laptop. See United 

States v. Lee, 73 M.J. 166, 167 (C.A.A.F. 2014) (citing United 

States v. Bradley, 68 M.J. 279, 281 (C.A.A.F. 2010) ("An 

unconditional plea of guilty waives all nonjurisdictional 

defects at earlier stages of the proceedings.”). We therefore 

decline to grant relief.

Legal and Factual Sufficiency

In his third and fourth assignments of error, the appellant 

asserts that his conviction is both legally and factually 

insufficient where some of the evidence against him constituted 

thumbnail files and was acquired due to automatic caching of his 

internet browser and where some of the images were not verified 

by the NCMEC. We find these arguments inapplicable in light of 

the appellant’s guilty pleas. 

When an appellant pleads guilty, the providence of the plea 

rather than the sufficiency of the evidence must be analyzed. 

United States v. Faircloth, 45 M.J. 172, 174 (C.A.A.F. 1996). 

During the providence inquiry, the military judge must determine 

whether there is a “factual basis for the plea.” RULE FOR COURTSMARTIAL 910(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). 

There is no requirement that any independent evidence be 

produced to establish a factual basis for the plea. Faircloth, 

45 M.J. at 174. Rather, the factual predicate is sufficiently 

established if “the factual circumstances as revealed by the 

accused himself objectively support that plea . . . .” Id.

(citing United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 

1980)).

The appellant’s statements during the providence inquiry 

“raised no matters inconsistent with his guilty pleas, 

demonstrated that he was convinced of his guilt, and he was able 

to describe all the facts necessary to establish guilt, 

including adequate descriptions of the pornographic images at 

issue.” See United States v. Jones, 69 M.J. 294, 300 (C.A.A.F. 

2011) (citation and internal quotation marks omitted). 

Therefore, there is no substantial basis in law or fact to 

question the appellant’s guilty pleas.
8

Sentence Severity

In his fifth assignment of error, the appellant contends 

that his sentence is inappropriately severe where the reason he 

was charged arose from his self-report to mental health 

professionals when he sought help to cease viewing child 

pornography. 

“Sentence appropriateness involves the judicial function of 

assuring that justice is done and that the accused gets the 

punishment he deserves.” United States v. Healy, 26 M.J. 394, 

395 (C.M.A. 1988). This requires “‘individualized 

consideration’ of the particular accused ‘on the basis of the 

nature and seriousness of the offense and character of the 

offender.’” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 

1982) (quoting United States v. Mamaluy, 27 C.M.R. 176, 180-81 

(C.M.A. 1959)).

After reviewing the entire record, we find that the 

sentence is appropriate for this offender and his offenses. 

United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); 

Healy, 26 M.J. at 395-96; Snelling, 14 M.J. at 268.

Judicial Impartiality

In his final assignment of error, the appellant avers that 

the military judge’s parents were seated in the gallery and 

observed the trial, and that this fact alone somehow made the 

military judge less than impartial. We find this contention to 

be wholly without merit. United States v. Matias, 25 M.J. 356, 

363 (C.M.A. 1987).

Conclusion

Accordingly, the findings and the sentence as approved by 

the CA are affirmed.

For the Court

 

 

 

R.H. TROIDL

Clerk of Court