This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Jeremiah L. KING, Airman First Class

United States Air Force, Appellant

No. 18-0288

Crim. App. No. 39055

Argued November 6, 2018—Decided January 4, 2019

Military Judge: L. Martin Powell

For Appellant: Captain Dustin J. Weisman (argued).

For Appellee: Captain Zachary T. West (argued); Colonel 

Julie L. Pitvorec, Lieutenant Colonel Joseph Kubler, and 

Mary Ellen Payne, Esq. (on brief).

Chief Judge STUCKY delivered the opinion of the 

Court, in which Judges RYAN, OHLSON, SPARKS, and 

MAGGS, joined. 

_______________

Chief Judge STUCKY delivered the opinion of the Court.

In addition to other offenses, Appellant was found guilty 

of knowingly and wrongfully viewing three specific images of 

child pornography that were found in his computer’s unallocated space and browser cache. We granted review to determine whether the evidence supporting his conviction for 

viewing child pornography was legally sufficient.1 Given the 

very low threshold required to sustain a conviction for legal 

sufficiency, we answer that question in the affirmative.

I. Procedural History

A military judge sitting alone as a general court-martial 

convicted Appellant, contrary to his pleas, of one specifica-

 1 In his brief, Appellant argues that the evidence supporting 

his conviction for attempting to view child pornography suffers the 

same infirmity. However, this Court only granted review in the 

context of Appellant’s guilty findings for actually viewing child 

pornography. As such, Appellant’s challenges to his attempted 

viewing conviction are outside the scope of the granted issue. 
United States v. King, No. 18-0288/AF

Opinion of the Court

2

tion of attempting to view child pornography, one specification of violating a lawful general regulation, and one specification of viewing child pornography, in violation of Articles 

80, 92, and 134, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. §§ 880, 892, 934 (2012). For his offenses, the military judge sentenced Appellant to a dishonorable discharge, 

confinement for nine months, and reduction to the lowest 

enlisted grade. The convening authority approved the sentence, and the United States Air Force Court of Criminal 

Appeals (CCA) affirmed. United States v. King, No. ACM 

39055, 2017 CCA LEXIS 501, at *1, 2017 WL 3297198, at *1 

(A.F. Ct. Crim. App. July 26, 2017) (unpublished).

II. Background

Photobucket, an image-hosting website, flagged eight 

images of suspected child pornography that an individual 

with a username that included “jeremiahking” and an email 

address that included “jeremiah.king” had uploaded to his 

account using an Air Force Internet Protocol (IP) address. 

Photobucket sent those images to the National Center for 

Missing and Exploited Children (NCMEC). Through the IP 

address, NCMEC traced the source to a government computer at Eielson Air Force Base, where Air Force Office of 

Special Investigations (AFOSI) agents linked the “jeremiah.king” email address to Appellant’s official Air Force email 

address.

Soon thereafter, Special Agent (SA) Benito Rodriguez interviewed Appellant. Appellant told him he would go onto 

Photobucket while at work, search for images he liked using 

terms such as “dany camy” and “preteen girls,” save those 

images to his Photobucket user profile, and then go home 

and download them. Although he initially denied any 

wrongdoing, Appellant eventually admitted he looked at images of underage girls in nude poses. When pressed, he estimated that the girls he viewed were between twelve to 

thirteen years old. He claimed that he “was a little bit 

thrilled” by the images, and eventually admitted that he had 

masturbated to photos he found of young girls.

Following the interview, AFOSI agents obtained a search 

warrant, seized several media devices from Appellant’s 

workstation and residence, and forwarded them to the De-
United States v. King, No. 18-0288/AF

Opinion of the Court

3

fense Computer Forensics Laboratory (DCFL). DCFL conducted a forensic data extraction and created a mirror-image 

hard drive of the source media which they sent back to 

AFOSI for review. The drive contained thousands of offensive photos. SA Rodriguez reviewed that digital copy, and, 

after consulting with prosecutors, helped select images for 

charging. DCFL then conducted a “deep dive” forensic analysis on those photos. 

Based on the evidence derived from this investigation, 

Appellant was charged with attempting to view child pornography, violating a lawful general regulation, possessing 

child pornography, viewing child pornography, and communicating indecent language. After a trial on the merits, 

Appellant was convicted, in relevant part, of knowingly and 

wrongfully viewing three specific images: 01136627, 

01136666, and 01173367. 

All three images were found on Appellant’s home desktop 

computer. Images 01136627 and 01136666 were found in a 

Google Chrome cache, while Image 01173367 was found in 

unallocated space. None of the images was found in logical 

space on Appellant’s computer. 

The Government brought in a computer forensic expert 

from DCFL, Bryce Blair, to explain the significance of the 

files’ locations. Mr. Blair conducted the examination in Appellant’s case and prepared a report on his findings. He testified that a computer has both physical and logical space. 

Physical space is “all the space that’s available on the hard 

drive itself” while “logical space is space that’s available to 

be written to; it’s the space that you have access to.” When 

something exists in logical space, that could either mean 

someone intentionally saved something, or that someone 

viewed something on the internet but did not intentionally 

save it. 

In contrast, a user would not have access to unallocated 

space, which is “space that’s not currently being used.” Mr. 

Blair testified that if a file were present in unallocated 

space, its presence there would indicate that that particular 

file had once existed on the computer in logical space but 

had been deleted at some point. He testified that unallocated 

space may “contain files that previously existed, deleted 
United States v. King, No. 18-0288/AF

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4

files, things like that.” For images found in unallocated 

space, he could not determine where they came from or 

when the images were created, but noted that it was possible they came from Photobucket. He specifically noted that 

Image 01173367, which was found in unallocated space, existed in logical space at one time but was later deleted. He 

further testified that two duplicates of Image 01173367 were 

also found in unallocated space, meaning that the image had 

existed in logical space more than once.

Mr. Blair also explained how an internet cache works. He 

noted that “[i]nternet cache is used by the web browsers to 

ultimately reduce the time that it would take a user to get to 

a specific webpage again.” As an automatic function that 

stores files locally to provide a faster loading time, it is completely outside a user’s control. It is possible for a user to 

run a search query that returns unintended results, and for 

such unintended images to be cached to the computer without the user’s knowledge. A cache may save pictures or 

whole webpages, and the length of time the captured data is 

retained is dependent on the web browser used. 

Google Chrome has a built-in cache, which “has the ability to cache or save portions of the webpage, images from the 

webpage, or potentially the whole webpage to your system 

within the cache.” Google Chrome’s cache could “potentially 

capture images that are not on the user screen at that specific time.” 

DCFL’s “deep dive” laboratory report noted that 

01136627 and 01136666 were found in a Google Chrome 

cache within the user account “jeremiah.” The report noted 

that “[t]he existence of these files within [certain] files suggest that at one time the files were viewed” and that they

were then “automatically cached into their respective 

Chrome default cache folders.” Mr. Blair agreed that Appellant may have seen the images, and testified that someone 

on Appellant’s computer had navigated to a website containing these images.

Mr. Blair testified that there was no way to know if Appellant actually accessed the cached images. All he could tell 

was that Appellant “accessed a website at one time that resulted in th[ese] image[s] automatically being cached to his 
United States v. King, No. 18-0288/AF

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5

system. There is no artifact[] that would show whether the 

user later accessed th[ose] file[s] ....” When asked if he saw 

“any indication” that Appellant knew the images were being 

saved to his computer or that Appellant later accessed the 

saved images, he responded in the negative. Mr. Blair further noted that there was no way of knowing from any forensic determination whether a user actually saw any of the 

charged images. He confirmed that while Appellant went to 

a website with the charged photos on it, he may not have 

seen the specific images as they could have been caching 

offscreen. Mr. Blair could, however, confirm that Appellant 

searched for several terms indicative of child pornography,

including “skimpy preteen,” “sexy little girls,” and “Loli 

porn.” 

III. Law and Discussion 

We review questions of legal sufficiency de novo. United 

States v. Kearns, 73 M.J. 177, 180 (C.A.A.F. 2014). “ ‘The 

test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.’ ” ‘United States v.

Gutierrez, 73 M.J. 172, 175 (C.A.A.F. 2014) (quoting United 

States v. Bennitt, 72 M.J. 266, 268 (C.A.A.F. 2013)). “This 

legal sufficiency assessment ‘draw[s] every reasonable inference from the evidence of record in favor of the prosecution.’ ” United States v. Robinson, 77 M.J. 294, 298 (C.A.A.F. 

2018) (alteration in original) (quoting United States v. Plant, 

74 M.J. 297, 301 (C.A.A.F. 2015)). As such, “[t]he standard 

for legal sufficiency involves a very low threshold to sustain 

a conviction.” United States v. Navrestad, 66 M.J. 262, 269 

(C.A.A.F. 2008) (Effron, C.J., joined by Stucky, J., dissenting). “The criterion thus impinges upon ‘jury’ discretion only 

to the extent necessary to guarantee the fundamental protection of due process of law.” Jackson v. Virginia, 443 U.S.

307, 319 (1979). 

In order to convict an accused for viewing child pornography under Article 134, UCMJ, the prosecution must prove: 

(1) that the accused knowingly and wrongfully viewed child 

pornography; and (2) that under the circumstances, the conduct of the accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to bring 
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6

discredit upon the armed forces. Manual for Courts-Martial, 

United States pt. IV, ¶ 68b.b.(1) (2012 ed.) (MCM). 

In determining whether any rational trier of fact could 

have determined that the evidence at trial established guilt 

beyond a reasonable doubt, we are mindful that the term 

“reasonable doubt” does not mean that the evidence must be 

free from any conflict or that the trier of fact may not draw 

reasonable inferences from the evidence presented. See 

United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (recognizing that the standard for legal sufficiency “ ‘gives full 

play to the responsibility of the trier of fact fairly to resolve 

conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate 

facts’ ” (quoting Jackson, 443 U.S. at 319)). Moreover, this 

Court has long recognized that the government is free to 

meet its burden of proof with circumstantial evidence. See 

Kearns, 73 M.J. at 182 (noting that the government may 

prove intent via circumstantial evidence); United States v. 

Young, 64 M.J. 404, 407 (C.A.A.F. 2007) (relying on “evidence in the record indicating, or giving rise to an inference 

of,” drug possession and distribution to uphold a conviction).

We recognize that the ability to rely on circumstantial 

evidence is especially important in cases, such as here, 

where the offense is normally committed in private. As the 

Government conceded at oral argument, direct evidence of 

the offense of viewing child pornography will be rare because 

the offense is usually committed in private. As a result, the 

government often will have to rely on circumstantial evidence in attempting to prove the offense. 

Here, the Government presented a circumstantially 

strong case that Appellant had sought and viewed child pornography. Appellant password-protected his electronic devices, including his computers, and a search of his home 

desktop computer revealed thousands of offensive photos.

Appellant searched for images in Google and Bing using 

terms that are indicative of child pornography, and Appellant freely admitted he viewed “thrilling” images of nude 

children. 

Furthermore, while the forensics failed to conclusively 

determine that Appellant actually saw the three charged 
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7

images, they still gave rise to an inference that Appellant 

viewed the photos. For example, not only did Mr. Blair testify that someone on Appellant’s computer visited a website 

containing the cached images, but the cached images were 

found on Appellant’s password-protected home computer 

within the user account “jeremiah.” Furthermore, the DCFL 

laboratory report explicitly noted that “[t]he existence of 

[Images 01136627 and 01136666] within the ... files suggest 

that at one time the files were viewed.” (Emphasis added.) 

Similarly, Mr. Blair testified that although Image 01173367 

was found in unallocated space on Appellant’s computer, it 

existed in logical space at one time and could have originated from Photobucket. Finally, the two duplicates of Image 

01173367, while also found in unallocated space, permit the 

inference that Appellant visited a website containing child 

pornography on multiple occasions with an awareness of its 

contents from prior visits. 

Relying on this evidence, and drawing all inferences in 

favor of the prosecution, a reasonable factfinder could have 

reached the conclusion that Appellant knowingly viewed the 

three charged files.2

In reaching this conclusion, we necessarily reject Appellant’s attempts to cast the lack of conclusive forensic evidence as a fatal flaw. As support for his position, Appellant 

points to the MCM’s explanation of “wrongfulness,” which 

counsels us to consider whether the images were unintentionally or inadvertently acquired, an analysis which takes 

into consideration “the method by which the visual depiction 

was acquired [and] the length of time the visual depiction 

was maintained.” MCM pt. IV, ¶ 68b.c.(9).

While we concede that evidence found in an area of the 

computer with more indicia of user control (e.g., a usercreated folder) would carry more weight than evidence found 

 2 This Court recognizes that the quantity and character of the 

information that is ascertainable from files located in unallocated 

space is different from the information that is ascertainable from 

cache files. These distinctions may prove important in future cases. However, we are satisfied that in this case the record is legally 

sufficient to support Appellant’s conviction related to Image 

01173367. 
United States v. King, No. 18-0288/AF

Opinion of the Court

8

in a cache or in unallocated space, we, like the United States 

Court of Appeals for the Eleventh Circuit, believe that 

“[e]vidence that a person has sought out—searched for—

child pornography on the internet and has a computer containing child pornography images—whether in the hard 

drive, cache, or unallocated space—can count as circumstantial evidence that a person has ‘knowingly receive[d]’ [or, in 

this case, viewed] child pornography.” United States v. 

Pruitt, 638 F.3d 763, 766 (11th Cir. 2011) (second alteration 

in original).3 What weight the factfinder ascribes to that evidence is for the factfinder alone to determine. See Oliver, 70 

M.J. at 68 (recognizing that the trier of fact bears the responsibility to weigh the evidence). 

We similarly decline Appellant’s invitation to apply our 

logic from Navrestad, 66 M.J. 262, a case concerning the distribution and possession of child pornography, to the offense 

of viewing child pornography. In Navrestad, this Court held 

that using a public computer to view images of child pornography in a Yahoo! Briefcase was legally insufficient to constitute possession of child pornography, as there was no indication the accused exercised the required dominion or 

control over the contraband images. Id. at 267. In reaching 

this conclusion, this Court noted that the appellant “could 

not access the computer’s hard drive where the Briefcase 

images were automatically saved” and that there was no evidence the appellant even knew the images were being saved 

in the first place. Id. at 267–68. 

The situation here is different. Possession differs in material ways from mere viewing, and here, unlike in 

Navrestad, the Government was not required to prove dominion or control. As such, the presence of the charged images in inaccessible space takes on less significance. While 

an accused’s inability to access data may prove a fatal flaw 

in a possession case, it does not similarly cripple a viewing 

 3 We note that the Government conceded at oral argument 

that the mere presence of child pornography on an accused’s computer—without additional circumstantial evidence of the kind 

present in this case—would generally present “a far harder case” 

due to the “lack of surrounding circumstances indicating an intent 

to pursue [such] material.”
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Opinion of the Court

9

charge, which only requires that, at some point, the accused 

knowingly and wrongfully viewed the image. As such, Appellant’s appeal to Navrestad and other possession cases is unavailing.

In sum, we trust that a reasonable person could have 

“resolve[d] conflicts in the testimony, ... weigh[ed] the evidence, ... [drew] reasonable inferences,” and ultimately determined that the evidence established Appellant’s guilt beyond a reasonable doubt. Oliver, 70 M.J. at 68. As such, 

under the facts of this case, we hold that the evidence was 

legally sufficient. 

IV. Judgment

The judgment of the United States Air Force Court of 

Criminal Appeals is affirmed.