UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Airman First Class JOSHUA W. MCKISSACK
United States Air Force
ACM 38737
2 March 2016
Sentence adjudged 4 September 2014 by GCM convened at Robins Air
Force Base, Georgia. Military Judge: Lynn Watkins (sitting alone).
Approved sentence: Bad-conduct discharge, confinement for 9 months, and
reduction to E-1.
Appellate Counsel for the Appellant: Major Grover H. Baxley and Captain
Johnathan D. Legg.
Appellate Counsel for the United States: Captain Tyler B. Musselman and
Gerald R. Bruce, Esquire.
Before
ALLRED, SANTORO, and MAYBERRY
Appellate Military Judges
OPINION OF THE COURT
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
under AFCCA Rule of Practice and Procedure 18.4.
SANTORO, Judge
A military judge sitting as a general court-martial convicted Appellant, contrary to
his plea, of intentionally exposing his genitalia to a child via electronic messaging in
violation of Article 120b, UCMJ, 10 U.S.C. § 920b. The adjudged and approved
The military judge found Appellant not guilty of attempting to commit a sexual act upon the same child and
possession of child pornography. The military judge dismissed an additional specification alleging that Appellant
attempted to entice that same child into engaging in sexual acts and conduct.
sentence was a bad-conduct discharge, confinement for 9 months, and reduction to E-1.
Pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), Appellant argues that
his sentence is inappropriately severe. We disagree and affirm.
Background
The 26-year-old Appellant was at the home of a deployed member of his
squadron, helping his fellow Airman’s wife move boxes. While he was there, he was
introduced to two girls, ages 14 and 16, who were friends of the Airman’s wife.
Appellant engaged in conversation with both girls, watched what one called “kiddie
movies” (referring to the juvenile and immature content of the movies) with them, and
engaged in (non-sexual) playful behavior.
Appellant later sent Facebook “friend” requests to each of the girls and each
accepted. He exchanged messages with the 16-year-old, but she eventually ended the
conversation when he said things that made her uncomfortable. Appellant next engaged
with the 14-year-old, had discussions of a sexual nature, and sent her a photograph of him
in uniform with his pants unbuckled, and, later, a photograph of his erect penis.
Sentence Appropriateness
Appellant alleges that a bad-conduct discharge is inappropriately severe for the
offense of which he was convicted. We review sentence appropriateness de novo.
United States v. Lane,
64 M.J. 1, 2 (2006); United States v. Baier,
60 M.J. 382, 383–84
(2005). We “may affirm only such findings of guilty and the sentence or such part or
amount of the sentence, as [we find] correct in law and fact and determine[], on the basis
of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). We
assess sentence appropriateness by considering Appellant, the nature and seriousness of
the offense, Appellant’s record of service, and all matters contained in the record of trial.
United States v. Snelling,
14 M.J. 267, 268 (C.M.A. 1982); United States v. Bare,
63 M.J.
707, 714 (A.F. Ct. Crim. App. 2006), aff’d,
65 M.J. 35 (2007).
While we have a great deal of discretion in determining whether a particular
sentence is appropriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010); United States v. Lacy,
50 M.J. 286,
288 (C.A.A.F. 1999); United States v. Healy,
26 M.J. 394, 395–96 (C.M.A. 1988). The
maximum imposable sentence was confinement for 15 years and a dishonorable
discharge. The approved sentence of confinement for 9 months and a bad-conduct
discharge was clearly within the discretion of the convening authority.
We have given individualized consideration to this Appellant, his conduct, and the
other relevant matters within the record of trial. Appellant engaged in sexually-explicit
conversations and sent images of himself in uniform and of his erect penis to a
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14-year-old. The fact that he was introduced to his victim by the wife of a fellow Airman
and squadron member, and that the victim initially trusted him because he was in the
military and she aspired to be a military officer, further illustrates the service discrediting
nature of his conduct. We, therefore, conclude that the approved sentence is not
inappropriately severe.
Conclusion
The findings are correct in law and fact and no error materially prejudicial to the
substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§
859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.
FOR THE COURT
LEAH M. CALAHAN
Clerk of the Court
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