United States v. Martin-Moore ( 2021 )

This opinion is subject to administrative correction before final disposition
Before
HOLIFIELD, LAWRENCE, and STEWART
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Noah F. MARTIN-MOORE
Corporal (E-4), U.S. Marine Corps
Appellant
No. 201900250
Decided: 8 February 2021
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Wilbur Lee
Sentence adjudged 20 June 2019 by a general court-martial convened
at Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting of a
military judge sitting alone. Sentence in the Entry of Judgment: reduc-
tion to E-1, confinement for five months, and a bad-conduct discharge.
For Appellant:
Lieutenant Commander Erin L. Alexander, JAGC, USN
For Appellee:
Major Kerry E. Friedewald, USMC
Lieutenant Kimberly Rios, JAGC, USN
_________________________
United States v. Martin-Moore, NMCCA No. 201900250
Opinion of the Court
This opinion does not serve as binding precedent,
but may be cited as persuasive authority under
NMCCA Rule of Practice and Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted in accordance with his pleas of two specifications
of possessing child pornography, one specification of indecent conduct, and one
specification of adultery, all in violation of Article 134, Uniform Code of Mili-
tary Justice [UCMJ]. 1 In his sole assignment of error, Appellant avers that his
possession of sexually explicit images of two separate minors “is not the sort of
conduct which warrants criminal prosecution for possessing child pornogra-
phy. Thus, this conviction unreasonable [sic] exaggerates the criminality of his
conduct.” 2 We find no error and affirm.
I. BACKGROUND
The Marine Corps Criminal Investigative Division responded to a com-
plaint made by Appellant’s wife. She alleged she discovered images on Appel-
lant’s cell phone that indicated he was having sex with someone outside their
marriage and that he possessed child pornography.
In the ensuing investigation by the Naval Criminal Investigative Service,
special agents interviewed Ms. Fontana, 3 whose sexually explicit images were
found on Appellant’s cell phone. Having met Appellant at a concert, Ms. Fon-
tana described how they embarked on a consensual sexual relationship where
they had sexual intercourse and engaged in other sex acts in public locations
such as a movie theater, mall parking lot, and a public park, and later in a
private hotel room. Ms. Fontana told the special agents that Appellant rec-
orded some of their sexual congress on his cell phone and that they had sent
each other text messages with nude and sexually explicit images and videos of
1 10 U.S.C. § 934. Additionally, Appellant was charged with two specifications un-
der Article 120, UCMJ, and four specifications under Article 134, UCMJ, which were
withdrawn and dismissed by the Government in accordance with a negotiated plea
agreement.
2 Appellant’s Brief at 3. Raised pursuant to United States v. Grostefon, 12 M.J. 431(C.M.A. 1982).
3All names in this opinion, other than those of the judges and counsel, are pseu-
donyms.
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United States v. Martin-Moore, NMCCA No. 201900250
Opinion of the Court
one another. Ms. Fontana was either sixteen or seventeen years of age when
these sexually explicit images were taken. She was not made aware that Ap-
pellant was married until well after they had begun having sexual intercourse.
Appellant’s wife identified nude photographs of another girl, Ms. Falke,
who was the sister of Appellant’s best friend from high school. Prior to Appel-
lant joining the Marine Corps and while in high school himself, Appellant was
living with this family. Appellant admitted taking a video through a hole in
the home’s bathroom door, focusing on Ms. Falke’s exposed breasts, buttocks,
and pubic area as she was changing. At the time, Ms. Falke was approximately
fifteen years old and Appellant was approximately one year older. However,
Appellant subsequently made still images from the video and transferred the
images between his devices and online cloud storage multiple times, to include
downloading them from the cloud and storing them on his personal devices in
Hawaii as an adult Marine. 4
II. DISCUSSION
In his sole, summary assignment of error, Appellant asserts this Court
should disapprove the two specifications relating to his possession of child por-
nography as they inappropriately and unreasonably exaggerate his criminal-
ity. We disagree, finding the evidence supports not only the offenses but the
clear and unambiguous intent of the statute.
As provided in admitted exhibits from both the Defense and the Govern-
ment, Appellant’s own sworn Stipulation of Fact, and his sworn testimony, Ap-
pellant knowingly and wrongfully possessed images of minors engaged in sex-
ually explicit conduct. He knew that Ms. Fontana was either sixteen or seven-
teen when he took pictures of her as they engaged in sexual acts. As this Court
recently addressed in United States v. Taman, 5 the fact that a Service Member
may lawfully, under the UCMJ, engage in consensual sexual acts with a person
sixteen years of age or older does not in any way alter the criminality of his
separate act to possess sexually explicit images made of this or any other per-
4 See Def. Ex. H at 2.
5 United States v. Taman, No. 201900175, 2020 CCA LEXIS 442 (N-M. Ct. Crim.
App. Dec. 11, 2020) (unpublished).
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United States v. Martin-Moore, NMCCA No. 201900250
Opinion of the Court
son under the age of eighteen. Such images “are not mere records of the de-
fendant’s fantasies, but child pornography that implicates actual minors and
is primed for entry into the distribution chain.” 6
Regarding the other specification in question, while Appellant emphasizes
that both he and Ms. Falke were teenagers at the time he took the video, the
Government did not charge him with production of child pornography but with
possession. Appellant pleaded guilty and negotiated for sentencing protections
from the convening authority concerning his actions not as a teenager in Flor-
ida, but as an adult and an active duty Marine. At some time prior to his trans-
fer to duties in Hawaii, Appellant saved the video and image to his own en-
crypted and password-protected cloud account he established to ensure he
maintained possession of the videos and images. Nearly a year after he came
to Hawaii, Appellant actively pulled these images from his cloud account and
loaded them onto both his computer and a separate flash drive. 7
Moreover, we note that in his brief to this Court, Appellant asserts that the
video he took of Ms. Falke that he later captured in still images was made
“with her consent.” 8 This stands in direct contradiction to his providence collo-
quy with the military judge in which he provided sworn testimony that,
ACC: I knew her age. I knew that she was nude. And it was
taken without her consent.
MJ: Did she know you were videotaping or recording her?
ACC: No, sir.
MJ: Did she ever become aware that you did?
ACC: No, sir. 9
But this Court granted Appellant’s Motion to Attach Ms. Falke’s sworn dec-
laration made months after the trial, stating that she had consented to Appel-
lant taking video of her some five years before. 10 Nonetheless, as discussed,
6 Id. at *16 (quoting United States v. Hotaling, 634 F.3d 725, 730 (2d Cir. 2011)
(internal quotation marks omitted) (citing Osborne v. Ohio, 495 U.S. 103, 110 (1990)).
7 See R. at 33-36.
8 Appellant’s Brief at 4.
9 R. at 28 (emphasis added).
10 See Appellant’s Mot. to Attach encl. 1 (Dec. 2, 2019) (Declaration of Ms. Falke,
Oct. 8, 2019). This motion was submitted and granted prior to our superior court’s
decision in United States v. Jessie, 79 M.J. 437 (C.A.A.F. 2020) and amendment to this
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United States v. Martin-Moore, NMCCA No. 201900250
Opinion of the Court
supra, even were we to fully accept Ms. Falke’s out-of-court statement that
Appellant had her consent to take a lascivious video of her as a minor several
years prior and disregard Appellant’s clear sworn testimony, Appellant’s con-
tinued steps to actively possess this child pornography as an adult Marine is
the proscribed act to which he pleaded and was found guilty. 11
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the approved findings and the sentence are correct in
law and fact and that there is no error materially prejudicial to Appellant’s
substantial rights. 12 Accordingly, the findings and the sentence in the Entry of
Judgment are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
Court’s Rules requiring the moving party to state how the proposed document is rele-
vant to the case and to explain how the motion is consistent with Jessie. See N-M. Ct.
Crim. App. Rule 23.4 (July 15, 2020).
11 We also note that Ms. Falke, as a minor at the time, was incapable of providing
consent in any fashion concerning the production, possession, or distribution of these
lascivious images of a minor.
12 UCMJ arts. 59, 66.
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