U.S. v. Navrestad, 66 M.J. 262

First Principles: Constitutional Matters: Due Process

1. an appellate court may not affirm a conviction on a theory not presented to the trier of fact; to do so offends the most basic notions of due process, because it violates an accused’s right to be heard on the specific charges of which he or she is accused

Core Criminal Law Subjects: Crimes: Art. 134 - Miscellaneous -- Clause 1, Clause 2, or Clause 3 Pre-2019 offenses

1. sending a hyperlink to a public website during an internet chat session, where that website contained child pornography images, was not legally sufficient to constitute distribution of child pornography as that term is defined in 18 USC § 2256(5) and (8) of the Child Pornography Prevention Act, because the data contained in that hyperlink was not capable of being converted into any type of visual image, but rather was simply only a path or address to the website
2. appellant’s use of a public computer to view images of child pornography on a public website was not legally sufficient to constitute possession of child pornography under Article 134, UCMJ, clause 1 or 2, where appellant lacked the dominion and control necessary to constitute possession of the child pornographic images; although he viewed the images on the website, viewing alone does not constitute control, and his actions with the images went no further; he could not access the computer’s hard drive where the images were automatically saved as temporary internet files nor could he download the images to a portable storage device; moreover, there was no evidence that he e-mailed, printed, or purchased copies of the images or that he was even aware that he could take any of these actions

Trial Stages: Appeals: Generally

1. an appellate court may not affirm a conviction on a theory not presented to the trier of fact; to do so offends the most basic notions of due process, because it violates an accused’s right to be heard on the specific charges of which he or she is accused

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court review questions of legal sufficiency de novo as questions of law; legal sufficiency is determined by asking whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt