U.S. v. Ozbirn, 81 M.J. 38

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. an attempt is defined as an act, done with specific intent to commit an offense under the UCMJ, amounting to more than mere preparation and tending, even though failing, to effect its commission

Core Criminal Law Subjects: Crimes: Article 134 -- Child Pornography (para 68b, MCM, *** Post-2012 Amendment) Pre-2019 offenses

1. the receipt of child pornography as an offense under Article 134, UCMJ, has two elements: (1) that the accused knowingly and wrongfully received 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 discredit upon the armed forces; the term child pornography means either an obscene visual depiction of a minor engaging in sexually explicit conduct or a visual depiction of an actual minor engaging in sexually explicit conduct
2. in this case, where the specification at issue alleged that appellant attempted to receive photographs of what appeared to be minors engaging in sexually explicit conduct, the government was required to prove, beyond a reasonable doubt, that appellant had a specific intent to receive photographs that were both obscene and that included a lascivious exhibition of the genitals or pubic area; given the totality of the circumstances in which appellant asked for naked pictures from adults pretending to be minors, the evidence was legally sufficient to sustain a conviction for attempted receipt of child pornography; after viewing the evidence in the light most favorable to the prosecution, a rational fact finder could infer from the circumstances that appellant had the requisite specific intent where (1) even though appellant only asked for naked pictures, he made the request in exchanges of messages that established a context for understanding those requests, (2) appellant believed that he was speaking to minors, (3) in vulgar language, he graphically described very specific sexual conduct with them and he asked them to engage in sexual relations with him, (4) throughout, appellant’s words evinced a specific focus on genitalia, and (5) appellant offered to send explicit pictures of his genitals in exchange for the naked photos that he requested
3. naked photographs of persons who appear to be children are not automatically to be considered child pornography and a request for such photographs is not automatically to be construed as a request for child pornography; not all naked pictures of children are child pornography

Core Criminal Law Subjects: Evidence: Generally

1. the question of what a person specifically intended at a particular time is a question of what thoughts the person actually had in his or her head at the time; because actual mind reading is impossible, a person’s specific intent generally can be determined only by the person’s own admissions or by drawing inferences from the person’s statements and actions and from the context and circumstances
2. inferences about specific intent depend on the totality of the circumstances

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

1. 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
2. in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution
3. an appellate court will not revive a forfeited argument simply because an appellant gestures toward it in his reply brief