This opinion is subject to administrative correction before final disposition. Before MONAHAN, STEPHENS, and DEERWESTER Appellate Military Judges _________________________ UNITED STATES Appellee v. Barnabas E. PEARSON Lance Corporal (E-3), U.S. Marine Corps Appellant No. 201900314 Decided: 29 March 2021 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judges: John L. Ferriter (arraignment, motions) Jeffrey V. Muñoz (motions, trial) Sentence adjudged 25 July 2019 by a general court-martial convened at Marine Corps Air Station Yuma, Arizona, consisting of officer and enlisted members. Sentence in the Entry of Judgment: confinement for eight months and a dishonorable discharge. For Appellant: Captain Mary Claire Finnen, USMC For Appellee: Lieutenant Commander Jeffrey S. Marden, JAGC, USN Chief Judge MONAHAN delivered the opinion of the Court, in which Senior Judge STEPHENS and Judge DEERWESTER joined. United States v. Pearson, NMCCA No. 201900314 Opinion of the Court _________________________ PUBLISHED OPINION OF THE COURT _________________________ MONAHAN, Chief Judge: Appellant was convicted, contrary to his pleas, of one specification of sexual abuse of a child on divers occasions and one specification of receipt, viewing, and possession of child pornography on divers occasions, in violation of Articles 120b and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 920b and 934. Appellant asserts four assignments of error [AOEs]: 1 (1) this Court lacks jurisdiction to act on the findings and sentence because the convening authority took “no action” on the sentence; 2 (2) the military judge erred in failing to suppress Appellant’s statements to a civilian law enforcement officer and his subsequent statements to the Naval Criminal Investigative Service [NCIS]; (3) the evidence is legally and factually insufficient to sustain a conviction for receiving, viewing, and possessing child pornography; and (4) Appellant’s sentence was inappropriately severe. We find merit in the third AOE because only one of the five images charged images constitutes child pornography. Therefore, we set aside certain language in the child pornogra- phy specification and reassess the sentence. I. BACKGROUND A. Appellant Begins an Online Relationship with a Minor That Becomes Romantic and Sexualized In June 2017, Miss Johnson, 3 a 15-year-old Jamaican immigrant living in New York City, New York, sent a Facebook friend request to Appellant. Miss Johnson was interested in joining the Marine Corps, and a mutual 1 We have renumbered Appellant’s AOEs. 2 Although not formally raised as an AOE, in his reply brief, Appellant requests the Court remand the record of trial to the convening authority because the convening authority took “no action” despite Appellant’s request for clemency. 3 All names in this opinion, other than those of Appellant, the judges, and coun- sel, are pseudonyms. 2 United States v. Pearson, NMCCA No. 201900314 Opinion of the Court friend suggested that she get to know Appellant. At the time, Appellant was 25 years old and training to become an airplane mechanic. Appellant and Miss Johnson began communicating through online messaging, audio calls, and video chats, and initially he spoke to her primarily as a mentor because of her aspirations …
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