Air Force Court of Criminal Appeals

The court in Estep follows earlier opinions within the service courts and CAAF on a broad approach to the use of uncharged misconduct at sentencing.

When uncharged misconduct is part of a continuous course of conduct involving similar  crimes and the same victims, it is encompassed within the language directly relating to or resulting from the offense of which the accused has been found guilty under R.C.M. 1001(b)(4). United States v. Nourse, 55 M.J. 229, 231–32 (C.A.A.F. 2001). . . . see also United States v. Wingart, 27 M.J. 128, 135 (C.M.A. 1988) (holding that R.C.M. 1001(b)(4) allows a trial counsel to “present evidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty”).

Estep had pled guilty to possessing CP and distributing it. His first Grosty was,

(1) whether the military judge abused his discretion by considering as aggravation evidence Prosecution Exhibit 8, a video depicting CP, without determining whether Appellant knowingly possessed it and without properly weighing its probative value[.]

Exhibit 8 is CP recovered from his "older phone." " He argues that this evidence was not proper aggravation evidence because he may not have knowingly possessed this video. He further argues that this evidence fails a Mil. R. Evid. 403 balancing test." However, the military judge  "found that the video offered in Prosecution Exhibit 8 was on the phone during the charged timeframe, that the possession of this video was the same offense as the one charged, and that the content was similar in nature rendering it, as he noted, “squarely admissible” under R.C.M. 1001(b)(4)." Further, the military judge did a "thorough" Mil. R. Evid. 403 balance.

There is no information in the decision reflecting testimony or even an unsworn statement that Estop denied knowingly possessing the evidence in Exhibit 8.

Should we consider that in uncharged misconduct situations, the military judge should be required to find by a preponderance of the evidence that the accused did commit the uncharged misconduct when doing the 403 analysis?