Ike D. Simmons Private (E-1), U.S. Marine Corps Convicted Sex Offender Carnal Knowledge Sodomy Of A Child

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Name: Ike D. Simmons

Case: United States v. Simmons No. NMCCA 200400955

Date Of Appeal: July 11, 2005

Plea: Guilty

Charges: Carnal Knowledge Of A Child, Sodomy Of A Child, Possession Of Child Pornography

Military Branch: U.S. Marine Corp

Listed In National Sex Offenders Registry? Yes

A military judge, sitting alone as a general court-martial, convicted the appellant, pursuant to his pleas, of a 16-month unauthorized absence terminated by apprehension, carnal knowledge of a child under the age of 16 years on divers occasions, sodomy with a child under the age of 16 years on divers occasions, possessing obscene depictions of children engaged in sexually explicit conduct on divers occasions, and possessing child pornography in a Government building on divers occasions, in violation of Articles 86, 120, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 886, 920, 925, and 934, and 18 U.S.C. §§ 1466A(b) and 2252A(a)(5).

The appellant was sentenced to confinement for 7 years, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of 4 years in accordance with the terms of a pretrial agreement.

Although not raised by the appellant as error, we also find that the providence inquiry into Charge II failed to establish more than one violation of 18 U.S.C. § 2252A(a)(5). Much to the contrary, the record appears to establish quite convincingly that the appellant is guilty of only one continuous instance of possessing child pornography in a Government building. During the providence inquiry into Charge II, the appellant testified that he acquired six or seven images of child pornography during his 16-month unauthorized absence and stored these images on his personal computer at his home in Fayetteville, North Carolina.

The appellant also testified that his violation of 18 U.S.C. § 2252A(a)(5) occurred when he brought the computer containing the images into his barracks room at Camp Lejeune, North Carolina, following his return from unauthorized absence. The record is bereft of any evidence that the appellant acquired additional images of child pornography after moving the computer to Camp Lejeune, and the military judge conducted no inquiry into whether the appellant believed he had violated the statute on more than one occasion. We, therefore, find no factual basis in the record to support a finding of guilty to the words “on divers occasions” in the specification of Charge II.

The findings of guilty as to Additional Charge I and its specification are set aside. That charge and specification are dismissed. The words “on divers occasions” in the specification of Charge II are excepted and dismissed. With these modifications, the findings are affirmed. Our action on the findings renders moot the first and second specified issues and the appellant’s supplemental assignment of error. We do not reach the fourth specified issue.

As a result of our action on the findings, we must reassess the sentence in accordance with the principles set forth in United States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998). Having done so, we affirm only that portion of the sentence extending to confinement for 5 years and a bad-conduct discharge.