This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Julian D. SCHMIDT, Sergeant

United States Marine Corps, Appellant

No. 21-0004

Crim. App. No. 201900043

Argued October 5, 2021—Decided February 11, 2022

Military Judge: Matthew J. Kent

For Appellant: Tami L. Mitchell, Esq. (argued); Lieutenant 

Megan E. Horst, JAGC, USN (on brief); David P. Sheldon, 

Esq.

For Appellee: Lieutenant John L. Flynn IV, JAGC, USN

(argued); Lieutenant Colonel Christopher G. Blosser, USMC,

Major Kerry E. Friedewald, USMC, and Brian K. Keller,

Esq. (on brief); Lieutenant Colonel Nicholas L. Gannon, 

USMC, and Lieutenant Gregory A. Rustico, JAGC, USN.

Judge SPARKS announced the judgment of the Court. 

Chief Judge OHLSON filed a separate opinion concurring 

in the judgment, in which Senior Judge ERDMANN 

joined. Judge MAGGS filed a separate opinion concurring 

in the judgment, in which Judge HARDY joined.

_______________

Judge SPARKS announced the judgment of the Court.

I. Background

In relevant part, Appellant was charged with committing 

a lewd act on Jared,1 a child under sixteen years old, by 

engaging in indecent conduct by intentionally masturbating 

in his presence, in violation of Article 120b(c), Uniform Code 

of Military Justice (UCMJ), 10 U.S.C. § 920b(c) (2012 & Supp. 

IV 2013–2017). At trial, Jared testified that, on the night in 

question, he fell asleep on an air mattress and, later, Jared 

awoke feeling sick. When he awoke, Jared felt Appellant’s 

 

1 The United States Navy-Marine Corps Court of Criminal 

Appeals opinion referred to the victim as Jared. We adopt the same 

pseudonym throughout this opinion.
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

2

arm on his back. Jared became frightened and pretended to 

be asleep while sliding away from Appellant onto the floor. 

Appellant proceeded to hold Jared’s right hand and began 

licking and kissing Jared’s fingers. Appellant then made 

sounds and movements indicative of masturbation. After a 

few minutes, Appellant made a grunting sound and left the 

room. Appellant proceeded to take a shower and then, before 

leaving the house, while Jared was still pretending to be 

asleep, came over to the foot of the air mattress and prayed

aloud for Jared’s protection.

During an interrogation by the Naval Criminal 

Investigative Service (NCIS), Appellant admitted 

masturbating under a blanket to help him fall asleep. 

Appellant nodded when the NCIS agent said to him, “I mean, 

you were laying there, you're like, this kid's sleeping, I'm just 

going to masturbate to try to go to sleep, you know, take my 

sleeping pills, whatever, man, everybody does their own 

thing.”

After the close of evidence on findings, the military judge 

held an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012),

session to discuss his proposed findings instructions. The 

military judge asked, “Do counsel for either side have any 

objections to the findings instructions in their current form?” 

Appellant’s trial defense counsel responded, “No, sir.” The 

military judge then asked, “Any requests for instructions that 

do not appear in the findings instructions?” Appellant’s trial 

defense counsel responded, “No, Your Honor.” 

In delivering his instructions to the members, the military 

judge provided the elements of the offense of sexual abuse of 

a child as follows:

That on or about 29 August 2016, at or near 

Carlsbad, California, the accused committed a lewd 

act upon [Jared] by engaging in indecent conduct, to 

wit: Masturbating, intentionally done in the 

presence of [Jared];

That at the time, [Jared] had not attained the age of 

16 years; and,

That the conduct amount [sic] to a form of 

immorality relating to a sexual impurity which is 

grossly vulgar, obscene, and repugnant to common 
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

3

propriety, intends [sic] to excite sexual desires, or 

deprave morals with respect to sexual relations.

The military judge did not instruct on the defense of mistake 

of fact as to whether Jared was asleep. 

During closing arguments, trial defense counsel argued, 

in part, that a key issue was whether Appellant masturbated 

“while he knew there was a kid there that was observing or 

aware, and he did it with some criminal intent.” Later, trial 

defense counsel argued:

Masturbating isn’t a crime. Masturbating in a room 

where you think everybody is asleep and no one is 

watching you and no one is aware, doesn’t meet the 

elements of what they’re saying. That is not a crime. 

Any more than two parents having sexual relations 

and the kid on the other side of the apartment 

waking up and walking in. It is not the same thing. 

Someone in a bunk underneath a blanket while 

everyone is asleep pitching, touching themselves, 

and someone just happens to be two bunks down and 

overhears it, that doesn't mean that you are a child 

molester.

Finally, trial defense counsel argued, “The kid was in the 

room. That is not enough. It must be a lewd act. . . . If you are 

underneath a blanket, masturbating, you cover yourself up, 

and you think everyone is sleeping, it’s dark, it’s not a lewd 

act upon him.” 

During the panel’s deliberations, the members submitted 

a question to the military judge asking with respect to the 

offense of sexual abuse of a child, “[W]hat does ‘upon’ mean 

and what does ‘in the presence of’ mean?’ ” During an Article 

39(a), UCMJ, session the military judge informed the parties 

he intended to answer the question by providing the statutory 

definition of “lewd act” and then advising that “absent specific 

legal technical definition, the members are to apply their own 

common sense understanding [of] the definition of words.” 

When asked whether he had any objection to that instruction, 

Appellant’s trial defense counsel stated, “I do not, sir. There 

is no definition . . . in the benchbook.” 

The military judge then instructed the members as 

follows:
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

4

“Lewd act” is defined as any indecent conduct 

intentionally done with or in the presence of a child 

including, via any communication technology, that 

amounts to a form of immorality relating to sexual 

impurity which is grossly vulgar, obscene, and 

repugnant to common propriety, and tends to excite 

sexual desire or to deprave morals with respect to 

sexual relations. 

. . . .

So when the offense alleges that the accused 

committed a lewd act upon [Jared], that is, 

essentially—that is statutory language as 

articulated in the specification is what he has to had 

done upon him. So beyond that, you, the members, 

are in the absence of a more specific legal definition. 

Members are to apply their common sense and 

understanding of the term of words and that applies 

to the terms in the presence of as well.

Contrary to his plea, a panel of members with enlisted 

representation sitting as a general court-martial convicted 

Appellant of sexual abuse of a child, in violation of Article 

120b(c), UCMJ, 10 U.S.C. § 920b(c). The panel sentenced 

Appellant to a bad-conduct discharge, confinement for fifteen

months, and a reduction to E-1. The convening authority 

approved the sentence as adjudged.

At the lower court, Appellant contended that the phrase 

“in the presence of” a victim required the victim’s awareness. 

United States v. Schmidt, 80 M.J. 586, 595 (N-M. Ct. Crim. 

App. 2020). The lower court agreed, finding that the offense 

of sexual abuse of a child by indecent conduct required that 

the child be aware of the conduct in order for the conduct to 

be done “in the presence of” the child. Id. at 598. Further, the 

lower court found that for “indecent conduct to be 

‘intentionally done . . . in the presence of a child,’ the accused 

must intend that the child be aware of the conduct.” Id. 

(alteration in original) (footnote omitted). As such, where 

raised by the evidence, an honest mistake of fact as to the 

child’s awareness of the conduct is a defense which must be 

disproven beyond a reasonable doubt. Id. The lower court 

concluded that the evidence supported that Appellant did not 

honestly believe Jared was asleep when he masturbated. Id. 

at 598–99.
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

5

Next, the lower court found that Appellant waived any 

objection to the military judge’s instructions when trial 

defense counsel “expressly and unequivocally acquiesce[d] to 

the military judge’s instructions,” including both the way he 

handled the definitions of “upon” and “in the presence of” for 

the elements of the offense and the lack of an instruction on 

honest mistake of fact as a defense. Id. at 601 (internal 

quotation marks omitted) (citation omitted).

Finally, Appellant argued that he received ineffective 

assistance when his counsel failed to object to the military 

judge’s instruction on the definition of “in the presence of.” Id. 

at 603 (internal quotation marks omitted). The lower court 

sua sponte considered trial counsel’s additional failure to 

request the related mistake of fact instruction. Id. The lower 

court assumed, without deciding, that Appellant’s counsel 

was deficient by failing to pursue these instructions, but 

concluded there was no prejudice because the evidence 

strongly supported a guilty finding, as Jared clearly was 

aware of the conduct and the defense of honest mistake of fact 

rested on thin evidence. Id. at 603–04.

We then granted review of three issues:

I. Whether the phrase “in the presence of” used 

to define the term ‘lewd act’ in Article 

120b(h)(5)(D) requires the child to be aware of 

the lewd act or merely that the accused be 

aware of the child's presence.

II. Whether Appellant affirmatively waived any 

objection to the military judge’s instructions and 

the failure to instruct on the affirmative defense 

of mistake of fact.

III. Whether, having assumed deficient 

performance by counsel, the lower court erred 

in finding no prejudice.

II. Waiver

Sexual abuse of a child under Article 120b(c), UCMJ, is 

defined as “commit[ting] a lewd act upon a child.” The 

definition of “lewd act” includes:

any indecent conduct, intentionally done with or in 

the presence of a child, including via any 

communication technology, that amounts to a form 
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

6

of immorality relating to sexual impurity which is 

grossly vulgar, obscene, and repugnant to common 

propriety, and tends to excite sexual desire or 

deprave morals with respect to sexual relations.

Article 120b(h)(5)(D), 10 U.S.C. § 920b(h)(5)(D).

The threshold question is whether Appellant affirmatively 

waived the opportunity to now object to the military judge’s 

instruction to the members on what “in the presence of” 

means. Whether an appellant has waived an issue is a legal 

question we review de novo. United States v. Davis, 79 M.J. 

329, 331 (C.A.A.F. 2020) (citing United States v. Haynes, 79 

M.J. 17, 19 (C.A.A.F. 2019)). “[W]aiver is the intentional 

relinquishment or abandonment of a known right.” Id. 

(internal quotation marks omitted) (quoting United States v. 

Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). “[W]hile we review 

forfeited issues for plain error, ‘we cannot review waived 

issues at all because a valid waiver leaves no error for us to 

correct on appeal.’ ” Id. (quoting United States v. Campos, 67 

M.J. 330, 332 (C.A.A.F. 2009)).

In Davis, we acknowledged our prior precedent holding 

that, pursuant to Rule for Courts-Martial 920(f), objections to 

instructions not raised at trial were forfeited, and were 

subject to plain error review on appeal. 79 M.J. at 332. 

However, we clarified that where trial defense counsel not 

only failed to raise an objection to findings instructions, but 

twice told the military judge that the defense had no 

objections, the appellant had “affirmatively waived any 

objection” to the instructions. Id. (citations omitted).

In the instant case, the first opportunity for Appellant to 

object or offer instructions or definitions arose when the 

parties and the military judge met to discuss the military 

judge’s final instructions on the merits. At this point, it was 

reasonable to assume that the issue regarding the victim’s 

awareness, or Appellant’s mistake as to that fact, had yet to 

arise. However, during deliberations the members sent a 

question to the military judge wanting to know what “in the 

presence of” meant. This was the opportunity trial defense 

counsel had to either object to what the military judge was 

going to tell the members, or to offer his own view of what the 

phrase meant, particularly since he had just argued during 

closing argument that his client might not have known that 
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

7

the victim was feigning sleep during Appellant’s actions in 

the room. Because there was no definition set forth in the 

Benchbook, the military judge indicated to trial defense 

counsel that he was going to ask the members to rely on their 

common sense to define the phrase for themselves. Trial 

defense counsel assented to the military judge’s proposal.

Thus, the instruction given to the members did not indicate 

whether the phrase at issue had an awareness requirement 

on the part of the victim.

In light of Davis, this affirmative declination to object to 

the military judge’s definition regarding “in the presence of,”

would appear to waive Appellant’s right to challenge that 

definition on appeal. However, in Davis, we noted that we 

review a matter for plain error “ ‘when there is a new rule of 

law, when the law was previously unsettled, and when the 

[trial court] reached a decision contrary to a subsequent 

rule.’ ” 79 M.J. at 331 (first alteration in original removed) 

(second alteration in original) (quoting United States v. 

Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017)). At the time of 

Appellant’s trial, it was unsettled whether the phrase “in the 

presence of” used to define the term “lewd act” in Article 

120b(h)(5)(D), UCMJ, required the child to be aware of the 

lewd act. The statute did not define “in the presence of” and

there was no case law interpreting this phrase in Article 

120b(h)(5)(D), UCMJ. Thus, there was no binding precedent 

demonstrating that “in the presence of” required victim 

awareness. Accordingly, trial defense counsel’s failure to 

object was not waiver given the unsettled nature of the law at 

the time of Appellant’s court-martial.

III. Plain Error Review

When “an appellant has forfeited a right by failing to raise 

it at trial, we review for plain error.” Oliver, 76 M.J. at 274–

75 (internal quotation marks omitted) (quoting Gladue, 67 

M.J. at 313). When claiming that a military judge committed 

plain error, an appellant has the burden of establishing “(1) 

error that is (2) clear or obvious and (3) results in material 

prejudice to his substantial rights.” Id. at 275 (internal 

quotation marks omitted) (citation omitted). “Failure to 

establish any one of the prongs is fatal to a plain error claim.”

Id. (alteration in original removed) (internal quotation marks 

omitted) (citation omitted).
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

8

The first step in plain error analysis is to determine 

whether an error occurred at all. Here, did the military judge 

err by not defining “in the presence of” to mean that the victim 

had to be aware of the indecent conduct? It is a general rule 

of statutory construction that if a statute is clear and 

unambiguous—that is, susceptible to only one 

interpretation—we use its plain meaning and apply it as 

written. United States v. Kohlbek, 78 M.J. 326, 331 (C.A.A.F. 

2019). We may also resort to case law to resolve any 

ambiguity, although fundamentally “case law must comport 

with [the statute], not vice versa.” United States v. Warner, 

62 M.J. 114, 120 n.30 (C.A.A.F. 2005). “We assume that 

Congress is aware of existing law when it passes legislation.” 

United States v. McDonald, 78 M.J. 376, 380 (C.A.A.F. 2019) 

(internal quotation marks omitted) (quoting Miles v. Apex 

Marine Corp., 498 U.S. 19, 32 (1990)).

The definition of “in the presence of” required under 

Article 120b(c), UCMJ, is an issue of first impression for this 

Court. As noted by the lower court, the use of “ ‘in the presence 

of’ was adopted and developed in the context of the offense of 

indecent liberties with a child under Article 134, UCMJ—the 

predecessor to the sexual abuse of a child by indecent conduct 

under Article 120b(c)[, UCMJ].” Schmidt, 80 M.J. at 596. In 

United States v. Brown, 3 C.M.A. 454, 457, 13 C.M.R. 10, 13 

(1953), we determined that the “purpose of this type of 

legislation [indecent liberties with a child] is to protect 

children under a certain age from those acts which have a 

tendency to corrupt their morals.” In United States v. 

Knowles, 15 C.M.A 404, 405-06, 35 C.M.R. 376, 377–78 

(1965), in the context of obscene language conveyed over the 

telephone, we found that for an allegation of indecent liberty 

to stand, the phrase “in the presence of” a minor “requires 

greater conjunction of the several senses of the victim with 

those of the accused than that of hearing a voice over a 

telephone wire.” In United States v. Miller, 67 M.J. 87, 90 

(C.A.A.F. 2008), we held that conduct done in the child’s 

constructive presence via internet-based, audiovisual 

communication was also not “in the presence of” the child. In 

Miller, we noted that “[t]he definition and common 

understanding of ‘presence’ is: ‘[t]he state or fact of being in a 

particular place and time’ and ‘[c]lose physical proximity 
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

9

coupled with awareness.’ ” Id. (second and third alterations in 

original) (quoting Black’s Law Dictionary 1221 (8th ed. 

2004)).

The current version of this offense is now codified as a 

sexual abuse of a child by indecent conduct. The definitional 

language under which Appellant was convicted is much the 

same as that used in the former indecent liberties offense, 

with one key difference: in the current statute, Congress filled 

the gap created by Knowles and Miller by more broadly 

defining “in the presence of” a child as “including via any 

communication technology.” Article 120b(h)(5)(D), UCMJ. 

Thus, sexual abuse of a child by indecent conduct now does 

not require physical presence and may be accomplished by 

purely constructive presence, such as through the sort of 

internet-based, video-communication technology at issue in 

Miller, or over a telephone line as in Knowles.

Therefore, as to the offense of sexual abuse of a child, I 

conclude that for the conduct at issue to be done “in the 

presence of” a child, the child must be aware of it. This 

interpretation comports with our long-standing view that the 

“purpose of this type of legislation is to protect children under 

a certain age from those acts which have a tendency to corrupt 

their morals.” Brown, 3 C.M.A. at 457, 13 C.M.R. at 13. The 

focus of the revised statute thus remains on prohibiting 

indecent and immoral conduct that causes the sort of 

corrupting harm to children—shame, embarrassment, 

humiliation, juvenile delinquency—which can occur by the 

conduct merely being done in their presence (including via 

communication technology). In order for conduct to cause that 

type of harm to a child, there must be a sufficient “conjunction 

of [at least one] sense[] of the victim with those of the 

accused,” that makes the child aware of the conduct. Knowles, 

15 C.M.A. at 406, 35 C.M.R. at 378. Accordingly, I find the 

military judge erred by not defining “in the presence of” a 

child to include awareness.

Although I conclude there was error in this case, I would 

hold that the error was not plain or obvious. An “error cannot 

be plain or obvious if the law is unsettled on the issue at the 

time of trial and remains so on appeal.” United States v. Nieto, 

66 M.J. 146, 151 (C.A.A.F. 2008) (Stucky, J., concurring) 

(citing United States v. Garcia-Rodriguez, 415 F.3d 452, 455–
United States v. Schmidt, No. 21-0004/MC

Judgment of the Court

10

56 (5th Cir. 2005); United States v. Diaz, 285 F.3d 92, 96 (1st 

Cir. 2002)). As noted above, this Court has never held one way 

or the other whether the phrase “in the presence of” used to 

define the term “lewd act” in Article 120b(h)(5)(D), UCMJ,

requires the child to be aware of the lewd act. Since the law 

was and remains unsettled, I cannot say that the error was 

plain or obvious. Appellant is therefore unable to meet the 

plain error standard.2 For this reason, I concur in affirming 

the decision of the United States Navy-Marine Corps Court of 

Criminal Appeals.

IV. Conclusion

The decision of the United States Navy-Marine Corps 

Court of Criminal Appeals is affirmed.

 

2 Appellant’s failure to show plain error is fatal to his ineffective 

assistance of counsel claims. To establish ineffective assistance of 

counsel, an “appellant must demonstrate both (1) that his counsel’s 

performance was deficient, and (2) that this deficiency resulted in 

prejudice.” United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F. 

2010) (citations omitted). Appellant cannot demonstrate that his 

counsel’s failure to object to the military judge’s instruction on “in 

the presence of” was deficient when there is no plain or obvious 

error.
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, with whom Senior Judge 

ERDMANN joins, concurring in the judgment.

I agree with Judge Sparks that this is not a waiver case. 

However, I part ways with him in terms of the proper interpretation of Article 120b(h)(5)(D), Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. § 920b(h)(5)(D) (2018). In relevant 

part, this provision prohibits servicemembers from intentionally engaging in indecent conduct—such as masturbating—

“in the presence of a child.” (Emphasis added.) In my view, the 

plain language of the statute only requires an accused who is 

intentionally engaging in a lewd act to be aware of the child’s 

presence; it does not require the child victim to be aware of the 

accused’s lewd act. Therefore, I believe the military judge 

properly instructed the court-martial panel and I would affirm Appellant’s conviction.

I. Applicable Statute

Article 120b(c), UCMJ, makes it a crime to “commit[] a 

lewd act upon a child.” That statute defines a “lewd act” as, 

among other acts:

[A]ny indecent conduct, intentionally done with 

or in the presence of a child, including via any communication technology, that amounts to a form of 

immorality relating to sexual impurity which is 

grossly vulgar, obscene, and repugnant to common 

propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations.

Article 120b(h)(5)(D), UCMJ (emphasis added).

II. Analysis

Appellant does not contest the notion that masturbating 

can constitute “indecent conduct.” Therefore, the initial 

question we must answer is whether the phrase 

“intentionally done . . . in the presence of a child” requires the 

child victim to be aware of the lewd act, or only requires the 

accused to be aware of the child’s presence. Article 

120b(h)(5)(D), UCMJ. “The construction of a statute is a 

question of law we review de novo.” United States v. Kelly, 77 

M.J. 404, 406 (C.A.A.F. 2018).

The United States Navy-Marine Corps Court of Criminal 

Appeals (NMCCA) concluded that in order for an accused to 
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, concurring in the judgment

2

be convicted under Article 120b(c): first, the child victim had 

to be aware of the accused’s conduct; and, second, the accused 

had to intend for the child to be aware of the accused’s conduct. United States v. Schmidt, 80 M.J. 586, 598 (N-M. Ct. 

Crim. App. 2020). Appellant similarly argues that “[t]he history of case law defining ‘in the presence of a child’ establishes 

that ‘victim awareness’ of the indecent conduct through a sensory connection has always been required.” Brief for Appellant at 9, United States v. Schmidt, No. 21-0004 (C.A.A.F. 

June 23, 2021).

Both the holding of the NMCCA and the argument by Appellant pivot on one of the definitions of “presence” that appears in Black’s Law Dictionary.

1 This definition is also cited 

in multiple previous decisions of the service Courts of Criminal Appeals (CCAs), as well as in this Court’s decision in 

United States v. Miller, 67 M.J. 87, 90 (C.A.A.F. 2008).2 In 

turn, both the NMCCA and Appellant in the instant case rely 

heavily upon these prior cases. Schmidt, 80 M.J. at 596–97. 

Thus, it is instructive to examine in depth the definition of 

the word “presence.”

The entry for “presence” in Black’s Law Dictionary reads 

as follows:

1. The quality, state, or condition of being in a 

particular time and place, particularly with reference to some act that was done then and there <his 

presence at the scene saved two lives>. 2. Close 

 

1 The NMCCA’s reliance on cases such as United States v. 

Brown, 3 C.M.A. 454, 13 C.M.R. 10 (1953), which involved the offense of “indecent acts,” is misplaced. The statute at issue in the 

Brown case required an accused to commit a wrongful act “with” 

another person. Id. at 456, 13 C.M.R. at 12. “With” another person 

and “in the presence of” another person are clearly distinguishable 

modes of liability in this statute.

2 See, e.g., United States v. Burkhart, 72 M.J. 590, 594–95 (A.F. 

Ct. Crim. App. 2013); United States v. Gould, No. ARMY 20120727, 

2014 CCA LEXIS 694, at *2, 2014 WL 7242761, at *1 (A. Ct. Crim. 

App. Sept. 16, 2014) (unpublished), rev’d in part on other 

grounds, 75 M.J. 22 (C.A.A.F. 2015); United States v. Anderson, No. 

NMCCA 201200499, 2013 CCA LEXIS 517, at *15–16, 2013 WL 

3242397, at *5 (N-M. Ct. Crim. App. June 27, 2013) (unpublished).
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, concurring in the judgment

3

physical proximity coupled with awareness <the 

agent was in the presence of the principal>.

Black’s Law Dictionary 1432 (11th ed. 2019). Appellant 

points to the second portion of this entry that refers to proximity “coupled with awareness.” Id. (emphasis added). Specifically, he argues that: (1) as applied to the facts in the instant 

case, this particular definition from Black’s Law Dictionary

required the child victim to be aware that Appellant was masturbating next to him in order for Appellant to be guilty of the 

offense of sexual abuse of a child; (2) because Appellant honestly believed that the child victim was asleep when Appellant was masturbating, “the military judge was obligated to 

instruct the panel members that an honest mistaken belief 

[that the victim] was sleeping constituted a defense that absolved [Appellant] of criminal liability,” Brief for Appellant at 

19, United States v. Schmidt, No. 21-0004 (C.A.A.F. June 23, 

2021); and (3) because the military judge failed to give such 

an instruction, “this Court should set aside and dismiss [Appellant’s] conviction.” Id. at 28.

Appellant is mistaken on a number of fronts. Although 

Black’s Law Dictionary may be the preeminent source for definitions of legal terms and phrases, when a word has an easily 

graspable definition outside of a legal context, authoritative 

lay dictionaries may also be consulted.3 See Brackett v. Focus 

 

3 Notably, even other legal dictionaries do not define the word 

“presence” in such a manner as to require awareness. See Ballentine’s Law Dictionary 981 (3d ed. 1969) (defining “presence,” in relevant part, as “[t]he fact of being at a place at a particular time”); 3 

Bouvier’s Law Dictionary and Concise Encyclopedia 2673 (8th ed. 

1914) (defining “presence” as “[t]he being in a particular place”). 

The explanation accompanying the definition in Bouvier’s Law Dictionary and Concise Encyclopedia acknowledges the usage relied on 

by the NMCCA and Appellant, but notes that it is a legal term of 

art. See id. (“In many contracts and judicial proceedings it is necessary that the parties should be present in order to render them valid 

. . . .”). Ballentine’s Law Dictionary cites case law to similar effect: 

“Anything done within the four walls of a room . . . is usually done 

in the presence of all who are in the room whether it is seen or not. 

But proximity and consciousness may create presence.” Ballentine’s 

Law Dictionary 981 (3d ed. 1969) (citing Nock v. Nock’s Ex’rs, 51 

Va. (10 Gratt.) 106, 117 (1853)).
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, concurring in the judgment

4

Hope, Inc., 753 N.W.2d 207, 211 (Mich. 2008) (“A lay dictionary may be consulted to define a common word or phrase that 

lacks a unique legal meaning.”). Here, a number of authoritative lay dictionaries do not require awareness in order for one 

person to be in the presence of another person.4

Further, while both legal and lay dictionaries can be eminently helpful and instructive in the course of interpreting 

statutes, a definition contained in a dictionary—standing 

alone—is not dispositive of the legal issue of what a provision 

in a statute actually means. “Whether a statutory term is unambiguous . . . does not turn solely on dictionary definitions

of its component words.” Yates v. United States, 574 U.S. 528, 

537 (2015) (plurality opinion). Rather, whether a statute is 

plain or ambiguous “is determined by reference to the language itself, the specific context in which that language is 

used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

As noted above, the definition of “presence” contained in 

Black’s Law Dictionary has two separate entries. The primary 

definition of the word is: “The quality, state, or condition of 

being in a particular time and place, particularly with reference to some act that was done then and there . . . .” Black’s

Law Dictionary 1432 (11th ed. 2019). The secondary definition is: “Close physical proximity coupled with awareness

. . . .” Id. Appellant fails to explain why both entries should 

apply to the disposition of this case. “[W]e interpret words and 

phrases used in the UCMJ by examining the ordinary meaning of the language, the context in which the language is used, 

 

4 See Merriam-Webster’s Unabridged Online Dictionary, 

https://unabridged.merriam-webster.com/unabridged/presence

(last visited Jan. 27, 2022) (defining “presence,” in relevant part, 

as “the state of being in one place and not elsewhere[,] the condition 

of being within sight or call, at hand, or in a place being thought of[,

or] the state of being in front of or in the same place as someone or 

something”); The American Heritage Dictionary of the English Language 1393 (5th ed. 2018) (defining “presence,” as “[t]he state or fact 

of being present” and “present,” in relevant part, as “[b]eing at hand 

or in attendance”); Merriam-Webster’s Collegiate Dictionary 982 

(11th ed. 2020) (defining “presence,” in relevant part, as “the part 

of space within one’s immediate vicinity”).
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, concurring in the judgment

5

and the broader statutory context.” United States v. Pease, 75 

M.J. 180, 184 (C.A.A.F. 2016) (emphasis added).5 In making 

a choice between two competing definitions, if only one of the 

definitions gives effect to the clear statutory purpose, then 

that definition must be the one intended by Congress.6

In relying on the second definition of “presence” that appears in Black’s Law Dictionary, Appellant, the lower court 

here, and CCAs in prior cases have failed to take note of the 

material contained in the adjoining angle brackets. The prefatory material in Black’s Law Dictionary explains that information contained within angle brackets provides “[c]ontextual illustration of a headword.”

7 Black’s Law Dictionary xxix 

(11th ed. 2019) (emphasis added). Here, the material contained in the angle brackets accompanying the second definition of “presence” informs us that the awareness requirement 

arises in the context of the following example: “[T]he agent 

was in the presence of the principal.” Id. at 1432. This illustration makes clear that the type of presence connoted by the 

second definition is that which is required for certain events

 

5 For example, the verb form of the word “sanction” can mean 

to give official approval of an action or to impose a penalty for an 

unapproved action. See Merriam-Webster’s Unabridged Online Dictionary, https://unabridged.merriam-webster.com/unabridged/ 

sanction (last visited Jan. 27, 2022) (defining “sanction” as both “to 

establish, maintain, encourage, or permit usually by some authoritative approval or consent” and “to attach a sanction or penalty to 

[a] violation”). These two definitions are highly dissimilar, and 

without examining the use of the word “sanction” in context, it 

would be difficult indeed for a court to reconcile both of them in a 

statutory provision. As can be seen then, in the course of analyzing 

a statutory provision, a court must sometimes choose between competing definitions of the same word.

6 To be sure, an accused gets the benefit of ambiguity in a criminal statute. However, “[w]here Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent.” Albernaz v. United States, 450 U.S. 333, 342 (1981) (internal 

quotation marks omitted) (citation omitted).

7 Another entry in Black’s Law Dictionary underscores this 

point; the “presence-of-the-testator rule” is defined as “[t]he principle that a testator must be aware . . . that the witnesses are signing 

the will.” Black’s Law Dictionary 1432 (11th ed. 2019).
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, concurring in the judgment

6

of particular legal significance, such as the binding of a principal or the attestation of a will. See N. Owsley & Sons v. 

Woolhopter, 14 Ga. 124, 128 (1853) (“[I]f one, in the presence

of the principal, sell[s] a parcel of goods of the latter, as his 

agent, without objection, the tacit consent of the principal will 

be presumed; and it will bind him.”); In re Estate of Meyer, 

2016 WY 6, ¶ 28, 367 P.3d 629, 638 (Wyo. 2016) (“[T]he will

must be signed by the testator in the presence of both witnesses, and the signatures of both witnesses must be made in 

the presence of the testator and in the presence of each other

. . . .”). Of course, a scenario where an adult male is masturbating—knowing that a child is within arm’s reach—is in no

way similar to a principal-agent relationship. Therefore, it is 

the first definition of “presence” in Black’s Law Dictionary—

and all of the similar definitions in lay dictionaries—that

should guide us in the instant case. And in that definition, 

there is no implication that “awareness” is required for one 

person to be “in the presence of” another.

Appellant is correct that this Court’s opinion in Miller refers not only to the first definition of “presence” in Black’s Law 

Dictionary but also to the second definition. 67 M.J. at 90. 

However, in that case the Court was interpreting whether 

“constructive presence” constituted “physical presence”; it 

was not deciding any issue involving whether “presence” requires awareness. Id. Thus, the most that can be said about 

the Miller case is that the Court cited the second definition 

from Black’s Law Dictionary, not that it relied upon that second definition or that the second definition played a central 

role in the disposition of the case. In fact, the Miller Court 

held that “physical presence” merely “requires that an accused be in the same physical space as the victim.” Id. Therefore, Miller actually serves to undermine Appellant’s position.

In their analyses of similar federal statutes, other courts 

have recognized that Congress did not intend to offer safe haven to sexual predators simply because their victims have 

been caught unawares. In United States v. Finley, 726 F.3d 

483, 495 (3d Cir. 2013), the United States Court of Appeals 

for the Third Circuit interpreted a federal statute that, among 

other things, criminalizes “us[ing] . . . any minor to engage in 

. . . sexually explicit conduct.” 18 U.S.C. § 2251(a) (2018).

That court recognized that “a perpetrator can ‘use’ a minor to 
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, concurring in the judgment

7

engage in sexually explicit conduct without the minor’s conscious or active participation.” Finley, 726 F.3d at 495. The 

court therefore believed that “[i]t would be absurd to suppose 

that Congress intended the statute to protect children actively involved in sexually explicit conduct, but not protect 

children who are passively involved in sexually explicit conduct while sleeping, when they are considerably more vulnerable.” Id. Similarly, in United States v. O’Neal, the United 

States Court of Appeals for the Sixth Circuit stated: “Even if 

the minor is unaware of the masturbation (perhaps because 

the child is asleep), such conduct creates serious risks anyway 

because the child could wake up or find out about it after the 

fact.” 835 F. App’x 70, 72 (6th Cir. 2020).

Finally, interpreting the word “presence” to have its ordinary meaning for purposes of Article 120b(h)(5)(D), UCMJ, 

would not present a particular danger of prosecutorial overreach. Conduct is “indecent” for purposes of this article only 

when it “amounts to a form of immorality relating to sexual 

impurity which is grossly vulgar, obscene, and repugnant to 

common propriety.” Article 120b(h)(5)(D), UCMJ; see also

United States v. Rollins, 61 M.J. 338, 344 (C.A.A.F. 2005) 

(“The determination of whether an act is indecent requires 

examination of all the circumstances . . . .”).

For all these reasons, it is clear to me that Congress did 

not intend the meaning of the phrase “in the presence of” in 

Article 120b(h)(5)(D) to include any element of “awareness.” 

For purposes of this article, the phrase simply means that one 

person is in the immediate vicinity of another person. Because 

“the language at issue has a plain and unambiguous 

meaning” and “the statutory scheme is coherent and 

consistent,” our role of judicial interpretation is at an end. 

Robinson, 519 U.S. at 340 (internal quotation marks omitted) 

(citation omitted).

III. Conclusion

The military judge adequately and accurately summarized the law when he instructed the members to apply the

common definitions of the statute’s words and phrases—to include “in the presence of”—and when he declined to provide a 

mistake of fact instruction. Because the military judge did not 
United States v. Schmidt, No. 21-0004/MC

Chief Judge OHLSON, concurring in the judgment

8

err, we do not need to address the third granted issue pertaining to whether there was ineffective assistance by trial defense counsel. In regard to the second granted issue, as I 

noted at the outset, I agree with Judge Sparks that there was 

no waiver here.8

Accordingly, as to Issue I, I would hold that the phrase “in 

the presence of” does not require that the child be aware of 

the lewd act, only that the accused be aware of the child’s 

presence. Additionally, I would answer Issue II in the negative, and hold that Issue III is moot.

 

8 Appellant expressly argued at trial that his actions did not 

amount to a crime. In closing, Appellant’s counsel argued to the 

members that “[m]asturbating in a room where you think everybody is asleep and no one is watching you and no one is aware, 

doesn’t meet the elements of what they’re saying. That is not a 

crime.” (Emphasis added.) Appellant renewed this argument before 

the lower court. Schmidt, 80 M.J. at 595 (“Appellant asserts the 

evidence is insufficient as to the first element[:] that he committed 

a lewd act upon Jared by masturbating, intentionally done in the 

presence of Jared.”). Appellant now argues this point before this 

Court, asking us to consider: “Whether the phrase ‘in the presence

of’ used to define the term ‘lewd act’ in Article 120b(h)(5)(d) requires 

the child to be aware of the lewd act or merely that the accused be 

aware of the child’s presence.” United States v. Schmidt, 81 M.J. 

240 (C.A.A.F. 2021) (order granting review). Therefore, regardless 

of whether Appellant acquiesced to the military judge’s instruction, 

I do not believe he has waived or forfeited his core argument that 

“presence” connotes “awareness” for purposes of Article 

120b(h)(5)(D).
United States v. Schmidt, No. 21-0004/MC

Judge MAGGS, with whom Judge HARDY joins, 

concurring in the judgment.

A general court-martial found Appellant guilty of one 

specification of sexual abuse of a child in violation of Article 

120b(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 920b(c). The specification alleged, in relevant part, that 

Appellant had committed a “lewd act” upon a child “by 

engaging in indecent conduct, to wit: masturbating, 

intentionally done in the presence of” that child. (Emphasis 

added.) Appellant contends before this Court that the 

military judge incorrectly instructed the members about this 

specification and that his civilian defense counsel was 

ineffective for failing to object.

We have granted review of three assigned issues:

I. Whether the phrase “in the presence of” used to 

define the term “lewd act” in Article 120b(h)(5)(D) 

requires the child to be aware of the lewd act or 

merely that the accused be aware of the child’s 

presence.

II. Whether Appellant affirmatively waived any 

objection to the military judge’s instructions and the 

failure to instruct on the affirmative defense of 

mistake of fact.

III. Whether, having assumed deficient performance 

by counsel, the lower court erred in finding no 

prejudice.

United States v. Schmidt, 81 M.J. 240 (C.A.A.F. 2021) (order 

granting review).

My views on the first two of these assigned issues differ 

from those expressed by the authors of the other opinions in 

this case. Unlike Judge Sparks and Chief Judge Ohlson, I 

answer Assigned Issue II in the affirmative, concluding that 

Appellant waived any objection to the military judge’s 

instructions. Because I find waiver, I do not answer Assigned 

Issue I. But in accordance with the other Judges, I answer 

Assigned Issue III in the negative. I therefore concur in the 

judgment of the Court and would affirm the judgment of the 

United States Navy-Marine Corps Court of Criminal Appeals 

(NMCCA), which affirmed the findings and sentence in this 

case. United States v. Schmidt, 80 M.J. 586, 603–04 (N-M. Ct. 

Crim. App. 2020).
United States v. Schmidt, No. 21-0004/MC

Judge MAGGS, concurring in the judgment

2

I. Waiver

Under Article 120b(c), UCMJ, an accused may commit the 

offense of sexual abuse of a child by performing “a lewd act

upon a child.” (Emphasis added.) As defined in Article 

120b(h)(5)(D), UCMJ, the term “lewd act” means:

any indecent conduct, intentionally done with or in 

the presence of a child . . . that amounts to a form of 

immorality relating to sexual impurity which is 

grossly vulgar, obscene, and repugnant to common 

propriety, and tends to excite sexual desire or 

deprave morals with respect to sexual relations.

(Emphasis added.) Although this definition requires the 

Government to prove that the accused committed indecent 

conduct “in the presence of” a child, the UCMJ provides no 

definition of “in the presence of.” Appellant contends that the 

phrase “in the presence of” implicitly requires the 

Government to prove that the child was aware that Appellant 

was masturbating and that the military judge erred by not so 

instructing the members. The Government responds, in part, 

by arguing that Appellant waived any objection to the 

findings instructions.

To support its waiver argument, the Government argues 

that this case is indistinguishable from United States v. 

Davis, 79 M.J. 329 (C.A.A.F. 2020). In Davis, the appellant 

was charged with violating Article 120c(a)(2), UCMJ, 10 

U.S.C. § 920c(a)(2) (2012). Davis, 79 M.J. at 330. This article 

makes it an offense to record “knowingly . . . the private area 

of another person, without that other person’s consent and 

under circumstances in which that other person has a 

reasonable expectation of privacy.” Article 120c(a)(2), UCMJ.

At trial, the military judge presented proposed findings 

instructions to counsel before giving the instructions to the 

members. Davis, 79 M.J. at 331. The military judge twice 

asked whether counsel desired any changes. Id. Trial defense 

counsel responded by saying “ ‘No changes, sir’ ” and “ ‘No, 

Your Honor.’ ” Id.

On appeal, the appellant in Davis argued Article 

120c(a)(2), UCMJ, requires the prosecution to prove beyond a 

reasonable doubt that he subjectively knew the alleged victim 

was not consenting and that the military judge had erred by 

not so instructing the panel. Davis, 79 M.J. at 331. This Court 
United States v. Schmidt, No. 21-0004/MC

Judge MAGGS, concurring in the judgment

3

did not decide the merits of the appellant’s argument because 

it concluded that the appellant had waived the issue. Id. at 

332–33. The Court ruled: “By ‘expressly and unequivocally 

acquiescing’ to the military judge’s instructions, Appellant 

waived all objections to the instructions, including in regards 

to the elements of the offense.” Id. at 332 (quoting United 

States v. Smith, 2 C.M.A. 440, 442, 9 C.M.R. 70, 72 (1953)).

In the present case, Appellant was charged with sexual 

abuse of a child in violation of Article 120b(c), UCMJ. As in 

Davis, the military judge presented proposed findings 

instructions to counsel before reading the instructions to the 

members. The military judge asked counsel whether they had 

any objections to the proposed findings instructions. Civilian 

defense counsel responded, “No, sir.” The military judge also 

asked counsel whether they wished to request additional 

instructions. Civilian defense counsel responded, “No, Your 

Honor.” The military judge then gave the findings 

instructions to the members. During deliberations, the 

members asked the military judge to define the words “upon” 

and “in the presence of.” The military judge proposed to 

counsel that he would reread the definition of “lewd act” and 

instruct the members to apply their commonsense 

understanding of the words. The military judge then asked 

counsel if they had any objections. Civilian defense counsel 

said: “I do not, sir.” On appeal, however, Appellant now 

contends that the military judge should have instructed the 

members that the term “in the presence of” required the 

Government to prove that the child was aware of the fact that 

Appellant was masturbating.

As these descriptions show, the present case is 

indistinguishable from Davis. In both cases, when provided 

the opportunity to object to proposed findings instructions 

and to suggest additional instructions, defense counsel 

expressly told the military judge that the defense had no 

objection and the defense did not request additional 

instructions. On appeal, both appellants then faulted the 

military judge for not defining an element of an offense in a 

particular way. Because the Court found waiver in Davis, I 

would reach the same conclusion in this case. “By ‘expressly 

and unequivocally acquiescing’ to the military judge’s 

instructions, Appellant waived all objections to the 
United States v. Schmidt, No. 21-0004/MC

Judge MAGGS, concurring in the judgment

4

instructions, including in regards to the elements of the 

offense.” Davis, 79 M.J. at 332 (quoting Smith, 2 C.M.A. at

442, 9 C.M.R. at 72). 

Two counterarguments to this conclusion deserve 

attention. The first is that this Court in Davis incorrectly 

construed the trial defense counsel’s statement of “no 

objection” as a waiver rather than a forfeiture and that the 

Court should not repeat the error in this case. Appellant 

contends: “In this context, ‘no objection’ means a failure to 

object, because an attorney cannot stand mute when called 

upon to answer the military judge’s question.” So construed, 

Appellant contends, a mere failure to object would only be a 

forfeiture, which would allow for plain error review.

I disagree for three reasons. First, as the Court explained 

in Davis, “Appellant did not just fail to object and thereby 

merely forfeited his claim. He affirmatively declined to object 

to the military judge’s instructions and offered no additional 

instructions.” Davis, 79 M.J. at 332. In contrast, if the 

military judge had not asked whether counsel wanted 

additional instructions, and counsel simply had remained 

silent, then that would have been a forfeiture. See, e.g.,

United States v. Easterly, 79 M.J. 325, 327 (C.A.A.F. 2020) 

(construing defense counsel’s failure to ask for a sentencing 

instruction on the impact of a punitive discharge as a 

forfeiture rather than a waiver where “[n]either party 

requested an instruction” and the “military judge did not ask 

the parties if they wanted such an instruction”).

Second, although Appellant is correct in asserting that 

trial defense counsel generally cannot “stand mute” when a 

military judge asks a question, nothing in the Rules for 

Courts-Martial (R.C.M.) prevents the military judge from 

requiring the parties to take a position on a legal issue arising 

in the court-martial. On the contrary, the R.C.M. contemplate 

that the military judge will require answers from counsel. For 

example, R.C.M. 920(f) provides: “The military judge may 

require the party objecting [to instructions] to specify of what 

respect the instructions given were improper.” 

Third, allowing trial defense counsel to tell the military 

judge one thing (i.e., “I have no objection to the instructions”) 

and then allowing appellate defense counsel to assert 
United States v. Schmidt, No. 21-0004/MC

Judge MAGGS, concurring in the judgment

5

something else on appeal (i.e., “the instructions were 

incorrect”) would go against the general prohibition against 

taking inconsistent litigation positions. See 18B Charles Alan 

Wright et al., Federal Practice and Procedure § 4477 (2d ed. 

1992 & Supp. 2021) (“Absent any good explanation, a party 

should not be allowed to gain an advantage by litigating on 

one theory, and then seek an inconsistent advantage by 

pursuing an incompatible theory.”). Here, Appellant has not 

offered a convincing justification for allowing his inconsistent 

positions.

The other counterargument is that Appellant could not 

intentionally relinquish the right that he now claims—

namely, the right to have the members instructed that the 

Government must prove that the child was aware of the lewd 

act—because precedent has not yet established whether this 

right exists. Although Appellant does not specifically make 

this argument in his briefs, Judge Sparks explains and 

accepts the argument. United States v. Schmidt, __ M.J. __–

__ (6)–(7) (C.A.A.F. 2022) (Sparks, J., opinion announcing the 

judgment of the Court).

A lack of applicable precedent, however, does not negate 

the waiver in this case because a similar lack of applicable 

precedent did not negate the waiver in Davis. The issue in 

Davis—namely, whether Article 120c(a)(2), UCMJ, requires 

the prosecution to prove beyond a reasonable doubt that the 

accused subjectively knew the alleged victim was not 

consenting—was also unresolved at the time of the trial and 

the appeal. Davis, 79 M.J. at 331. This Court, however, did 

not see the lack of precedent as a ground for treating the 

objection as a forfeiture subject to plain error review rather 

than as a waiver. Instead, the Court specifically explained: 

“We generally only review the matter for plain error when a 

new rule of law exists, as ‘[a]n appellant gets the benefit of 

changes to the law between the time of trial and the time of 

his appeal.’ ” Id. at 332 (alteration in original) (quoting United 

States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019)). The 

Court in Davis ruled that the appellant could not take 

advantage of that principle because he “was tried after the 

applicable precedents were decided.” Id. (footnote omitted).

The same analysis applies in this case. All the authorities 

that Appellant cites in support of his argument predate his 
United States v. Schmidt, No. 21-0004/MC

Judge MAGGS, concurring in the judgment

6

trial. Indeed, Appellant’s principal argument is that military 

courts “historically” have defined the term “in the presence 

of” to require a victim’s awareness. Appellant is thus not 

asking for the benefit of a new rule announced during the 

pendency of his appeal, and is therefore not entitled to plain 

error review.

For these reasons, I would answer Assigned Issue II in the 

affirmative, concluding that Appellant waived his argument 

that victim awareness was required. Because of this waiver, 

I express no opinion on the merits of Appellant’s argument 

about the meaning of the phrase “in the presence of” in Article 

120b(h)(5), UCMJ. See United States v. Campos, 67 M.J. 330, 

332 (C.A.A.F. 2009) (“ ‘[W]e cannot review waived issues at 

all because a valid waiver leaves no error for us to correct on 

appeal.’ ” (quoting United States v. Pappas, 409 F.3d 828, 830 

(7th Cir. 2005))). I therefore do not answer Assigned Issue I.

II. Ineffective Assistance of Counsel

Assigned Issue III raises the question whether civilian 

defense counsel provided ineffective assistance in violation of 

the Sixth Amendment. Under the familiar test in Strickland 

v. Washington, 466 U.S. 668 (1984), to prevail on an 

ineffective assistance of counsel claim, an appellant must 

prove both that trial defense counsel’s performance was 

deficient and that the deficiency caused prejudice. United 

States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing 

Strickland, 466 U.S. at 698). Our role in reviewing such a 

claim is constrained. “Judicial scrutiny of counsel’s 

performance must be highly deferential.” Strickland, 466 U.S. 

at 689. We “must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional 

assistance.” Id.

In this case, the NMCCA held that even assuming that 

counsel’s performance was deficient, Appellant could not 

establish prejudice. Schmidt, 80 M.J. at 603–04. I agree with 

the NMCCA’s analysis and conclusion. I therefore would 

answer Assigned Issue III in the negative. 

I would add only that it is by no means certain that 

civilian defense counsel’s performance was deficient. The text 

of Article 120b(h)(5)(D), UCMJ, does not clearly require such 

awareness. To be sure, in some cases, when one person does 
United States v. Schmidt, No. 21-0004/MC

Judge MAGGS, concurring in the judgment

7

something “in the presence of” another person, the latter 

person is aware of the former person’s action. See, e.g., United 

States v. Miller, 67 M.J. 87, 90 (C.A.A.F. 2008) (defining 

“presence” as “close physical proximity coupled with 

awareness” (internal quotation marks omitted) (quoting 

Black’s Law Dictionary 1221 (8th ed. 2004))). But this is not 

always so. For example, Article 99, UCMJ, provides that 

“[a]ny member of the armed forces who before or in the 

presence of the enemy” does certain improper acts commits the 

offense of misbehavior before the enemy. 10 U.S.C. § 899(1)–

(9). These improper acts include running away, casting away 

arms or ammunition, quitting a place of duty to plunder or 

pillage, and so forth. Id. In cases charging the accused with 

violating Article 99, UCMJ, this Court has not required the 

government to prove that the enemy was aware that the 

accused committed these acts. See, e.g., United States v. 

Sperland, 1 C.MA. 661, 663, 5 C.M.R. 89, 91 (1952) 

(construing “in the presence of the enemy” to mean 

“situated . . . within effective range of the enemy weapons”).

Because no court had held that Article 120b(h)(5)(D), UCMJ,

requires victim awareness at the time of Appellant’s courtmartial—a question that remains unresolved today—there is 

a very substantial argument that counsel was not deficient 

for failing to raise the issue.

III. Conclusion

For these reasons, I concur in the judgment to affirm the 

NMCCA.