UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

MULLIGAN, HERRING, and BURTON 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private First Class H. COHEN BAKER 

United States Army, Appellant 

ARMY 20140396 

Headquarters, U.S. Army Fires Center of Excellence and Fort Sill 

Wade N. Faulkner, Military Judge 

Colonel Mark W. Seitsinger, Staff Judge Advocate 

For Appellant: Captain Heather L. Tregle, JA (argued); Lieutenant Colonel Charles 

D. Lozano, JA; Major Aaron R. Inkenbrandt, JA; Captain Heather L. Tregle, JA (on 

brief); Lieutenant Colonel Charles D. Lozano, JA; Lieutenant Colonel Jonathan F. 

Potter, JA; Captain Heather L. Tregle, JA (on reply brief). 

For Appellee: Captain Anne C. Hsieh, JA (argued); Colonel Mark H. Sydenham, JA; 

Lieutenant Colonel A.G. Courie III, JA; Major Steven J. Collins, JA; Captain Anne 

C. Hsieh, JA (on brief). 

13 May 2016 

--------------------------------- 

MEMORANDUM OPINION 

--------------------------------- 

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HERRING, Judge: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of failure to obey a lawful general 

regulation, one specification of sexual abuse of a child, one specification of 

possessing child pornography, and one specification of wrongful solicitation of nude 

photos from a minor, in violation of Articles 92, 120b, and 134, Uniform Code of 

Military Justice, 10 U.S.C. §§ 892, 920b, 934 (2012) [hereinafter UCMJ]. The 

military judge sentenced appellant to a bad-conduct discharge and to be reduced to 

the grade of E-1. The convening authority approved the sentence as adjudged. 
BAKER —ARMY 20140396 

2 

Appellant’s case is before this court for review under Article 66, UCMJ. 

Appellate defense counsel raises two errors, one of which merits discussion but not 

relief. Regarding appellant’s other assignment of error, we find no “substantial 

basis” in law or fact to question the appellant’s guilty plea to possession of child 

pornography. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). We do 

however find a basis to grant partial relief on an issue not raised by appellant. 

BACKGROUND 

 Appellant began exchanging text messages with Miss AR in August 2012, and 

appellant knew Miss AR was under the age of sixteen. These text messages turned 

sexual in nature and included the exchange of nude pictures of appellant and Miss 

AR. Appellant sent Miss AR pictures of his “exposed and erect penis.” He also 

requested nude pictures from Miss AR. One of the pictures Miss AR sent to 

appellant was an image of her standing nude in front of a mirror in her bathroom. 

The government charged and appellant pleaded guilty to, among other crimes, 

Specification 2 of Charge III, in violation of Article 134, UCMJ, as follows: 

[Appellant], U.S. Army, did on divers occasions, at or 

near Fort Sill, Oklahoma, between about 9 August 2012 

and about 21 August 2012, wrongfully solicit Miss AR, a 

child who had not attained the age of 16 years, to send 

him nude pictures of herself, such conduct being to the 

prejudice of good order and discipline in the armed forces 

and of a nature to bring discredit upon the armed forces. 

During the providence inquiry, the military judge defined solicitation as “any 

statement or any other act which may be understood to be a serious request to do some 

act.” When asked by the military judge why he was guilty to Specification 2 of Charge 

III, appellant admitted in his own words: 

[B]ecause I had wrongfully asked Miss [AR] to send nude 

pictures of herself. Additionally, my solicitation of the 

nude pictures from Miss [AR] was indecent. The act was 

grossly offensive to modesty, decency, or propriety because 

it is vulgar and intends to illicit lustful thoughts. The 

language that was used in my solicitation also violated the 

community standards of communication with a minor . . . . 

 The accused also described to the military judge that he asked for the photos 

of Miss AR to aid his own masturbation. The military judge summarized on the 

record the discussion by the parties during a Rule for Courts-Martial (R.C.M.) 802 

conference regarding the maximum possible punishment for Specification 2 of 
BAKER —ARMY 20140396 

3 

Charge III. The military judge stated that the government charged the wrongful 

solicitation as a “disorder and neglect to the prejudice of the good order and 

discipline or of a nature to bring discredit upon the armed forces.” Averring that the 

maximum possible punishment for such an offense is not listed in the Manual for 

Courts-Martial, the military judge confirmed that the parties agreed that the most 

closely related offense is communicating indecent language to a minor under Article 

134, UCMJ, and such an offense carries a two year maximum possibility of 

confinement. 

LAW AND ANALYSIS 

A military judge’s acceptance of a guilty plea is reviewed for an abuse of 

discretion. Inabinette 66 M.J. at 322. We must find a “substantial basis” in either 

law or fact for questioning a plea before overturning a military judge’s acceptance of 

a guilty plea. Id. 

However, whether a specification states an offense is a question reviewed de 

novo. United States v. Sutton, 68 M.J. 455, 457 (C.A.A.F. 2010) (quoting United 

States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006). To determine if a specification 

states an offense, we employ a three-prong test where the specification must: (1) 

allege the essential elements of the offense either expressly or by necessary 

implication, (2) provide notice to the accused of the offense so he can defend against 

it, and (3) give sufficient facts to protect against double jeopardy. United States v. 

Dear, 40 M.J. 196, 197 (C.M.A. 1994). 

Here, we must first address whether the specification states an offense, and 

then, if so, whether there is a substantial basis in law or fact to question the military 

judge’s acceptance of a plea. For Specification 2 of Charge III, the military judge 

discussed the following elements with appellant: 

One, that on divers occasions, between about 9 August 

2012 and 21 August 2012, at or near Fort Sill, Oklahoma, 

you wrongfully solicited Miss [AR] to send nude photos of 

herself to you; 

Two, that at the time, Miss [AR] had not attained the age 

of sixteen years; and 

Three, that under the circumstances, the conduct by you 

was to the prejudice of good order and disciple in armed 

forces or of a nature to bring discredit upon the armed 

forces. 
BAKER —ARMY 20140396 

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When a specification is first challenged at the appellate level, we liberally construe 

the specification in favor of validity. United States v. Watkins, 21 M.J. 208, 209 

(C.M.A. 1986). To put it differently, a specification will be upheld on appeal “if the 

necessary facts appear in any form or by fair construction can be found within the 

terms of the specification.” United States v. Mayo, 12 M.J. 286, 288 (C.A.A.F. 1982) 

(quoting United States v. Sell, 3 U.S.C.M.A. 202, 206, 11 C.M.R 202, 206 (1955). A 

“general disorder” offense under Article 134, UCMJ, has essentially two elements: 

one, that the accused did or failed to do certain acts; and two, that under the 

circumstances, the conduct was to the prejudice of good order and discipline or of a 

nature to bring discredit upon the armed forces. Manual for Courts-Martial (2012 

ed.), pt. IV, ¶ 60b [hereinafter MCM, 2012]. 

 Although the government awkwardly used the term “solicitation” to describe 

appellant’s misconduct, the government’s theory of the case was appellant asking 

Miss AR to send him nude photos of herself was criminal conduct.1

 On appeal, the 

government argues appellant’s conduct was criminal because Miss AR was under the 

age of sixteen. We find the specification alleges the essential elements of a general 

disorder offense under Article 134, UCMJ, because appellant wrongfully asked a 

child for nude photos of herself, and such conduct was of a nature to bring discredit 

upon the armed forces. 

 We secondly look at whether appellant had adequate notice of the offense so 

that he may defend against it. We conclude that he did. Here, there is no question 

that wrongfully asking a minor for a nude photo can be criminally sanctioned. 

Indeed, the government could arguably have charged appellant’s misconduct as 

Article 120b(c), UCMJ (2012), Sexual Abuse of a Child, under a “lewd act” theory.2

See MCM, 2012, pt. IV, ¶ 45b(h)(5)(C) and (D). As agreed by the parties at trial, the 

most analogous offense is communicating indecent language to a child under Article 

134, UCMJ. See MCM (2012), pt. IV, ¶ 89(b). The government bears the burden of 

 

1

 It is a questionable, if not fatal at times, practice for the government to take legal 

terms of art with long-established elements and definitions, for example, 

“solicitation,” and use Article 134 to modify that legal definition and required 

elements to ‘convert’ it into a ‘plain meaning’ definition. See generally United 

States v. Sutton, 68 M.J. 455 (C.A.A.F. 2010). 

2

 We decline to find that Specification 2 of Charge III is barred by the preemption 

doctrine. See MCM, 2012], pt. IV, ¶ 60.c.(5)(a). Assuming arguendo that 

Specification 2 of Charge III is simply Article 120b(c) without the element of 

indecency, “simply because the offense charged under Article 134, UCMJ, embraces 

all but one element of an offense under another article does not trigger operation of 

the preemption doctrine.” United States v. Anderson, 68 M.J. 378, 386-87 (C.A.A.F. 

2010); see also United States v. Jones, 68 M.J. 465, 474 n.2 (C.A.A.F. 2010) (Baker, 

J. dissenting). 
BAKER —ARMY 20140396 

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determining what offenses to charge an accused with committing. United States v. 

Morton, 69 M.J. 12, 16 (C.A.A.F. 2009). 

 We similarly conclude that the offense is valid under the third Dear prong. 

The specification states the alleged date, location, and victim of his misconduct. 

Furthermore, the specification alleges the specific acts as to make it not void for 

vagueness. See generally Hamling v. United States, 418 U.S. 87 (1974). 

As we have determined that Specification 2 of Charge III states a valid 

offense, we now turn to whether there is a “substantial basis” in law or fact to 

question appellant’s plea of guilty. In reviewing the guilty plea, we examine “the 

totality of circumstances of the providence inquiry, including the stipulation of fact, 

as well as the relationship between the accused’s responses to leading questions and 

the full range of the accused’s responses during the plea inquiry.” United States v. 

Nance, 67 M.J. 362, 366 (C.A.A.F. 2009). Appellant entered into a so-called “naked 

plea,” where he did not have the benefit of a pretrial agreement nor is there a 

stipulation of fact on which we can rely. We are thus left with only the providence 

inquiry. 

When asked by the military judge why he believed he was guilty, appellant 

replied: “because I wrongfully asked Miss [AR] to send nude pictures of herself. . . 

The act was grossly offensive to modesty, decency or propriety because it is vulgar 

and intends to incite lustful thoughts.” Appellant described his conduct as 

“indecent” and “violat[ing] the community standards of communication with a 

minor.” Appellant also disavowed any defense as to mistake of fact as to her age or 

asking for the photos for any lawful purpose: “I asked, specifically, for her to send 

nude pictures of herself to aid in masturbation, sir.” 

We conclude that the military judge properly defined the elements of 

Specification 2 of Charge III as a general disorder offense under Article 134, UCMJ, 

and that appellant “admitted to every element of the offense to which [he pleaded] 

guilty.” United States v. Aleman, 62 M.J. 281, 283 (C.A.A.F. 2006). Having found 

no abuse of discretion by the military judge, we find he properly accepted 

appellant’s plea. “The abuse of discretion standard calls for more than a mere 

difference of opinion.” United States v. Stellato, 74 M.J. 473, 480 (C.A.A.F. 2016) 

(quoting United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014)). 

However, the providence inquiry does not adequately establish how 

appellant's conduct for either specification of Charge III caused a “direct and 

palpable prejudice to good order and discipline.” United States v. Erickson, 61 M.J. 

230, 232 (C.A.A.F. 2005) (internal quotations omitted). Consequently, we will 

dismiss the language “to the prejudice of good order and discipline in the armed 

forces and” from Specification 1 and Specification 2 of Charge III 
BAKER —ARMY 20140396 

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CONCLUSION 

The court affirms only so much of the finding of guilty of Specification 1 of 

Charge III as finds that: 

[Appellant], U.S. Army, did, at or near Fort Sill, 

Oklahoma, on or about 12 August 2012, knowingly 

and wrongfully possess child pornography, to wit: 

a photograph of a minor engaging in sexually explicit 

conduct, such conduct being of a nature to bring discredit 

upon the armed forces. 

The court affirms only so much of the finding of guilty of Specification 2 of 

Charge III as finds that: 

[Appellant], U.S. Army, did on divers occasions, at or 

near Fort Sill, Oklahoma, between about 9 August 2012 

and about 21 August 2012, wrongfully solicit Miss [AR], a 

child who had not attained the age of sixteen years, to 

send him nude photos of herself, such conduct being of a 

nature to bring discredit upon the armed forces. 

The remaining findings of guilty are AFFIRMED. 

We are able to reassess the sentence on the basis of the error noted and do so 

after conducting a thorough analysis of the totality of circumstances presented by 

appellant’s case and in accordance with the principles articulated by our superior 

court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and 

United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on 

the entire record and appellant’s course of conduct, the military judge would have 

imposed a sentence of at least that which was adjudged, and accordingly we 

AFFIRM the sentence. 

We find this reassessed sentence is not only purged of any error but is also 

appropriate. All rights, privileges, and property, of which appellant has been 

deprived by virtue of that portion of the findings set aside by our decision, are 

ordered restored. 

Senior Judge MULLIGAN and Judge BURTON concur. 
BAKER —ARMY 20140396 

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 FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: