## UNITED STATES ARMY COUR T 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. Seitsing er, Staff Judge Advocate

For Appellant: Captain Heathe r L. Tregle, JA (argued); Lieutenant Co lonel Charles D. Lozano, JA; Major Aaron R. Inkenbrandt, JA; Captain Heather L. Tregle, JA (on brief); Lieutenant Colonel Charles D. Lo zano, JA; Lieutenant Co lonel 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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.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 fa ilure to obey a lawful general regulation, one specification of sexual abuse of a ch ild, one specification of possessing child po rnography, and one spec ification of wrongful solicitation of nude photos from a minor, in violat ion of Articles 92, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 920b , 934 (2012) [herei nafter UCMJ]. The military judge sentenced appellant to a ba d-conduct discharge an d to be reduced to the grade of E-1. The conve ning authority approved the sentence as adjudged.BAKER —ARMY 20140396

2 Appellant’s case is before this court for revi ew under Article 66, UCMJ. Appellate defense couns el raises two errors, one of wh ich merits discussion but not relief. Regarding appellant’s other assignment of error, we find no “substantial

basis” in law or fact to question th e appellant’s gui lty 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 pa rtial 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 si xteen. These text messages turned

sexual in nature and included the exchange of nude pict ures 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 he r standing nude in front of a mirror in her bathroom.

The government charged an d appellant pleaded guilt y to, among other crimes, Specification 2 of Charge III, in violation of Arti cle 134, UCMJ, as follows:

[Appellant], U.S. Army, did on divers occasi ons, 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 atta ined the age of 16 years, to send him nude pictures of herself, such conduct being to the prejudice of good orde r and discipline in the armed forces and of a nature to bring discre dit upon the armed forces.

During the providence inquiry, the military judge defined solicita tion as “any statement or any other act which may be unders tood 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. Addition ally, 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 so licitation also violated the community standards of communicat ion with a minor . . . .

The accused also describe d to the military judge that he as ked for the photos

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

record the discus sion by the parties during a Rule fo r Courts-Martial (R.C.M.) 802 conference regarding the maximum possibl e punishment for Specification 2 ofBAKER —ARMY 20140396

3 Charge III. The military judge stated that the gover nment charged the wrongful

solicitation as a “disorde r and neglect to the prejudice of the good order and discipline or of a na ture to bring discred it 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 co mmunicating indecent languag e to a minor under Article 134, UCMJ, and such an o ffense carries a tw o year maximum possibility of

confinement.

LAW AND ANALYSIS

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

discretion. Inabinette 66 M.J. at 322. We mu st find a “substantial basis” in either law or fact for questi oning a plea before overturning a military judge’s acceptance of a guilty plea. Id

.

However, whether a specifica tion 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 determ ine if a specification states an offense, we empl oy 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 suffici ent facts to protect ag ainst 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 ba sis in law or fact to question the military judge’s acceptance of a plea. For Specificati on 2 of Charge III, the military judge discussed the following el ements with appellant:

One, that on divers occasions, between about 9 August 2012 and 21 August 2 012, at or near Fo rt Sill, Oklahoma, you wrongfully solicited Miss [A R] to send nude photos of herself to you;

Two, that at the time , Miss [AR] had no t attained the age of sixteen years; and

Three, that under the circum stances, the co nduct by you was to the prejudic e of good order and disciple in armed

forces or of a nature to br ing discredit upon the armed

forces.BAKER —ARMY 20140396

4 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 pu t it differently, a specification will be upheld on appeal “if the necessary facts appear in a ny form or by fair construc tion can be found within the terms of the sp ecification.” 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 essen tially two elements: one, that the accused did or failed to do certain acts; and two, that under the circumstances, the condu ct was to the prejudice of good order and discip line or of a nature to bring discredi t upon the ar med forces. Manual for Courts-Martial (2012 ed.), pt. IV, ¶ 60 b [hereinafter MCM , 2012].

Although the government aw kwardly used the term “s olicitation” to describe appellant’s misconduct, the government’s th eory of the case was appellant asking

Miss AR to send him nude photos of herself was criminal conduct. 1 On appeal, the
government argues appe llant’s conduct was criminal be cause Miss AR was under the age of sixteen. We fi nd the specification alleges the essential elements of a general

disorder offense under Artic le 134, UCMJ, beca use appellant wrongfully asked a

child for nude photos of herself, and such conduct was of a na ture to bring discredit upon the armed forces.

We secondly look at wh ether appellant had adequate notice of the offense so that he may defend against it. We conclude that he did. Here, ther e is no question that wrongfully asking a mi nor for a nude phot o can be criminally sanctioned. Indeed, the government coul d arguably have charged ap pellant’s misconduct as Article 120b(c), UCMJ (2 012), Sexual Abuse of a Chil d, under a “lewd act” theory. 2

See MCM , 2012, pt. IV, ¶ 45b(h) (5)(C) and (D). As agreed by the part ies at trial, the most analogous offense is co mmunicating indecent languag e to a child under Article 134, UCMJ. See MCM (2012), pt. IV, ¶ 89(b). Th e government bear s the burden of

1 It is a questionable , if not fatal at time s, practice for the government to take legal terms of art with long-established elem ents and definitions, for example, “solicitation,” and use Articl e 134 to modify that lega l 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 ba rred 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 th e offense charged under Article 134, UCMJ, embraces

all but one element of an o ffense under another article do es 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

5 determining what offens es to charge an acc used 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 vi ctim of his misconduct. Furthermore, the specificatio n alleges the specif ic acts as to ma ke it not void for

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

As we have determined that Specifi cation 2 of Charge III states a valid offense, we now turn to wh ether there is a “substantial basis” in law or fact to question appellant’s pl ea of guilty. In reviewing the guilty plea, we examine “the totality of circumstance s of the providence in quiry, including the stipulation of fact, as well as the relationship between the a ccused’s responses to leading questions and the full range of the accused’s re sponses during th e plea inquiry.” United States v.

Nance , 67 M.J. 362, 366 (C.A.A.F. 2009). Appellan t 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 prop riety because it is vulgar and intends to incite lustful thoughts.” Appellant descri bed his conduct as “indecent” and “violat[ing] the commun ity standards of communication with a minor.” Appellant also disavow ed any defense as to mistake of fact as to her age or asking for the photos for any lawful purpose : “I asked, specificall y, for her to send nude pictures of herself to aid in masturba tion, sir.”

We conclude that the military judge properly defined the elements of Specification 2 of Charge III as a general disorder offe nse under Article 134, UCMJ, and that appellant “admitted to every elem ent 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 abus e of discretion standard ca lls 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 do es not adequately establish how appellant's conduct for either specificat ion of Charge III ca used a “direct and palpable prejudic e to good order an d discipline.” United States v. Erickson , 61 M.J. 230, 232 (C.A.A.F. 2005 ) (internal quotations omitte d). 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 IIIBAKER —ARMY 20140396

6 CONCLUSION

The court affirms only so mu ch of the finding of guil ty of Specification 1 of Charge III as finds that:

[Appellant], U.S. Army, did, at or near Fort Sill, Oklahoma, on or about 12 A ugust 2012, knowingly and wrongfully possess child po rnography, to wit: a photograph of a minor enga ging in sexually explicit conduct, such conduct being of a nature to bring discredit upon the armed forces.

The court affirms only so mu ch of the finding of guil ty of Specification 2 of Charge III as finds that:

[Appellant], U.S. Army, did on divers occasi ons, 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 th e age of sixteen years, to send him nude photos of hers elf, 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 th e sentence on the basis of the error noted and do so after conducting a thorough analysis of the totality of circ umstances presented by appellant’s case and in accordance with th e principles articulat ed 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 conf ident that based on the entire record and appell ant’s course of co nduct, the military judge would have imposed a sentence of at least that which was adjudged, and accordingly we

AFFIRM the sentence.

We find this reassess ed sentence is not only purged of any error but is also appropriate. All rights, privileges, a nd property, of which appellant has been deprived by virtue of that portion of the fi ndings set aside by our decision, are

ordered restored.

Senior Judge MULLIGAN an d Judge BURTON concur.BAKER —ARMY 20140396

7 FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: