UNITED STATES, Appellee 

v. 

Christopher R. MILLER, Staff Sergeant 

U.S. Air Force, Appellant 

No. 08-0307 

Crim. App. No. 36829 

United States Court of Appeals for the Armed Forces

Argued October 22, 2008 

Decided December 3, 2008 

RYAN, J., delivered the opinion of the Court, in which EFFRON, 

C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined. 

Counsel

For Appellant: Captain Lance J. Wood (argued); Major Shannon A. 

Bennett and Captain Tiaundra Sorrell (on brief); Lieutenant 

Colonel Mark R. Strickland and Captain Vicki A. Belleau. 

For Appellee: Colonel Gerald R. Bruce (argued); Major Jeremy S. 

Weber, Major Matthew S. Ward, and Captain Jamie L. Mendelson. 

Military Judge: Gary M. Jackson 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Miller, No. 08-0307/AF 

2

Judge RYAN delivered the opinion of the Court. 

 This case presents the questions whether the United States 

Air Force Court of Criminal Appeals (CCA) was correct that the 

“nature of [an] appellant’s presence” is not germane to a charge 

of attempted indecent liberties with a child, Article 80, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2000), 

and whether the constructive presence presented by the facts of 

this case is legally sufficient to support Appellant’s 

conviction for attempted indecent liberties with a child.1

 We 

answer both questions in the negative and reverse.2

I. Facts 

 A general court-martial composed of a military judge 

sitting alone convicted Appellant, contrary to his pleas, of one 

specification of attempting to take indecent liberties with a 

child and two specifications of attempting to communicate 

 

1

 Upon Appellant’s petition, we granted review of the following 

issue: 

WHETHER APPELLANT’S CONVICTION OF ATTEMPTED INDECENT 

LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN 

APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE 

PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS 

SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS 

VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT. 

2

 We heard oral argument in this case at Fort Riley, Kansas, as 

part of the Court’s “Project Outreach.” See United States v. 

Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice 

was developed as part of a public awareness program to 

demonstrate the operation of a federal court of appeals and the 

military justice system. 
United States v. Miller, No. 08-0307/AF 

3

indecent language to a child, all in violation of Article 80, 

UCMJ. The sentence adjudged by the court-martial and approved 

by the convening authority included a dishonorable discharge, a 

reprimand, confinement for three months, and reduction to the 

lowest enlisted grade. The CCA affirmed. United States v.

Miller, 65 M.J. 845, 848 (A.F. Ct. Crim. App. 2007). 

 Appellant’s convictions resulted from his contact with an 

undercover detective from the Charlotte-Mecklenburg, North 

Carolina, police department, whom Appellant believed was a 

fourteen-year-old girl. The detective was monitoring a Yahoo! 

chat room when she was instant messaged by Appellant, who 

engaged her in a conversation. While Appellant was chatting 

online with the detective, he asked her if she wanted to see a 

picture of him on his web camera. The detective responded 

affirmatively and Appellant turned on the camera. About eight 

minutes later, Appellant asked the detective if she minded if 

Appellant showed her his penis. After the detective agreed to 

this suggestion, Appellant repositioned the camera. According 

to the detective, the conversation continued, and “[w]hile this 

discussion was going on, [Appellant] was stroking his penis and 

becoming more erect. After about ten minutes of masturbating, 

he ejaculated on his hand and then cleaned himself up with a 

small white towel.” 
United States v. Miller, No. 08-0307/AF 

4

 The record reflects that during this act, Appellant sent 

sexually explicit instant messages to the detective. He asked 

her several questions about her sexual experience, and she 

responded to those questions. After the act was completed, 

Appellant asked the detective whether she liked what she had 

seen. Later in the same conversation, Appellant proposed 

meeting in person for sex. In a subsequent online conversation, 

Appellant proposed meeting again, but then told her at the end 

of the conversation that he could not have sex with her because 

she was fourteen. 

II. Discussion 

 In his appeal to the CCA, Appellant challenged his 

conviction for attempting to take indecent liberties because he 

was not physically present with the detective while he 

masturbated. The CCA relied on its prior decision in United 

States v. Cook, 61 M.J. 757 (A.F. Ct. Crim. App. 2005), and 

concluded that the “exact nature of the appellant’s presence was 

not germane to the charge of attempted indecent liberties.” 

Miller, 65 M.J. at 847. The CCA reasoned that Appellant’s 

“‘real time’ conversations and his live-feed broadcast of 

himself masturbating were sufficient to satisfy the presence 

element of indecent liberties, at least for the purposes of an 
United States v. Miller, No. 08-0307/AF 

5

Article 80, UCMJ prosecution.” Id.3 We disagree with both the 

CCA’s reasoning and its conclusion. 

 An attempt requires an act tending to effect the commission 

of the intended offense. Manual for Courts-Martial, United 

States pt. IV, para. 4.b(4) (2005 ed.) (MCM).4 Under the 2005 

edition of the MCM, which was in effect at the time of 

Appellant’s court-martial, the elements of an indecent liberties 

charge under Article 134, UCMJ, were: 

(a) That the accused committed a certain act; 

(b) That the act amounted to the taking of 

 indecent liberties with a certain person; 

(c) That the accused committed the act in the 

 presence of this person; 

(d) That this person was under 16 years of age 

 and not the spouse of the accused; 

(e) That the accused committed the act with the 

 intent to arouse, appeal to, or gratify the 

 lust, passions, or sexual desires of the 

 accused, the victim, or both; and 

(f) That, under the circumstances, the conduct 

 of the accused was to the prejudice of good 

 order and discipline in the armed forces or 

 

3

 The CCA declined to rule on whether this type of presence would 

be sufficient for a charge of the completed offense under 

Article 134, UCMJ, 10 U.S.C. § 934 (2000). Miller, 65 M.J. at 

847 n.1. 

 

4

 The elements of Article 80, UCMJ, are: 

(1) That the accused did a certain overt act; 

(2) That the act was done with the specific intent to 

 commit a certain offense under the code; 

(3) That the act amounted to more than mere 

 preparation; and 

(4) That the act apparently tended to effect the 

 commission of the intended offense. 

MCM pt. IV, para. 4.b. 
United States v. Miller, No. 08-0307/AF 

6

 was of a nature to bring discredit upon the 

 armed forces. 

MCM pt. IV, para. 87.b(2) (emphasis added). Thus the nature of 

the presence required by the completed offense is germane. See, 

e.g., United States v. Miergrimado, 66 M.J. 34, 37 (C.A.A.F. 

2008) (assessing evidence of “heat of sudden passion” element on 

a charge of attempted voluntary manslaughter); United States v. 

Brooks, 60 M.J. 495, 497-99 (C.A.A.F. 2005) (assessing whether 

the federal law the appellant attempted to violate required 

direct communication with an actual minor). Indeed, the nature 

of the presence required for the completed offense of indecent 

liberties with a child is the threshold question. 

 The element as stated in the MCM does not define presence. 

However, the MCM explanation elaborates that “the liberties must 

be taken in the physical presence of the child, but physical 

contact is not required.” MCM pt. IV, para. 87.c(2) (emphasis 

added). Although MCM explanations of offenses are not binding 

on this Court, they are generally treated as persuasive 

authority, United States v. Miller, 47 M.J. 352, 356 (C.A.A.F. 

1997), to be evaluated in light of this Court’s precedent. 

United States v. Hemingway, 36 M.J. 349, 351-52 (C.M.A. 1993). 

 A requirement that the act be done in the “physical 

presence” of the child, as described in the MCM explanation, is 

supported by this Court’s precedent. In United States v. 
United States v. Miller, No. 08-0307/AF 

7

Knowles, 15 C.M.A. 404, 405, 35 C.M.R. 376, 377 (1965), this 

Court considered whether evidence that the appellant had used 

indecent language during a telephone conversation with the 

victim was sufficient to uphold an indecent liberties charge. 

Prior to Knowles, the Court had already established that the 

accused must be in the presence of the victim. United States v. 

Brown, 3 C.M.A. 454, 457, 13 C.M.R. 10, 13 (1953). In Knowles, 

the Court reasoned that “[t]he offense . . . 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” 

and therefore the Brown presence requirement was not met. 15 

C.M.A. at 405, 35 C.M.R. at 377. And a more recent decision of 

this Court treated physical presence as necessary to sustain a 

conviction for taking indecent liberties. In United States v. 

Rodriguez-Rivera, we said that the question was “whether a 

rational trier of fact could find beyond a reasonable doubt that 

[the appellant] was physically present with” the victim at the 

time the alleged indecent liberties occurred. 63 M.J. 372, 385 

(C.A.A.F. 2006) (emphasis added). Because there was evidence 

that the victim had watched pornographic movies at the 

appellant’s house, but not that the appellant was with her when 

she watched them, the conviction was set aside. Id. This 

Court’s precedent construing the element of presence 

consistently with the MCM explanation dictates that the offense 
United States v. Miller, No. 08-0307/AF 

8

of taking indecent liberties with a child requires the act be 

committed in the physical presence of the child. 

 The Government urges that even if the presence required is 

“physical presence,” a reasonable factfinder could conclude that 

Appellant’s Internet-based action tended to bring about that 

physical presence. It is true that the Knowles decision 

expressly left open the question whether an indecent liberties 

charge could be based on the “performance of indecent acts and 

the use of obscene language over an audio-visual system.” 15 

C.M.A. at 405, 35 C.M.R. at 377. We find it instructive that it 

was after this decision that the MCM was revised to include the 

“physical presence” language in the explanation. See United 

States v. Czeschin, 56 M.J. 346, 348-49 (C.A.A.F. 2002) (noting 

that a revision to the MCM will be considered a binding 

limitation on conduct subject to prosecution if the limiting 

purpose of the language is umambiguous on its face). And the 

Analysis of the 1969 edition of the MCM indicates that “physical 

presence” was added to the MCM explanation in response to 

Knowles. See Dep’t of the Army, Pamphlet 27-2 Analysis of 

Contents, Manual for Courts-Martial, United States, 1969,

Revised Edition ch. 28, para. 213f(3), at 28-19 (1970) (stating 

new language was “added to this paragraph to provide that . . . 

the indecent liberties must be taken in the physical presence of 

the child” and citing Knowles). Thus the MCM amendment may be 
United States v. Miller, No. 08-0307/AF 

9

said to answer the question left open by Knowles –- for the 

offense of taking indecent liberties with a child, presence 

means physical presence, rather than presence created through 

the use of “an audio-visual system.” 

 That “constructive presence” will not suffice in the 

context of a penal statute that has been construed to require 

physical presence is in accordance with the common use of those 

words. See United States v. McCollum, 58 M.J. 323, 340 

(C.A.A.F. 2003) (“In construing the language of a statute or 

rule, it is generally understood that the words should be given 

their common and approved usage.”) (quotation marks omitted). 

The 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 coupled with awareness.” 

Black’s Law Dictionary 1221 (8th ed. 2004). The modifying word 

“physical” is commonly defined and understood as “having 

material existence” and “of or relating to the body.” MerriamWebster’s Collegiate Dictionary 935 (11th ed. 2003). These 

definitions taken together compel the conclusion that “physical 

presence” requires that an accused be in the same physical space 

as the victim. 

 Without deciding whether future advances in technology or 

the understanding of physical presence might change the 

analysis, at this juncture we are unpersuaded that the actions 
United States v. Miller, No. 08-0307/AF 

10

in this case tended to bring about physical presence as it is 

commonly understood. Appellant was not in the same physical 

location as the detective while he was masturbating, and we 

cannot accept the Government’s invitation to find that 

Appellant’s “constructive presence” via the web camera was 

sufficient to satisfy a physical presence requirement without 

completely disregarding the plain meaning of “physical presence” 

as used in the MCM explanation of the offense. While several 

state courts have affirmed convictions for taking indecent 

liberties when the appellant was constructively present with the 

victim, they are not persuasive authority with respect to 

interpreting the meaning of “physical presence.” Those cases 

interpreted specific state statutes, none of which by their 

terms required “physical presence” or even “presence.” See, 

e.g., N.C. Gen. Stat. § 14-202.1 (2008) (criminalizing taking or 

attempting to take “any immoral, improper, or indecent liberties 

with any child”); Va. Code Ann. § 18.2-370 (2008) (punishing 

certain acts such as indecent exposure, when done “with any 

child under the age of 15 years”). Rather, those courts 

construed the meaning of “with” a child to include constructive 

presence in a wide variety of circumstances, including 

transmitting a live video of masturbation, Brooker v. 

Commonwealth, 587 S.E.2d 732, 736 (Va. Ct. App. 2003), hiding a 

video camera to secretly film minors undressing, State v. 
United States v. Miller, No. 08-0307/AF 

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McClees, 424 S.E.2d 687, 689-90 (N.C. Ct. App. 1993), and making 

an obscene phone call, State v. Every, 578 S.E.2d 642, 648-49 

(N.C. Ct. App. 2003), an action this Court specifically found 

could not be the basis of an indecent liberties charge in 

Knowles. 

 Although Appellant’s use of a web camera allowed the 

detective to see him while he masturbated, no reasonable 

factfinder could conclude that Appellant committed an act that 

tended to effect the element of being in the detective’s 

physical presence. United States v. Dobson, 63 M.J. 1, 21 

(C.A.A.F. 2006) (citing Jackson v. Virginia, 443 U.S. 307, 319 

(1979)). Therefore, his act did not tend to effect the 

commission of the completed offense, and no reasonable 

factfinder could find him guilty of the charged offense. 

III. Lesser included offense of attempted 

indecent acts with another 

 The Government urges for the first time before this Court 

that Appellant’s conviction may nonetheless be affirmed to an 

attempt of a lesser included offense, indecent acts with 

another. See MCM pt. IV, para. 4.d (providing that when a 

conviction for an attempt is set aside, it may be affirmed to an 

attempt of a lesser included offense). Indecent acts with 

another5

 was listed in the 2005 MCM as a lesser included offense 

 

5

 Indecent acts with another requires proof: 
United States v. Miller, No. 08-0307/AF 

12

to indecent liberties with a child, MCM pt. IV, para. 87.d(1), 

and contains neither a “physical presence” nor a “presence” 

requirement. 

 The offense does “require[] that the acts be done in 

conjunction or participating with another person.” United 

States v. Thomas, 25 M.J. 75, 76 (C.M.A. 1987) (emphasis 

omitted). There must be some “affirmative interaction” between 

the accused and the victim to satisfy the “with another person” 

element. United States v. McDaniel, 39 M.J. 173, 175 (C.M.A. 

1994). This interaction need not take place between two 

individuals who are located in the same physical space. See id.

(finding sufficient interaction when the appellant gave the 

women he was secretly filming instructions from a separate room 

to enhance the view from his hidden video camera). But the 

victim must be more than an inadvertent or passive observer. 

United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). 

 The CCA was not presented with the Government’s argument to 

affirm the lesser included offense, and thus did not consider 

whether the record was legally and factually sufficient to 

 

(1) That the accused committed a certain wrongful act 

with a certain person; 

(2) That the act was indecent; and 

(3) That, under the circumstances, the conduct of the 

accused was to the prejudice of good order and 

discipline in the armed forces or was of a nature to 

bring discredit upon the armed forces. 

MCM pt. IV, para. 90.b (emphasis added). 
United States v. Miller, No. 08-0307/AF 

13

support the offense of attempted indecent acts. And whether the 

facts of this case establish “affirmative interaction” between 

Appellant and the undercover detective is an issue that has not 

been briefed or argued by either party. Consequently, we remand 

to the CCA the question whether the lesser included offense 

urged by the Government can be affirmed under Article 66, UCMJ, 

10 U.S.C. § 866 (2000). 

IV. Decision 

 The decision of the United States Air Force Court of 

Criminal Appeals is reversed as to Specification 1 of the Charge 

and the sentence. The decision is affirmed as to Specifications 

2 and 3. The record is returned to the Judge Advocate General 

of the Air Force for remand to the Court of Criminal Appeals to 

consider the factual and legal sufficiency of the evidence for 

the lesser included offense of attempted indecent acts with 

another under Article 80, UCMJ, 10 U.S.C. § 880 (2000), and for 

reassessment of the sentence or for ordering a rehearing on the 

sentence.