UNITED STATES NAVY–MARINE CORPS

COURT OF CRIMINAL APPEALS

_________________________

No. 201600048

_________________________

UNITED STATES OF AMERICA

Appellee

v.

JACOB A. LASTER

Lance Corporal (E-3), U.S. Marine Corps

Appellant

_________________________

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: Lieutenant Colonel Christopher M. Greer, USMC.

 Convening Authority: Commander, Marine Corps Base, 

Quantico, VA. 

Staff Judge Advocate’s Recommendation: Major Michael J. Eby, 

USMC.

For Appellant: LT Jacqueline M. Leonard, JAGC, USN.

For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC, 

USN; Lieutenant James Belforti, JAGC, USN.

_________________________

Decided 26 January 2017

_________________________

Before RUGH, GLASER-ALLEN, and HUTCHISON, Appellate Military 

Judges

_________________________

RUGH, Judge:

A panel of members with enlisted representation sitting as a general 

court-martial convicted the appellant, contrary to his pleas, of three 

specifications of sexual abuse of a child and once specification of indecent 

conduct in violation of Articles 120b and 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 920b and 934 (2012).1 The members sentenced 

 

1 The members also convicted the appellant of two specifications of wrongfully 

enticing a minor to create child pornography in violation of Article 134, UCMJ, 10 

U.S.C. § 934 (2012). However, after findings, the military judge conditionally 

dismissed these two specifications as an unreasonable multiplication of charges as 

applied to findings. Record at 752.
United States v. Laster, No. 201600048

2

the appellant to three years’ confinement, total forfeiture of pay and 

allowances, reduction to pay grade E-1, and a dishonorable discharge. The 

convening authority approved the sentence as adjudged.

The appellant now raises four assignments of error (AOE): (1) that his 

indecent conduct conviction is legally and factually insufficient; (2) that his 

conviction for sexually abusing the child Dede2 on divers occasions is legally 

and factually insufficient; (3) that his conviction for sexually abusing the 

child Jamie on divers occasions is legally and factually insufficient;3 and (4) 

that the military judge erred in the findings instructions provided to the 

court-martial members.4

We disagree, and, finding no error materially prejudicial to the 

appellant’s substantial rights, we affirm the findings and sentence. Arts.

59(a) and 66(c), UCMJ.

I. BACKGROUND

In December 2013, the appellant returned on leave to his family’s home in 

rural Oklahoma. His father taught seventh through twelfth-grade math at 

the local high school, and the appellant spent his days visiting his father’s 

classroom. During this week, the appellant embarked on a whirlwind of 

inappropriate conduct with several of his father’s female students.

Cybil was a 15-year-old 9th-grader who met the appellant in his father’s 

algebra class. There, the appellant and Cybil exchanged phone numbers 

before he moved to sit behind her. Once there, the appellant rubbed her thigh 

with his foot and massaged her side and back with his hand. After class, the 

appellant met Cybil at her locker and asked her to text message him. Later,

in the library, the appellant met Cybil and several other girls. Underneath 

the library study table, he attempted to grab Cybil’s leg, rubbed his fingertips 

up her thigh, and placed her foot on his leg. She moved away, but he pursued 

her, trying to re-engage while she remained in the library. 

 

2 All names are pseudonyms.

3 AOE (2) and (3) were raised pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982).

4 AOE IV: THE MILITARY JUDGE IS REQUIRED TO ACCURATELY 

INSTRUCT THE MEMBERS ON THE LAW. HERE, THE MILITARY JUDGE 

INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF 

THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS 

GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY.” WAS 

THIS PLAIN ERROR? In accordance with our holding in United States v. Rendon, 75 

M.J. 908, 916-17 (N-M. Ct. Crim. App. 2016), we summarily reject the AOE. United 

States v. Clifton, 35 M.J. 79 (C.M.A. 1992).
United States v. Laster, No. 201600048

3

Despite her uncomfortable encounter in the library, Cybil agreed to trade 

text messages with the appellant. However, their exchanges became 

increasingly sexual with the appellant describing in great detail the various 

sexual activities he would like to perform on her. Cybil’s contact with the 

appellant ended after the text messages were discovered by her mother.

Jamie was a 14-year-old 9th-grader when the appellant contacted her via 

text message after getting her phone number through his interactions with a 

classmate. On the last day of class before holiday break, the appellant met 

Jamie and several other girls in the library. As he sat across from her, the 

appellant rubbed Jamie’s upper thigh with his foot. In response, Jamie tried 

to “scoot away” from the appellant.5 But the appellant hooked his foot around 

the leg of her chair and attempted to pull her back towards the table. The 

appellant then moved his foot to another student, Katherine, placing his foot 

on her leg under the table.

After the holidays, the appellant returned to his duty station in 

Washington, D.C.; however, he continued to contact Jamie via text message. 

His messages became increasingly sexual, culminating in requests for 

pictures of her breasts and buttocks and an invitation to join him in bed. 

Katherine was a 17-year-old 11th-grader. She was introduced to the 

appellant by his father during geometry class, but she had limited interaction 

with him until she met him with several other girls in the school library. 

While seated at a study table, the appellant hooked his foot behind 

Katherine’s knee and pulled her towards him in her chair. He then grabbed 

her foot, placed it in his lap, and rubbed her leg. This interaction ended when 

another girl joined them at the table.

Later, Katherine and the appellant traded text messages in which they 

flirted and then “sexted.”6 The appellant requested Katherine send him a 

picture, to which she responded, “I told him I was not going to send him an 

inappropriate photo, and that I would prefer it if he wouldn’t send me any.”7

Ignoring this appeal, and more than a week after their last “sexting” 

communication, the appellant sent Katherine an unsolicited message reading 

“nine and a half inches all for you baby” over a picture of his erect penis. 

Katherine’s reaction was one of shock: “It came out of nowhere. There wasn’t 

a conversation, you know, about sexual, or flirting, or anything like that. . . . I 

 

5 Record at 413.

6 Id. at 515.

7 Id. at 517.
United States v. Laster, No. 201600048

4

didn’t know how to respond . . . .”

8 Katherine reported this interaction to the 

appellant’s father.

Dede was a 14-year-old 8th-grader when the appellant asked for her 

phone number at school. They connected online, and the appellant asked 

Dede for a “dirty picture.” In response, she messaged him a picture of her 

wearing her sports bra but refused to send anything else more revealing. He 

then messaged her to “take it off” referencing her bra. She refused.9

Later that week, the appellant convinced Dede to meet him at night. 

Leaving a sleep-over with her best friend, Dede climbed out a first floor 

window of her parents’ home, and rode in the appellant’s truck to a nearby 

lake. Once there, the appellant kissed Dede on her neck and lips, fondled her 

breasts and genitals, and placed her hand on his penis.10 He then drove her 

home. 

As Dede exited his truck, the appellant told her “that he would be back in 

July . . . and that he would miss [her].”11 Dede’s best friend woke on Dede’s 

return and found her near tears. When the best friend asked what was 

bothering her, Dede would only state that the appellant “was mean and she 

would never hang out with him again, and that [the appellant] was 

aggressive or forceful.”12

II. DISCUSSION

A. Legal and factual sufficiency

We review questions of legal and factual sufficiency de novo. Art. 66(c), 

UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The 

test for legal sufficiency is “whether, considering the evidence in the light 

most favorable to the prosecution, any reasonable fact-finder could have 

found all the essential elements beyond a reasonable doubt.” United States v. 

Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25 

M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw 

every reasonable inference from the evidence of record in favor of the 

prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) 

(citations omitted). 

 

8 Id. 

9 Id. at 439-40.

10 Dede also alleged that the appellant forced her to engage in sexual intercourse. 

Based on this allegation, the appellant was charged with rape of a child in violation 

of Article 120b, UCMJ. However, the members acquitted him of this offense.

11 Record at 449.

12 Id. at 480.
United States v. Laster, No. 201600048

5

The test for factual sufficiency is whether “after weighing all the evidence 

in the record of trial and recognizing that we did not see or hear the 

witnesses as did the trial court, this court is convinced of the appellant’s guilt 

beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M. 

Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ), 

aff’d, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique appellate role, 

we take “a fresh, impartial look at the evidence,” applying “neither a 

presumption of innocence nor a presumption of guilt” to “make [our] own 

independent determination as to whether the evidence constitutes proof of 

each required element beyond a reasonable doubt.” Washington, 57 M.J. at 

399. 

The appellant now argues that his conviction for communicating indecent 

language to Katherine was legally and factually insufficient because the 

evidence failed to prove that the language he used was indecent. In doing so, 

the appellant relies heavily on our holding in United States v. Johnston, 75 

M.J. 563 (N-M. Ct. Crim. App. 2016), in which we found that a conviction for

indecent exposure in violation of Article 120c, UCMJ, was factually 

insufficient under circumstances in which the 19-year-old appellant 

consensually and privately exchanged nude pictures with someone he 

believed was 17-years-old. We observe that his reliance on Johnston here is 

misplaced and find his indecent language conviction legally and factually 

sufficient. 

The appellant’s text message to Katherine was originally charged as 

indecent conduct in Specification 3 of Charge II, in violation of Article 134. 

During trial, the defense sought dismissal of the specification arguing that 

the conduct alleged—the appellant sending a picture of his genitals—was 

preempted by the enumerated offense, Article 120b, UCMJ, which prohibits 

lewd acts with persons under the age of 16 years.13 The government 

countered that the specification did not include the sending of the penis 

picture. Consistent with that assertion, the military judge ruled that the 

indecent conduct alleged in the specification included only indecent language, 

to wit: “nine and a half inches all for you, baby.”14 He subsequently instructed 

the members accordingly, informing them that, to find the appellant guilty of 

indecent language, they must be convinced beyond reasonable doubt:

One, that between on or about 1 December 2013, and on or 

about 1 March 2014, at or near . . . Oklahoma, [the appellant] 

 

13 Katherine was 17-years-old at the time of the offense.

14 Appellate Exhibit XXVI at 12. The military judge excluded the prior occasions 

of “sexting” between the appellant and Katherine from the specification and did not 

instruct the members regarding those communications.
United States v. Laster, No. 201600048

6

communicated in writing to [Katherine] certain language, to 

wit: “Nine and a half inches all for you, baby,” or words to that 

effect;

Two, that the language was indecent; and,

Three, that under the circumstances, the conduct of [the 

appellant] was of a nature to bring discredit upon the armed 

forces.15 

The military judge further instructed the members:

“Indecent language” is that which is grossly offensive to the 

community’s sense of modesty, decency, or propriety, or shocks 

the moral sense of the community because of its vulgar, filthy, 

or disgusting nature. . . . or . . . because of its tendency to incite 

lustful thought.

Language is, therefore, indecent if it tends to reasonably 

corrupt morals or incite lustful thoughts, either expressly or by 

implication from the circumstances under which it is spoken. 

Seemingly chas[te] or innocuous language can constitute this 

offense if the context in which it is used sends an indecent 

message as reasonably interpreted by commonly accepted 

community standards.16

The determination of whether specific language is indecent cannot be 

made in isolation. United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010) 

(citing to United States v. Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998)). Instead,

it must be based on an examination of “the entire record of trial to determine 

the precise circumstances under which the charged language was 

communicated.” Id. (citations and internal quotation marks omitted) 

Here those circumstances include increasingly sexual and predatory 

contact by the appellant with a 17-year-old high school student, beginning 

with aggressively flirtatious behavior in the high school library and ending 

with a statement regarding the size of his genitalia embossing an unsolicited 

picture of his erect penis. Given the surrounding circumstances, we find no 

reason to question the indecency of the specific utterance. 

This case is easily distinguishable from Johnston. In that case, this court 

analyzed the definition of indecent exposure under Article 120c, UCMJ. 

However, Johnston should not be read to directly limit the scope of indecent 

language or indecent conduct as defined under Article 134, UCMJ. While 

 

15 Record at 694-95.

16 Id. at 695.
United States v. Laster, No. 201600048

7

some overlap exists between the term “indecent language” and the phrase “to 

expose, in an indecent manner,” the two provisions are aimed at clearly 

separate forms of conduct. And while they should be read harmoniously,17

they need not be read as wholly equivalent.18 

Additionally, to untether the qualifier—indecent—from its subject—either 

exposure or language—is unhelpful. To expose one’s self in an indecent 

manner encompasses a separate, albeit overlapping set of relevant factors 

from communicating indecent language. In Johnston, this court offered a nonexhaustive list of facts and circumstances which might make exposure 

indecent under the statute, including the age of the victim, whether the 

exposure was consensual, and whether the exposure was public or wholly 

private.19 The list of circumstances that might make a specific utterance 

indecent may include those same three factors, but it can encompass many 

more—as many as may be relevant within the entire context of the utterance. 

The appellant also asserts that his conviction for sexually abusing the 

child, Dede, was legally and factually insufficient because the evidence failed 

to prove this abuse occurred on divers occasions. Through his instructions to 

the members, the military judge identified the alleged conduct that 

comprised the lewd acts on divers occasions with Dede, to wit:

Kissing her on the lips and neck, placing his hand under her 

underwear and touching her breasts and vaginal area, and 

placing her hand on his penis, requesting photographs of her 

nude body, [and] telling her to “take it off” after receiving a 

picture of her in her sports bra . . . .

20

The appellant now argues that his acquittal on the related rape of a child 

charge demonstrates that the members did not believe that the other, nonpenetrative sexual conduct—the kissing and fondling—occurred when the 

appellant drove Dede to the lake. As a result, the appellant argues he should 

only have been convicted based upon his lewd conduct with Dede over text 

messages. 

 

17 See United States v. Quick, 74 M.J. 517, 520 (N-M. Ct. Crim. App. 2014) (“Just 

as a single word cannot be read in isolation, nor can a single provision of a statute.”) 

(citations and internal quotation marks omitted), aff’d on other grounds, 74 M.J. 332 

(C.A.A.F. 2015).

18 Indeed, see United States v. Uriostegui, 75 M.J. 857, 864 (N-M. Ct. Crim. App. 

2016), in which this court distinguished indecent exposure under Article 120c, 

UCMJ, from lewd acts with a child including exposure under Article 120b, UCMJ, in 

interpreting the definition of “exposure” for purposes of Article 120c, UCMJ.

19 75 M.J. at 567-69.

20 Record at 691.
United States v. Laster, No. 201600048

8

The appellant’s argument proceeds from a faulty premise: that a factually 

inconsistent verdict, standing alone, may be cause for relief. Instead, the 

opposite is true: “When the same evidence is offered in support of two 

separately charged offenses, as the physical encounters were here, ‘an 

acquittal on one [may] not be pleaded as res judicata of the other.’” United 

States v. Rosario, No. 201500251, 2016 CCA LEXIS 32, at *6, unpublished op.

(N-M. Ct. Crim. App. 28 Jan 2016) (quoting Dunn v. United States, 284 U.S. 

390, 393 (1932)).

However, the issue of inconsistent verdicts should not be confused with 

this court’s independent review of the sufficiency of evidence undertaken 

pursuant to Article 66, UCMJ. United States v. Gutierrez, 73 M.J. 172, 175 

n.4 (C.A.A.F. 2014). Having carefully reviewed the record of trial and

considering the evidence in the light most favorable to the prosecution, we 

are convinced that a reasonable fact finder could have found the appellant 

guilty of sexually abusing Dede on divers occasions both at the lake and over 

text message. Furthermore, after weighing all the evidence in the record of 

trial and having made allowances for not having personally observed the 

witnesses, we are convinced beyond reasonable doubt of the appellant’s guilt.

Finally, the appellant asserts that his conviction for sexually abusing the 

child, Jamie, was legally and factually insufficient because the evidence 

failed to prove that the appellant’s conduct was lewd.

The military judge generally instructed the members that a lewd act was:

A, any sexual contact with a child; B, intentionally exposing 

one’s genitalia, anus, buttocks, or female areola or nipple to a 

child by any means, including via any communication 

technology with an intent to arouse or gratify the sexual 

desires of any person; C, intentionally communicating indecent 

language to a child by any means, including via any 

communication technology with an intent to arouse or gratify 

the sexual desires of any person; or, D, any indecent contact 

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.21

The military judge defined “sexual contact” as:

 

21 Id. at 693.
United States v. Laster, No. 201600048

9

[A]ny touching or causing another person to touch, either 

directly or through the clothing, any body part of any person if 

done with an intent to arouse or gratify the sexual desire of any 

person. Touching may be accomplished by any part of the 

body.22

The military judge also identified the alleged conduct that comprised the 

lewd acts on divers occasions with Jamie, to wit:

Touching her inner thigh with his foot, requesting a 

photograph of her butt and breasts, [and] asking her via 

electronic media to join him in bed . . . .

23

Having carefully considered the record of trial and the evidence relevant 

to this offense, we are satisfied that a reasonable fact finder could have found 

the appellant guilty of sexually abusing Jamie on divers occasions. First, the 

manner in which the appellant used his foot to rub the Jamie’s inner thigh 

clearly indicates that he did so with the intent to arouse or gratify his own 

sexual desires. Additionally, requesting pictures of the then-14-year-old girl’s 

breasts and buttocks and inviting her, albeit from afar, to join him in his bed 

constituted indecent language within the precise circumstances presented 

here. Furthermore, after weighing all the evidence in the record of trial and 

having made allowances for not having personally observed the witnesses, we 

are convinced beyond reasonable doubt of the appellant’s guilt as to this 

offense.

B. Incorrect court-martial order

Although not raised by the appellant, we note that the court-martial order 

(CMO) fails to note that the language “were to the prejudice of good order and 

discipline in the armed forces and” in Specification 3 of Charge II was 

dismissed from the specification by the military judge pursuant to RULE FOR 

COURTS-MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 

ed.).

24 The appellant does not assert, and we do not find, any prejudice 

resulting from this error. Nevertheless, the appellant is entitled to have the 

CMO accurately reflect the results of the proceedings. United States v. 

Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order 

corrective action in our decretal paragraph.

 

22 Id.

23 Id. at 691.

24 Id. at 572.
United States v. Laster, No. 201600048

10

III. CONCLUSION

The findings and sentence are affirmed. The supplemental CMO shall 

correctly reflect that the phrase “were to the prejudice of good order and 

discipline in the armed forces and” was dismissed from Specification 3 of 

Charge II. 

Judge GLASER-ALLEN and Judge HUTCHISON concur.

 For the Court

 R.H. TROIDL

 Clerk of Court