UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 40155

________________________

UNITED STATES

Appellee

v.

Larry KITCHEN, Jr.

Major (O-4), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 3 February 2023

________________________

Military Judge: Christopher M. Schumann (arraignment); Christina M. 

Jimenez (trial).

Sentence: Sentence adjudged 9 April 2021 by GCM convened at Cannon

Air Force Base, New Mexico. Sentence entered by military judge on 

5 May 2021: Dismissal, confinement for 24 months, and forfeiture of all 

pay and allowances.

For Appellant: Major Jenna M. Arroyo, USAF.

For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John 

P. Patera, USAF; Major Brittany M. Speirs, USAF; Major Zachary T. 

West, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and CADOTTE, Appellate Military 

Judges.

Judge RICHARDSON delivered the opinion of the court, in which Senior 

Judge POSCH and Judge CADOTTE joined.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

________________________
United States v. Kitchen, No. ACM 40155

2

RICHARDSON, Judge:

A general court-martial comprised of officer members convicted Appellant, 

contrary to his pleas, of one specification each of attempted sexual abuse of a 

child on divers occasions and attempted sexual assault of a child in violation 

of Article 80, UCMJ, 10 U.S.C. § 880.1,2 The military judge sentenced Appellant 

to a dismissal, 24 months of confinement, and forfeiture of all pay and allowances. The convening authority suspended adjudged forfeitures and waived automatic forfeitures for the benefit of Appellant’s dependents, but otherwise did 

not disturb the adjudged sentence.

Appellant raises four assignments of error, claiming: (1) Appellant was deprived of a right to a unanimous verdict; (2) the military judge erred in instructions to the court members on the charged offenses; (3) the convictions for attempted sexual abuse of a child and attempted sexual assault of a child are 

legally and factually insufficient; and (4) the trial counsel committed prosecutorial misconduct through his findings argument. We have carefully considered 

issue (1) and determine no discussion or relief is warranted. See United States 

v. Matias, 25 M.J. 356, 361 (C.M.A. 1987); see also United States v. Anderson, 

No. ACM 39969, 2022 CCA LEXIS 181, at *50–57 (A.F. Ct. Crim. App. 25 Mar. 

2022) (unpub. op.) (finding unanimous court-martial verdicts not required), 

rev. granted, 82 M.J. 440 (C.A.A.F. 2022). We find no material prejudice to a 

substantial right of Appellant and that Appellant is not entitled to relief.

I. BACKGROUND

Appellant was a 43-year-old pilot stationed at Cannon Air Force Base

(AFB), near Clovis, New Mexico, and at the beginning of the charged time period was deployed to Africa. He used a messaging application, Skout, which 

identifies other Skout users in the vicinity of the user who want to chat. Users

can click on the profile of another user and initiate a chat. The user’s location 

is customizable. Appellant’s profile picture was a head-and-shoulders photograph of a man in Air Force service dress uniform. His rank, badges, and 

1 Unless otherwise noted, all references in this opinion to the UCMJ and Rules for 

Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 

ed.). 

2 The court members found Appellant not guilty of certain excepted language relating 

to the location alleged in one specification. Additionally, consistent with his pleas, Appellant was found not guilty of the other two specifications relating to Megan charged 

in violation of Article 80, UCMJ.
United States v. Kitchen, No. ACM 40155

3

awards and medals were discernable. Another photograph was of a black Mustang vehicle with decals depicting the comic book Spawn. Appellant’s name on 

Skout was “Spawnstang.” 

On 14 September 2019, Air Force Office of Special Investigations (AFOSI) 

Special Agent (SA) JN created a Skout account using a persona called “Megan”

as part of an undercover operation in support of mitigating Internet crimes 

against children (ICAC). SA JN explained, “So once I was on the Skout application, I went to the [‘]wants to chat,[’] and at the time my persona was scrolling through and noticed [Appellant], and clicked on the profile and said hello -

- or said ‘Hi!’” Soon thereafter, Megan told Appellant she was almost 15 years 

old and lived with her mother on base. Appellant engaged in message conversations with Megan, first on Skout and then on Kik, another messaging application. The conversations quickly became sexual in nature. Ultimately, the

messages led to a plan for Appellant and Megan to meet in person upon his 

redeployment and engage in sexual activity. The day Appellant redeployed to 

Clovis, on 20 September 2019, Appellant drove to their prearranged meeting 

place in enlisted housing on Cannon AFB where AFOSI agents apprehended 

him, still in his car. Agents located condoms in Appellant’s vehicle. 

II. DISCUSSION

A. Legal and Factual Sufficiency

Appellant challenges the sufficiency of the convictions on two bases: the 

Government did not prove beyond a reasonable doubt that Appellant (1) was 

not entrapped, and (2) had the specific intent to commit the target offenses. We 

resolve these issues adverse to Appellant and conclude the convictions are legally and factually sufficient.

1. Additional Background

After Megan first contacted Appellant on Skout, stating “Hi!,” Appellant 

responded and a conversation ensued.3

Appellant: How are you

Megan: I’m doing good, just bored lol. How r u?

Appellant: I’m bored too. I’m okay. Currently deployed. Will be 

back next weekend.

Appellant: How old are you?

3 We transcribe the messages verbatim, to include misspellings and compressing words 

and phrases. We note SA JN testified that “Nd” means “and.” 
United States v. Kitchen, No. ACM 40155

4

Megan: Oh wow! Be safe plz!! Nd I’m almost 15! Wbu?!

Appellant: Oh wow that sucks. I’m 33

Appellant: And thanks

Appellant: What made you message me?

Megan: Idk just wnt to meet new ppl, I’m kinda new here.

Appellant: I completely understand that

Megan: Nd ur car is kinds cool! It’s realy different

Appellant: Oh thanks. I appreciate it. I love working on it

Megan: So how long hve yu been here? Nd Wht is there to do lol

Appellant: Not much really. I always leave out of town. Your 

parents would not be happy if you’re talking to me. I can imagine 

it’s hard chatting with people your age on here because they are 

more than likely not on here.

The conversation continued, with Megan stating she and her active-duty 

mother lived on base, she was home alone for much of the day, and she went 

to school off base. They talked about what activities were offered around town. 

Appellant said he was returning from his deployment the following week. After 

Appellant said he typically stayed up late, he said, “It sucks your so young. I’ve 

had a better conversation with you than with most women on here. That’s horrible.” Megan did not respond right away; she explained she went for a run and 

responded, “Hehe why does it suck?! And well ppl on here can be boring...” 

Megan also said, “I like talking to you too!” In response, Appellant said, “It just 

sucks cause I can’t ever meet you.” The conversation continued:

Megan: Thanks and awe why not?!

Appellant: Because I have a lot to lose. I’m an officer. A pilot in 

the Air Force. Your mom would go nuts on us

Megan: She would nvr find out it can b out secret! [two emojis]

Appellant: My bar is bi secret. It’s not easy sneaking in anywhere with that car.

Appellant: You don’t think your mom have alarms or people 

watching your house

Megan: I can always sneak out. Nd she doesn’t lol it’s kinda 

weird family

Appellant: Have you sneak out all ready?

Megan: Yep [two emojis] don’t tell on me hehe
United States v. Kitchen, No. ACM 40155

5

Appellant: Lolol I’m scarred to get in trouble. How do you look 

like?

Megan: Wel I don’t Wht to get in trouble either Nd I’m short, 

with dark hair. Kinda tan “It’s going away [two emojis]”

Appellant: Send me a pic

They talked about whether Megan told anyone about talking to Appellant. 

Appellant repeatedly asked her how she looked and asked for a photo. He verified that her parents did not monitor her messaging accounts. Appellant sent 

her a photo of himself, and Megan’s response was, “Oh I got it!” When Megan 

finally did send Appellant a photo—from shoulders to thighs—Appellant responded, “Well you are pretty sexy” and, “I like your shape.”4

Appellant and Megan moved their conversation to another messaging application, Kik. Appellant told Megan his living quarters were cold, which did 

not “make it easy to sleep with no clothes.” He then asked Megan what she 

normally wore to bed, to which she responded, “PJs.” 

The subject of Megan sneaking out of her house came up again. After Megan said she typically stayed up late, the following exchange ensued:

Appellant: We will see about that

Megan: Haha yeah?

Appellant: Yup.

Megan: Nd how will we see about tht? [emoji]

Appellant: I don’t know. You’ll figure out a way to sneak out

Megan: Hehe i can sneak out.. when would u wnt me to?

Appellant: Oh wow.

Appellant: Really?

Megan: Yeah realy? Lol she works overnight so it’s easy

Appellant: What days?

Appellant: How long can you stay?

Appellant: And what do you want to do?

Megan: Monday through Friday night Nd Wel I can stay out late 

but I hve to b bck for school lol

4 SA JN got consent from AE—at the time a 21-year-old Airman—to take and use photos of her to send to Appellant as “Megan.”
United States v. Kitchen, No. ACM 40155

6

Megan: Nd idk.. I’m open to really anything wht do u wnt to do?

Appellant asked Megan when she needed to be back so she did not miss school, 

what time her mother worked, and whether her mother ever returned early. 

Then they discussed what they would do if they met:

Appellant: Well if can get you out by 8 maybe we can go grab 

something to eat. We can hit up a movie and the theater or go by 

my house and watch some Netflix.

Megan: That would be so much fun!! Wht would we do at ur 

house?

Megan: Nd do you live close?

Megan: I wouldnt want to b seen at the movie theatre..

Appellant: I actually live in the town of Clovis. We can do whatever you want. I have a bunch of movies. We can order some food. 

Get under the covers and watch anything you want

Megan: Okay good. I was worried you lived like rely far lol. Nd I 

would like that.

Megan: Nd under the covers? [two emojis]

Appellant: We don’t have to get under the covers if you don’t 

want.

Megan: I’m alright with that hehe

Megan: [eyes covered emoji]

Appellant: I’m nervous

Their conversation soon turned sexual:

Appellant: Do you like to cuddle?

. . . .

Megan: Nd I do [two emojis]

Appellant: Okay cool

Megan: Do u?

Appellant: I do like to cuddle. Just not sure if I would be a good 

cuddler coming off this deployment

Megan: Awe why’s tht

Appellant: It’s been a while since I’ve been around a female. So 

cuddling will probably get me hard and it may poke you.

Megan: Oh yeah...? [eyes covered emoji] hehe
United States v. Kitchen, No. ACM 40155

7

Appellant: Hehehe it will be embarrassing [emoji]

Megan: Lol don’t be embarrassed ....

Appellant: It will be hard not to be but I will try. I love cuddling 

but I don’t know how’s my body going to react

Megan: Hehe it’s okay...

Appellant: You sure?

Megan: I’m sure!!

Appellant: Damn, send me more pics of you

Megan said she was “just curious wht were gunna do” and that she was nervous and excited. Besides cuddling, watching movies, and eating, Appellant 

asked, “What else would you like to do?” 

Megan: Idk. I’m open to suggestions.. Wht else would u like to 

do?

Appellant: Truthfully I don’t know. My brain cells are not firing 

on all cylinders because I’m hard now [emoji]

. . . .

Appellant: Ok so we’re cuddling and all of sudden you feel something hard against your back and it starts rubbing against you

Megan: Yeah... wht else?

Megan: Nd rubbing where hehe?

Appellant: Like between your legs [emoji]

As their conversation continued, Appellant told Megan, “I don’t want to 

take away your virginity like that,” “[e]ven though I would be super hard.” After Appellant confirmed from Megan that she was “down” for that and that he 

would be “allow[ed] to touch” her, he listed where he would touch her, including 

between her “booty” and legs. Eventually, Appellant described how he would 

commit various sexual acts with her, including penetrating her vulva with his 

penis. The subject of condoms came up:

Megan: R u going to wear a condom?..

Appellant: Yes because you’re not on the pill most likely

Megan: No I’m not on the pill

Megan: Okay good I jst dnt wnt to get pregnant hehe

Appellant: You shouldn’t get pregnant. I had surgery that won’t

let have kids unless I want to reverse it.
United States v. Kitchen, No. ACM 40155

8

Megan: Thts a thing?!

Appellant: It sure is.

Megan: Oh wow okay! Wel do we should def still use a condom... 

just in case

Appellant: Yes of course

Megan: [two emojis] When r we meeting?!

Appellant expressed some reservation about meeting Megan because of her 

age, but more so because she did not send him a photo of her face. In the context 

of meeting up with someone for sexual activity whose face he had not seen and 

who he had never met in person, Appellant stated that he had “never done this 

before.” After Megan wondered if Appellant was mad at her for not sending a 

photograph of her face, he stated:

I’m not mad or disappointed. The truth is that thing that caught 

my attention of you is your conversation, your thoughtfulness 

and kindness. The women I have met today do not have that at 

all.

Your age is probably my biggest turn off but you are so engaging 

in your conversation makes me forget that.

But I can’t forget it at all. Me, I have so much to lose. And a very 

successful career. The thought of not seeing your face gives me 

some doubt that’s all.

Appellant continued to worry about getting caught, and ran Megan through 

scenarios, such as what she would do if her mother called, knew she was not 

at home, and asked where she was. Then Appellant predicted his eventual fate:

Appellant: I’m so nervous

Megan: Why?!

Megan: Dnt b.. [emoji]

Appellant: So scared this is a setup or something

Megan: Wht do u mean?

Appellant: Like show up to meet you and then I get arrested or 

something

Megan: [Two emojis] tht would b terrible!!!

Megan did not admit to Appellant she was actually a law enforcement officer, 

but—without actually lying—led him to believe she was not. They continued 

to shape a plan to meet upon Appellant’s return to Clovis.
United States v. Kitchen, No. ACM 40155

9

Appellant kept in touch with Megan as he made his way from Africa, 

through Europe, to the United States, and to his home. Megan sent Appellant 

a map showing the location on Cannon AFB where they could meet. After Appellant stated he was nervous, he said, “I won’t do anything. I’ll let you make 

the moves if you want to,” to which Megan replied she was nervous and excited 

and, “Wel I liked Wht u said we were gunna do [hands covering eyes emoji].”

Appellant asked if she was sure because, “that’s me all over you.” She assured 

him she was. After finding some clothes (his luggage did not make his flight) 

and a working vehicle (the Mustang was not operating properly), Appellant 

messaged Megan that he was ready and then driving. The last two messages 

consist of Megan stating, “I’m waiting,” and Appellant replying, “I’m here.”

2. Law

We review issues of legal and factual sufficiency de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assessment of legal and factual sufficiency is limited to the evidence produced at 

trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (citing United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied, 

82 M.J. 312 (C.A.A.F. 2022).

“The test for legal sufficiency is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United 

States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States 

v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “[I]n resolving questions of legal 

sufficiency, 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). The evidence supporting a conviction can 

be direct or circumstantial. See United States v. Long, 81 M.J. 362, 368 

(C.A.A.F. 2021) (citing R.C.M. 918(c)) (additional citation omitted). “[A] rational factfinder[ ] could use his ‘experience with people and events in weighing 

the probabilities’ to infer beyond a reasonable doubt” that an element was 

proven. Id. at 369 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

The “standard for legal sufficiency involves a very low threshold to sustain a 

conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (internal 

quotation marks and citation omitted).

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

the record of trial and making allowances for not having personally observed 

the witnesses, we are ourselves convinced of the appellant’s guilt beyond a reasonable doubt.” Rodela, 82 M.J. at 525 (alterations, internal quotation marks, 

and citation omitted). “In conducting this unique appellate role, we take ‘a 

fresh, impartial look at the evidence,’ applying ‘neither a presumption of inno-
United States v. Kitchen, No. ACM 40155

10

cence 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.’” United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct.

Crim. App. 2017), aff’d 77 M.J. 289 (C.A.A.F. 2018) (alteration in original) 

(quoting Washington, 57 M.J. at 399). “The term reasonable doubt . . . does not 

mean that the evidence must be free from conflict.” Id. (citing United States v. 

Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)).

In order to convict on an attempt offense under Article 80, UCMJ, the Government is required to prove beyond a reasonable doubt that the accused did a 

certain overt act, that the act was done with the specific intent to commit a 

certain offense, that the act amounted to more than mere preparation, and that 

the act apparently tended to effect the commission of the intended offense. See 

Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV, ¶ 4.b.

For Appellant to be found guilty of the offense of attempted sexual abuse of 

a child as charged in Specification 1 of the Charge, the Government was required to prove beyond a reasonable doubt all the elements of attempt, including that Appellant specifically intended to commit a lewd act upon Megan, a 

child who had not attained the age of 16 years, by intentionally communicating 

to Megan indecent language with an intent to arouse his sexual desire. See

MCM, pt. IV, ¶¶ 62.b.(3), 62.a.(h)(5). The communication can be “by any 

means, including via communication technology.” MCM, pt. IV, ¶ 62.a.(h)(5); 

10 U.S.C. § 920b(h)(5). 

For Appellant to be found guilty of the offense of attempted sexual assault 

of a child in Specification 3 of the Charge, the Government was required to 

prove beyond a reasonable doubt all the elements of attempt, including that 

Appellant specifically intended to commit a sexual act upon Megan, a child who 

had attained the age of 12 years but not 16 years, by penetrating Megan’s vulva 

with his penis. See MCM, pt. IV, ¶ 62.b.(2)(a). A sexual act includes “the penetration, however slight, of the penis into the vulva.” MCM, pt. IV, 

¶¶ 62.a.(h)(1), 60.a.(g)(1)(A); 10 U.S.C. §§ 920b(h)(1), 920(g)(1)(A). The term

“sexual act” also includes “the intentional touching, not through the clothing, 

of the genitalia of another person who has not attained the age of 16 years with 

an intent to [ ] arouse or gratify the sexual desire of any person.” MCM, pt. IV, 

¶ 62.a.(h)(1); 10 U.S.C. § 920b(h)(1). 

In cases involving attempts to entice minors to engage in sexual activity, 

“courts agree that travel constitutes a substantial step.” United States v. 

Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011) (citations omitted). Analyzing 

an attempted larceny conviction, the United States Court of Appeals for the 

Armed Forces noted it had “recognized that a substantial step could be comprised of something as benign as travel, arranging a meeting, or making hotel 
United States v. Kitchen, No. ACM 40155

11

reservations.” United States v. Hale, 78 M.J. 268, 272 (C.A.A.F. 2019) (citing 

Winckelmann, 70 M.J. at 407). 

Entrapment is an affirmative defense. Rule for Courts-Martial (R.C.M.) 

916(g) states: “It is a defense that the criminal design or suggestion to commit 

the offense originated in the Government and the accused had no predisposition to commit the offense.”

The defense has the initial burden of showing some evidence that an agent 

of the Government originated the suggestion to commit the crime. United 

States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). Once the defense of entrapment is raised, “the burden then shifts to the Government to prove beyond a 

reasonable doubt that the criminal design did not originate with the Government or that the accused had a predisposition to commit the offense . . . .” Id. 

(citations omitted). When a person accepts a criminal offer without an extraordinary inducement to do so, he demonstrates a predisposition to commit the 

crime in question. Id. (citations omitted). “Inducement” means more than 

merely providing an appellant the means or opportunity to commit a crime. 

United States v. Howell, 36 M.J. 354, 360 (C.M.A. 1993) (citations omitted). 

Instead, the Government’s conduct must:

create[ ] a substantial risk that an undisposed person or otherwise law-abiding citizen would commit the offense. Inducement 

may take different forms, including pressure, assurances that a 

person is not doing anything wrong, persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of 

reward, or pleas based on need, sympathy, or friendship.

Id. at 359–60 (emphasis, internal quotation marks, and citations omitted). 

The Government may use undercover agents and informants to ferret out 

crime and afford opportunities or facilities for criminals to act upon. Jacobson 

v. United States, 503 U.S. 540, 548 (1992); Howell, 36 M.J. at 358. “Artifice and 

stratagem may be employed to catch those engaged in criminal enterprises.” 

Sorrells v. United States, 287 U.S. 435, 441 (1932) (citations omitted); see also

United States v. Russell, 411 U.S. 423, 435–36 (1973) (allowing for deceit as a 

law enforcement technique). For example, law enforcement officers may pretend to be someone other than a government agent. See Howell, 36 M.J. at 358.

“It is only when the Government’s deception actually implants the criminal 

design in the mind of the defendant that the defense of entrapment comes into 

play.” Russell, 411 U.S. at 436.

When entrapment is raised at trial, “[t]he test to be applied [on appeal] is 

whether the evidence of record supports the factual determinations” that the 

defense did not apply. United States v. Vanzandt, 14 M.J. 332, 345 (C.M.A. 
United States v. Kitchen, No. ACM 40155

12

1982) (citations omitted). That is, an “appellant can only prevail by showing 

that these findings are incorrect as a matter of law.” Id. (citation omitted).

3. Analysis

a. Entrapment

Appellant claims that he was entrapped into committing both offenses; specifically, he alleges Government inducement and his lack of predisposition. 

From our review of the evidence, and in particular the messages between Appellant and Megan, we are convinced Appellant was not entrapped.

Appellant points to the uncontradicted evidence that he had no history of 

or interest in sexual acts against children. While these factors are relevant, 

they are not dispositive. See, e.g., United States v. Hall, 56 M.J. 432, 437 

(C.A.A.F. 2002) (finding “the Government was not required to show that [the]

appellant was generally predisposed to sell drugs, but only that he was predisposed to facilitate this particular transaction”). Appellant, not Megan, elevated 

the conversation from talking about things to do near Cannon AFB, to sneaking out to meet, to engaging in sexual activity upon meeting. Moreover, contrary to Appellant’s assertion on appeal, the messages he sent to what he believed to be a 14-year-old girl do not portray a man “in a vulnerable place in 

his life.” The evidence shows Appellant was predisposed to talk about sex and 

meet up for sex with a willing female; the age of the female appears to have 

been of little importance to him. Appellant’s concern was meeting someone for 

sex whose face he had not seen, as well as getting caught. He did not appear to 

be concerned that he was actually committing a crime by communicating to a

14-year-old girl his sexual plans for her, or that he was planning to commit a 

crime by meeting and having sex with said girl. We find Appellant accepted “a 

criminal offer” without an extraordinary inducement to do so, displaying his 

“predisposition to commit” the crime in question. See Whittle, 34 M.J. at 208 

(citations omitted). A rational factfinder could conclude the evidence proved 

beyond a reasonable doubt that Appellant was not entrapped to commit attempted sexual abuse or sexual assault of a child in this case. Indeed, Appellant’s findings argument to the court members focused primarily on the defense of entrapment, and the convictions indicate it was rejected. Moreover, we 

are convinced Appellant was not entrapped. 

b. Specific Intent

Quoting the military judge’s instructions, Appellant claims the Government failed “to prove beyond a reasonable doubt that [Appellant’s] overt act in 

driving to meet ‘Megan’ was ‘done with specific intent to commit the offense of 

sexual assault of a child’ . . . . by penetrating her vulva with his penis.” Instead, 

he claims “[i]t is debatable whether [Appellant] himself knew what his intentions were the night he drove to meet ‘Megan.’” We disagree.
United States v. Kitchen, No. ACM 40155

13

The evidence—primarily the Kik messages—establishes that Appellant intended to have vaginal intercourse with a 14-year-old girl if she would let him, 

and she assured him she would let him.5 The fact that he possessed condoms 

when he was apprehended in his vehicle lends support for this conclusion. We 

find that a rational factfinder could conclude the evidence proved Appellant’s 

specific intent, as well as the other elements of the offense, beyond a reasonable 

doubt. Moreover, we are convinced Appellant had the requisite specific intent.

In conclusion, we find the convictions are legally sufficient. Moreover, having weighed the evidence in the record and having made allowances for not 

having personally observed the witnesses in this case, we are convinced of Appellant’s guilt beyond a reasonable doubt. See Wheeler, 76 M.J. at 568. Thus, 

we also find Appellant’s convictions are factually sufficient.

B. Findings Instructions

Appellant claims that the military judge erred in her instructions to the 

court members on the elements of the offenses in Specifications 1 and 3 of the 

Charge. Specifically, Appellant argues that “the military judge’s instructions 

for the first element—the overt act—essentially mirrored the language of the 

intended offense.” Put another way, Appellant notes “the overt act identified 

in element 1 of the attempted offense was the same act required for the target 

offense.” We find Appellant waived this issue and are not persuaded to pierce 

that waiver. 

1. Additional Background

The military judge provided counsel several opportunities to review, request, and object to instructions to the court members on findings. The military 

judge asked counsel whether they had any objections to her instructing on certain areas, including on the elements of the offenses. She also told them they 

“[would] all get an opportunity to read the[ instructions] and then [they] [could] 

discuss.”6

5 See Section C.2.a., infra, for a recitation of some of Appellant’s messages on this point.

6 The military judge stated: “I intend to give the following instructions: Obviously, the 

charged offenses and their elements. In that regard, it appears I do have some evidence 

of a mistake of fact as to age to the offenses, as well as impossibility. So I have those

introductions [sic] in here. Counsel, just for your [situational awareness], I don’t think 

any of you have you been in my courtroom before. We’ll go through this now. You can 

object now. You will also be provided a draft copy, so do not think your objections are 

foreclosed just yet. And we will come back on and discuss those again this evening as 

well.”
United States v. Kitchen, No. ACM 40155

14

On the record, no party raised an issue with the military judge’s proposed 

instructions on the elements, including overt acts. Appellant specifically requested instructions in a filing marked Appellate Exhibit LII. Regarding “overt 

acts,” the Defense’s proposed instruction read: “the accused did (a) certain 

act(s), that is: (state the act(s) alleged or raised by the evidence).” The military 

judge addressed counsel’s specific requests, which for the Defense focused primarily on the defense of entrapment. The military judge sent counsel a draft 

of her instructions, and later discussed instructions with counsel before providing the instructions to the court members.

The military judge provided the court members instructions on all four elements of each specification, relevant definitions, and the elements of the attempted offenses. For the first element of Specification 1, the military judge 

instructed the court members that, for “the offense of attempted sexual abuse 

of a child involving indecent communication in violation of Article 80, [UCMJ,]”

they needed to be convinced beyond a reasonable doubt of the following:

One, that on divers occasions, between on or about 14 September 

2019 and on or about 20 September 2019, within the continent 

of Africa, the continent of Europe, and the continental United 

States, the accused did a certain overt act, that is, attempt to

commit a lewd act upon Megan, a person whom he believed to be 

a child who had not attained the age of 16 years by intentionally 

communicating to Megan indecent language with the intent to 

arouse his sexual desire.

For the first element of Specification 3, the military judge instructed the court 

members that, for “the offense of attempted sexual assault of a child in violation of Article 80, [UCMJ],” they needed to be convinced beyond a reasonable 

doubt of the following:

One, that on or about 20 September 2019, at or near Cannon Air 

Force Base, New Mexico, the accused did a certain overt act, that 

is, attempt to commit a sexual act upon Megan, a person whom 

he believed to be a child who had attained the age of 12 years 

but had not attained the age of 16 years, to wit, penetrating Megan’s vulva with his penis.

Before the military judge provided the court members instructions on the 

specifications, she noted that counsel had indicated they had no objections. After reading the instructions to the court members, the military judge specifically asked counsel whether they “object[ed] to the instructions given or request[ed] additional instructions.” Counsel for both parties stated “No, Your 

Honor.” Trial defense counsel did not raise an issue with the instructions on 
United States v. Kitchen, No. ACM 40155

15

the elements. The court members did not ask the military judge questions 

about the instructions on the offenses.

2. Law

“Failure to object to an instruction or to omission of an instruction before 

the members close to deliberate forfeits the objection.” R.C.M. 920(f). We review forfeited issues for plain error. United States v. Davis, 79 M.J. 329, 331 

(C.A.A.F. 2020). “[T]o establish plain error an appellant must demonstrate (1) 

error, (2) that is clear or obvious at the time of the appeal, and (3) prejudicial.” 

United States v. Long, 81 M.J. 362, 369–70 (C.A.A.F. 2021) (internal quotation 

marks and citation omitted).

In contrast to forfeiture, an appellant waives a right to raise the issue on 

appeal where he “affirmatively declined to object to the military judge’s instructions and offered no additional instructions,” even “in regards to the elements of the offense.” Davis, 79 M.J. at 331 (citations omitted). However,

“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,” we 

instead review for plain error. United States v. Schmidt, 82 M.J. 68, 72

(C.A.A.F. 2022) (alteration in original) (quoting Davis, 79 M.J. at 331). 

“Whether an appellant has waived an issue is a legal question we review de 

novo.” Id. (citation omitted).

Generally, an affirmative waiver leaves “nothing left” to correct on appeal. 

Davis, 79 M.J. at 331 (citations omitted). However, pursuant to Article 

66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1), Courts of Criminal Appeals (CCA) have 

the unique statutory responsibility to affirm only so much of the findings and 

sentence that they find are correct and “should be approved.” This includes the 

authority to address errors raised for the first time on appeal despite waiver of 

those errors at trial. See, e.g., United States v. Hardy, 77 M.J. 438, 442–43 

(C.A.A.F. 2018). A CCA assesses the entire record and determines “whether to 

leave an accused’s waiver intact, or to correct the error.” United States v. Chin, 

75 M.J. 220, 223 (C.A.A.F. 2016). 

“The military judge has an independent duty to determine and deliver appropriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) 

(citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A. 1990)). 

This duty includes giving required instructions that “provide an accurate, complete, and intelligible statement of the law.” United States v. Behenna, 71 M.J. 

228, 232 (C.A.A.F. 2012) (citations omitted). “Whether a panel was properly 

instructed is a question of law reviewed de novo.” United States v. Hale, 78 

M.J. 268, 274 (C.A.A.F. 2019) (quoting United States v. Medina, 69 M.J. 462, 

465 (C.A.A.F. 2011)). 
United States v. Kitchen, No. ACM 40155

16

Military judges are required to instruct court members on the elements of 

charged offenses. R.C.M. 920(e)(1). “When a military judge’s instruction incorrectly describes elements of an offense, we analyze that error for prejudice under a standard of harmlessness beyond a reasonable doubt.” United States v. 

Forney, 67 M.J. 271, 280 (C.A.A.F. 2009) (Effron, C.J., concurring) (citing 

Neder v. United States, 527 U.S. 1, 17 (1999)); see also United States v. Payne, 

73 M.J. 19, 25 (C.A.A.F. 2014) (finding beyond a reasonable doubt that the 

omission of instructions on elements was not materially prejudicial). “This 

standard is met ‘where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction.’” United States 

v. Upshaw, 81 M.J. 71, 74 (C.A.A.F. 2021) (quoting United States v. Prasad, 80 

M.J. 23, 29 (C.A.A.F. 2020)). 

The elements of the offense of attempt, in violation of Article 80, UCMJ, 

are that: (1) the accused did a certain overt act; (2) the act was done with the 

specific intent to commit a certain offense under the UCMJ; (3) the act 

amounted to more than mere preparation; and (4) the act apparently tended to 

effect the commission of the intended offense. See MCM, pt. IV, ¶ 4.b.(1)–(4). 

In charging an attempted offense under the UCMJ, it is not necessary to allege 

the overt act or the elements of the underlying target offense, as long as the 

“accused is aware of the nature of [that] offense.” United States v. Norwood, 71 

M.J. 204, 207 (C.A.A.F. 2012).

3. Analysis

The threshold question is whether Appellant preserved, forfeited, or waived 

his allegation of error in the military judge’s instructions of the elements of 

Specifications 1 and 3. Trial defense counsel did not object to the challenged 

instructions, even when the military judge asked, so the issue was neither preserved nor forfeited. See Davis, 79 M.J. at 331. Instead, Appellant waived this 

issue, and we decline to pierce that waiver.

The military judge involved counsel in the drafting and tailoring of her instructions. She determined what kinds of instructions counsel wanted, she provided counsel with draft instructions, and she solicited objections to and requests for additional instructions. She considered Appellant’s proposed draft 

instructions, which in essence asked the military judge to tailor the language 

regarding overt acts as she saw fit. After the military judge provided the instructions to the court members, she again asked counsel for objections, and 

received none. Because trial defense counsel affirmatively declined to object to 

the findings instructions and offered no additional instructions, Appellant expressly and unequivocally acquiesced to them, constituting waiver. See United 

States v. Rich, 79 M.J. 472, 476 (C.A.A.F. 2020) (citation omitted).
United States v. Kitchen, No. ACM 40155

17

Finding waiver, we next consider whether to pierce Appellant’s waiver relating to the instructions on the elements of Specifications 1 and 3. Having

reviewed the entire record, and mindful of our mandate to “approve only that 

which ‘should be approved,’” we have determined to leave intact Appellant’s 

waiver of the alleged error. See Chin, 75 M.J. at 223. 

C. Trial Counsel’s Findings Argument

Appellant claims the trial counsel committed prosecutorial misconduct 

through improper argument when he: (1) misstated the law and misapplied 

the facts to the law, (2) attacked the defense counsel’s integrity, and (3) improperly vouched for evidence. Trial defense counsel did not object to trial counsel’s arguments detailed above. Therefore, we review for plain error. We find 

no relief is warranted.7

1. Law

“Trial prosecutorial misconduct is behavior by the prosecuting attorney 

that ‘oversteps the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.’”

United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v. 

United States, 295 U.S. 78, 84 (1935)). “Prosecutorial misconduct can be generally defined as action or inaction by a prosecutor in violation of some legal 

norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or 

an applicable professional ethics canon.” United States v. Meek, 44 M.J. 1, 5 

(C.A.A.F. 1996) (citing Berger, 295 U.S. at 88).

We review claims of prosecutorial misconduct and improper argument de 

novo. See United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019). “When a party 

does not object to comments by the prosecutor during voir dire, opening statement, argument on the findings, or argument on the sentence, we review for 

plain error.” United States v. Palacios Cueto, 82 M.J. 323, 333 (C.A.A.F. 2022)

(citations omitted). 

Plain error occurs when (1) there is error, (2) the error is clear 

or obvious, and (3) the error results in material prejudice to a 

substantial right of the accused. Thus, we must determine: (1) 

whether trial counsel’s arguments amounted to clear, obvious 

error; and (2) if so, whether there was a reasonable probability 

that, but for the error, the outcome of the proceeding would have 

been different. 

7 We have carefully considered all claims Appellant raised in assignment of error (4); 

some compel discussion, but none warrant relief. See Matias, 25 M.J. at 361.
United States v. Kitchen, No. ACM 40155

18

Voorhees, 79 M.J. at 9 (internal quotation marks and citations omitted). “[T]he 

best approach for assessing the prejudice from prosecutorial misconduct ‘involves a balancing of three factors: (1) the severity of the misconduct, (2) the 

measures adopted to cure the misconduct, and (3) the weight of the evidence 

supporting the conviction.’” Palacios Cueto, 82 M.J. at 334 (quoting Fletcher, 

62 M.J. at 184). The burden to establish plain error, including prejudice, is on 

the appellant. Id. “[T]he lack of a defense objection is ‘some measure of the 

minimal impact of a prosecutor’s improper comment.’” United States v. Gilley, 

56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v. Carpenter, 51 M.J. 

393, 397 (C.A.A.F. 1999)).

In presenting argument, trial counsel may “argue the evidence of record, 

as well as all reasonable inferences fairly derived from such evidence.” United 

States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citation omitted). Trial counsel 

may strike hard but fair blows, but may not “inject his personal opinion into 

the panel’s deliberations, inflame the members’ passions or prejudices, or ask 

them to convict the accused on the basis of criminal predisposition.” United 

States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citations omitted). In determining whether trial counsel’s comments were fair, we examine them in the 

context in which they were made. Gilley, 56 M.J. at 121. We do not “‘surgically 

carve’ out a portion of the argument with no regard to its context.” Baer, 53 

M.J. at 238.

2. Additional Background and Analysis

a. Misstatement of the Law and Facts

Appellant claims trial counsel misstated the definition of “sexual act” in 

relation to Specification 3. He asserts “the law defines ‘sexual act’—in the context of penile penetration—as requiring ‘the penetration, however slight, of the 

penis into the vulva or anus or mouth,’” and cites to the military judge’s instructions in support.

The military judge instructed, inter alia, that the meaning of “sexual act” 

in Specification 3 included “the penetration, however slight, of the penis into 

the vulva, or anus or mouth,” “contact between the mouth and the penis, vulva, 

scrotum or anus,” or “the intentional touching not through the clothing of the 

genitalia of another person who has not attained the age of 16 years with an 

intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” Appellant does not challenge the military judge’s instructions on this point. 

Appellant takes issue with the italicized part of the following portion of

trial counsel’s argument:

Specification 3, penetrating Megan’s vulva with his penis. Now 

we have to prove that he attempted to penetrate Megan’s 14-
United States v. Kitchen, No. ACM 40155

19

year-old vulva with his penis. Overt act, specific intent, substantial step but for. Same thing, [Specifications] two through four. 

How does he do it, “Well, I want to lick and suck until you’re nice 

and wet, then I want to slap my thing—his penis—on your 

thing,” her 14[-]year-old vulva, “to see if you’re ready.” You’ll see 

in the instructions contact is all that’s required. In order to commit the offense, contact one sexual organ to another. “Then I will 

start rubbing my tip between your slit.” His 43-year-old penis on 

her 14-year-old vulva.

Trial counsel then read more quotes from Appellant’s Kik messages to Megan, indicating Appellant planned penile/vaginal penetration and not mere 

contact:

“My favorite is doggie.” Doggie style, right. We have missionary 

and we have doggie style. This is actual sex that he is telling her 

he wants to do. Sexual assault of a child. “Best view.” “I get to 

mess with your booty and legs.” “Best view to see me going in 

and out.” “Mount me like a horse while I lay on my back.” “You 

get on top of my d[*]ck and stick it in, then you move it in a way 

that you’re bouncing.”

We understand Appellant’s argument to be that, although a “sexual act” 

can be “the intentional touching, not through the clothing, of the genitalia of 

another person who has not attained the age of 16 years with the proscribed

intent,” see MCM, pt. IV, ¶ 62.a.(h)(1), because Appellant was charged with an 

attempted penile/vaginal penetration, “sexual act” in this case required “the 

penetration, however slight, of the penis into the vulva,” see MCM, pt. IV, 

¶¶ 62.a.(h)(1), 60.a.(g)(1)(A). We find trial counsel’s argument was based on 

one of the military judge’s definitions of “sexual act” and was not improper.

We conclude trial counsel did not misstate the law that the military judge 

provided to the court members.

8 Trial counsel outlined graphic evidence of Appellant’s sexual intent before stating: “You’ll see in the instructions contact is 

all that’s required. In order to commit the offense, contact one sexual organ to 

another.” After this single reference to contact being required for Specification 

3, trial counsel then provided several examples of Appellant describing not just 

contact but penetrative sexual acts. Thus, while trial counsel recited an inaccurate definition of “sexual act” for the particular charging scheme in Appellant’s case, he provided examples that supported an accurate definition based 

8 Appellant does not assert the military judge’s definitions of “sexual act” with respect 

to Specification 2 of Charge II were erroneous.
United States v. Kitchen, No. ACM 40155

20

on the allegation in Specification 3: the penetration, however slight, of the penis into the vulva.

Additionally, Appellant claims trial counsel misapplied the facts to the elements of Specification 3. During argument, trial counsel specifically noted 

that the communications Appellant intentionally made to Megan about what 

they would do upon their meeting were the overt acts leading to Appellant’s 

attempt to commit sexual abuse of a child. Additionally, he argued that Appellant’s drive to a designated location in enlisted housing to meet Megan and 

possession of newer condoms were a “substantial step.” Appellant explains the 

alleged error:

Essentially, the trial counsel misapprehended the elements of 

attempt and split them into (1) an overt act, and (2) a substantial 

step. It is obvious from the trial counsel’s argument that he believed [Appellant]’s overt act (sending indecent messages) and 

his substantial step (driving to the meet up location) were not 

the same action.

We find trial counsel’s arguments about “overt acts” and “substantial steps”

potentially were confusing but were not improper. While he may have created 

an unnecessary distinction, his argument is best understood to highlight multiple acts of Appellant that were a substantial step towards commission of the 

charged offense, including the acts of driving to enlisted housing with condoms.

In a similar vein, Appellant claims that, in relation to Specification 3, trial 

counsel argued that the overt act of sending indecent messages was done with 

the specific intent to send those messages, not the specific intent to sexually 

assault. Appellant emphasizes the italicized part of the following portion of

trial counsel’s argument:

This is the overt act. The overt act is sending the message to the 

14-year-old girl. The specific intent is right there. What’s in his 

mind? We know because he specifically intended to do these 

things.

What’s a substantial step? Well, you can use the substantial step 

of him driving from his house to enlisted housing. But there’s 

more here. There’s another substantial step that I hope you’ll 

consider. I hope you think about. It’s the condoms.

We do not agree with Appellant’s interpretation. While trial counsel misused the phrase “overt act” when he argued evidence of specific intent, we read 

his argument to convey that the messages show what sexual acts Appellant 

had the specific intent to commit upon Megan when they met. Such inference 

from the evidence is reasonable under these circumstances.
United States v. Kitchen, No. ACM 40155

21

b. Attack on Defense Counsel’s Integrity

During Appellant’s conversation with Megan, the topic of his genitalia being shaved for their rendezvous was raised. After apprehending him, AFOSI 

agents, including SA TN, photographed Appellant’s genitalia.9

Trial counsel asked SA TN at the end of direct examination what hair he 

observed in Appellant’s pubic area. SA TN responded, “[T]he top portion above 

the penis had a little bit of pubic hair there. Looking at the testicles and the 

sac area, it appeared to be completely shaved, or no hair, however you want to

describe it.” Defense counsel began her cross-examination of SA TN where trial 

counsel left off. She showed SA TN one photo to refresh his memory, then 

asked, “Did it appear [Appellant] had shaved?” SA TN replied, “No, ma’am.”

The Defense did not offer this photograph into evidence. In an Article 39(a), 

UCMJ, session before its re-direct examination, the Government declared it 

now sought to admit four photos AFOSI agents took of Appellant’s genitalia. 

To overcome a Defense objection, trial counsel argued that they had not intended to introduce the photographs, “to have decency to [Appellant].” With 

the Defense’s cross-examination of SA TN, however, trial counsel argued the 

court members—and, to some extent, SA TN—had been misled. Moreover, the 

Government argued: “Part of our theory is that the substantial step was for 

[Appellant] to shave his hair” and the photographs were evidence of that step.

The military judge overruled the Defense’s objection and allowed the Government to enter the photographs into evidence.

In claiming prosecutorial misconduct, Appellant emphasizes the italicized 

portions of the following statements from trial counsel’s findings arguments:

I’m going to stop here and pause and talk about this just for a 

moment. During direct and cross-examination of Special Agent 

[TN], when we put him up on the stand, we specifically intended 

to ask him questions about this and to not get into any pictures. 

We didn’t want to embarrass [Appellant]. We didn’t want to invade in his privacy. But what you will notice is when he was on 

cross-examination, Defense gave him one picture, just one. And 

the one picture they gave him was of what appeared to be the 

top area not shaved. It was an attempt to mislead. So, our intent 

to not embarrass [Appellant], to not take his privacy away, was 

that overcome by them wanting to mislead. That’s why we put 

those pictures in, so you can look at them yourself. You can tell 

whether or not he was shaved or not. He says in the messages, 

9 Before trial, the Government informed the Defense that it did not intend to offer the 

photographs into evidence.
United States v. Kitchen, No. ACM 40155

22

“Do you want me to shave?” That’s a substantial step. He’s just 

coming back from deployment. He’s shaving his pubic hairs to 

get ready so she can do oral sex on him.

In his argument, trial defense counsel stated:

And I have to respond to the trial counsel’s argument here. 

Somehow the Defense is trying to mislead [SA TN] by providing 

him with a picture that he took, and asking him does this refresh 

his recollection from what he previously told us in a prior interview where he said there was no shaving? That’s misleading 

him? A picture he took and asking if that refreshed his recollection? Besides the point, you have the pictures. As uncomfortable 

as it may be, look at them. Does it make any sense that he would 

shave his scrotum and nothing in between his thighs, nothing 

above, nothing around, just the scrotum?

In rebuttal, trial counsel argued:

So I brought it up in my close and then [defense counsel] commented on it, now I’m going to finish it out here with what happened with [SA TN]. The privacy. I already explained to you why 

we did what we did and the misleading. It is misleading, members. They gave him one picture on cross-examination. He was 

being cross-examined by a skilled defense attorney and they 

gave him one picture and asked him, “Isn’t it true that in this 

picture he’s not shaved?” They put him in that spot. They put 

him in a spot to really just say at that point, “Yeah, it’s true.”

That is it. Absolute attempt to mislead. Absolute. There was [sic]

four pictures.

And even though he took all four of them, took the one, there 

was [sic] four pictures. If they would’ve provided him with all 

four pictures and said, “Take a look at these pictures,” then

maybe [SA TN’s] response is totally different. Maybe it’s like, 

“Well in this one it looks one way but in the rest of these you can 

clearly see.” Members, I’m not going to talk about this anymore. 

You have the pictures. You can look at it.

Appellant claims trial counsel improperly argued to the court members that 

(1) trial defense counsel tried to mislead them by showing SA TN only one photograph, and (2) the Government had not offered the photographs initially because it wanted to respect Appellant’s privacy—a fact not in evidence. The Government counters that (1) trial counsel argued that trial defense counsel misled SA TN, not the court members, and (2) the “fleeting remark” about not 
United States v. Kitchen, No. ACM 40155

23

wanting to embarrass Appellant was “a fair inference from the record.” Moreover, the Government maintains counsel was not “trying to win favor with the 

members” but instead was answering the “question in the members’ minds why 

the Government did not introduce these photos in the first place.”

Trial counsel accusing trial defense counsel of misleading the court members or SA TN was inflammatory, even if it was a fair inference based on how 

evidence was presented. The Prosecution’s reasons for offering or not offering 

evidence ordinarily is not an appropriate matter for findings argument. Cf.

R.C.M. 919(b), Discussion (“Argument may include comment about the testimony, conduct, motives, interests, and biases of witnesses to the extent supported by the evidence.”). In this case, the Prosecution’s reasons for not offering 

the photographs into evidence earlier were neither “evidence of record” nor 

“reasonable inferences fairly derived from such evidence.” See Baer, 53 M.J. at 

237. 

c. Improper Vouching

Appellant claims trial counsel committed prosecutorial misconduct by injecting personal opinions during findings argument. He takes issue with the 

italicized portions from the following portion of findings argument:

How do you look, a 43-year-old man talking to a 14-year-old girl? 

Why does he care? Why does he care how she looks? He starts it. 

He brings it up. [SA JN] told you if he would have just communicated with him and it would have never gone sexual, this 

wouldn’t be a case at all. [SA JN], fresh off his ICAC training, 

was doing exactly what he thought was right within the left and 

the right boundaries. He had supervision. His leadership was 

talking to him every day. In fact, he won an award. He got a 

commendation medal. [Defense counsel] told you that. They 

don’t give commendation medals to people for violating rights, 

for entrapping people. “Send me a pic.” How many times did he 

say “Send me a pic?” “Send me a pic.” “Send me a pic.” “I want to 

get rock hard.” He started it. Skout, page 8, very beginning. This 

is him. This is [Appellant].

. . . .

Thirty-three years old. I’m going to touch on this just for a second. So on one of the very first messages he tells her, “I’m 33 

years old.” [Defense counsel] has implied that was a fat finger,

like an accident. 33 instead of 43. You’ll find that it actually 

comes up twice. Page 2 of Skout and then page 32 of Kik. Coincidence? Who knows? I think not. What I think is this: She’s a 

14-year-old girl, he’s a 43-year-old man. To a 14-year-old girl, 
United States v. Kitchen, No. ACM 40155

24

someone in their 20’s is kind of cool, right? That’s cool. He’s in 

college. Someone in their 30’s, still maybe kind of cool. That’s not 

too old. Forties, someone in their 40’s. That’s too old. It’s kind of 

gross, right? So he intentionally takes 10 years off his life to 

make himself more appealable to her. He didn’t fat-finger it. He 

did it twice. Why did he do it? Because he knew if he said 43 she 

wouldn’t be interested anymore. She would lose interest.

During cross-examination, trial defense counsel asked SA JN about how 

maintaining his conversations with Appellant was “taxing,” and included 

working “into nights and weekends.” He then asked: “And based on this, you 

received accolades for your work in this, correct? You were able to get an [enlisted performance report] bullet out of this, correct?” to which SA JN replied, 

“I got a performance report bullet.” During a redirect examination, trial counsel asked SA JN whether he “ever receive[d] any feedback or criticism from 

[AF]OSI at any level that [he had] done anything wrong here” to which SA JN 

replied: “I received no feedback or any criticism, sir.” SA JN did not testify 

about receiving a commendation medal.

Trial counsel argued facts not in evidence when he commented on SA JN 

receiving a medal. What a prosecutor “thinks” during argument is not an appropriate consideration for the court members. In this case, we find that trial 

counsel twice saying “I think” when implying that Appellant lied to Megan 

about his age was an inartful way to introduce fair inferences the court members could draw from the evidence and a call upon their knowledge of human 

nature and the ways of the world.

d. Prejudice

Assuming that trial counsel’s arguments outlined above were clear or obvious error, we considered the three Fletcher factors, see 62 M.J. at 184, and find 

no prejudice. Read as a whole, trial counsel’s misstatement of the law or facts 

in findings argument did not create confusion. Trial defense counsel did not 

object nor ask the military judge for an instruction to cure any of the alleged 

errors. Regarding the “misleading” photographs, trial defense counsel chose to 

address the matter directly with the court members, thereby minimizing the 

impact of trial counsel’s error. Finally, whether Appellant was shaven and why 

the Government only later offered photographic proof thereof, the significance 

of SA JN getting accolades for his efforts, and whether Appellant reduced his 

age by ten years were of minimal weight compared to the extensive evidence 

of Appellant’s indecent communications with Megan and his efforts to meet her 

for sex. We find there was no reasonable probability that, but for the alleged 

errors, the outcome of the proceeding would have been different. Therefore, we 

conclude that any error during argument did not result in material prejudice 

to Appellant’s substantial rights.
United States v. Kitchen, No. ACM 40155

25

III. CONCLUSION

The findings and sentence as entered are correct in law and fact, and no 

error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court