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________________________

No. ACM 39661

________________________

UNITED STATES Appellee

v.

Addison W

. HARJUNG
Senior Airman (E

- 4 ) , U.S. Air Force, Appellant

________________________ Appeal from the United States Air Force Trial Judiciary

Decided 1 1 September 20 20

________________________ Military Judge: Willie J. Babor

. Approved sentence: Dishonorable discharge, confinement for 18 month s , forfeit ure of all pay and allowances , and reduction to E

- 1

. Sentence adjudged 15 November 2018 by G CM convened at Royal Air Force Lakenheath, United Kingdom.

For Appellant: Major David A. Schiavone , USAF ; Jonathan W. Crisp

, Esquire

. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason , USAF; Major C harles B. Dunn , USAF ; Mary Ellen Payne, Esquire

. Before J. JOHNSON

, POSCH

, and RAMÍREZ

, Appellate Military Judges

. Judge RAMÍREZ delivered the opinion of the c ourt, in which Chief Judge J. JOHNSON and Senior Judge POSCH 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This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 30 .4.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. Harjung , No. ACM 39661

2 RAMÍ REZ , Judge:

A general court

- martial composed of a military judge sitting alone found Appellant guilty

, pursuant to his plea

, of one specification of attempt ed sexual
abuse of a child by communicating indecent language (Specification 1 of the Charge ) in violation of Article 80

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

. 1 Appellant was also found guilty, contrary to his pleas, of one specification of attempted sexual abuse of a child by touching her breasts and licking her vulva ( Specification 2 of the Charge ) and one specification of attempt ed sexual assault of a child by penetrating her mouth with his penis (Specification 3 of the Charge ) , both in violation of Article 80

, UCMJ

. 2

The military judge sentenced Appellant to a d ishon orable discharge, confinement for 18 months

, forfeiture of all pay and allowances, and reduction to the grade of E

- 1. T he convening authority approved t he adjudged sentence except the adjudged forfeiture

. He also deferred the adjudged and mandatory forfeitures from 29 November 2018 to 7 March 2019

, and waived the mandatory forfeiture for a period of six months, with the total pay and allowances directed to be paid to Appellant’s wife.

Appellant raises one assignment of error on appeal: whether the evidence is legally and factually sufficient to support a guilty verdict for Specifications
2 and 3. 3 F ind ing no error , we a ffirm.

I. B ACKGROUND
Appellant enlisted in the Air Force in February 2015

, and was stationed at Royal Air Force (RAF) Lakenheath, United Kingdom

. On 20 October 2017, Ap-

1 All references in this opinion to the Uniform Code of Military Justice are to the Manual for Courts

- Martial

, United States (2016 ed.).

2 Specifications 2 and 3 were merged for sentencing purposes

.

3 We note that the convening authority denied Appellant’s request to defer the reduction in grade without explaining his reasons. In accordance wit h United States v. Sloan , 35 MJ 4, 7 (C

. M

. A

. 1992), when a convening authority denies a request for deferment, he must do so in writing and include his reasons. This was not raised by Appellant. However, we have independently considered it under the “color able showingof possible prejudice” standard and are satisfied there is no colorable showing of possible prejudice in this case. See United States v. Wheelus , 49 M.J. 283, 289 (C.A.A.F. 1998) (citation omitted) ; cf. United States v. Ward , No. ACM 39648, 20 20 CCA LEXIS 305, at * 10

– 11 (A.F. Ct. Crim. App. 3 Sep. 2020) (unpub. op.) (questioning “colorable showing of possible prejudice” standard for Sloan errors but applying it for purposes of analysis).United States v. Harjung , No. ACM 39661

3 pellant read a “C raigslist ” advertisement en titled

, “Dependent looking for company, RAF Mildenhall / Lakenheath, UK

. ” 4 Appellant responded to the advertisement stating , “I work on [L]akenheath, AD air force, married but open to chatting and maybe more.” Appellant’s response began a series of communication s over 33 days that led to Appellant’s apprehension by special agents of the Air Force Office of Special Investigations (AFOSI) on 21 November 2017

. During an email exchange on 2 2 October 2017

, Appellant was told that “ Ellie Smith ” was a 14

- year

- old girl in the 9th grade who lived on base and was a dependent of an active duty servicemember

. However, “ Ellie Smith ” 5 was , in
fact

, an I nternet persona created by Special A gent GS from the local AF OSI
detachment

. Agent GS posted the advertisement as part of a n AFOSI undercover operation to identify adults interested in exploiting children of military
members

. Agent GS testified that he informed Appellant of “Ellie’s” age to ensure that Appellant understood he was communicat ing with a child

. Agent GS explained that he provid ed several “outs” to ensure that Appellant was leading
the online conversations

, and that Appellant had opportunities to cease further
communicatio n with an individual whom Appellant believed was a child

. After the initial contact, t here was a 24

- hour break in communication between Appellant and “ Ellie ” from 22 October 2017 to 23 October 2017 as well

as a nine

- day break in communication from 23 Octo ber 2017 to 2 November
2017. At trial

, Agent GS testified that these breaks in communication were because of responsibilities that restricted the agent’s ability to respond to Appellant’s email s

. After bot h breaks in communi cation

, Appellant re initiated

contact with follow

- on messages to “Ellie” after Appellant initially receiv ed no

response to his emails

. From 2 November 2017 until 10 November 2017 Appellant engaged in flirtatious email messaging with “ Ellie ” via the Craigslist email system that had the underlying theme of using “friends” to keep “warm” during the English winter.

On 10 November 2017

, Agent GS

— posing again as “ Ellie ”

— asked Appellant to send her a picture of himself

. Appellant responded that he did not like to share p ersonal photographs online but offered to exchange photos via “ Snapchat

. ” Agent GS testified that he offered to use the “Kik” messaging application because Agent GS had not established a Snapchat account for “ Ellie

. ” Appellant agreed and shared pictures of himself

, and Agent GS in return sent im age s of a female AF OS I a gent that had been digitally altered to make the agent

4 Quotes from text messages appear in their original form , without correction.

5 Since “Ellie Smith” was a persona and not a real person, we will refer to her simply as “Ellie

. ”United States v. Harjung , No. ACM 39661

4 appear younger. Agent GS, through “ Ellie, ” questioned Appellant if he was “ok that [she was] 14.” Appellant responded:
I like you for you

, and I could get in a lot of trouble for “liking”you in that way. That’s why I was hesitant about sending a picture. I’m not mad that you’re 14, but we could never have a sexual relationship. At least not legally. I like talking to you and you

seem very m ature for your age which is why I like flirting

. . . I generally like girls my age but I like you too

. . . [were] you hoping for something more than flirting?

When “ Ellie ” responded that this sort of talk was new to her, Appellant
stated he “ would love to do more than flirt, [and] had [she] not told [him] [he] ’d have guessed [she] w [as] 18, [because she was] very mature .” Appellant asked her, “ if you did not want to do more than flirt, what were you hoping for? ”
A gain, Agent GS gave Appellant an “out,” r esponding “I don’t know

. . . I don’t want to get u in trouble.” Appellant clarified: “ Talking about stuff isn’t illegal, just doing the stuff is .

. . [I’m] just curious as to what you would d o if we were together

. . . [s] orry if that sounded creepy. ”

Yet again, Agent GS gave Appellant an “out,” telling Appellant that “someone told [her] that talking to [Appellant] would get them in trouble. ” Agent GS
clarified that this other person “ wanted to talk about kissing and sex but said it was illegal. ” “Ellie ” explained to Appellant that she “ [didn’t] wanna get anyone in trouble.” In response, Appellant told “ Ellie ” he trusted her to keep their
communications about sexual matters “our secret.” Shortly after this exchange

, Appellant’s messages became overtly se xual, and included a remark about touching “ Ellie ’s ” breasts . Appellant related to her how he “ would e njoy taking [her] shirt off and feeling what’s underneath

. . . maybe kissing there too .”

Appellant then directed the conversation to what he and “ Ellie ” could do if they got together

. Appellant suggested getting coffee or going for a walk or a
drive , after which they would “take it from there.” Appellant asked “ Elli e ” what
her favorite type of Starbucks was , and she responded hot chocolate with mint. Appe llant suggested a meeting place that would give them privacy and recommended visiting a duck pond on base. Appellant then messaged “ Ellie

, ” telling
her he would put his tongue “between [her] legs, [and Appellant] could put [his] tongue where [she ] touch [es] [her]self

. . . [and Appellant ] would gently lick it .” Appellant explained “ that’s how [ a lot ] of girls have an orgasm

. . . [and Appellant ] would love to help [her] have [her] first orgasm

. . . .” Appellant assured
“Ellie” he would “[o]nly get in tr ouble if [she told ] people what [they] do together.”

Appellant exchanged another photo with “ Ellie ” and talked about how he would enjoy being naked in his house with her

. Appellant described how “ Ellie ”United States v. Harjung , No. ACM 39661

5 could sit naked on his lap to keep warm because “ [ s ] kin on skin contact generates [ a lot ] of heat. ” Later, Appellant messaged he was “sorry if [he] made [her]
uncomfortable last time [they] talked

. . . . [and] maybe [he] pushed some stuff
last time

. . . . ” Agent GS gave Appellant another “ out ” by stating , “I feel like [ you ] might get tired of me because I don’t understand everything

. ” Appellant
insisted that he “won’t get tired of it, [and he] actually really enjoy [ed] teaching and answering questions

. . . . Whatever [she]’d like to know.”

Appellant’s messages to “ Ellie ” repeated a pattern of beginning with casual conversation that progress ed to discussions about kissing and “snuggling” to keep warm. Appellant discussed making out . He also talked about their hands wandering over one another and that it would be something he would be willing to “ teach ” “ Ellie

. ” Appellant then offer ed that he had a car and they could go somewhere if they wanted. Appellant reasoned that if people question ed why “ Ellie ” was in Appellant’s car he could explain that he was her “babysitter.” Appellant told her that she was “[y]oung enough where people wouldn’t ask questions,” and “ old enough to explore [her] sexuality. ”

Appellant messaged “ Ellie ” that “ [a] good first step would be to explore [her] body

. . . . ” This initiate d a conversation about masturbation

. Appellant told “Ellie” that he could touch her vagina and explained, “I could start with my hand, if you like that I could use my tongue.” This progressed to Appellant telling “ Ellie ” she could “[f]eel between [his] legs .” Appellant told “ Ellie ” that if
she wanted she could “[p]ut [Appellant] in [her] mouth and pretend it’s a lollipop.” After Agent GS , messaged, “ [h] ey I have to get ready for bed

, ” Appellant

respon ded, “ [o] kay sweetie we can talk more about that stuf f when we meet.”

In subsequent messages, Appellant told “Ellie” what her “next lesson”
would be

, and mentioned Appellant could pick her up in his jeep and they could
kiss

. Appellant said he would bring her hot chocolate with mint

, and then drive
around fo r a little while and talk

. At the end of their meeting, he would drive
her home and drop her off close to where she live d. Appellant asked her if she
felt c omfortable getting in his “ big jeep

, ” explain ing he was o kay with whatever
she wanted to do

. Appellant offered that if anyone saw them together as he
drove around base they could use the excuse that he was just a nice guy giving
her a ride in his jeep

. Appellant again turned the discussion to matters of a sexual nature. He
told Ellie that when t hey met
, he coul d u se his hands to show her how to touch
herself

. Appellant explained that the s eats fully recline d in his jeep

, and told
“Ellie” he “could rub [her] boobs, give [her] kisses, [and they] could make out, [and do] anything [she] ’ d like to try.” Appellant related that “ g uys like having there penises touched, [and] if [she] wanted [Appellant] could show [her] how ?” Shortly after this discussion, Agent GS gave Appellant another “out,” tellingUnited States v. Harjung , No. ACM 39661

6 him

, “ [i] f you feel like you shouldn’t talk to m e b ecause u said it’s wrong I understand. Really.” Nonetheless, Appellant continued , telling “ Ellie ” he “would
like to feel [her] boobs, maybe [her] vagina” and “ [i] f [she] were okay with it, [Appellant] would like to lick [her] vagina too.” Appellant propose d they could “[f]ind a place where nobody could see [them together] .”

Following some extended conversation with “ Ellie ” and a discussion of potentially limiting their first in

- person meeting to getting ice cream, Appellant returned to discussing sexual things such as licking “ Ellie’s ” vagina, putting his penis in her mouth, and taking condoms to their first meeting to alleviate

“ Ellie ’s ” fear of performing oral sex and getting a sexually transmitted disease

. On 19 November 2017

, Appellant and “ Ellie ” finalized plans to meet two days later

. Appellant explained he would driv e his jeep with the “reclining seats,” and bring “Ellie” a present, possibly a “blue and green” necklace, and a Starbucks peppermint hot chocolate

. They originally agreed to meet in the dorm parking lot across the street from the high school. However, on the day of the scheduled meeting, “ Ellie ” changed the meet ing location to a duck pond.

Appellant was apprehended at the duck pond on 21 November 2017

. Following his apprehension

, another AFOSI agent searched Appellant’s car and observed two Starbucks beverages, one that smelled like a regular coffee and
the other like mint and chocolate

. The agent also found a blue and green butterfly necklace with a receipt showing it had been purchased just a few da ys earlier

. The agent also found an unopened box of condoms in the center console. AFOSI agents observed that the seats in Appellant’s jeep fully reclined.

At trial

, Agent GS explained that he mentioned “ Ellie’s ” age and gave Appellant an “out” on approx imately eight to ten occasions

. The agent estimated Appellant introduced sex ual activity or conversations of a sexual nature on approximately 18 to 20 occasions before Appellant was apprehended and learned that “Ellie” was the persona of an AFOSI agent.

II. D I SCUSSION

A. Legal and Factual Sufficiency

1. Law

We review issues of legal and factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); 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. Dykes , 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted)

. The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” UnitedUnited States v. Harjung , No. ACM 39661

7 States v. Turner , 25 M.J. 324 , 324 (C.M.A . 1987) (citation omitted) ; see also United States v. Hump h erys , 57 M.J. 83, 94 (C.A.A .F. 2002). “[I]n resolving

ques tions 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 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, the court is convinced of the accused’s guilt beyond a reasonable
doubt.” Un ited States v. Reed , 54 M.J. 37, 41 (C.A.A.F. 2000) ( 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 cence nor a presumption of guilt ’ to ‘ m ake [our] own independent determination as to whether the evidence consti tutes proof of each required el ement beyond a reasonable doubt. ’ ” United States v. Wheeler , 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (alteration in origi nal) (quoting Washington , 57 M.J. at
399 ), aff’d , 77 M.J. 289 (C.A.A.F. 2018)

. “T he 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) )

. The element s of attempted sexual abuse of a child as alleged in Specification 2 of the Charge are that : (1) a t or near RAF Lakenheath, United Kingdom, on or about 21 November 2017, Appellant did a certain overt act; (2) that the act was done with the specific intent to commit lewd act s upon “Ellie Smith

, ” a person whom Appellant believed to be a child who had not attained the age of 16 years

, by touching “Ellie Smith ’s” breasts and licking her vulva , with an intent to gratify Appellant’s sexual desire; (3) the act amounted to more than mere preparation; and (4) the act apparently tended to effect the commission
of the offense of sexual abuse of a child. See Manual for Courts

- Martial, United
States (2016 ed.) ( MCM ), pt. IV, ¶ ¶ 4. b

, 45b.b.( 4 )(a).

The eleme nts of attempted sexual assault of a child as alleged in Specification 3 of the Charge are that: (1) at or near RAF Lakenheath, United Kingdom, on or about 21 November 2017, Appellant did a certain overt act; (2) the act was done with the specific intent t o commit a sexual act upon “Ellie Smith,” a person whom Appellant believed to be a child who had attained the age of 12 years but had not attained the age of 16 years, by penetrating “Ellie Smith ’s” mouth with his penis; (3) the act amounted to more than m ere preparation; and (4) the act apparently tended to effect the commission of the offense of
sexual assault of a child. See MCM , pt. IV, ¶ ¶ 4. b, 45b.b.(3)(a).

“ That a crime is comprised of both an actus reus and a mens rea necessarily means both component s must exist at the time an offense is committed if the
offense is to amount to a crime at all. ” United States v. Rodriguez , 79 M.J. 1, 3 ( C.A.A.F. 2019) (citations omitted). “To constitute an attempt there must be aUnited States v. Harjung , No. ACM 39661

8 specific intent to commit the offense a ccompanied by an overt act which directly tends to accomplish the unlawful purpose.” MCM , pt. IV, ¶ 4. c .(1)

. “ The

overt act must be more than mere preparation to commit the offense. ” United States v. Byrd , 24 M.J. 286, 289 (C.M.A. 1987) (citation omitted)

. Our superior court (formerly the Court of Military Appeals, now the United States Court of Appeals for the Armed Forces), has interpreted this as requiring that the accused take a “substantial step” toward the commission of the crime. United
States v. Jo nes , 37 M.J. 459, 461 (C.M.A. 1993) (citing Article 80, UCMJ; United States v. Schoof , 37 M.J. 96, 102 (C.M.A. 1993 )). To constitute a substantial step, the overt act must amount to “more than mere preparation” and “unequivocally demonstrat[e] that the cri me will take place unless interrupted by independent circumstances.” United States v. Winckelmann , 70 M.J. 403, 407 (C.A.A.F. 2011) (alteration in original) ( internal quotation marks and citation omitted ). “ [ A] substantial step must be conduct strongly cor roborative of
the firmness of the defendant’s criminal intent.” Byrd , 24 M.J. at 290 ( citations omitted) . However, t he explanation section of Article 80, UCMJ, states that

“ [t]he overt act need not be the last act essential to the consummation of the
offen se. ” MCM

, pt. IV, ¶ 4

. c.(2) ; s ee also United States v. Thomas

, 32 C.M.R. 278, 288 (C.M.A. 1962) ( “ [T] he overt act need not be the last proximate act to the consummation of the offense attempted to be perpetrated.”).

“ Intent can be shown by circumstantial evidence. ” United States v. Acevedo, 77 M.J. 185, 189 ( C.A.A.F. 2018) ( citing United States v. Vela , 71 M.J. 283, 286 (C.A.A.F. 2012) )

. “ Although a criminal actor must possess the requisite intent when he commits a criminal act, circumstantial evidence

— fro m before or after
the act

— may be used to prove an actor had the requisite intent at the time of
the act. ” Rodriguez , 79 M.J. at 3 (citations omitted). “The conduct of the parties
within a reasonable time before and after [an act] are circumstances which a [factfinder] may consider in determining such intent, motive or purpose.”
Brooks v. United States , 309 F.2d 580, 583 (10th Cir. 1962) (citation omitted)

.

“ Intent is a state of mind difficult of proof by direct evidence. It may, however, be established by c ircumstantial evidence and by inferences reasonably to be
drawn from the conduct of the defendant and from all the attendant circumstances in the light of human behavior and experience. ” United States v. Braddock , No. ACM 39465, 2019 CCA LEXIS 441, at *13 (A.F. Ct. Crim. App. 29 Oct. 2019 ) (unpub. op.) ( quoting State v. Casady , 491 N.W.2d 782, 787 (Iowa 1992) (other citation omitted) ), rev

. denied

, 2020 CAAF LEXIS 78 (C.A.A.F. 2020)

.The concept of “voluntary abandonment” may act as an affirmative defense.” Byrd , 24 M.J. at 292

– 3 . However, “[v] oluntary abandonment is not an affirmative defense to attempted criminal conduct where the actor ’ s purposesUnited States v. Harjung , No. ACM 39661

9 were frustrated by external forces, such as fear of immediate detection or apprehension. ” United States v. Miller , 30 M.J. 999, 1000 (N.M.C.M.R. 1990) (citations omitted).

2 . Analysis

In attacking the sufficiency of the evidence, Appellant essentially makes the same argument that his trial defense counsel made in closing argument at trial. Appellant concedes to the evidence AFOSI agents found in his jeep and
attack s the intent associated with the items in his jeep, his actions , and his messages to “Ellie

. ” Specifically, Appellant denie s he e ver had the specific intent to engage in sexual acts when he carried out his plan to me e t with “Ellie.”

Appellant concedes that he had made comments and statements about initiating sexual acts with “Ellie” and that he may very well have intended to engage in a sexual relationship with her at some point in the future. Additionally, Appellant concedes that he repeatedly expressed a desire to kiss “Ellie” when they met

. However, Appellant a rgues t hat his last discussion of a sexual

nature with “Ellie” occurred on 18 November 2017, three days prior to the meeting Appellant arranged, and

, therefore

, the passage of time dissipated his specific intent and the evidence is insufficient to support a conclusion that he
intended to perform any of the alleged acts with “Ellie” on the evening of 21
November 2017 when he was apprehended

. W e find the evid ence at trial is contrary to this position and that the passage of time did not dissipate Appellant’s specific intent . Agent GS testified that Appellant initiated sexual discussions with “ Ellie ” between 18 and 20 times during their online conversations. Th ese discussions include numerous
references to Appellant’s intent to touch “Ellie ’s ” breasts and lick her vagina

. The e vidence showing how these actions would gratify his sexual desires include him telling “Ellie” that he would “like,” “enjoy,” or “love” doing those things when they met in person. Additionally , during those discussions with “Ellie,” which contemplated an in

- person meeting between them, Appellant
referenced his penis and told her that she could “feel it with [her] hands” or

“ try putting it in [her] mouth.” These repeated explicit online conversations followed the similar pattern of progression from a casual conversa tion, to talking about kissing and cuddling, and finally to explicit sexual conversations directed at what Appellant would do with “Ellie” when they met in person for the
first time

. Appellant accepts that this record of extensive online conversations

— di scussing his desires and intentions to touch “Elli e’s ” breasts, lick her vagina

, and penetrate her mouth with his penis

— may be proof of a “future” intent to do those things. However, Appellant cites no legal precedent for the proposition that a short gap in those repeated and graphic statements negates Appellant’sUnited States v. Harjung , No. ACM 39661

10 intent to commit the offenses. While there is no legally recognized amount of time that may elapse between the forming of intent and the dissipation of the
in tent
, 6 the three days here between the last direct evidence of intent and the meet up do not convince us of dissipation in light of the circumstantial evidence.

Appellant does not dispute that he showed up to meet “Ellie” with Starbucks drinks, a necklac e, and a box of condom s in a jeep with reclining seats

. Instead, Appellant argues these actions do not establish the specific intent required to prove the offenses of which he was found guilty

. Appellant essentially attempts to negate his intent by parsing his actions before the arranged meeting. He argues that taking coffee and a gift, and being a married man with condoms in his vehicle, does not equate to having a specific intent to sexually assault or abuse a child. He argues that driving a jeep with rec lining seats does not equate to an intent to engage in sexual conduct with a child. However, it is
clear that Appellant’s sexually explicit referenc e s about what Appellant wanted to do to “Ellie,” and what he wanted her to do to him, were intertwined
with conversations about what he would bring

. It is unreasonable to conclude that Appellant acted on his stated intent to show up with coffee , a gift, and a box of condoms, but at the same time had relinquished his intent to touch “Ellie’s” breasts, lick her va gina, or put his penis in her mouth , which were among Appellant’s stated reasons for the meeting he arranged

. “ [E] vidence cannot beviewed in a vacuum. It must be considered together with all the evidence adduced in determining whether the record as a whole establishes the accused’s guilt beyond a reasonable doubt.” United States v. Bermudez , 47 C.M.R. 68, 71 ( A.F.C.M.R. 197 3) (citations omitted). Each one of these items is clear evidencethat Appellant was more than merely preparing to sexually abuse “Ellie.” Purchase of “Ellie’s” favorite drink, a necklace, and the taking of a box of unused
condoms to the meeting location c onstitutes substantial step s necessary for an attempt conviction.

Appellant next argues that he expressed to “Ellie” that “we could never have a sexual relationship” because it would be illegal, but that he did enjoy flirting. Appellant argues this negate s any specific intent to commit the offenses. However, Appellant’s argument does not take into account that A ppellant persistently stressed privacy and secrecy in his conversations with “Ellie ,” stating that he would only get in trouble if “someone saw the m” or “someone
found out” about the m

. Specifically, Appellant told “Ellie” that they could never have a sexual relationship, “[a]t least not legally.” Additionally, he told her

6 In United States v . Hoggard , a t hree

- to six

- month separation between state

- of

- mind evidence to actus reus wa s too attenuated to “illuminate [an] appellant’s state of mind at the time he attempted” the actus reus. 43 M.J. 1, 4 (C.A.A.F. 1995).United States v. Harjung , No. ACM 39661

11 that he could “[o]nly get in trouble if [she told ] people what [they] d [id] tog ether.” Appellant explained that if people saw them together, he could say he was her “babysitter.” A s previously discussed

, t he extensive record of messages exchanged between Appellant and “Ellie” repeatedly turn ed sexual in nature

, with Appellant explicitly stating what sexual acts he intended to do when they met in person for the first time

. The re is no evidence with in the record that Appellant ever abandoned this intent prior to his arrest on 21 November 2017

. See Byrd , 24 M.J. at 292 ; Miller , 30 M.J. at 1000 (citations omitted).

C onsidering the evidence presented at trial in the light most favorable to
the P rosecution, a reasonable factfinder could find b eyond a reasonable doubt that Appellant had the specific intent to touch “Ellie ’s ” breasts, lick her vulva, and penetrate her mouth with his penis when he showed up to meet her in his jeep

. Additionally, after weighing the evidence and making allowances for not having personally observed the witnesses, and taking a fresh, impartial look at the evidence, applying neither a presumption of inno cence nor a presumption of guilt to m ake our own independent deter mination , we are c onvinced of Appellant ’s guilt beyond a reasonable doubt.

III. C ONCLUSION
The approved findings and sentence are correct i n law and fact, and noerror materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and the sentence are AFFIRMED

.

FOR THE COURT

CAROL K. JOYCE Clerk of the Court