UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

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 11 September 2020

________________________

Military Judge: Willie J. Babor.

Approved sentence: Dishonorable discharge, confinement for 18 months,

forfeiture of all pay and allowances, and reduction to E-1. Sentence adjudged 15 November 2018 by GCM 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 Charles B. Dunn, USAF; Mary 

Ellen Payne, Esquire. 

Before J. JOHNSON, POSCH, and RAMÍREZ, Appellate Military 

Judges.

Judge RAMÍREZ delivered the opinion of the court, 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This is an unpublished opinion and, as such, does not serve as 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

RAMÍREZ, Judge:

A general court-martial composed of a military judge sitting alone found

Appellant guilty, pursuant to his plea, of one specification of attempted 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 attempted 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 dishonorable discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to 

the grade of E-1. The convening authority approved the 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 Finding no error, we affirm. 

I. BACKGROUND

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 with 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 “colorable showing 

of 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, 2020 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 “Craigslist” advertisement entitled, “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 communications 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 22 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 Internet persona created by Special Agent GS from the local AFOSI 

detachment. Agent GS posted the advertisement as part of an 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 communicating with a child. Agent GS

explained that he provided several “outs” to ensure that Appellant was leading 

the online conversations, and that Appellant had opportunities to cease further 

communication with an individual whom Appellant believed was a child. 

After the initial contact, there 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 October 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 emails. After both breaks in communication, Appellant reinitiated

contact with follow-on messages to “Ellie” after Appellant initially received 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 personal 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 images

of a female AFOSI agent 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 mature 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?” 

Again, Agent GS gave Appellant an “out,” responding “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 do 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 sexual, and included a remark about 

touching “Ellie’s” breasts. Appellant related to her how he “would enjoy 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 “Ellie” what 

her favorite type of Starbucks was, and she responded hot chocolate with mint. 

Appellant 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 trouble 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 progressed 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 offered that he had a car and they 

could go somewhere if they wanted. Appellant reasoned that if people questioned 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 initiated 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 

responded, “[o]kay sweetie we can talk more about that stuff 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 for a little while and talk. At the end of their meeting, he would drive 

her home and drop her off close to where she lived. Appellant asked her if she 

felt comfortable getting in his “big jeep,” explaining he was okay 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 they met, he could use his hands to show her how to touch 

herself. Appellant explained that the seats fully reclined 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 “guys like having 

there penises touched, [and] if [she] wanted [Appellant] could show [her] how?” 

Shortly after this discussion, Agent GS gave Appellant another “out,” telling 
United States v. Harjung, No. ACM 39661

6

him, “[i]f you feel like you shouldn’t talk to me because 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 proposed 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 drive 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 meeting 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 days 

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 approximately eight to ten occasions. The agent estimated 

Appellant introduced sexual 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. DISCUSSION 

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.” United 
United 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. Humpherys, 57 M.J. 83, 94 (C.A.A.F. 2002). “[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 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.” United 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 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.’” United States v. Wheeler, 76 M.J. 564, 568 (A.F. 

Ct. Crim. App. 2017) (alteration in original) (quoting Washington, 57 M.J. at 

399), aff’d, 77 M.J. 289 (C.A.A.F. 2018). “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)).

The elements of attempted sexual abuse of a child as alleged in Specification 2 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) that the 

act was done with the specific intent to commit lewd acts 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 elements 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 to 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 mere 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 components 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 a 
United States v. Harjung, No. ACM 39661

8

specific intent to commit the offense accompanied 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. Jones, 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 crime 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 corroborative of 

the firmness of the defendant’s criminal intent.” Byrd, 24 M.J. at 290 (citations 

omitted). However, the explanation section of Article 80, UCMJ, states that 

“[t]he overt act need not be the last act essential to the consummation of the 

offense.” MCM, pt. IV, ¶ 4.c.(2); see 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—from 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 circumstantial 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 purposes 
United 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 

attacks the intent associated with the items in his jeep, his actions, and his 

messages to “Ellie.” Specifically, Appellant denies he ever had the specific intent to engage in sexual acts when he carried out his plan to meet 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 argues that 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.

We find the evidence 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. These discussions include numerous 

references to Appellant’s intent to touch “Ellie’s” breasts and lick her vagina. 

The evidence 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 conversation, 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—discussing his desires and intentions to touch “Ellie’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’s 
United 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 

intent,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 necklace, and a box of condoms 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 reclining seats does 

not equate to an intent to engage in sexual conduct with a child. However, it is 

clear that Appellant’s sexually explicit references 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 vagina, or put his penis in her mouth, which were among 

Appellant’s stated reasons for the meeting he arranged. “[E]vidence cannot be 

viewed 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. 1973) (citations omitted). Each one of these items is clear evidence 

that 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 constitutes substantial steps 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 negates any specific intent to commit the offenses. However, Appellant’s argument does not take into account that Appellant persistently stressed privacy and secrecy in his conversations with “Ellie,” 

stating that he would only get in trouble if “someone saw them” or “someone 

found out” about them. 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 three- to six-month separation between state-of-mind 

evidence to actus reus was 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] together.” Appellant explained that if people saw them together, he could say he 

was her “babysitter.” As previously discussed, the extensive record of messages 

exchanged between Appellant and “Ellie” repeatedly turned sexual in nature,

with Appellant explicitly stating what sexual acts he intended to do when they 

met in person for the first time. There is no evidence within 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). 

Considering the evidence presented at trial in the light most favorable to 

the Prosecution, a reasonable factfinder could find beyond 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 innocence nor a presumption of guilt to make our own independent determination, we are convinced of 

Appellant’s guilt beyond a reasonable doubt.

III. CONCLUSION

The approved findings and sentence are correct in law and fact, and no 

error 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