This opinion is subject to administrative correction before final disposition.

Before MONAHAN
, STEPHENS, and DEERWESTER Appellate Military Judges

_________________________ 

### UNITED STATES Appellee

v.
Kenneth OLAYA Quartermaster Third Class (E

- 4 ), U.S. Navy Appellant

No. 201900211

Decided: 1 6 November 2020
Appeal from the United States Navy

- Marine Corps Trial Judiciary
Military Judge: Arthur L. Gaston III
Sentence adjudged 22 March 2019 by a general court

- martial convened at Naval Support Activity, Naples, Italy
, consisting of officer members. Sentence approved by the convening authority: confinement for fifteen months
, forfeiture of all pay and allowances
, reduction to E

- 1, and a dishonorable discharge

. For Appellant: Captain Marcus N. Fulton , JAGC, USN
For Appellee: Lieutenant Gregory A. Rustico, JAGC, USN Lieutenant Joshua C. Fiveson, JAGC, USN
Judge DEERWESTER delivered the opinion of the Court, in which Chief Judge MONAHAN and Senior Judge STEPHENS joined

.United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

2 _________________________
This opinion does n ot serve as binding precedent b ut may be cited as persuasive authority under

NMCCA Ru le of Appellate Procedure 30.2.

_________________________
DEERWESTER, Judge : Appellant was convic ted, contrary to his pleas , of one specification of attempted child sex trafficking, one specification of attempted enticement of child prostitution, one specification of attempted illicit sexual conduct in a foreign place, and one specification of patronizing prostitutes in violation of Article 134
, Uniform Code of Military J ustice [UCMJ] , as well as one specification of attempted sexual assault of a child, in violation of Article 80, UCMJ

. 1 Appellant asserts two assignments of error [AOEs]: (1) the evidence is not fa ctually sufficient because the G overnment did not prove beyond a reasonable doubt that the fictional child involved in the attempted sexual assault of a child specification was less than s ixteen years old and that A ppellant was not entrapped; and (2 ) Appellant deserves a corrected promulgating order which accurately reflects language in the specification struck pre

- trial. We find no prejudicial error and affirm

.



### I. B ACKGROUND
Appellant, a t wenty

- five

- year

- old Sailor assigned to USS TYPHOON (PC 5) in Bahrain, was contacted on a dating application by a woman named “Kanya. ” 2 Kanya told Appellant she was a Thai prostitute . B ut she was actually a special agent with the Naval Criminal Investigative Service [NCIS]. Kanya asked Appellant if he was interested in sponsoring a young Thai prostitute to live with him in his apartment; he cou ld keep a portion of her earnings and also have sex with her as much as he desired. Appellant

1 10 U.S.C. § § 934 , 880

. The m ilitary j udge conditionally dismissed the attempted enticement of child prostitution and attempted illicit sexual conduct in a foreign place specifications based on an unreasonable multiplication of charges.

2 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

3 expressed his interest and t hey switched to chatting over a more secure social media application. When asked by NCIS about his prostitute preferences, Appellant t old Kanya he preferred a “younger” girl and she responded, “Great I have one 16 coming from Thailand very soon.” 3 Appellant and Kanya arranged to meet at a hotel close to Appellant’s apartment on the following Wednesday, which was 3 January 2018. Kanya ask ed Appellant to bring two condoms and 10 Bahraini Dinar 4 in a plastic bag. Appellant asked if Kanya had any girls who were immediately available, but she replied that she did not.A couple of days after their initial conversation, Kanya messaged Appellant and told him the child

- prostitute

— “Laya”

— would be turning sixteen on the day after their scheduled meeting at the hotel. Laya’s purported 16th birthday was Thursday, 4 January 2018. Kanya told Appellant, “Laya 16 th birthday on t hursday so u can bring P reisent LOL

. U are P resent,” 5 to which Appellant responded “Lol that’s good.” 6 In the interim, Appellant and Kanya discussed logistics about the hotel and other plans so he could meet the fifteen

- year

- old Laya for sex in a hotel

room. On Wednesday, 3 January 2018

— the d ay of the scheduled rendezvous

— Appellant and Kanya communicated back and forth about when Appellant could arrive due to his work schedule. Finally
, at 1856, Appellant messaged Kanya that he was en route to the hotel in his car. He arrived, parked, and went to the front desk for his key to R oom 1105. At 1945
, Appellant messaged Kanya “Okay. She in there? Not there.” 7 At approximately 2000, NCIS special agents who were expecting Appellant, apprehended him outside of Room 1105 . This was about four hours before Laya would have turned sixteen had she been an actual person.

3 Pros. Ex. 4 at 2.

4 The Bahraini Dinar is the national cur rency of the Kingdom of Bahrain

.

5 Id . at 6

.

6 Id

.

7 Id

. a t 12

.United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

4 

### II. D ISCUSSION

A. Legal and Factual Sufficiency
W e review Appellant’s convictions for legal and factual sufficiency de

novo

. 8 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, [this C ourt is] convinced of [ A ] ppellant’s guilt beyond a reasonable doubt.” 9 In conduc ting this unique appellate function, 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 ea ch required element beyond a reasonable doubt.” 10 When conducting this review, we are “limited to the evidence presented at trial.” 11 Proof beyond a reasonable doubt does not mean, however, that the evidence must be free from conflict. 12 When testing for leg al sufficiency, we look at “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.” 13 To sustain an attempt conviction under Article 8 0, UCMJ, the Government must prove beyond a reasonable doubt: (1) that Appellant made a certain overt act; (2) that amounted to more than mere preparation; (3) that apparently tended to effect the commission of a crime; and (4) that the act was done with s pecific intent to commit an offense under the UCM J. 14 Here, the underlying offense was sexual assault of a child.

8 UCMJ a rt. 66; United States v. Washington , 57 M.J. 394, 399 (C.A.A.F. 2002).

9 United States v. Rosario , 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal quotation marks, and emphasis omitted).

10 Washington , 57 M.J. at 399.

11 United States v. Peas e, 75 M.J. 180, 184 (C.A.A.F. 2016) (quoting United States

v. Beatty , 64 M.J. 456, 458 (C.A.A.F. 2007)).

12 United States v. Goode
, 54 M.J. 836, 841 (N

- M. Ct. Crim. App. 2001).

13 United States v . Turner , 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979)); see also United States v. Robinson , 77 M.J. 294, 297

- 98 (C.A.A.F. 2018)

14 10 U.S.C. § 880.United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

5 We have previously held that a substantial step must be “an act that is strongly corroborative of the firmness of the accused’s criminal inten t

. ” 15 It must “ unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances

. ” 16 Travel has traditionally constituted a substantial step in prosecution for child sex assault cases

. 17 Appellant challenges whether the G overnment proved beyond a reasonable doubt that the fictitious victim in this case was under sixteen when he

was apprehended

. Co nfusion as to the age resulted from a poorly planned NCIS sting operation in which Appellant was or iginally told the fictitious victim was sixteen years old, but then later told she actually was about to turn sixteen the day after the arranged meeting. Complicating the operation even more, the fictitious victim was to arriv e in Bahrain from Thailand, on 3 January 2018 , which was the day before she turned sixteen

. Appellant correctly points out that there is a four hour time difference between Thailand and Bahrain, such that 0001 in Thailand is 2001 the day before in Bahrain. Although the original meeting was planned fo r 1730 ( Bahrain time ) on 3 January, Appellant did not actually arrive at the hotel until 1945, when he was arrested outside the fictitious victim’s hotel room. Although the contrived tim e of the fictitious victim’s birthday made it difficult for the G over nment to prove its case , we are convinced it establish ed all the required elements beyond a reasonable doubt. Appellant knew the fictitious victim was only fifteen years old four days before the ir meeting. Once he learned she was f ifteen , and that he would be her “ birthday present, ” he replied “LOL that’s good

. ” He then spent the next several days requesting pictures; ask ed Kanya if she was in Bahrain yet, and propose d meeting her earlier in the day of the scheduled meeting. Appellant then clarifie d what he

wa s to b ring, and head ed toward the hotel around 1900 due to an unexpected call

- back from work. Once he arrive d , he immediately went to the front desk

15 United States v. Williamson , 42 M.J. 613, 616 (N

- M. Ct. Crim. App. 1995) (citing United States v. Byrd , 24 M.J. 286 (C.M.A. 1987))

.

16 United States v. Wincklemann , 70 M.J. 403, 407 (C.A.A.F. 2011) (quoting United States v. Goetzke , 494 F.3d 1231, 1237 (9th Cir. 2007 )).

17 See, e.g.
, United States v. Beltran
, No. 201500270, 2017 CCA LEXIS 96 (N

- M. Ct. Crim. App . Feb. 14, 2017) (unpublished op.) ; United States v. Grina
, No. 201700008, 2 018 CCA LEXIS 61 (N

- M. Ct. Crim. App. Feb . 8, 2018) (unpublished op.) ; ( United States v. Keeter , N o . 201700119, 2018 CCA LEXIS 474 (N

- M. Ct. Crim. App

. Oct . 3, 2018 ) (unpublished op.)

.United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

6 as directed, and then went to R oom 1105

— also as directed. It is there that he

wa s a pprehended

. Appellant committed all elements of the offense prior to the fictitious victim ’ s 16th birthday. 18 Once he decided to travel to the room, he took a substantial step that amounted to more than mere preparation. The Court of Appeals for the Armed Forces has “recognized that a substantial step could be comprised of something as benign as travel, arranging a meeting, or making hotel reservations.” 19 Appellant did two of these three, and was instructed to make use of the hotel reservations. He did all of this while the ficti tious prostitute was still only fifteen , regardless of the time zone used to calculate the exact moment of her fictitious sixteen th birthday. The case against Appellant was strong. His own words were captured by the NCIS special agent during the investigation and admitted into ev idence. He was apprehended in the arranged hotel
, immediately outside the room where the NCIS special agent told him a fifteen

- year

- old girl was waiting t o have sex with him

. Though he did not have the two condoms he was told to bring, he did br ing all other items discussed prior to the meeting. After carefully reviewing the record of trial and considering all of the evidence in a light most favorable to the prosecution, we are convinced a rational factfinder could have found Appellant attempted to sexually assault a child under the age of sixteen

. Also, having weighed all the Government and D efense evidence admitted at trial and made allowances for not having personally observed the witnesses, we too are convinced beyond a reasonable doubt of Appellan t’s guilt to the charges and specifications.

B. Entrapment At trial, Appellant asserted the affirmative defense of entrapment. The military judge properly instructed the members under Rule for Courts

Martial [ R.C.M. ] 916(g). On appeal, Appellant again claims the Government entrapped him and therefore his convictions are both legally and factually insufficient. Because we find the Government did not induce Appellant into his actions, and Appellant acted according to his predisposition, he was not entrapped.

18 Even if th is C ourt were to find the fictitious victim turned sixteen at 2000 in Bahrain
, as Appellant has urged , all elements of the offense were committed prior to 2000 , while the fictitious victim was still only fifteen

.

19 United States v. Hale
, 78 M.J. 268, 272 (C.A.A.F. 2019).United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

7 1. In ducement For the Government to entrap someone, it must first engage in some kind of inducement. 20 Inducement requires more than the Government simply providing the “opportunity or facilities to commit the crime” but must rise to the level of “conduct that c reates a substantial risk that an undisposed person or otherwise law

- abiding citizen would commit the offense.” 21 Inducement may take the form of pleas, coercion, threats, or fraudulent representations. Appellant argues the Government agent posing as “Kanya ” induced him to action. Specifically, Appellant points out that the NCIS special agent proposed the arrangement, and first told Appellant that the prostitute was already sixteen years old. Only after an agreement was made to meet the prostitute did the girl’s age get lowered to fifteen . As such, Appellant contends the G overnment did not establish beyond a reasonable doubt that Appellant had a predisposition to commit the offense and was not induced. In reviewing the conversations, we do not agree with Appellant’s characterization. Wh en the NCIS special agent suggested Appellant hous e a Thai prostitute in his Bahrain apartment , he immediately accepted. Once NCIS told Appellant to switch the conversation to a more secure platform, Appellant immediately did so, again showing interest for both the girl and the arrangement. When the basic arrangement was agreed to, Appellant asked several questions about specifics, to include whether Kanya had additional girls that could live with him. When asked whether he preferred
you nger or older prostitutes, Appellant immediately replied “younger

. ” When told Laya would actually only turn sixteen after they met to have sex, Appellant replie d “LOL
, ” and ask ed to meet with the now

- fifteen

- year

- old prostitute earlier than the arranged time. For an additional three days after learning that Laya was only fifteen , Appellant clarifie d what he needed to bring to the meeting; ask ed for several pictures of the young prostitute; and trie d to negotiate an earlier time on the day of the arranged meeting.
Even if Appellant’s view of the communications was accurate, this would still not rise to the level of Government inducement. We do not agree that an undisposed person or an ordinary law

- abiding person would be induced to sexual contact with a fifteen

- year

- old girl me rely by an invitation to profit

20 United States v. Howell , 36 M.J. 354, 359

- 60 (C. M.A. 1993).

21 United States v. Hall , 56 M.J. 432, 436

- 37 (C.A.A.F. 2002) (citations and internal quotation marks omitted).United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

8 from her earnings . We further do not agree that an undisposed person would be induced to sexual contact with a fifteen year old with a gift of an expensive hotel room in Bahrain.

2. Predisposition A predisposition is demonstrated when “a person accepts a criminal offer without being offered extraordinary inducements.” 22 The Government is notrequired to have evidence of an accused’s criminal activity before approaching. 23 Here, we find no “extraordinary inducements” in the communicat ions between the NCIS special agent and Appellant. The overall tone of the conversation was a straightforward agreement to house a “younger” prostitute that Appellant was told was about to turn sixteen

. The Government did not use an elaborate or confusing schem e, in which an innocent person could inadvertently cross the threshold of misconduct. 24 It was Appellant and not NCIS who requested to meet the fifteen year old multiple times. It was Appellant who repeatedly wanted to see pictures of the child prostitute, clar ified what items he was to bring, and whether Kanya had other younger prostitutes for him to both sleep a s well as live with. I t was Appellant who chose to arrive the day before the girl’s 16th birthday to have sex with her , after discussing the possibilit y of moving the date to the following day. Appellant’s own actions demonstrated his predisposition to the criminal conduct.

C. Error in Promulgating Order

T he court

- martial order [ CMO ] does not accurately reflect Appellant’s findings. Pursuant to a motion for a minor change made by the Government, the military judge narrowed the language of Specification 4 of Charge I
, by striking the language “between March 2017 and”

— leaving a specific month and date of the alleged violation vice a range

. 25 The CMO does not re flect this minor change. Although we find no prejudice from this scrivener’s error,

22 United States v. Bell , 38 M.J. 358, 360 (C.M.A. 1993) (quoting United States v. Evans , 924 F.2d 714, 718 (7th Cir. 1991)).

23 Id . (citing United States v. Swets , 563 F.2d 989, 991 (10th Cir. 1977), cert. denied , 434 U.S. 1022 (1978)).

24 See, e.g.
, Jacobson v. United States , 503 U.S. 540 (1992) (finding the g overnment enticed appellant into purchase of explicit materials in complicated scheme mixing legal and political materials with illegal explicit materials).

25 R

. at 162

.United States v. Olaya
, NMCCA No. 201900211 Opinion of the Court

9 Appellant is entitled to have court

- martial records that correctly reflect the content of his proceeding. 26



### III. C ONCLUSION
After careful consideration of Appellant’s assigned e rror, the record of trial, and the parties’ submissions, we conclude the findings are correct in law and fact. Accordingly, the findings are AFFIRMED

. The supplemental CMO shall reflect an accurate summary of Appellant’s pleas and findings. The CMO shall except out the words “ between March 2017 and ,” from Specification 4 of Charge I

. Chief J udge MONAHAN and Senior Judge STEPHENS concur

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court

26 United States v. Crumpley
, 49 M.J. 538, 539 (N

- M. Ct. Crim. App. 1998).