UNITED STATES NAVY-MARINE CORPS 

COURT OF CRIMINAL APPEALS

WASHINGTON, D.C.

Before

K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS

Appellate Military Judges

UNITED STATES OF AMERICA

v.

JAVON C. ASHWORTH

SEAMAN APPRENTICE (E-2), U.S. NAVY

NMCCA 201500028

GENERAL COURT-MARTIAL

Sentence Adjudged: 26 September 2014.

Military Judge: CAPT R.B. Blazewick, JAGC, USN.

Convening Authority: Commander, Navy Region Southeast, Naval 

Air Station, Jacksonville, FL.

Staff Judge Advocate's Recommendation: CDR N.O. Evans, JAGC, 

USN.

For Appellant: CDR Glenn Gerding, JAGC, USN.

For Appellee: LT James M. Belforti, JAGC, USN.

3 September 2015

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OPINION OF THE COURT 

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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE 

AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

 

PER CURIAM:

A military judge, sitting as a general court-martial, found the 

appellant guilty, pursuant to his pleas, of two specifications of 

sexual abuse of a child, one specification of possession of child 

pornography, and one specification of solicitation to distribute 

child pornography, in violation of Articles 120b and 134, Uniform 

Code of Military Justice, 10 U.S.C. §§ 920b and 934. The adjudged 

sentence included 15 months’ confinement, reduction to pay grade E1, a $3,000.00 fine, and a bad-conduct discharge. The convening 
2

authority approved the sentence as adjudged but, pursuant to a 

pretrial agreement, disapproved the fine to the extent it exceeded 

$500.00.

On appeal, the appellant alleges that his guilty plea to Charge 

II, Specification 4, solicitation to distribute child pornography, 

was not provident. The appellant argues the military judge failed 

to elicit facts to establish the minor girls that the appellant 

solicited were aware they were part of a criminal venture. After 

careful examination of the record of trial and the pleadings of the 

parties, we disagree. The findings and the sentence are correct in 

law and fact, and we find no error materially prejudicial to the 

substantial rights of the appellant. Arts. 59(a) and 66(c), UCMJ. 

Background

In November 2013, the appellant, a 21-year-old male, resumed 

his teenage practice of meeting underage girls online and “sexting”1

with them. Using social networking websites the appellant initiated 

communication with girls under the age of 18. Sometimes the 

appellant introduced himself to girls using an account that 

reflected his true identity as a 21-year-old male Sailor named 

Jovon. Alternatively, the appellant used an account through which 

he impersonated a 16-year-old girl with a name such as Ashley. If a 

conversation progressed with a girl, the appellant would request her 

cell phone number or user name on an application which is used to 

exchange text messages and photos via smart phone or computer. The 

appellant then transmitted photographs of himself naked, or if he 

were posing as a teenage girl, photographs of young women engaging 

in sexually explicit conduct. The appellant requested that the 

girls receiving the images reciprocate with photos of themselves 

unclothed or “doing racy things, slowly stripping and—and the like, 

things that would constitute child pornography.”2

 Many of these

underage girls the appellant solicited responded by sending one or 

more photos of themselves, often fully or partially naked and/or 

touching themselves sexually. 

 

1 Sexting has been defined as “‘the practice of sending or posting sexually 

suggestive text messages and images, including nude or semi-nude photographs via 

cell phones or over the Internet.’” Ronak Patel, “Taking it Easy on Teen 

Pornographers: States Respond to Minors’ Sexting,” 13 J. High Tech. L. 574, 575

(2013) (quoting Miller v. Skumanick, 605 F. Supp. 2d 634, 637 (M.D. Pa. 2009)).

2 Record at 55. 
3

Standard of Review

A military judge's decision to accept a guilty plea is reviewed 

for an abuse of discretion. United States v. Inabinette, 66 M.J. 

320, 322 (C.A.A.F. 2008). The test for abuse of discretion in 

accepting a guilty plea is whether the record shows a substantial 

basis in law or fact for questioning the plea. United States v.

Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United States v. 

Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)). Setting aside a guilty 

plea requires “a substantial conflict between the plea and the 

accused's statements or other evidence . . . . The mere possibility 

of a conflict is not sufficient.” Id. (quoting United States v. 

Hines, 73 M.J. 119, 124 (C.A.A.F. 2014)) (additional citation and

internal quotation marks omitted). 

Solicitation to Commit an Offense

The first element of soliciting another to commit an offense 

is, “[t]hat the accused solicited or advised a certain person or 

persons to commit a certain offense under the code other than the 

four offenses named in Article 82.” 3

 MANUAL FOR COURTS-MARTIAL, UNITED 

STATES (2012 ed.), Part IV, ¶ 105b(1) (emphasis added). Solicitation 

exists only in relation to another, stand-alone offense. Committing 

solicitation appears to involve nothing more than making a nefarious 

request or suggestion, but the recipient must be capable of 

committing a separate criminal offense prohibited by the UCMJ. 

In 1957, the United States Court of Military Appeals (CMA) 

first analyzed a solicitor’s culpability for solicitation in light 

of the solicitee’s potential culpability for the solicited offense. 

United States v. Oakley, 23 C.M.R.197 (C.M.A. 1957). In Oakley, the 

appellant asked two civilian co-workers to purchase rat poison for 

him, a normally lawful act. Id. at 198. However, when pressed, the 

appellant admitted to both co-workers he sought the rat poison in 

order to contaminate his First Sergeant’s food. Id. This evidence 

rebutted the appellant’s claim he made facially innocent requests 

that, if heeded, could not amount to a criminal offense. Aware of 

the appellant’s murderous intent, the solicitees could not have 

agreed to purchase rat poison without consciously joining the 

appellant’s criminal venture. Confident the two solicited coworkers could have committed an offense, the CMA concluded the two 

specifications of solicitation adequately alleged an offense. Id.

at 199.

 

3 The four offenses named in Article 82 are desertion, mutiny, misbehavior before 

the enemy, and sedition. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶ 

6.
4

Thirty-seven years later, the CMA cited its opinion in Oakley

for the requirement that a “solicitor’s request be such that the 

solicitee know that the act requested of him is part of a criminal 

venture.” United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994)

(citing Oakley, 23 C.M.R. at 199). As in Oakley, the solicitation 

in Higgins was a facially innocent request. Higgins stole an ATM 

card from a fellow Soldier but kept the theft secret when soliciting 

a friend to withdraw money with the stolen ATM card. Unlike in 

Oakley, the Higgins successfully held his tongue, and the solicited 

friend withdrew funds with a stolen ATM card in “blissful 

ignorance.” Id. Without evidence the solicitee knew he was joining 

a criminal venture, the CMA found Higgins’ plea to solicitation 

improvident and set aside the conviction. Id. at 70. 

In 2010, the United States Court of Appeals for the Armed 

Forces (CAAF) again addressed the crime of solicitation to commit an 

offense, this time in the context of whether the specification 

stated an offense. United States v. Sutton, 68 M.J. 455 (C.A.A.F. 

2010). As in Oakley, the CAAF analyzed the case from the 

perspective of the solicited party. However, the CAAF rejected the 

argument “that [the Government] need only show that [the solicitee] 

knew that the solicitation was an invitation to join in a criminal 

venture.” Id. at 458. The Sutton court determined it must analyze 

the solicitee’s ability to fulfill each element of the solicited 

offense. Id. at 457-59 (citing United States v. Crafter, 64 M.J. 

209, 211 (C.A.A.F. 2006); United States v. Dear, 40 M.J. 196, 197 

(C.M.A. 1994)). Sutton was charged with soliciting his 10-year-old 

stepdaughter to commit indecent acts or liberties with a child by 

lifting her shirt and showing him her breasts. Sutton, 68 M.J. at 

456. Stepping through the elements of indecent acts or liberties 

with a child, Article 134, UCMJ, the CAAF concluded that a child 

committing an act that amounted to the taking of indecent liberties 

with herself failed to state an offense. Id. at 458-59. 

In two cases very similar to Sutton, the Air Force Court of 

Military Review (AFCMR) and this court analyzed whether teenage 

girls appreciated the nature of acts solicited from them. United 

States v. Harris, No. 9901587, 2003 CCA LEXIS 269 at *3 

(N.M.Ct.Crim.App. 26 Nov 2003); United States v. Conway, 40 M.J. 

859, 862 (A.F.C.M.R. 1994). Although the CAAF implied it would set 

aside the convictions in Conway and Harris for the same flaws it 

found in Sutton, it did not directly refute either court’s analysis

of the solicitees’ sense of wrongfulness. Sutton, at 458. In both 

cases cited, the appellant stepfathers were convicted of soliciting 

their teenage stepdaughters to engage in indecent liberties with a 

minor by allowing their stepfathers to see them naked. Conway, 40 

M.J. at 861; Harris, 2003 CCA LEXIS 269 at *1. Both courts began 
5

their analyses with the Higgins requirement for evidence that “the 

person solicited knows the act requested is part of some 

contemplated wrongful conduct.” Conway, 40 M.J. at 862; see also

Harris, 2003 CCA LEXIS 269 at *3 (citing Higgins, 40 M.J. at 67). 

From the circumstances surrounding the solicitations, both courts 

found sufficient evidence to satisfy the knowledge requirement for 

the two solicited stepdaughters.4

 Similarly, such evidence would 

shed light on whether the stepdaughters in Conway and Harris could 

form the necessary intent to commit the solicited sexual offense.

The case sub judice involves the solicitation of minor girls, 

but the solicited offense differs. The appellant befriended minor 

girls online, then solicited them to distribute child pornography by 

taking and sharing sexually explicit photos of themselves. 

Sometimes the appellant impersonated a teenage girl, and other times 

he revealed his true identity as a 21-year-old man, but he always 

solicited in the context of sexting, a practice widely understood in 

American adolescent culture.5

 

4 In Conway, the AFCMR looked at the context of the solicitation in analyzing the 

solicited teenager’s awareness. 40 M.J. at 862. Did the circumstances 

surrounding the solicitation suggest to the child a proper or an improper purpose 

for allowing her stepfather to see her naked? The court pointed to Conway’s offer 

to pay his stepdaughter to expose herself to him and his history of sexual abusing 

her as evidence belying any proper purpose. Id. In such an environment, the 

court believed the stepdaughter could not have attributed her stepfather’s request 

to anything innocent or legitimate. Id. The court concluded she had sufficient 

knowledge to satisfy the knowledge prong of the solicitation under Higgins. Id. 

In Harris, this court cited three facts as sufficient evidence that a solicited 

14-year-old, SL, understood her stepfather’s requests of her were wrongful: 

First, SL's practice of covering the key hole to her bedroom door 

and closing her blinds indicates her desire for privacy. Second, 

the appellant's statement to SL that he wanted to observe her 

naked, and the fact that his requests were reiterated through 

secret written notes clearly communicated to SL that the 

appellant viewed his request as wrongful. Finally, SL's decision 

to spurn the appellant's repeated requests, despite his parental 

authority, provides a sufficient basis for concluding that SL 

understood that she had no duty to acquiesce in the appellant's 

request and that, if she did, her conduct would be wrong.

Harris, 2003 CCA LEXIS 269 at *4 (citation omitted). 

5 In 2008 and 2009, survey results revealed that somewhere between 5% and 24% of 14 

to 17-years-olds sent “sext” messages. Kimberlianne Podlas, The ‘Legal 

Epidemiology’ of the Teen Sexting Epidemic: How the Media Influenced a Legislative 

Outbreak, 12 PGH. J. Tech. L. & Pol’y 1 at ¶¶ 28-34. Intense media coverage of 

the issue in 2009, fed a popular perception of teen sexting as an “epidemic.” Id.

at ¶ 30.
6

As the appellant alleges, the record contains no direct 

evidence that the Jane Does he solicited understood the criminality 

of the acts he requested of them. At the beginning of the 

providence inquiry, the military judge defined solicitation as “any 

statement or any other act which may be understood to be a serious 

request to commit the offense of child pornography. The person 

solicited must know that the act requested is part of a criminal 

venture[.]”6

 The military judge asked the appellant if he understood 

the elements of the offenses and if they correctly described what he 

did. The appellant answered both questions in the affirmative. 

In the ensuing colloquy, the military judge asked no questions 

about the solicited girls’ awareness of the criminality or 

wrongfulness of the appellant’s requests. The stipulation of fact 

does not address the solicited girls’ knowledge of criminality or 

wrongfulness. Finally, neither the Government nor the appellant 

introduced testimony, statements, or other evidence explicitly 

addressing the solicited girls’ awareness of the criminality or 

wrongfulness of the requested actions. 

The appellant relies almost exclusively on Higgins, arguing 

there is insufficient evidence of the solicited parties’ knowledge 

of the appellant’s criminal venture. Unlike Higgins, however, this 

case does not involve a request to perform facially innocent acts 

with no hint as to the solicitor’s nefarious intent. Although the 

appellant testified to employing some deception as to his identity, 

his impersonation of a teenage girl online did not obscure what it 

was he was requesting: sexually explicit photographs of teenage 

girls. Whether the solicited girls thought they were sexting with a 

fellow teenage girl or a 21-year-old man, they still knew they were 

sexting. Ultimately, the appellant’s deception of some but not all 

of the solicited girls is not fatal to his plea. He still pled to 

sexting with underage girls using a social media account listing his 

real name, sex, and age, sending pictures of his naked adult penis, 

and otherwise withholding nothing about his identity or intentions. 

We apply the test the CAAF set forth in Sutton and turn our 

attention to the elements of the solicited offense. Distribution of 

child pornography in violation of 18 U.S.C. § 2252A(1), assimilated 

into the UCMJ under clause 3 of Article 134, criminalizes the acts 

of those who (1) knowingly (2) mail, transport, or ship, (3) using 

means or facility in interstate commerce, including by computer, (4) 

child pornography. Section 2256 of title 18 defines child 

pornography to include any visual depiction of a person under the 

 

6 Record at 33. 
7

age of 18 years engaging in sexually explicit conduct. Sexually 

explicit conduct includes masturbation and the lascivious exhibition 

of the genitals or pubic area of any person.7

The appellant’s modus operandi, detailed in his stipulation of 

fact and his providence inquiry, made his pursuit of sexual 

gratification through sexting clear to the girls he solicited. The 

appellant first approached the girls on social networking sites, 

platforms with no other purpose than to introduce people socially. 

If a girl responded to the appellant’s overtures and conversation 

progressed, the appellant proposed exchanging phone numbers or 

messenger user names so they could text and share pictures. The 

appellant would then rather bluntly communicate his desire to shift 

from texting to sexting by sending the girl a picture of his 

lasciviously exposed genitalia. Some girls responded with texts 

that suggested their sexual gratification. Some reciprocated with 

sexually explicit photos of themselves. The appellant sometimes 

clarified his desires by specifically requesting the girls 

photograph themselves “[s]tripping, potentially masturbating, 

touching themselves, posing.”8

 On the other hand, some girls 

responded by texting, “I don’t want to do this.”9 These girls 

understood the appellant’s proposition and declined the escalation 

from texting to sexting. Regardless of whether the girls shared the 

appellant’s desires, they could not help but understand them. For 

girls growing up in a culture fascinated with sexting, there could 

be no confusion as to the nature and purpose of appellant’s 

solicitation. 

This evidence allows this court to infer that the solicited 

girls did or could knowingly transmit visual depictions that 

amounted to child pornography. The appellant did not mislead the 

girls he solicited into distributing child pornography unknowingly. 

He supplied ample evidence that he clearly communicated the sexual 

content and context of his requests to the girls he solicited. 

Engaged in the widely understood social practice of sexting, the 

girls could meet the elements of the solicited offense of 

distributing child pornography.10 Unlike the solicitation to engage 

 

7 18 U.S.C. § 2256.

8 Record at 55. 

9 Id. at 43. 

10 Admittedly, many of the solicited Jane Does probably did not equate sexting with 

child pornography. Nevertheless, the elements of sexting overlap with those of 

child pornography, and the mens rea of consciously sharing images of a sexually 

explicit nature is the same. When first confronted with sexting among teenagers 

in 2008, some prosecutors threatened to prosecute, or actually did prosecute, 
8

in indecent liberties in Sutton, there is no element of 18 U.S.C. § 

2252A that poses a practical impossibility in this case. 68 M.J. at 

458-59. Despite the appellant’s contention that the solicited girls 

lacked the knowledge of criminality required for a provident plea to 

solicitation, the solicited girls did possess the awareness 

necessary to accomplish a violation of the federal child pornography 

statute and, by assimilation, the UCMJ. 

Without a substantial basis in law or fact to question the 

appellant’s guilty plea, we conclude the military judge did not

abuse his discretion in accepting appellant’s guilty plea to 

soliciting minor Jane Does to distribute child pornography. 

Conclusion

The findings and the sentence are affirmed.

 

For the Court

 

 

R.H. TROIDL

Clerk of Court

 

sexting teenagers using child pornography laws. Podlas, 12 PGH. J. Tech. L. & 

Pol’y 1 at ¶¶ 45-50; Patel, 13 J. High Tech. L. 574 at 583-85. Concerns about 

teenagers being imprisoned and compelled to register as sex offenders for sexting 

prompted a wave of state legislation. Podlas, at *P75-*P77, *P82-P83; Patel, at

586. New and amended statutes in more than twenty states insulate teens from 

felony convictions for child pornography. Podlas, 12 PGH. J. Tech. L. & Pol’y 1 

at ¶¶ 84-90; Patel, 13 J. High Tech. L. 574 at 586-97; Alexandra Kushner, The Need 

for Sexting Law Reform: Appropriate Punishments for Teenage Behaviors,” 16 U. Pa. 

J.L. & Soc. Change 281, 288 (2013). While some states merely created new defenses 

and penalties for child pornography, other states enacted separate misdemeanor 

offenses for sexting, applicable only to minors and focused on electronic means of 

distributing child pornography. In Vermont, “[n]o minor shall knowingly and 

voluntarily and without threat or coercion use a computer or electronic 

communication device to transmit an indecent visual depiction of himself or 

herself to another person.” 13 V.S.A. § 2802b. In Arizona, “[i]t is unlawful for 

a juvenile to intentionally or knowingly use an electronic communication device to 

transmit or display a visual depiction of a minor that depicts explicit sexual 

material.” A.R.S. § 8-309. In Louisiana, a code provision actually entitled 

“Sexting” directs that, “[n]o person under the age of seventeen years shall 

knowingly and voluntarily use a computer or telecommunication device to transmit 

an indecent visual depiction of himself to another person.” La. R.S. § 14:81.1.1.