United States v. White ( 2022 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39917 (f rev)
________________________
UNITED STATES
Appellee
v.
Deontre M. WHITE
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Upon Further Review
Decided 10 June 2022
________________________
Military Judge: Thomas J. Alford; Dayle P. Percle (remand).
Sentence: Sentence adjudged on 17 January 2020 by GCM convened at
Joint Base San Antonio-Lackland, Texas. Sentence entered by military
judge on 2 April 2020 and reentered on 9 September 2021: Bad-conduct
discharge, confinement for 4 months, reduction to E-1, and a reprimand.
For Appellant: Major Mark J. Schwartz, USAF; Captain David L. Bos-
ner, USAF.
For Appellee: Lieutenant Colonel Matthew J. Neil, USAF; Major John
P. Patera, USAF; Mary Ellen Payne, Esquire.
Before JOHNSON, KEY, and ANNEXSTAD, Appellate Military Judges.
Senior Judge KEY delivered the opinion of the court, in which Judge
ANNEXSTAD joined. Chief Judge JOHNSON filed a separate opinion
dissenting in part and in the result.
________________________
This is an unpublished opinion and, as such, does not serve as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. White, No. ACM 39917 (f rev)
KEY, Senior Judge:
A military judge sitting as a general court-martial convicted Appellant, con-
trary to his pleas, of one specification of abusive sexual contact and two speci-
fications of communicating indecent language in violation of Articles 120 and
134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934.1 The
specifications pertained to offenses Appellant was charged with committing in
2017 and 2018.2 The military judge sentenced Appellant to a bad-conduct dis-
charge, confinement for four months, reduction to the grade of E-1, and a rep-
rimand.
Appellant’s case is before us for a second time. Appellant raised eight issues
when this case was originally presented to us, one of which asserted that the
convening authority erred by not taking action on his sentence as required by
Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and
Article 60, UCMJ, 10 U.S.C. § 860, Manual for Courts-Martial, United States
(2016 ed.) (2016 MCM). We remanded his case to the Chief Trial Judge, Air
Force Trial Judiciary, for corrective action. See United States v. White, No.
ACM 39917, 2021 LEXIS 400, at *7–8 (A.F. Ct. Crim. App. 10 Aug. 2021) (un-
pub. op.).3 The convening authority subsequently approved Appellant’s sen-
tence, resulting in a new entry of judgment. Now that this error has been cor-
rected, we turn to the remaining seven issues Appellant has raised: (1) whether
the military judge abused his discretion in permitting the Government to in-
troduce evidence regarding a digital image Appellant sent to the victim named
in the abusive sexual contact specification; (2) whether his conviction of abu-
sive sexual contact is factually sufficient; (3) whether his convictions of com-
municating indecent language are legally and factually sufficient; (4) whether
his sentence is inappropriately severe; (5) whether his reprimand impermissi-
bly referred to the three people who heard Appellant’s purportedly indecent
1 References to the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise specified, all other references to the UCMJ,
the Military Rules of Evidence, and the Rules for Courts-Martial are to the Manual for
Courts-Martial, United States (2019 ed.).
2 The military judge acquitted Appellant of four specifications alleging sexual assault
and one specification alleging abusive sexual contact under Article 120, UCMJ, 10
U.S.C. § 920. The convening authority withdrew and dismissed two additional specifi-
cations of abusive sexual contact after arraignment. None of these seven specifications
involved the victim in the abusive sexual contact specification of which Appellant was
convicted.
3 That opinion erroneously indicated Appellant had been convicted of aggravated sex-
ual contact.
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United States v. White, No. ACM 39917 (f rev)
language as “victims;” (6) whether the military judge erred by permitting the
Government to introduce evidence of an uncharged allegation that Appellant
sexually assaulted another person; and (7) whether trial counsel committed
prosecutorial misconduct by prosecuting the indecent language specifications.4
We conclude Appellant’s convictions for communicating indecent language
are legally and factually insufficient. Accordingly, we set aside the findings of
guilty to Charge II and its two Specifications. We reassess Appellant’s sentence
to a bad-conduct discharge, confinement for three months, and reduction to the
grade of E-1. By virtue of this reassessment, issue (5) is rendered moot. Finding
no other error materially prejudicial to Appellant’s substantial rights, we af-
firm the remaining finding of guilt.
I. BACKGROUND
Appellant’s convictions for abusive sexual contact and communicating in-
decent language arose from him touching another servicemember’s leg and
reading a poem to several noncommissioned officers.
A. Abusive Sexual Contact
Appellant was a diet therapy technician assigned to the hospital on Fort
Sam Houston, Texas. CD was an Army nutrition specialist who was also as-
signed to the hospital. CD reported for duty there in November 2017, and she
met Appellant early that month when she went with him and two other ser-
vicemembers to a local nightclub one Saturday night. At Appellant’s court-
martial, CD acknowledged she had danced with Appellant at the club, to in-
clude “grinding” on Appellant’s body and rubbing her buttocks into his groin
area. The following Monday morning, Appellant and CD ran into each other at
the hospital’s dining facility, and Appellant asked CD about going to the gym
that evening. CD handed Appellant her phone so that he could call his own
phone in order to exchange their phone numbers.
According to text messages admitted in evidence at trial, Appellant and CD
exchanged brief messages over the next three weeks, generally pertaining to
going to the gym and Appellant twice asking CD if she would like to watch a
movie. The wording of the messages suggests Appellant and CD had other con-
versations outside of the text messages, but the record is unclear whether they
4 Appellant personally raises issues (6) and (7) pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). We have carefully considered these two issues and conclude
neither warrants discussion or relief. See United States v. Matias, 25 M.J. 356, 361
(C.M.A. 1987).
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United States v. White, No. ACM 39917 (f rev)
were telephonic, face-to-face, via other electronic means, or some combination
of the foregoing. CD said that, at a minimum, she had given Appellant her
Snapchat contact information at some point.5
CD testified that, in the morning of 5 December 2017, she told Appellant
about how the light in her dormitory room bathroom was not working, and she
asked if he could help her change it. She said she asked him because she knew
he was the dormitory council president and she assumed he could assist with
such matters. Appellant agreed to help, but that he would change the bulb the
following day.
Just before 1300 hours on 5 December 2017, CD texted Appellant: “Bulb by
fridge.” Later that afternoon, according to CD’s testimony, Appellant sent CD
an animated image via Snapchat of a woman wearing panties with the words
“eat me” on them. CD said she wrote back, “Is that what you’re into?” She fur-
ther testified Appellant responded “that’s what he’ll be doing tonight,” and she
replied, “okay.” CD testified that she did not think the image was “geared to-
wards” her and that she “had no inclination” that his response of “what he’d be
doing tonight . . . was with [her] in mind.” Nonetheless, she said the exchange
made her “uncomfortable” because she did not think her relationship with Ap-
pellant was such that “he would have felt comfortable enough to express him-
self this way with [her].” A short while later, Appellant called CD to tell her he
would stop by her room that evening on his way to a basketball game he was
playing in rather than coming by the next day as he originally planned.
CD’s dormitory bedroom was separate from her bathroom, and both opened
into a common kitchenette area. Anticipating Appellant’s arrival, CD placed a
chair in the common area for Appellant to stand on and she extended the dead-
bolt on her open bedroom door so that her door would remain ajar. CD stayed
in her room, but she heard Appellant trying to change the bulb. After some
time passed, Appellant opened CD’s bedroom door, told CD he was unable to
fix the light, and placed the chair inside her bedroom. At the time, CD—who
was wearing shorts and a t-shirt—was sitting on her bed with her laptop trying
to connect to the Internet. She told Appellant she was having trouble doing
this, and Appellant offered to connect her computer to his Internet service. CD
accepted the offer and Appellant walked over and input his credentials while
CD remained sitting on the bed.
Standing in front of CD, Appellant then put his hand on “the inner part of
[her] knee, on the side.” CD testified she “pushed him off right then” and said,
“[H]ey, I don’t want you touching me like that.” Appellant “chuckled” and
5 Snapchat is a messaging platform in which messages and images are automatically
deleted after they are read or otherwise expire.
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United States v. White, No. ACM 39917 (f rev)
“moved back” for “a few seconds” but then “moved closer again” and put his
hand on CD’s “inner thigh . . . further up on the same leg.” CD picked up a pen
off the bed and pointed it towards Appellant, telling him, “[H]ey, you might
need to leave right now because it might get ugly.” Appellant “laughed for a
little bit” and then left CD’s room.
Just after Appellant left, he texted CD, “Lol” at 1854 hours, leading to the
following exchange:6
[CD:] What?
[Appellant:] You
[CD:] What about me?
[Appellant:] You know what’s up. You do a lot of talking
[CD:] You already know this is not that kinda party
[Appellant:] I don’t know. But it won’t happen again lol
[CD:] Yup . . . I’m going to bed, we’ll talk tomorrow
The next morning, CD was talking to two of her co-workers at the hospital
when Appellant walked up. CD testified that Appellant said good morning to
the other two but “rolled his eyes at [her] and looked at [her] in a mean man-
ner,” leaving CD “confused” because she perceived Appellant as behaving like
she had done “something wrong to him.” Four months later, in March 2018,
CD decided to tell her supervisor, Staff Sergeant (SSgt) HH, what had oc-
curred, and SSgt HH assisted CD in reporting the events to military officials.
B. Communicating Indecent Language
1. Poetry Reading at Appellant’s Medical Appointment
Around 0745 hours on 2 August 2018, Appellant went to the family health
clinic on Fort Sam Houston for a physical therapy appointment where he was
checked in by SSgt CR.7 Appellant did not have any significant relationship
with SSgt CR, although he had met her on at least two occasions at the clinic
and Appellant asked her to review some “bullets” for him during the second
occasion.8
6 We quote text messages between Appellant and CD verbatim to include punctuation
errors.
7 SSgt CR had separated from the Air Force by the time of Appellant’s court-martial.
8 The record does not establish the nature of these “bullets,” but trial defense counsel
suggested during the Defense’s closing argument that the bullets pertained to an en-
listed performance report Appellant was writing.
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United States v. White, No. ACM 39917 (f rev)
SSgt CR escorted Appellant back to the exam room where she took Appel-
lant’s vital signs while making “small talk” with him, as she routinely did with
patients. Appellant then asked SSgt CR if she liked poetry and if she would
like to hear a poem he had written. SSgt CR said, “sure,” and Appellant began
reading. As Appellant read the poem, SSgt CR perceived that it “was very sex-
ually explicit,” so she stopped Appellant and told him, “I’m sorry. I did not re-
alize the contents of this poem.” SSgt CR testified that she thought the poem
was about “a sexual encounter that he had with a woman,” but she did not have
any impression regarding whether the encounter was portrayed as consensual
or not. At Appellant’s court-martial, SSgt CR only recalled two brief excerpts
from the poem. The first was, “just stick the tip in,” and the second was, “[m]y
hands down her pants touching her clitoris.”
Once he stopped reading the poem, Appellant told SSgt CR that he had
read the poem to a friend of his who told him “the poem sounded a lot like
rape,” and so he had revised it after receiving that feedback. At the time, SSgt
CR had heard rumors that Appellant was facing allegations of sexual assault,
but she “did not know for sure.” She asked him “what would inspire him to
write something like this,” and she said Appellant replied by saying “that he
was just working through some stuff that he was going through right now.”
The remainder of the appointment proceeded without incident, and SSgt CR
said that—other than the poem—there was nothing out of the ordinary about
the appointment. Trial counsel asked SSgt CR whether she thought Appel-
lant’s poetry reading was appropriate or inappropriate based upon “what [she]
know[s] of Air Force culture.” SSgt CR replied, “Inappropriate.”
After the appointment, SSgt CR called an Airman who works in the same
area of the clinic and who was friends with Appellant. SSgt CR told her that if
Appellant returned to the clinic, the Airman should leave the exam room door
open or have a second person in the room with her in order to deter Appellant
from repeating his conduct.
2. Poetry Reading in Appellant’s Duty Section
Later that same morning, in an office elsewhere in the hospital to which
Appellant had been reassigned, Appellant began reading a poem—presumably
the same poem he read to SSgt CR. Appellant had previously read some of his
writings at work, which one of his co-workers variously described as poems,
“freestyle,” and “rap.” This co-worker, Technical Sergeant (TSgt) SD, said she
thought the first poem she heard Appellant recite “was really good,” and she
told Appellant so at the time.
As for the 2 August 2018 reading, TSgt SD did not recall if Appellant asked
her to listen to the poem or if her husband, SSgt SD, who worked in the same
area, told her to come listen to Appellant read it. TSgt SD testified that she
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United States v. White, No. ACM 39917 (f rev)
and SSgt SD were there for the reading, as well as her supervisor TSgt M and
her co-worker SSgt EG. Before he began reading, Appellant told the group that
the poem “could be read from either a female’s perspective or a male’s perspec-
tive.” Once Appellant said the word “clitoris,” TSgt SD walked away because
she felt uncomfortable and “didn’t want to be around that.” TSgt SD did not
say how long she listened to the poem, but she described the portion she heard
as “quick.” According to TSgt SD, TSgt M was present when Appellant first
started reading, but stepped away “at some point.”9
SSgt EG testified that it was SSgt SD who asked her (SSgt EG) to come
hear the poem. SSgt EG said the reading was “[n]ot very long . . . . a minute
maybe” and that “[w]hen [Appellant] got to the part that [she] felt was inap-
propriate, [she] said, ‘uh, that’s inappropriate,’ and he stopped.” She testified
she walked away from Appellant at the same time TSgt SD did, leaving Appel-
lant standing with SSgt SD who was “uncomfortably laughing.” According to
SSgt SD, Appellant’s reading “maybe lasted 30 seconds,” and SSgt SD said he
was the one who told Appellant to stop reading after somebody said, “[Y]ou
can’t say that at work or in the work environment.”
TSgt SD, SSgt SD, and SSgt EG all had slightly different recollections of
what Appellant’s poem was about, and none remembered much of the specific
language Appellant actually used. TSgt SD testified that, from what she re-
membered, “the poem was about either a male or a female having sexual inter-
course with someone who is saying no, but they’re continuing to pursue this
person sexually.” TSgt SD said she interpreted the poem to be about rape or
sexual assault. SSgt SD, however, thought the poem was about a man and a
woman “dancing with each other and essentially like the female didn’t want to
dance or do whatever they were doing anymore” and the female “wanted the
guy to stop.” SSgt EG just remembered there being “some talk about sex acts
in the poem . . . . talking about sex; like actually having sex.”
In terms of the exact words Appellant used, TSgt SD remembered Appel-
lant saying “breast” and “clitoris.” She did not remember what the male in the
poem was doing with the woman’s breast, but she thought there “was contact.”
TSgt SD initially testified that she could not remember what the male was
doing with the woman’s clitoris, leading trial counsel to ask her, “Do you re-
member him saying he was rubbing her clit?” TSgt SD answered, “Now that
you say that, I think that’s what he said.” For his part, SSgt SD said he re-
membered the poem saying the male was touching the female’s “vagina.” TSgt
EG did not remember any particular words from the poem at all.
9 TSgt M did not testify at Appellant’s court-martial.
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United States v. White, No. ACM 39917 (f rev)
TSgt SD testified that she was “surprised and disgusted” by the poem and
“some of the terms that [Appellant] was using and the nature of the poem.” She
said, “For one, where he was doing it at was inappropriate for the work section;
and, two, it was just inappropriate altogether.” She explained that she was
disgusted because “the poem was, in [her] perspective, about raping someone
because they’re saying no and you’re continuing to physically touch that per-
son.” Trial counsel asked TSgt SD if the poem was “grossly offensive” to her,
and she answered, “Yes.” SSgt SD said he was “[j]ust a little taken aback be-
cause it wasn’t what he usually—what [Appellant’s] poems were about.” SSgt
EG testified that once she “realized the nature of the poem,” she was “uncom-
fortable.” She then offered, “It’s not really appropriate to talk about sex that
way, I guess, at work between like subordinates and [a noncommissioned of-
ficer].” Trial counsel asked SSgt EG if the language in the poem was “offensive”
to her, and she answered, “Yes.”
In TSgt SD’s opinion, Appellant’s reading of the poem “was detrimental to
the morale in the unit and good order and discipline.” Explaining her basis for
this conclusion, TSgt SD testified,
For one, speaking in the manner that he did it makes it seem
like it’s okay to speak like that; make sexual comments like that
in the workplace. At that point it affected our relationship be-
cause I didn’t want to, you know, associate myself with him or
speak to him at that point just because I didn’t know what he
would say.
When SSgt EG was asked how the reading affected good order and disci-
pline in the unit, she answered, “It’s hard to say.” She explained that while
inappropriate, the reading “didn’t bother [her],” but “[i]f you’re making people
that you work with uncomfortable and maybe someone doesn’t have tough
skin, that could break[ ]down like trust and stuff like that and being able to
work and get the mission done.”
3. Post-Reading Events and Appellant’s Court-Martial
The day after Appellant read his poem to her, SSgt CR told the doctor in
her clinic about what had occurred. During this conversation, the doctor con-
firmed that Appellant was, in fact, under investigation for allegations of sexual
assault, leading SSgt CR to call Appellant’s first sergeant to report what had
occurred. SSgt CR conceded that if she had been friends with Appellant and if
he had read the poem to her outside the workplace, she “probably would not
have reported” the incident. As a result of SSgt CR’s report, Appellant received
a letter of reprimand on 17 August 2018 for the reading of the poem in the
exam room.
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United States v. White, No. ACM 39917 (f rev)
After receiving the letter of reprimand, Appellant sought TSgt SD’s advice
on how to respond to it. During this conversation, TSgt SD told Appellant it
was inappropriate of him to read the poem in the workplace, and she testified
that “[h]e was very receptive and in [her] opinion remorseful.” Trial defense
counsel asked if it appeared as if Appellant “didn’t know better,” and she an-
swered, “Yes.” Also during this conversation, according to TSgt SD, Appellant
claimed he warned SSgt CR before reading the poem that it was explicit, but
that SSgt CR said she still wanted to hear it. SSgt CR, however, testified Ap-
pellant did not tell her what the topic of the poem was or that it would be ex-
plicit before he began reading.10
At Appellant’s court-martial, the military judge applied a “recklessness”
mens rea for the indecent language offenses. He also took judicial notice of
excerpts from an Air Force Handbook (AFH) and an Air Force Instruction (AFI)
at the Government’s request and without defense objection. The first excerpt
came from the non-punitive AFH 36-2618, The Enlisted Force Structure,
¶ 4.4.1 (5 July 2018). This paragraph indicates the responsibilities of junior
enlisted Airmen include, inter alia, “exhibit[ing] professional behavior, mili-
tary bearing, [and] respect for authority” and “[c]ontribut[ing] to a culture and
climate of dignity and respect by supporting and enforcing a zero tolerance
policy for sexual harassment, sexual assault, and discrimination.” The second
excerpt came from the punitive AFI 1-1, Air Force Standards, ¶ 1.7.4.5 (7 Aug.
2012, Incorporating Change 1, 12 Nov. 2014). This paragraph is titled “Sexual
Assault Prevention and Response (SAPR) Program,” and trial counsel asked
the military judge to take judicial notice of this passage: “All Airmen have the
enduring responsibility to foster a climate of dignity and respect and to pro-
mote and ensure a culture that will not tolerate sexual assault or behaviors
that support it.” In the Government’s closing argument, trial counsel briefly
referred to the AFH and AFI, arguing to the military judge:
And that’s the purpose of the two AFIs [sic] that the court has
taken judicial notice of that talk about our Air Force culture and
Air Force standards, and that compliance with it is mandatory,
and all Airmen have to foster that climate of dignity and respect.
There is nothing dignified and nothing respectful about reading
a poem about rape to multiple NCOs who are trying to [do] their
jobs in the workplace. He was on notice. He knew. And he was a
junior Airman, even as a junior Airman he knew, because he
knows what his responsibilities are in AFI 1-1. He knows what
he is supposed to be doing, and he’s supposed to be professional
10 The letter of reprimand entered into evidence indicates Appellant ultimately waived
his right to submit a response.
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United States v. White, No. ACM 39917 (f rev)
at all times and have respect for authority. It’s not respectful for
a Senior Airman to talk about rape to female NCOs to the point
that they are so offended they walk away. That’s obviously not
respectful. As if you need AFIs to tell you that you can’t talk
about rape in the workplace, but to the extent that he didn’t
know, we’ve got AFIs out there that clearly tell him what he can-
not be doing in the workplace.
II. DISCUSSION
A. Sufficiency of Appellant’s Convictions
On appeal, Appellant challenges his conviction of abusive sexual contact as
being factually insufficient while contending his indecent language convictions
are both legally and factually insufficient. Related to his abusive sexual contact
conviction, Appellant asserts the military judge erred in admitting testimony
about the image Appellant sent CD via Snapchat before going to her room to
try and fix her light bulb.
1. Law
a. Legal and Factual Sufficiency
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). We only af-
firm findings of guilty that are correct in law and fact and, “on the basis of the
entire record, should be approved.” Article 66(d)(1), UCMJ, 10 U.S.C.
§ 866(d)(1). 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 is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017). “The term reasonable
doubt, however, does not mean that the evidence must be free from conflict.”
United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing
United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289(C.A.A.F. 2018). “[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) (cita-
tions omitted). As a result, “[t]he standard for legal sufficiency involves a very
low threshold to sustain a conviction.” United States v. King, 78 M.J. 218, 221
(C.A.A.F. 2019) (alteration in original) (citation omitted). The “[G]overnment
is free to meet its burden of proof with circumstantial evidence.” Id. (citations
omitted).
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United States v. White, No. ACM 39917 (f rev)
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “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.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
b. Abusive Sexual Contact
As charged in this case, the Government was required to prove beyond a
reasonable doubt that: (1) Appellant committed sexual contact on CD by un-
lawfully touching her inner thigh with his hand; (2) this contact amounted to
bodily harm; (3) Appellant did so with the intent to gratify his sexual desire;
and (4) the touching occurred without CD’s consent. See 2016 MCM, pt. IV,
¶ 45.b.(7)(b). “Sexual contact” includes, inter alia, “any touching . . . either di-
rectly or through the clothing, any body part of any person, if done with an
intent to arouse or gratify the sexual desire of any person.” 2016 MCM, pt. IV,
¶ 45.a.(g)(2)(B). “[A]ny offensive touching of another, however slight,” amounts
to bodily harm. 2016 MCM, pt. IV, ¶ 45.a.(g)(3). “Consent” is defined as “a
freely given agreement to the conduct in issue by a competent person” and “[a]n
expression of lack of consent through words or conduct means there is no con-
sent.” 2016 MCM, pt. IV, ¶ 45.a.(g)(8).
The defense of mistake of fact is available to Appellant so long as the cir-
cumstances as he mistakenly believed them to be would render his conduct
non-criminal. If the mistake pertains to an element requiring specific intent,
that mistake “need only have existed in the mind of [Appellant].” Rule for
Courts-Martial (R.C.M.) 916(j)(1). If, however, the mistake pertains to an ele-
ment requiring only general intent, Appellant’s mistake must not only exist in
his mind, but it also “must have been reasonable under all the circumstances.”
Id. Once this defense is raised, the Government must prove—beyond a reason-
able doubt—the defense did not exist. R.C.M. 916(b)(1).
c. Communication of Indecent Language
Appellant was charged with communicating indecent language to SSgt CR,
TSgt SD, and SSgt SD, to wit: “sexually explicit poetry.” This required the Gov-
ernment to prove that: (1) Appellant communicated certain language; (2) the
language was indecent; and (3) under the circumstances, Appellant’s conduct
was to the prejudice of good order and discipline in the armed forces. See 2016
MCM, pt. IV, ¶ 89.b. “Indecent language” is defined as “that which is grossly
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United States v. White, No. ACM 39917 (f rev)
offensive to modesty, decency, or propriety, or shocks the moral sense, because
of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful
thought.” 2016 MCM, pt. IV, ¶ 89.c. “[T]he words allegedly uttered by the ac-
cused [need not] be indecent or obscene per se, for even ‘chaste words may be
made the medium of expressing obscene thought.’” United States v. French, 31
M.J. 57, 59–60 (C.A.A.F. 1990) (quoting United States v. Wainwright, 42
C.M.R. 997, 999 (A.F.C.M.R. 1970), aff’d on other grounds sub nom. United
States v. Perry, 43 C.M.R. 23, 23 n.* (C.M.A. 1970)). “[H]owever, when the lan-
guage involved is not indecent on its face, the necessary implication or innu-
endo of indecency must be clearly discernible from the four corners of the spec-
ification itself.” Wainwright, 42 C.M.R. at 1000.
In order to qualify as indecent, the language “must violate community
standards.” Id. at 999; see also United States v. Green, 68 M.J. 266, 269
(C.A.A.F. 2010) (explaining that the requirement to violate community stand-
ards modifies the definition of “indecent language” and does not create a sepa-
rate definition). The applicable community standards “are those of the military
community, not those of an individual military unit.” United States v. Hullet,
40 M.J. 189, 191 (C.M.A. 1994) (citation omitted).
“Indecent is synonymous with obscene.” United States v. Moore, 38 M.J.
490, 492 (C.M.A. 1994) (internal quotation marks and citation omitted). Such
language is not protected by the United States Constitution. French, 31 M.J.
at 59; United States v. Meakin, 78 M.J. 396, 401 (C.A.A.F. 2019). The United
States Supreme Court established “basic guidelines” for determining whether
forms of expression amount to obscenity in Miller v. California. 413 U.S. 15,
24 (1973). These guidelines are: (a) whether “the work, taken as a whole, ap-
peals to the prurient interest” when viewed through the lens of “the average
person, applying contemporary community standards;” (b) “whether the work
depicts or describes, in a patently offensive way, sexual conduct;” and (c)
“whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value.” Id. (citations omitted).
The third element of this offense “refers only to acts directly prejudicial to
good order and discipline and not to acts which are prejudicial only in a remote
or indirect sense.” 2016 MCM, pt. IV, ¶ 60.c.(2)(a). As explained in the Manual
for Courts-Martial, “Almost any irregular or improper act on the part of a mem-
ber of the military service could be regarded as prejudicial in some indirect or
remote sense; however, this article does not include these distant effects. It is
confined to cases in which the prejudice is reasonably direct and palpable.” Id.The requirement to prove this third element “filters out from punishment lan-
guage that is colloquial vocabulary and may be routinely used by service mem-
bers.” United States v. Negron, 60 M.J. 136, 144 (C.A.A.F. 2004).
12
United States v. White, No. ACM 39917 (f rev)
d. Evidence of Other Acts
Mil. R. Evid. 404(b)(1) generally prohibits the introduction of evidence that
a person committed some “crime, wrong, or other act” for the purpose of proving
that “person’s character in order to show that on a particular occasion the per-
son acted in accordance with the character.” However, such evidence may be
admissible when offered for some other purpose, “such as proving motive, op-
portunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Mil. R. Evid. 404(b)(2). If the evidence has any tendency to
make a fact of consequence more or less probable, then the evidence is relevant.
See Mil. R. Evid. 401. Even when evidence is relevant, a military judge may
prohibit its admission when the evidence’s probative value is substantially out-
weighed by such considerations as unfair prejudice, confusing the issues, and
wasting time. See Mil. R. Evid. 403.
We review a military judge’s decision to admit evidence over objection for
abuse of discretion. United States v. Hyppolite, 79 M.J. 161, 164 (C.A.A.F. 2019)
(citing United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000)). In order for
such a decision to amount to an abuse of discretion, it must be “arbitrary, fan-
ciful, clearly unreasonable, or clearly erroneous.” Id. at 166 (citing United
States v. Johnson, 49 M.J. 467, 473 (C.A.A.F. 1998)). “A military judge abuses
his discretion when: (1) the findings of fact upon which he predicates his ruling
are not supported by the evidence of record; (2) if incorrect legal principles were
used; or (3) if his application of the correct legal principles to the facts is clearly
unreasonable.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citation
omitted).
2. Analysis
a. Admission of the Snapchat Image
At trial, Appellant sought to exclude evidence of the image Appellant sent
CD via Snapchat, but the military judge denied the Defense motion, reasoning
that the evidence was relevant to show Appellant’s motive, intent, and general
state of mind, all of which pertained to the Government’s obligation to prove
Appellant’s mens rea. In assessing the relevance of the evidence under Mil. R.
Evid. 401, the military judge noted that the message was sent “shortly before”
Appellant touched CD. In his consideration of Mil. R. Evid. 403, the military
judge returned to this temporal guidepost, noting that the message was “close
in time” to the touching.
On appeal, Appellant contends the military judge erred in concluding the
image was relevant to his motive and intent under the theory that the message
13
United States v. White, No. ACM 39917 (f rev)
might have pertained to someone other than CD.11 In support of this theory,
Appellant points to the fact CD did not think the message had anything to do
with her. Appellant further argues that even if the message had some marginal
relevance, that relevance was substantially outweighed by the danger of unfair
prejudice.
One consideration in determining whether evidence of intent via an un-
charged act is admissible under Mil. R. Evid. 404(b) is “whether Appellant’s
state of mind in the commission of both the charged and uncharged acts was
sufficiently similar to make the evidence of the prior acts relevant on the intent
element of the charged offense[ ].” United States v. Hays, 62 M.J. 158, 164
(C.A.A.F. 2005) (internal quotation marks omitted) (citing United States v.
McDonald, 59 M.J. 426, 430 (C.A.A.F. 2004)).
We conclude the military judge did not err in admitting testimony about
the image which Appellant sent to CD via Snapchat. Appellant was charged
with touching CD with the specific intent to gratify his sexual desires. As a
result, the degree to which Appellant did or did not perceive CD as a potential
sexual partner was squarely a fact of consequence in Appellant’s trial. Simi-
larly, the fact Appellant chose to send an overtly sexual image to CD tends to
suggest Appellant had a sexual motive for doing so, such as trying to alert CD
to his sexual desires or trying to create an opening for a conversation about
sexual matters between CD and himself. The relevance of the evidence is some-
what diminished by the fact Appellant told CD it was what he would be doing
“tonight,” when the stipulation of expected testimony indicated Appellant did
not go to CD’s room until the following day. Nonetheless, the test for relevance
is whether the evidence has any tendency to prove a fact of consequence, not
whether the evidence conclusively establishes the fact.
Once relevancy is shown, the strength of the evidence is weighed against
countervailing concerns under Mil. R. Evid. 403. Importantly, the probative
value of the evidence must be substantially outweighed by one of those con-
cerns before it become excludable. In this case, even if we were to only credit
11 In support of the motion, the parties agreed to a stipulation of expected testimony
for CD. According to the stipulation, Appellant sent the Snapchat message on 4 De-
cember 2017 and CD called him when she received it. The stipulation states, however,
that Appellant did not go to CD’s room until the following day. Based on this timeline,
Appellant argues his comment about “what he’ll be doing tonight” was entirely unre-
lated to CD, because “tonight” was 4 December 2017—the day before Appellant
planned to go to and actually went to CD’s room. When CD testified at Appellant’s
trial, however, she said the Snapchat-related exchange happened the same day Appel-
lant came to her room (she also testified she “wrote” Appellant as opposed to calling
him). We assess the military judge’s ruling in light of the stipulation, which was the
evidence before him at the time he considered the motion.
14
United States v. White, No. ACM 39917 (f rev)
the testimony about the image as having slight probative value, we would still
not find that value substantially outweighed by the danger of unfair prejudice.
Appellant’s primary contention is that the evidence was unfairly prejudicial
because it allowed the Government to argue he had a prurient state of mind
when he touched CD. The subject of Appellant’s communication with CD, how-
ever, was circumstantial evidence of Appellant’s mens rea, which was an ele-
ment of the offense with which he was charged. Thus, while the evidence may
have been prejudicial to Appellant, we see no colorable argument that it was
unfairly prejudicial. Moreover, we see no indication that in this judge-alone
trial, the military judge considered this evidence for any purpose other than
those he identified on the record. A military judge is presumed to know the
law, follow the law correctly, and separate out inadmissible and inappropriate
evidence when deciding an accused’s guilt, innocence, or sentence. See United
States v. Sanders, 67 M.J. 344, 346 (C.A.A.F. 2009) (per curiam); United States
v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997) (per curiam). As a result, we con-
clude the military judge did not abuse his discretion in admitting evidence per-
taining to Appellant’s Snapchat message.
b. Abusive Sexual Contact
Appellant attacks the factual sufficiency of his conviction for touching CD’s
inner thigh on two grounds. First, he argues there is insufficient evidence to
conclude he acted with an intent to gratify his sexual desire, as opposed to
touching CD for some other, non-criminal purpose, such as “playfulness or jok-
ing.” Second, he argues the Government failed to prove Appellant did not have
a valid mistake of fact defense.
In support of his first argument, Appellant points to the fact he was laugh-
ing at the time he touched CD and that he sent her a text reading “Lol” imme-
diately afterwards, which—according to Appellant—suggests not a sexual pur-
pose, but rather a joking one. Alternatively, Appellant asserts the evidence
might indicate he was simply touching CD for a flirtatious or probing pur-
pose—that is, to see if she would be willing to engage in more overtly sexual
conduct.
For Appellant’s claim of mistake of fact, he points to his dancing with CD
several weeks earlier, the fact they exchanged phone numbers and texted each
other, CD inviting him to her room to fix a light bulb, and the ambiguous way
in which CD responded to the “eat me” image. Appellant contends “[i]t is rea-
sonable to believe he thought [CD] would be receptive to commencing some
type of sexual relationship,” such that he believed she would consent to him
touching her, and the Government failed to prove this was not the case.
We have previously concluded that the offense of abusive sexual contact
committed by causing bodily harm is “highly analogous” to the general-intent
15
United States v. White, No. ACM 39917 (f rev)
offense of sexual assault committed by causing bodily harm. United States v.
Lee, No. ACM 39531 (f rev), 2020 CCA LEXIS 61, at *20–21 (A.F. Ct. Crim.
App. 26 Feb. 2020) (unpub. op.), rev. denied, 80 M.J. 196 (C.A.A.F. 2020). The
difference between those two offenses is that the abusive sexual contact offense
includes an additional element calling for a specific intent. As charged here,
the additional element is that Appellant had the specific intent to gratify his
sexual desire when he touched CD. The element to which CD’s consent is per-
tinent, however, is the “bodily harm” element insofar as that element operates
to criminalize offensive, or non-consensual, touching.12 Therefore, any mistake
of fact related to CD’s lack of consent must have been both honestly held by
Appellant and objectively reasonable. Any mistake of fact related to whether
Appellant was acting with the specific intent to gratify his sexual desire, how-
ever, need only have existed in Appellant’s mind.
When Appellant first touched CD’s knee, she “pushed him off” and told him
she did not want him “touching [her] like that.” Appellant then touched her
inner thigh. Appellant is not charged with any offense related to him first
touching CD’s knee. This is significant, because whatever can be said about
Appellant’s impression of CD’s consent when he first touched her, Appellant
was under no misapprehension of her non-consent by the time he touched her
thigh. At that point, CD had not only pushed Appellant away, but she had
squarely told him she did not want him touching her. Despite this unambigu-
ous expression, Appellant touched her again. We see no credible argument that
Appellant was honestly mistaken about her consent by the time he touched her
thigh, much less that any such mistake would have been reasonable under the
circumstances presented here.
The more relevant question is whether the Government proved Appellant
had the requisite specific intent to gratify his sexual desires when he touched
CD’s inner thigh. We conclude the Government did. Appellant sent CD an im-
age via Snapchat with plain sexual connotations. Perhaps recognizing the sug-
gestive nature of the image, Appellant elected to send it via a platform which
would delete the image shortly after CD saw it, rather than by standard text
message, as he had used for previous communications with CD. When con-
fronted by CD about the image, Appellant told her “that’s what he’ll be doing
tonight,” removing any ambiguity about the image’s sexual overtones and—by
extension—his purpose in sending it. Not long after sending the image, Appel-
lant placed his hand on CD’s knee. After being rebuffed in no uncertain terms,
Appellant touched her again. This time, he placed his hand on her inner thigh
such that his had was, according to CD’s testimony, mere inches from her vag-
inal region. Perhaps we would conclude Appellant might have had some non-
12 The Government also charged “without consent” as a separate element of the offense.
16
United States v. White, No. ACM 39917 (f rev)
sexual purpose for touching CD had he put his hand on her shoulder or her
elbow, but the inner thigh is commonly recognized as an overtly sexual area of
the human body. Buttressing this assessment, we note that a different provi-
sion in Article 120, UCMJ, identifies specific body parts by which abusive sex-
ual contact may be committed: “the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person.” 10 U.S.C. § 920(g)(2)(A) (2016 MCM) (emphasis
added). The election to place “inner thigh” among these other body parts indi-
cates Congress’ view that a person’s “inner thigh” is an area with heightened
sexual connotations.
We also find telling Appellant’s text message exchange with CD after he
left the room. CD texted him, “You already know this is not that kinda party,”
which we interpret—in conjunction with CD’s earlier statement about not
wanting Appellant to touch her “like that”—as CD saying that she was not
sexually interested in Appellant. Appellant’s response, “I don’t know” and then
promising he would not do it again suggests he might have been unclear with
respect to CD’s degree of interest in him, further pointing to Appellant’s sexual
purpose in touching CD’s thigh. Taking all the evidence in consideration, we
conclude Appellant touched CD’s inner thigh with the specific intent to gratify
his sexual desires. Thus, having carefully reviewed the evidence in this case,
we are convinced of Appellant’s guilt of abusive sexual contact beyond a rea-
sonable doubt.
c. Communicating Indecent Language
We conclude the findings of guilty for the two indecent-language specifica-
tions are neither legally nor factually sufficient. We first note the dearth of
evidence in the record establishing what Appellant actually said when he read
his poem. The witnesses tend to agree the Appellant was describing some sort
of sexual encounter. TSgt SD thought the poem described a sexual assault in
that it involved “someone who is saying no.” SSgt SD recalled the poem being
about two people dancing with each other, but that “the female didn’t want to
dance or do whatever they were doing anymore.” He recalled the female in the
poem “wanted the guy to stop” and that the male was touching the female on
her “vagina.” SSgt CR said the poem was about a sexual encounter, but she
could not say whether the encounter was portrayed as being consensual or not.
SSgt EG also did not offer an opinion about consent or the lack thereof, just
saying that the poem involved “some talk about sex acts.” According to SSgt
CR, Appellant told her that a friend of his told him that an earlier draft of the
poem “sounded a lot like rape.”
The witnesses’ recollection of the exact language Appellant used was var-
ied, with SSgt CR recalling Appellant saying “just stick the tip in” and “[m]y
hands down her pants touching her clitoris.” TSgt SD only remembered two
words: “breast” and “clitoris.” SSgt SD said Appellant used the word “vagina.”
17
United States v. White, No. ACM 39917 (f rev)
Viewing the evidence in the light most favorable to the Prosecution, it appears
Appellant described sexual conduct in a somewhat detailed, if not explicit,
fashion. Drawing every possible inference in the Government’s favor, Appel-
lant’s poem could be understood to describe nonconsensual sexual contact.
What there is no evidence of, however, is the overall tone or theme or even the
point of the poem. That is, there is nothing in the record that indicates whether
the conduct described in the poem was presented in a way designed to sexually
excite a listener, to describe the behavior in a negative light, or to serve as a
metaphorical condemnation of sexual misconduct.
The words themselves fall far short of being “grossly offensive to modesty,
decency, or propriety” or that they “shock[ ] the moral sense, because of [their]
vulgar, filthy, or disgusting nature,” especially insofar as the few words the
witnesses recalled are medically correct anatomical terms. The only arguably
coarse term that appears in the record is the slang word “clit” as shorthand for
“clitoris,” but that word was only uttered by trial counsel in a leading question,
not by any of the witnesses. Conceptually, any discussion of erogenous parts of
the body might tend to incite lustful thought, but there is no indication such
was intended or occurred here, nor are we willing to broadly paint any descrip-
tion of sexual conduct among adults as amounting to indecent language under
a theory that someone, somewhere might be aroused by it. Instead, the evi-
dence must demonstrate the language runs so afoul of community standards
that it is “grossly offensive to modesty, decency, or propriety” or shocking to
“the moral sense” because it is “vulgar, filthy, or disgusting” or tends “to incite
lustful thought.” As our sister court has explained, “Grossly . . . is a word sug-
gestive of language with an extreme meaning or purpose. At its root, the word
gross is synonymous with glaring, flagrant, or monstrous. Language with a
tendency to incite lustful thought is generally uttered for that very purpose.”
United States v. Avery, ARMY 20140202, 2017 CCA LEXIS 739, at *23 (A. Ct.
Crim. App. 30 Nov. 2017) (unpub. op.) (footnotes and quotation marks omitted),
aff’d, 79 M.J. 363 (C.A.A.F. 2020). None of the words, whether taken alone or
together, approximates these standards.
We have held that even when the language at issue is not per se indecent,
the context of the utterance may render it indecent. United States v. Knarr, 80
M.J. 522, 532 (A.F. Ct. Crim. App. 2020), rev. denied, 80 M.J. 348 (C.A.A.F.
2020). In Knarr, the “context” was the accused had sent song lyrics strongly
suggestive of sexual conduct to a person whom the accused believed was a 14-
year-old girl—the same person the accused had previously expressed his sex-
ual desires to and sought nude photographs from. Id. Similarly, the United
States Court of Appeals for the Armed Forces (CAAF) found an accused’s
“statement” of “mmmm-mmmm-mmmm” to a female co-worker to be indecent
as such was accompanied by him pulling down her shirt and looking at her
18
United States v. White, No. ACM 39917 (f rev)
breasts after he had previously made sexual overtures to her and shortly af-
terwards rubbed his pelvic region on her buttocks. Green, 68 M.J. at 270. In
another case, the CAAF upheld an indecent-language conviction based upon
the accused’s “innocuous” words asking to get in bed with his 15-year-old step-
daughter—when the accused had already told her that he had been having
sexual fantasies about her—because “the language certainly conveys an inde-
cent message.” French, 31 M.J. at 60.
No such context can be found in Appellant’s case. All we know is a friend of
Appellant’s told him his poem sounded like it described a rape, and Appellant
made some unknown modifications to the poem. Appellant began reading it to
SSgt CR until she said, “I’m sorry. I did not realize the contents of this poem.”
It wasn’t until the reading in Appellant’s workplace that there is any evidence
of anyone telling Appellant that the poem was inappropriate for the work en-
vironment. We see nothing that would indicate Appellant read his poem with
an eye towards inciting lustful thought or in an attempt to advance some inap-
propriate relationship with any of the listeners. None of the listeners testified
Appellant had engaged in any other inappropriate conduct, and Appellant ap-
parently stopped reading the poem on both occasions when the listeners said
they did not want to hear more, suggesting Appellant incorrectly assumed he
had found interested audiences. TSgt SD agreed that when Appellant ap-
proached her after he had been reprimanded, it seemed as if he “didn’t know
better,” but the evidence also indicates Appellant was less than forthright
when he claimed he warned SSgt CR about the poem being explicit. Thus, Ap-
pellant—at least after having been reprimanded—perceived the potentially
concerning nature of the poem. This “context,” however, does not render Ap-
pellant’s speech indecent under the Manual’s standard.
SSgt CR said she was “shocked” by the poem, but she also conceded that if
a friend of hers—as opposed to Appellant, who was not a friend—read the same
poem to her in a different setting, she would not have found the reading worthy
of reporting. TSgt SD said she was “surprised and disgusted” and found the
poem “grossly offensive” to her, but SSgt SD only said he was “[j]ust a little
taken aback.” SSgt EG said she found the poem offensive, but she also testified
the reading “didn’t bother” her. The standard for indecent language is not a
subjective one, however. The question is not whether some of the listeners in
this case were personally offended, but whether the language violates the
standards of the military community at large. While those who listened to Ap-
pellant’s poem may provide some indication of where the larger military’s
standards lie, their opinions are not determinative. Even the testimony of
these witnesses was inconclusive, as only TSgt SD answered “yes” when trial
counsel asked, “Was the poem grossly offensive to you?” (Emphasis added). No
other witness said the poem was “grossly offensive” to them or otherwise. The
19
United States v. White, No. ACM 39917 (f rev)
witnesses generally coalesced around the idea that reading the poem was in-
appropriate, but there are a great many things which are inappropriate in the
workplace which fall short of indecency.13
Beyond the failure of the evidence to establish that Appellant’s language
was indecent, the record is also inadequate to support a conclusion that Appel-
lant’s conduct amounted to “direct and palpable” prejudice to good order and
discipline. To the contrary, Appellant’s conduct seemingly had virtually no im-
pact on good order and discipline. At the most, SSgt CR reported what had
occurred to her supervisory doctor and Appellant’s first sergeant and told an
Airman in her clinic to keep her door open or have another person present
should Appellant return.14 The listeners in Appellant’s workplace returned to
work after the episode and apparently did not report the incident at the time,
considering Appellant’s reprimand only concerned the reading during his med-
ical appointment. TSgt SD said she thought Appellant’s reading of the poem
“was detrimental to the morale in the unit and good order and discipline,” but
all she could offer on that point was that she personally did not want to asso-
ciate with or speak to Appellant “at that point.” This concern apparently evap-
orated shortly thereafter, considering that within just two weeks she was will-
ing to sit down with Appellant and discuss the matter with him in the context
of providing him advice on responding to the reprimand he had received.
Although the Government sought to elicit evidence from the listeners about
the impact Appellant’s reading had on good order and discipline, the witnesses
struggled to provide such. TSgt SD said, “speaking in the manner that he did
it makes it seem like it’s okay to speak like that.” SSgt EG said she was not
personally bothered, but Appellant’s conduct “could break[ ]down like trust
and stuff like that and being able to work and get the mission done.” (Emphasis
added). Such amorphous speculation falls well short of proving actual and di-
rect prejudice to good order and discipline. We further note that all of the lis-
teners to Appellant’s poetry readings were noncommissioned officers senior to
Appellant, somewhat diminishing the likelihood of any prejudice to good order
and discipline. By virtue of their grade superiority over Appellant, they had
the authority and ready ability to correct Appellant’s behavior on the spot.
13 The Air Force Handbook and Air Force Instruction the military judge took judicial
notice of are geared towards healthy work environments and would counsel against a
wide swath of counterproductive behaviors, indecent or otherwise. They provide little
guidance in determining whether Appellant’s speech was indecent or not. Even trial
counsel reverted to characterizing Appellant’s conduct as being unprofessional and dis-
respectful during the Government’s closing argument, as opposed to being indecent.
14 SSgt CR testified that hospital personnel were readily available to assist with such
requests.
20
United States v. White, No. ACM 39917 (f rev)
As a result, we conclude Appellant’s convictions for communicating inde-
cent language are legally and factually insufficient. This conclusion should not
be read to endorse Appellant’s conduct or to suggest sexually explicit poetry is
appropriate for the military workplace. To be sure, conducting an on-duty read-
ing of an erotic passage from Vladimir Nabokov’s Lolita would be no more ap-
propriate, but there is a gulf between what is inappropriate and what is ille-
gally indecent. In reading his poems, Appellant may have committed other of-
fenses, but under the facts presented here, the Government failed to prove Ap-
pellant communicated indecent language under Article 134, UCMJ.
B. Severity and Reassessment of Appellant’s Sentence
Shortly after Appellant’s court-martial, trial defense counsel submitted a
petition for clemency asking the convening authority to grant Appellant “some
leniency in terms of his forfeitures.”15 In his initial assignment of errors, Ap-
pellant argued his sentence was inappropriately severe, pointing to his difficult
childhood, his otherwise exemplary duty performance, and his view that the
conduct underlying his convictions was “relatively minor.” Appellant asked us
to “modify” his sentence, but did not specifically identify in what way.
Because the convening authority took “no action” on Appellant’s sentence,
this court remanded Appellant’s case and permitted a detailed military judge
to take remedial measures, including returning the record to the convening
authority to take action. We presume the military judge selected this option,
as the convening authority subsequently signed a new Decision on Action
memorandum in which she approved Appellant’s sentence as adjudged. In do-
ing so, the convening authority permitted Appellant to submit additional mat-
ters in clemency. Appellant availed himself of this opportunity and explained
to the convening authority that—as a result of his conviction for abusive sexual
contact—he is now a registered sex offender in Texas, subject to myriad re-
strictions and reporting requirements. Appellant asked the convening author-
ity to disapprove his reduction in grade and his confinement, as well as recom-
mend to this court that his punitive discharge be disapproved.
When Appellant’s case was returned to us, Appellant supplemented his
original assignment of error, arguing the conditions of his sex-offender regis-
tration further rendered his sentence inappropriately severe and that we
should set aside his bad-conduct discharge as a remedy. We also permitted
Appellant to submit additional details about his sex-offender status to this
15 Appellant was not sentenced to forfeit any pay or allowances, but the convening au-
thority retained the power to defer Appellant’s automatic forfeitures during his con-
finement until judgment was entered.
21
United States v. White, No. ACM 39917 (f rev)
court, but we deferred ruling on whether we could consider such post-trial mat-
ters. Appellant argued that because his registration conditions were included
in his second clemency submission, they are part of the record and may be
supplemented with post-trial information pursuant to United States v. Jessie,
79 M.J. 437, 445 (C.A.A.F. 2020).
The Government responds to this argument by saying the convening au-
thority was never given permission on remand to seek input from Appellant,
so Appellant’s second clemency submission is “void.” Building on this premise,
the Government argues there is nothing in the record about Appellant’s re-
quirement to register as a sex offender, so Jessie prohibits our consideration of
post-trial information on that point. The Government further contends that
Appellant’s registration requirement is a “collateral consequence” which
should not factor into our Article 66, UCMJ, analysis.16
We review issues of sentence appropriateness de novo. See United States v.
Lane, 64 M.J. 1, 2 (C.A.A.F. 2006) (citing United States v. Cole, 31 M.J. 270,
272 (C.M.A. 1990)). Our authority to review a case for sentence appropriate-
ness “reflects the unique history and attributes of the military justice system,
[and] includes but is not limited to, considerations of uniformity and evenhand-
edness of sentencing decisions.” United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001) (citations omitted). We may affirm only as much of the sen-
tence as we find correct in law and fact and determine should be approved on
the basis of the entire record. Article 66(d)(1), UCMJ. “We assess sentence ap-
propriateness by considering the particular appellant, the nature and serious-
ness of the offense, the appellant’s record of service, and all matters contained
in the record of trial.” United States v. Anderson, 67 M.J. 703, 705 (A.F. Ct.
Crim. App. 2009) (citations omitted). Although we have great discretion to de-
termine whether a sentence is appropriate, we have no power to grant mercy.
United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted).
Our review under Article 66(d)(1), UCMJ, is generally confined to matters
found in the record of trial. Jessie, 79 M.J. at 444. We conclude that when a
16 The Government asks us to “clarify” a footnote in United States v. Parker in which
this court wrote: “We do not specifically hold that the consequences of sex offender
registration are a matter this court must consider in its sentence appropriateness de-
termination. We merely elected to give this matter appropriate weight in this case,
recognizing both our broad and highly discretionary authority under Article 66(c),
UCMJ, . . . to review sentences and the nature of sex offender registration as a collat-
eral consequence.” 73 M.J. 914, 920 n.6 (A.F. Ct. Crim. App. 2014). The appellant in
Parker received no relief from his sentence.
22
United States v. White, No. ACM 39917 (f rev)
convening authority offers an appellant a second opportunity to submit mat-
ters in clemency in deciding whether to take action on a case, such matters are
considered to be attached to the record.17 While the convening authority was
not obligated to give Appellant this second opportunity, the fact of the matter
is that she did, and we will not penalize Appellant by disregarding his second
clemency submission, as the Government would have us do. Based upon the
unique facts presented here, we will assume, without deciding, that the mat-
ters submitted by Appellant on appeal pertain to an issue raised in the record,
but not fully resolvable by the record alone, insofar as they provide additional
detail about Appellant’s registration requirements.18 See id. at 445.
The question we must answer is whether we are permitted to consider Ap-
pellant’s requirement to register as a sex offender and the consequences he
must suffer as a result. We conclude that when evidence of an appellant’s sex-
offender registration is included in the record, we may consider it. Article
66(d)(1), UCMJ, charges us with making our determinations regarding find-
ings and sentences “on the basis of the entire record,” and nothing in the UCMJ
indicates any particular matters are “off limits.” To the contrary, not consider-
ing matters in the record would likely run afoul of Appellant’s “substantial
right” to a complete Article 66, UCMJ, review. See United States v. Chin, 75
M.J. 220, 222 (C.A.A.F. 2016) (stating that in conducting this review, the
Courts of Criminal Appeals “may not rely on only selected portions of a rec-
ord”). The sole prerequisite to our consideration of matters related to a case is
that they appear in the record, and clemency matters filed by the accused are
attached to the record pursuant to R.C.M. 1112(f)(3).
Although we consider the fact—based upon matters in the record—that Ap-
pellant is a registered sex offender in Texas with various attendant restrictions
and requirements, we attribute little weight to that fact. This is due, in part,
to sex-offender registration processes being creatures of federal and state leg-
islatures and regulatory agencies, wholly outside the purview of the military
justice system, if not the entire Department of Defense. We are well aware of
the competing views in the debate over whether registration conditions amount
to punishment or not. See, e.g., United States v. Price, 777 F.3d 700, 704 (4th
17 We recognize the plain language of R.C.M. 1106(d)(4) prohibits the convening au-
thority from granting an extension for the submission of clemency matters by more
than 20 days, but we see nothing in the rule prohibiting a convening authority from
considering matters received outside of that timeframe. We further note the record is
not otherwise entirely silent as regarding Appellant’s sex-offender status, as the entry
of judgment also reflects sexual-offender notification indexing is required.
18 The additional matters include documentary confirmation that Appellant is, in fact,
a registered sex offender in Texas, and a short declaration from Appellant describing
some of the attendant restrictions and reporting requirements.
23
United States v. White, No. ACM 39917 (f rev)
Cir. 2015) (describing the federal Sex Offender Registration and Notification
Act as “a non-punitive, civil regulatory scheme, both in purpose and effect”);
United States v. Talkington, 73 M.J. 212, 218 (C.A.A.F. 2014) (Baker, C.J., con-
curring) (concluding sex offender registration “may be the most significantly
stigmatizing and longest lasting effect arising from the fact of conviction”). But
the inescapable fact of the matter is that registration and all that flows from it
is the product of a conviction, similar to impacts on voting rights and firearm
ownership, and has very little to do with the actual adjudged sentence. As the
CAAF has held, “[s]ex offender registration operates independently of the sen-
tence adjudged and remains a collateral consequence.” Talkington, 73 M.J. at
216–17. We recognize that post-trial events may warrant sentence relief when
a legal deficiency or error exacerbates an otherwise appropriate sentence.
United States v. Gay, 75 M.J. 264, 269 (C.A.A.F. 2016). Yet, Appellant identi-
fies no such deficiency or error in his case—instead, he takes issue with the
fact Texas authorities are enforcing existing law and regulations. To the extent
Appellant argues the registration requirements are onerous or unjust, a more
effective avenue for recourse runs through his elected representatives and
courts with jurisdiction over those requirements. For our purposes, we give
Appellant’s sex-offender registration its appropriate weight in conducting our
Article 66, UCMJ, review, as we did in Parker.
Because we are setting aside Appellant’s convictions for two specifications,
we must determine whether we should remand his case for a new hearing on
sentence or exercise our “broad discretion” and reassess the sentence ourselves.
United States v. Winckelmann, 73 M.J. 11, 13 (C.A.A.F. 2013). If we determine
to our satisfaction “‘that, absent any error, the sentence adjudged would have
been of at least a certain severity, then a sentence of that severity or less will
be free of prejudicial effects of error . . . .’” Id. at 15 (alteration in original)
(quoting United States v. Sales, 22 M.J. 305, 308 (C.M.A. 1986). In making this
determination, we consider whether: (1) there were dramatic changes in the
penalty landscape; (2) Appellant was sentenced by members or a military
judge; (3) the remaining charge encompasses the originally charged conduct;
and (4) we are familiar with the remaining offense such that we can reasonably
determine what sentence would have been imposed at trial. Id. at 15–16. Here,
Appellant was sentenced by a military judge, and the remaining offense of abu-
sive sexual contact was entirely divorced from the alleged communication of
indecent language. The first offense carried a maximum sentence of seven
years of confinement and a dishonorable discharge, while the latter carried a
maximum of six months and a bad-conduct discharge for each specification.
Thus, there is a moderate, not dramatic, change in the penalty landscape. Ap-
pellant’s sentence, however, is effectively capped at the sentence he was origi-
nally adjudged: four months of confinement, reduction in grade, a reprimand
24
United States v. White, No. ACM 39917 (f rev)
and a bad-conduct discharge. See R.C.M. 810(d)(1). Finally, we are very famil-
iar with the remaining offense, and we may reliably determine the sentence
which would have been imposed for that offense alone. We determine Appel-
lant’s sentence for just the abusive sexual contact specification would have
been no less than a bad-conduct discharge, confinement for three months, and
reduction to the grade of E-1.
III. CONCLUSION
The findings of guilty as to communication of indecent language in Specifi-
cations 1 and 2 of Charge II and Charge II are SET ASIDE and DISMISSED
WITH PREJUDICE. The remaining findings of guilty as to Specification 3 of
Charge I and Charge I are correct in law and fact and AFFIRMED. We reas-
sess the sentence to a bad-conduct discharge, confinement for three months,
and reduction to the grade of E-1. The findings of guilty, as modified, and the
sentence, as reassessed, are correct in law and fact, and no additional error
materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d).
JOHNSON, Chief Judge (dissenting in part and in the result):
Because I believe the evidence is both legally and factually sufficient to
sustain Appellant’s convictions for communicating indecent language in viola-
tion of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934,
as alleged in Specifications 1 and 2 of Charge II, I respectfully dissent.
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (internal quotation
marks and citation omitted). The military judge who received the evidence at
trial found the Government proved Appellant’s guilt beyond a reasonable
doubt. However, the majority finds the evidence fails to meet the “very low
threshold to sustain a conviction” as legally sufficient. United States v. King,
78 M.J. 218, 221 (C.A.A.F. 2019) (citation omitted). I disagree and conclude a
rational factfinder could conclude the Government proved the elements beyond
a reasonable doubt.
In order for Appellant to be found guilty of these offenses, the Government
was required to prove: (1) Appellant communicated certain language, charged
as “sexually explicit poetry;” (2) the language was indecent; and (3) under the
circumstances, Appellant’s conduct was to the prejudice of good order and dis-
cipline in the armed forces. See Manual for Courts-Martial, United States (2016
25
United States v. White, No. ACM 39917 (f rev)
ed.) (2016 MCM), pt. IV, ¶ 89.b. “The language must violate community stand-
ards.” 2016 MCM, pt. IV, ¶ 89.c.; see also United States v. Green, 68 M.J. 266,
269 (C.A.A.F. 2010) (explaining the requirement that the language violate com-
munity standards is not a separate element of the offense). Language is “inde-
cent” if it is “grossly offensive to modesty, decency, or propriety, or shocks the
moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency
to incite lustful thought.” 2016 MCM, pt. IV, ¶ 89.c. Of course, under this defi-
nition, the communicated language need not have all of the aforementioned
qualities in order to qualify as “indecent.” Cf. United States v. Negron, 60 M.J.
136, 144 (C.A.A.F. 2004) (“[P]aragraph 89.c presents two different definitions
to measure speech that may be a crime, dependent on the context in which it
is spoken.”). Put another way, language that is “grossly offensive” to “propri-
ety” due to its “vulgar . . . nature” meets the definition of indecent under the
UCMJ, provided that the language also violates the standards of the military
community. 2016 MCM, pt. IV, ¶ 89.b, c; see United States v. Hullet, 40 M.J.
189, 191 (C.M.A. 1994).
The Manual for Courts-Martial does not include a definition of “vulgar,”
and there appears to be little specific discussion of the term in military case
law. However, in the absence of a specific statutory definition, military judges
are able to give words their ordinary meaning. See United States v. Andrews,
77 M.J. 393, 400 (C.A.A.F. 2018) (“[Q]uestions of statutory interpretation
should ‘begin and end . . . with [statutory] text, giving each word its ordinary,
contemporary, and common meaning.’”) (second and third alterations in origi-
nal) (quoting Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002,
1010 (2017)). Relevant ordinary definitions of “vulgar” include “[l]acking of cul-
tivation or refinement,”1 and “morally crude” or “offensive in language.”2
The indecency of a communication depends on “the context in which it is
made.” Green, 68 M.J. at 270 (citation omitted). “[T]he context of a communi-
cation is critical to any determination of indecency. [ ] Words that are innocent
or appropriate in one context may take on an indecent meaning in another.”
United States v. Knarr, 80 M.J. 522, 532 (A.F. Ct. Crim. App. 2020), rev. denied,
80 M.J. 348 (C.A.A.F. 2020).
I acknowledge the Government was not able to introduce the exact text of
the sexually explicit poem Appellant read to several noncommissioned officers
(NCOs) in their workplaces in August 2018, and that the four witnesses who
testified about Appellant’s indecent language had imperfect memories of the
1 BLACK’S LAW DICTIONARY, vulgar, (6th ed. 1990).
2 MERRIAM-WEBSTER, vulgar, https://www.merriam-webster.com/dictionary (last vis-
ited 23 May 2022).
26
United States v. White, No. ACM 39917 (f rev)
incidents. However, I find the witnesses’ testimony to be generally credible
and, importantly, not significantly inconsistent. Taken together, the testimony
of Staff Sergeant (SSgt) CR, Technical Sergeant (TSgt) SD, SSgt EG, and SSgt
SD demonstrates Appellant’s poem described the perspective of someone pur-
suing unwanted sexual activity with an unwilling female, including references
to touching her breasts and genitalia, and including specific phrases to the ef-
fect of “rubbing her clit” and “just stick the tip in.”3
I believe a rational factfinder could conclude the communication of this lan-
guage, under the circumstances, was grossly offensive to propriety due to its
vulgar nature and violated community standards, and was therefore indecent.
In addition, a rational factfinder could further conclude the communication
was prejudicial to the maintenance of good order and discipline.
Appellant read his sexually explicit poem, or a significant portion of it, on
two occasions on or about 2 August 2018. First, Appellant read the poem to
SSgt CR, a female NCO who was not a close friend and who was meeting him
in an on-duty, official capacity for a medical appointment. SSgt CR testified
the poem made her feel “shocked” and “uncomfortable.” She interrupted Ap-
pellant to stop him. She believed Appellant’s conduct needed to be reported and
addressed. Among others, SSgt CR informed her own officer-in-charge (OIC) of
the incident, as well as Appellant’s acting first sergeant. In addition, SSgt CR
warned a female Airman who worked in her section that if Appellant came in,
the female co-worker should have a second person present or leave the door to
the room open. As a result of SSgt CR’s report, Appellant received a letter of
reprimand on 17 August 2018.
Second, Appellant read the poem to a group of four other NCOs,4 with
whom he worked but who were not close friends, on duty in a common work
area accessible to customers. TSgt SD testified Appellant’s words “surprised”
and “disgusted” her, and were “grossly offensive.” TSgt SD exchanged a look
with a customer—another NCO in uniform—who heard Appellant as they were
passing by, and who had a visible negative reaction to Appellant’s words. TSgt
SD opined that Appellant’s conduct was prejudicial to good order and discipline
and made TSgt SD not want to “associate” or speak with Appellant, despite the
fact that they were required to work together. SSgt EG testified Appellant’s
3 I recognize only SSgt CR recalled the latter phrase, and it is possible Appellant did
not get that far when he recited the poem to the other group of NCOs before they in-
terrupted him. Whether or not Appellant read both phrases or only the first to the
group of NCOs does not alter my conclusion that both Specifications 1 and 2 of Charge
II are legally and factually sufficient.
4 Three of the four NCOs testified at Appellant’s trial.
27
United States v. White, No. ACM 39917 (f rev)
sexually explicit words “shocked” and “bothered” her and made her “uncom-
fortable;” she told Appellant his language was “not appropriate” and walked
away from him. SSgt SD testified that the poem described the speaker touch-
ing a woman’s genitalia although she wanted him to stop; he testified he was
“taken aback,” and the other NCOs present told Appellant to stop. SSgt SD
testified Appellant’s first sergeant asked him to write a memorandum about
the incident, in which SSgt SD described the poem as a description of a man
forcing himself on a woman. All three witnesses generally agreed the sexual
language was not the type of language used in their workplace.
I conclude a rational factfinder could find Appellant’s recitation of a sex-
ually explicit poem describing unwanted sexual contact from the perspective
of the perpetrator was, under the circumstances, including the time, place, and
audience, and the listeners’ reactions, grossly offensive to propriety due to its
vulgar nature and violated the standards of the military community, and was
therefore indecent. Moreover, I conclude a rational factfinder could find Appel-
lant’s actions—which inter alia led SSgt CR to report him to her OIC and to
Appellant’s first sergeant, made SSgt CR specifically warn a female Airman
about Appellant, caused TSgt SD not to want to associate or speak with Appel-
lant, and resulted in Appellant’s first sergeant investigating the matter and
obtaining statements and Appellant receiving a letter of reprimand—were to
some extent prejudicial to good order and discipline.
The majority states that SSgt CR “conceded” that if a friend of hers had
read the same poem to her in a different setting, she would not have found it
worthy of reporting. With due respect to my colleagues, I fear this summary
does not adequately capture SSgt CR’s testimony. Accordingly, I have set out
the relevant portion of her exchange with trial defense counsel below:
Q [Trial Defense Counsel]. We wouldn’t be here if he was your
friend?
A [SSgt CR]. That’s not an accurate statement.
Q. We wouldn’t be here, ma’am, if he was your friend; yes or no?
A. Yes.
Q. Because you never would have reported it?
A. We would be here.
....
Q. Ma’am, to circle back, it’s your testimony that we would not
be here if [Appellant] was your friend?
A. That is not what I said.
....
28
United States v. White, No. ACM 39917 (f rev)
Q. And [the defense team] asked you [during a pretrial inter-
view] if [Appellant] was your friend if we would be here.
A. Y’all asked me had the environment been different, had we
not been in a professional environment, had we been off base,
been friends for a long time that --
Q. Ma’am, that’s not my question.
[Military Judge]: Just stand by. Counsel, don’t interrupt the wit-
ness when they’re talking, so ma’am, please continue.
A. Y’all had asked me if we had been friends, been acquainted,
been friends hanging out outside of work; been that kind of
friends; had he asked me in that environment, nonprofessional
environment, to read a poem to me and he had read this to me
that is when I said all of those things, those possibilities that
were not true whatsoever, then “no” I probably would not have
reported because it would take the professional environment --
the fact that we were not acquainted, we were not friends, we
were not anywhere near knowing each other whatsoever, then I
would not have felt the need to report it. However, if you take all
of those things into account; we didn’t know each other, we were
not friends, he doesn’t know me, I don’t know him, we’ve met a
total of maybe 15 minutes very cordially, and I was at work, I
was at [sic] uniform, we were in a professional environment, not
just physically but the whole situation taken into account, that’s
what makes it inappropriate. Had we been close friends, hang-
ing out outside of work and he asked me for some advice as a
friend and we had known each other that well, then on that level
then I don’t think that we would be sitting here today. However,
that is not the situation that it was.
As we have said before, the context of a communication is critical to the deter-
mination of indecency. Knarr, 80 M.J. at 532. Sexually explicit terms and de-
scriptions of sexual acts may be appropriate in some contexts, just as otherwise
benign language may be indecent in other particular circumstances. SSgt CR
essentially testified that if Appellant’s communication was stripped of all of
the context that made it grossly offensive to propriety under the circumstances
in which it was actually made, then she “probably” would not have reported it.
But that concession is practically irrelevant.
The majority asserts they are not willing to “broadly paint any discussion
of sexual conduct among adults as indecent language under a theory that some-
one, somewhere might be aroused by it.” Neither am I. However, the definition
of indecency does not require the language to be actually or potentially sexually
29
United States v. White, No. ACM 39917 (f rev)
arousing. I also agree that many things that are inappropriate to say in the
workplace are not “indecent.” However, language that is grossly offensive to
propriety because of its vulgar nature and violates the standards of the mili-
tary community is, by definition, indecent. For the reasons stated above, I be-
lieve a rational trier of fact could find the elements of Specifications 1 and 2 of
Charge II proven beyond a reasonable doubt. Moreover, I am convinced the
Government introduced sufficient evidence to prove these specifications. Ac-
cordingly, I would affirm the findings and sentence.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
30