United States v. Tabor ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
THE COURT EN BANC 1
____________________________
UNITED STATES
Appellee
v.
Dereck E. TABOR
Staff Sergeant (E-6), U.S. Marine Corps
Appellant
No. 202100046
____________________________
Argued: 24 March 2022—Decided: 25 May 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Jeffrey V. Munoz (arraignment and motions)
Stephen F. Keane (motions and trial)
Sentence adjudged 12 June 2020 by a general court-martial convened
at Marine Corps Air Station Miramar, California, and Marine Corps
Recruit Depot San Diego, California, consisting of a military judge sit-
ting alone. Sentence in the Entry of Judgment: reduction to E-1, con-
finement for seven years and six months, 2 forfeiture of all pay and al-
lowances, and a dishonorable discharge.
1 Judge HOUTZ took no part in the consideration or decision of this case.
2 The convening authority suspended confinement in excess of 60 months pursuant
to a pretrial agreement.
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Opinion of the Court
For Appellant:
Elizabeth A. Harvey, Esq. (argued)
Major Mary C. Finnen, USMC (on brief)
Bethany L. Payton-O’Brien, Esq. (on brief)
For Appellee:
Lieutenant Catherine M. Crochetiere, JAGC, USN (argued)
Lieutenant Gregory A. Rustico (on brief)
Judge DEERWESTER delivered the opinion of the Court, in which
Chief Judge MONAHAN, Senior Judge STEPHENS, Senior Judge
HOLIFIELD, Judge MYERS, and Judge HACKEL joined. Senior Judge
STEPHENS filed a separate concurring opinion. Senior Judge GAS-
TON filed a separate opinion concurring in part and dissenting in part,
in which Judge STEWART joined.
____________________________
PUBLISHED OPINION OF THE COURT
____________________________
DEERWESTER, Judge:
Appellant was convicted, consistent with his pleas, of one specification of
sexual abuse of a child, five specifications of indecent language, and one speci-
fication of indecent conduct, in violation of Articles 120b and 134, Uniform
Code of Military Justice [UCMJ],3 for communicating indecent language to
Ms. Charles and encouraging her to masturbate while her ten-year-old daugh-
ter, Miss Bravo, was lying in bed next to her. 4
Appellant asserts four assignments of error [AOEs]: (1) Appellant’s plea to
Specification 2 of Charge I was improvident where Miss Bravo was asleep dur-
ing the alleged indecent conduct; (2) the military judge abused his discretion
in denying Appellant’s motion to recuse himself based upon the military judge’s
position as Regional Trial Counsel when the Naval Criminal Investigate Ser-
3 Articles 120b & 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920b, 934
(2018) [UCMJ (2018)].
4 All names in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
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vice [NCIS] consulted with one of his subordinate Senior Trial Counsel regard-
ing Appellant’s case; (3) Appellant’s sentence to confinement was inappropri-
ately severe given the disparity between his sentence to the sentence of 90
months’ confinement that Ms. Charles received in a closely related case; 5 and
(4) the Government’s delay in post-trial processing of Appellant’s case war-
rants relief.
We find Appellant’s plea was provident and that it was unnecessary for
Miss Bravo to be aware of the sex act Appellant directed Ms. Charles to commit
in the child’s presence. In so doing, we overturn our previously published deci-
sion in United States v. Schmidt [Schmidt I]. 6 We now hold that indecent con-
duct “in the presence of a child” does not require that the child be aware of the
indecent conduct committed in his or her presence for an accused to be guilty
of sexual abuse of a child. We find no prejudicial error in the first, second, or
third AOEs. However, due to the post-trial delay raised in the fourth AOE, we
grant relief when we conduct our mandatory review of sentence appropriate-
ness and take action concerning the sentence in our decretal paragraph. We
affirm the findings and the reassessed sentence.
I. BACKGROUND
While standing duty in his squadron’s ready room, Appellant engaged in a
sexually explicit text message conversation with Ms. Charles, a former high
school classmate of his. During their exchange, Ms. Charles disclosed to Appel-
lant that her ten-year-old daughter, Miss Bravo, was in the bed with her, and
sent Appellant a photo of Miss Bravo, who was lying down, facing away from
Ms. Charles. She told Appellant she intended to masturbate once her daughter
fell asleep. Appellant responded that he was sexually aroused by the thought
of Ms. Charles masturbating in the bed with her daughter and encouraged
Ms. Charles to “do it anyway,” even though Miss Bravo was not yet asleep. 7
At approximately 12:30 a.m., Ms. Charles responded to Appellant that Miss
Bravo’s eyes were closed and then, approximately a minute later, she texted,
5Having reviewed this AOE, we find it to be without merit. United States v. Matias,
25 M.J. 356, 363 (C.M.A. 1987).
6 United States v. Schmidt, 80 M.J. 586 (N-M. Ct. Crim. App. 2020) [Schmidt I],
aff’d, 82 M.J. 68 (C.A.A.F. 2022) [Schmidt II].
7 Pros. Ex. 5 at 7; R. at 429.
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“Not sure if she’s awake.” 8 Appellant then responded and encouraged
Ms. Charles to begin masturbating, writing, “Now play, baby.” 9 Ms. Charles
then sent Appellant several pictures of herself that depicted her undressed
with her genitalia exposed. Miss Bravo was not in any of the photos, but at
approximately 12:44 a.m., Ms. Charles texted, “She moved Daddy, breathing
heavy.” 10 About a minute later, Ms. Charles texted, “Yeah, she’s asleep for
sure.” 11
These facts came to light the next month when Miss Bravo’s biological, non-
custodial father became aware of the text message exchange and a criminal
investigation ensued. After initially denying having been the victim of sexual
abuse, Miss Bravo eventually came forward after her school gave a presenta-
tion on inappropriate touching. Miss Bravo disclosed to her guidance counse-
lor, and then to law enforcement, that her mother and step-father (not Appel-
lant) had touched her genitalia over the course of several years. Ms. Charles
pleaded guilty to aggravated criminal sexual abuse of a family member in Illi-
nois state court and was sentenced to 78 months’ confinement. 12
Appellant pleaded guilty at general court-martial to sexual abuse of a child,
communicating indecent language, and indecent conduct. Specifically, for
Specification 2 of Charge I, Appellant pleaded guilty to committing a “lewd act
upon [Miss Bravo] . . . by intentionally counseling [Ms. Charles] to engage in
indecent conduct, to wit: masturbation, intentionally done in the presence of
[Miss Bravo], which conduct amounted to a form of immorality relating to sex-
ual impurity which is grossly vulgar, obscene and repugnant to common pro-
priety . . . .”
During Appellant’s providence inquiry, the military judge questioned
whether the acts were lewd if Miss Bravo was asleep when they occurred. The
military judge reviewed relevant case law and consulted with trial counsel and
trial defense counsel. 13 Ultimately, the military judge found that Appellant be-
lieved Miss Bravo was awake, and thus aware, for some period of Ms. Charles’
8 Pros. Ex. 5 at 8.
9 Id.10 Id.11 Id.12 Pros. Ex. 11.
13Specifically, the military judge consulted this Court’s opinion in United States v.
Lopez, No. 201700252, 2019 CCA LEXIS 37 (N-M Ct. Crim. App. Jan. 31, 2019) (un-
published), and found that the facts of Lopez were generally analogous to Appellant’s
4
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lewd acts and that Appellant’s plea of guilty was provident to the offense at
issue.
II. DISCUSSION
A. Appellant’s Plea Was Provident Because Miss Bravo’s Awareness
Was Not Required
Appellant argues that a substantial basis in law and fact exists to question
his plea because Miss Bravo was not aware of the lewd acts as required under
this Court’s published opinion in Schmidt I. Specifically, Appellant contends
that the record supports the conclusion that he believed that Miss Bravo was
asleep, and thus unaware of the lewd conduct he encouraged Ms. Charles to
commit. Therefore, in Appellant’s view, it would be impossible for him to be
guilty of sexual abuse of a child in violation of Article 120b, UCMJ, because the
act could not have been done “in the presence of” a child who was unaware that
the act even occurred.
We consider this case en banc to reevaluate our recent statutory interpre-
tation in Schmidt I. We then turn to the question of whether the military judge
abused his discretion in accepting Appellant’s guilty plea.
1. Standard of review and the law
We review whether a guilty plea is provident by determining if the record
provides a substantial basis in law and in fact to question the guilty plea. 14 A
guilty plea must be supported by a sufficient factual basis. 15 In determining
whether a guilty plea is provident, the military judge may consider the facts
contained in the stipulation of fact along with the inquiry of Appellant on the
record. 16 However, before considering whether the plea was provident we must
case, noting that in Lopez the appellant’s conviction for indecent exposure was upheld
where the appellant entered a child’s bedroom and exposed his genitalia to her. We
note that the elements of an Article 120c, UCMJ (2018), charge of indecent exposure
contemplate different statutory elements than the provision of the UCMJ at issue in
the instant case. See Schmidt I, 80 M.J. at 579, n.8. But we credit the military judge
for properly identifying that there was an issue regarding Appellant’s plea, and note
that this Court’s opinion in Schmidt I had not yet been published.
14 United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991).
15 United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969).
16 United States v. Whitaker, 72 M.J. 292, 293 (C.A.A.F. 2013).
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consider again whether the statute requires awareness by the child of the lewd
act, as contemplated in Schmidt I.
Statutory construction and interpretation is a question of law we review de
novo. 17 In statutory construction, we must first look to the statute and “give
effect to the clear meaning of statutes as written.” 18 Each word of a statute
should be given its “ordinary, contemporary, and common meaning” 19 at the
time the statute was enacted. When a statute’s language “is unambiguous, the
statute’s plain language will control.” 20 Whether a statute is ambiguous or not
is determined, not by mere disagreement by the parties, but “by reference to
the language itself, the specific context in which the language is used, and the
broader context of the statute as a whole.” 21
Article 120b(c), UCMJ, provides that: “Any person subject to this chapter
[10 USCS §§ 801 et seq.] who commits a lewd act upon a child is guilty of sexual
abuse of a child and shall be punished as a court-martial may direct.” 22 The
definition of “lewd act” is expansive and includes, in relevant part to Appel-
lant’s case:
any indecent conduct, intentionally done with or in the presence
of a child, including via any communication technology, that
amounts to a form of immorality relating to sexual impurity
which is grossly vulgar, obscene, and repugnant to common pro-
priety, and tends to excite sexual desire or deprave morals with
respect to sexual relations. 23
17Schmidt I, 80 M.J. at 595; See also United States v. Inabinette, 66 M.J. 320, 322
(C.A.A.F. 2008) (“In summary, we review a military judge’s decision to accept a guilty
plea for an abuse of discretion and questions of law arising from the guilty plea de
novo.”).
United States v. Andrews, 77 M.J. 393, 400 (C.A.A.F. 2018) (internal citation and
18
quotation omitted).
19 Id. (internal citation and quotation omitted).
20United States v. Jacobsen, 77 M.J. 81, 84 (C.A.A.F. 2017) (citing United States v.
Schell, 72 M.J. 339, 343 (C.A.A.F. 2013)).
21United States v. McPherson, 73 M.J. 393, 395 (C.A.A.F. 2014) (citing Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997)).
22 Article 120b(c), UCMJ (2018).
23 Article 120b(h)(5)(D), UCMJ (2018) (emphasis added).
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2. Background of “Indecent Liberties with a Child”
As an initial matter, we think it instructive to review the statutory history
and case law concerning indecent liberties with a child and how the concept of
“awareness” of the child came to be considered an element.
a. United States v. Brown
When the UCMJ first took effect in 1951, it criminalized sexual misbehav-
ior with minors under Article 134, “indecent acts with a child under the age of
16 years.” 24 Specifically, it criminalized “immoral, improper, or indecent liber-
ties with, or the commission of any lewd or lascivious act upon or with the body
of” a child. 25 Soon after, the Court of Military Appeals [CMA] weighed in on
the statute in United States v. Brown, 26 a case where a soldier exposed himself
from a car to a woman and two children, aged seven and ten, at Fort Benning.
The issue was whether he was guilty of taking indecent liberties with a child
because he had not physically assaulted or had any contact with the children
when he exposed himself.
The CMA found the statute was drafted in the disjunctive and could be
completed in two ways: “by (1) taking any immoral, improper, or indecent lib-
erties with any child of either sex under the age of 16 years with the intent of
gratifying sexual desires, or (2) by committing any lewd or lascivious act upon
or with the body of any child with the same intent.” 27 The statute set forth two
different means of committing the offense, one which did not require any touch-
ing and the other in which “proof of contact [was] essential” to the offense. 28
The CMA also found the statute was modelled after part of the District of
Columbia [D.C.] Code. 29 The D.C. law was created in an attempt to clarify that
the crime of indecent liberties with a child should be understood to capture
conduct that comported with common law concepts of crimes against minors. 30
24 Manual for Courts-Martial, United States (1951 ed.) [MCM (1951)], ch. XXVIII,
para. 213.d(3).
25Id.
26 United States v. Brown, 3 C.M.A. 454, 13 C.M.R. 10 (1953).
27 Id, 3 C.M.A. at 456, 13 C.M.R. at 12.
28 Id.
29 Id.
30 Id.
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In other words, the D.C. law clarified that while the offense of indecent liber-
ties with a child requires an assault, indecent liberties against a child does not
require physical contact. 31
The CMA turned to the analysis of the D.C. law by the United States Court
of Appeals for the District of Columbia. 32 The D.C. Circuit had considered a
case where a taxi driver exposed his genitalia to a child passenger and re-
quested that the child touch him. 33 The court considered that, historically, the
common law did not require physical contact with a child in order for conduct
to arise to criminal assault. 34 The court not only recognized the common law
understanding concerning assault but added there was no requirement the
child understand the nature of the act at all. From the D.C. Circuit’s perspec-
tive, a view adopted by the CMA, it was not “necessary that such a victim
should be aware of the nature of the act or of the danger.” 35
The CMA recognized that one purpose of the statute was to protect children
from acts that cause “shame, embarrassment, and humiliation to children, or
lead them further down the road to delinquency” in contrast to the appellant’s
argument that because he never touched the children he had not committed
the offense of taking an indecent liberties. 36 But the CMA added:
[t]aking indecent liberties is the first step toward more serious
sex crimes of a perverted nature and it would be shocking to find
out the President intended to class them with petty offenses. We
therefore, believe that this offense is distinguishable from both
the minor offenses of indecent exposure and assault, when the
31 Id.
32 Id., 3 C.M.A. at 456–58, 13 C.M.R. at 12–14.
33 Beausoliel v. United States, 107 F.2d 292 (D.C. Cir. 1939).
34 Brown, 3 C.M.A. at 457–58, 13 C.M.R. at 13–14 (citing Beausoliel, 107 F.2d at
296) (reviewing past cases to conclude that any attempt to violate a minor need not
require physical contact to meet the common law understanding of indecent liberties.
“Hence, to stand in proximity to a young girl in a state of indecent exposure with intent
to ravish has been held to be assault . . . it was held to be an assault to sit on the bed
of a girl and lean over her with a proffer of sexual intercourse.”).
35 Id., 3 C.M.A. at 457, 13 C.M.R. at 13 (quoting Beausoliel, 107 F.2d at 296).
36 Id., 3 C.M.A. at 461, 13 C.M.R. at 17.
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act is performed with the specific intent to satisfy the sexual de-
sires of the participants. 37
b. United States v. Knowles
In 1965, the CMA decided United States v. Knowles, where a soldier made
an obscene telephone call to a child. 38 The board of review modified the soldier’s
guilty plea to taking indecent liberties with a child down to merely communi-
cating obscene language. The CMA affirmed this result pointing out that
Brown left “no doubt” that an act must be committed in the presence of the
child and not through a telephone. In drawing a distinction between uttering
obscene words to a child in the child’s presence and just speaking them from a
remote location over a telephone, the CMA said, “The offense before us requires
greater conjunction of the several senses of the victim with those of the accused
than that of hearing a voice over a telephone wire.” The CMA did leave open
the possibility for a different result in the event that indecent acts or obscene
language were performed “over an audio-visual system.” 39
c. United States v. Miller and Its Progeny
After Brown and Knowles, the UCMJ underwent an overhaul with the in-
troduction of the 1969 Manual for Courts-Martial [MCM]. Remaining under
Article 134, UCMJ, the crime of “indecent acts with a child” still criminalized
“indecent liberties with, or the commission of any lewd or lascivious act upon
or with the body of a child,” however it now stated that indecent liberties “must
be taken in the physical presence of the child” but that “physical contact” was
“not essential.” 40
After yet another Congressional revision of the UCMJ, another MCM was
issued in 1984. Article 134 now included “indecent acts or liberties with a child”
and bisected the offense into “physical contact” and “no contact.” 41 A physical
37 Id. The CMA took pains to explain that even if the child’s sexual desires were
gratified or that the child “consented” it would still amount to taking indecent liberties
with a child.
38 United States v. Knowles, 15 C.M.A. 404, 35 C.M.R. 376 (1965).
39 Knowles, 15 C.M.A. at 406, 35 C.M.R. at 378.
40Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1969) [UCMJ
(1969)].
41Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934 (1984) [UCMJ
(1984)].
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contact offense required an indecent act committed “upon or with the body” of
a child. 42 A “no physical contact” offense required an indecent liberty “in the
presence” of a child. 43 The explanation for this offense in the MCM stated that
(1) indecent liberties must be taken in the “physical presence” of a child but
did not require “physical contact”; (2) intentionally exposing private parts to a
child was an indecent liberty; and (3) communicating indecent language was
an indecent liberty “as long as the communication is made in the physical pres-
ence of a child.” 44
By 2005, Article 134’s “indecent acts or liberties with a child” offense—still
bisected into physical contact and without physical contact—required an inde-
cent liberty without physical contact to be “committed in the presence of” a
child. The explanations added by the President into the MCM concerning the
offense continued to state that “indecent liberties . . . must be taken in the
physical presence of the child” along with the other explanations listed above
from the 1984 MCM.
In 2008, the Court of Appeals for the Armed Forces [CAAF] interpreted the
offense of indecent liberties with a child as contained in the 2005 edition of the
MCM in United States v. Miller. 45 Miller had been communicating online with
an individual he believed was a 14-year-old girl, who was actually a law en-
forcement agent. Using a one-way video camera, he masturbated in front of his
computer, believing the girl could view him on her monitor. He was convicted,
among other things, of attempting to take indecent liberties with a child. The
question before CAAF was whether the nature of Miller’s presence was suffi-
cient to meet the elements of the offense. The Government argued that Miller’s
“constructive presence” satisfied the presence requirement of the offense. 46
CAAF recognized that the Presidential explanations are “generally treated as
persuasive authority.” 47 CAAF drew on Knowles and considered its predecessor
court’s language that an obscene phone call lacked the “greater conjunction of
42 Article 134, UCMJ (1984).
43 Article 134, UCMJ (1984).
44 Manual for Courts-Martial, United States (1984 ed.) [MCM (1984)], pt. IV, para.
89.c.
45 United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008).
46 Miller, 67 M.J. at 90.
47 Id. at 89.
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the several senses of the victim” as compared with obscene language uttered
in the physical presence of a child. 48
CAAF then conducted an analysis of the offense’s language and looked to
the “definition and common understanding” of the word “presence” from the
offense and “physical” from the Presidential explanation. 49 CAAF used two dic-
tionaries to inform its analysis. CAAF drew its definition of the word “pres-
ence” from the 2004 edition of Black’s Law Dictionary: “close physical proxim-
ity coupled with awareness.” 50 CAAF defined the word “physical” using a lay
dictionary, the 2003 edition of Merriam-Webster’s Collegiate Dictionary, which
defined the word as “having material existence” and “relating to the body.” 51
In rejecting the Government’s argument that “constructive presence” through
a one-way web camera satisfied the statutory and explanatory definition of
“physical presence” CAAF concluded, “[t]hese definitions taken together com-
pel the conclusion that ‘physical presence’ requires that an accused be in the
same physical space as the victim.” 52
Congress responded by amending the statute to include a Miller-type fact
pattern to address conduct done remotely. In the wake of Miller, several Ser-
vice Courts of Criminal Appeals opinions addressing the offense of indecent
liberties with a child all focused on the word “awareness,” drawing upon
CAAF’s use of Black’s Law Dictionary to define “presence.” Examples of these
cases include United States v. Burkhart, 53 a published case in 2013 from the
Air Force Court of Criminal Appeals; United States v. Anderson, 54 an un-
published case from this Court just a few weeks after Burkhart; and United
48 Id.
49 Id. at 90.
50 Id.
51 Id.
52 Id.
53 United States v. Burkhart, 72 M.J. 590 (A.F. Ct. Crim. App. 2013).
54 United States v. Anderson, No. 201200499, 2013 CCA LEXIS 517 (N-M. Ct. Crim.
App. June 27, 2013) (unpublished).
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States v. Gould, 55 a very brief unpublished opinion by the Army Court of Crim-
inal Appeals from 2014. Each of these cases cited the “awareness” sentence
from Miller.
As discussed above, in response to Miller, Congress changed the indecent
liberties with a child statute. Complicating matters, Congress also enacted ma-
jor changes to Article 120, UCMJ, the rape and sexual assault statute, in 2007
and in 2012. What had previously been Article 134, “Indecent acts or liberties
with a child” became Article 120b, “Rape and sexual abuse of a child.” The pre-
sent statute now incorporates the sexual abuse of a child by a lewd act per-
formed in the presence of a child via any communication technology. The max-
imum punishment for a case not involving sexual contact includes a
dishonorable discharge and confinement for 15 years.
“Indecent conduct” is currently punished under Article 134, UCMJ. Inde-
cent is defined as, a “form of immorality relating to sexual impurity which is
grossly vulgar, obscene, and repugnant to common propriety, and tends to ex-
cite sexual desire or deprave morals with respect to sexual relations.” 56 This is
the identical language of the central element for sexual abuse of a child under
Article 120b(c). The explanation for indecent conduct warns that “for child of-
fenses, some indecent conduct may be included in the definition of lewd act and
preempted by Article 120b(c).” 57 The maximum punishment includes confine-
ment for five years and a dishonorable discharge. The statute has no enhanced
punishment for children and does not appear intended to specifically protect
children.
d. United States v. Schmidt
In 2020, this Court issued our published opinion in Schmidt I, holding that
a child victim must be aware of any lewd act done in his presence for the act to
be considered sexual abuse of a child under Article 120b(c), UCMJ. Schmidt
was a contested case where the appellant masturbated in the presence of a
fifteen-year-old boy. The boy was aware of the appellant’s presence, but pre-
tended to be asleep when the appellant was masturbating near him and touch-
ing him. It was clear that the appellant’s sexual focus was the boy. During trial,
55 United States v. Gould, No. ARMY 20120727, 2014 CCA LEXIS 694 (Army Ct.
Crim. App. Sep. 16, 2014) (unpublished), rev’d in part on other grounds, 75 M.J. 22(2015).
56 Article 134, UCMJ (2018).
57 Manual for Courts-Martial, United States (2019 ed.) [MCM (2019)], pt. IV, para.
104.c.(2).
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the military judge provided findings instructions to the members on the ele-
ments of the crime of sexual abuse of a child under Article 120b(c), UCMJ.
Although he instructed on such elements as the “lewd act,” the victim’s age,
the victim’s presence, and the vulgar and immoral nature of the conduct, he
did not instruct on awareness. In response to members’ questions about the
meaning of the phrase “in the presence of,” the military judge instructed them
to use their own ordinary understanding of the words. The appellant waived
any objection to this, but did argue in closing that the appellant himself was
unaware that the child was aware of appellant’s masturbation. We affirmed
the appellant’s conviction for sexual abuse of a child because the record showed
that the appellant knew that the child was only feigning sleep and that he
knew the child was aware of his conduct.
CAAF granted the appellant’s petition for review in Schmidt II and af-
firmed. But it did so in a fractured judgment which did not constitute a binding
opinion of the court. As such, CAAF did not settle the issue of whether the child
victim must be aware of the lewd act to convict under Article 120b(c), UCMJ.
Judge Sparks, delivering the judgment of the court, found an awareness
requirement in the statute. He did so largely due to the Congressional amend-
ment of the statute in response to Miller, where Congress added “via any com-
munication technology,” and omitted the word “physical” before the word “pres-
ence.” 58 Judge Sparks reasoned that Congress intended for a victim to have
some sensory connection with the conduct, whether it was in the physical pres-
ence or through some communication technology. 59
Chief Judge Ohlson, joined by Senior Judge Erdmann, came to the opposite
conclusion. Their opinion found that using the plain ordinary meaning of the
word “presence” did not necessarily include the concept of awareness. They
criticized the use of Black’s Law Dictionary—as used in Miller and all of its
progeny, including Schmidt II—to define “presence” because it was a technical
legal dictionary, and the definition of “presence” that required “awareness” was
the secondary, more technical definition offered by that publication. They be-
lieved that a correct statutory interpretation should rely on lay dictionaries
and the plain, ordinary meaning of the word “presence.” 60
58 Schmidt II, 82 M.J. at 74.
59 Id.
60 Id. at 77–78.
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Judge Maggs, joined by Judge Hardy, found waiver by the appellant on the
military judge’s instruction concerning the meaning of “presence.” Thus, Judge
Maggs’ opinion did not address whether “presence” requires awareness by the
child victim with regard to this offense. 61
3. The Phrase “in the Presence of” Does Not Require that the Child Victim
be Aware of the Lewd Act
Words and phrases in the UCMJ are interpreted by examining “the ordi-
nary meaning of the language, the context in which the language is used, and
the broader statutory context.” 62 When that examination results in a uniform,
clear, and unambiguous interpretation, we simply use the plain meaning and
apply the terms as written. 63 Where the plain meaning of a statutory phrase
cannot be so easily divined, we may turn to additional canons of statutory in-
terpretation, including: “the contemporaneous history of the statute; the con-
temporaneous interpretation of the statute; and subsequent legislative action
or inaction regarding the statute.” 64
Though the statute does not define the word, “upon,” for those lewd acts
consisting of indecent conduct, the phrase “upon a child” is subsumed within
the statute’s further definition of indecent conduct done “with or in the pres-
ence of a child.” 65 Thus the conduct prohibited by Article 120b(c) can be com-
pleted by performing a lewd act “with” or “in the presence of” a child. In
Schmidt I, we focused on the latter and determined that the phrase “is suscep-
tible to more than one interpretation.” 66 Accordingly, we then turned to the
history of the statute coupled with an analysis of relevant case law.
Ultimately, we concluded that for a child to be “in the presence of” an inde-
cent act, it is required that the victim be aware that the act is taking place. 67
The backbone of our conclusion was that such an interpretation was consistent
with what seemed to be the longstanding principle that the purpose of Article
61 Id. at 80–81.
62 United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016).
63 United States v. Kohlbek, 78 M.J. 326, 331 (C.A.A.F. 2019).
64 Schmidt I, 80 M.J. at 595 (quoting United States v. Tardif, 57 M.J. 219, 226
(C.A.A.F. 2002) (Crawford, C.J., dissenting)) (internal quotation omitted).
65 See Schmidt I, 80 M.J. at 595.
66 Id. at 596.
67 Id. at 598.
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Opinion of the Court
120b(c), UCMJ, like other statutes criminalizing indecent conduct involving
children, was to protect the child from those acts which had a “tendency to
corrupt their morals . . . which can occur by the conduct merely being done in
their presence.” 68 Further analysis of the legislative action and relevant case
law concerning the predecessor offense is required to determine whether our
earlier conclusion in Schmidt I can withstand additional scrutiny. We conclude
that it cannot.
In Schmidt I, we reasoned that the operative language at issue, “in the
presence of,” was developed in the context of the predecessor Article 134 offense
and began our historical analysis with the 1954 case interpreting that statute,
United States v. Brown 69, as we have done here. However, in Schmidt I, unlike
here, our analysis of Brown was brief:
The court determined that the “purpose of this type of legislation
is to protect children under a certain age from those acts which
have a tendency to corrupt their morals,” and the statutory lan-
guage was “broad enough to cover specifically those offensive sit-
uations in which an assault or battery is missing but the im-
moral and indecent liberties are so offensive that the minor is
harmed.” The court reasoned that “the injury to the child and
the consequential damage to society from the performance of the
depraved act in [the child’s] presence are just as great as when
there is an actual physical contact between the performer and
the child.” 70
At the end of our analysis, we concluded that Brown stood for the proposi-
tion that certain conduct in the presence of a child could amount to an indecent
liberty criminalized by the statute “due to the connection between the conduct
and the harm it causes to the child.” 71 Now, upon further review, we find that
understanding to be incomplete.
We are satisfied that the CMA in Brown likewise adopted the view that the
victim need not completely comprehend the nature of the act for the act itself
to be captured by the Article 134, UCMJ predecessor offense. As a preliminary
68 Id. (cleaned up).
69 Id. at 596 (analyzing Brown).
70 Schmidt I, 80 M.J. at 596 (quoting Brown, 3 C.M.A. at 457–58, 13 C.M.R. at 13–
14) (emphasis in original).
71 Id.
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Opinion of the Court
matter, the CMA plainly recognized the debt that the Article 134 predecessor
offense had to the D.C. law and the relevant explanatory case law. The CMA
also clearly understood the indecent liberties with children statute was prom-
ulgated with the common law understanding that physical contact was not re-
quired. But it also recognized that the victim need not “be aware of the nature
of the act.” 72 We overlooked this fact in Schmidt I, where we stated:
the “purpose of this type of legislation is to protect children un-
der a certain age from those acts which have a tendency to cor-
rupt their morals,” and the statutory language was “broad
enough to cover specifically those offensive situations in which
an assault or battery is missing but the immoral and indecent
liberties are so offensive that the minor is harmed.” 73
Our earlier look at Brown left out a critical observation made by the CMA.
Not only did the CMA expressly consider the earlier judicial treatment of the
D.C. law upon which the indecent liberties was based, but the CMA again ad-
dressed the concept of awareness in their own analysis—a passage omitted
from our analysis of that case in our original review in Schmidt I. The full
excerpt from Brown reads:
The evidence purpose of this type of legislation is to protect chil-
dren under a certain age from those acts which have a tendency
to corrupt their morals, and if the many variations in which it is
possible to take indecent liberties with a child are restricted to
those founded on an assault or battery, then many debasing acts
which are detrimental to the morals of a minor are not pro-
scribed. Certainly, the injury to the child and the consequential
damage to society from the performance of a depraved act in his
presence are just as great as when there is an actual physical
contact between the performer and the child. It may be that by
extending assault to include any immoral or indecent act which
might tend to cause minors to be embarrassed, humiliated, or
ashamed, a finding of taking indecent liberties could be sus-
tained on an assault theory but the extension is unnecessary as
the provision presented under arm (a) [of Article 134, UCMJ]
would cover that area. In addition, there are cases wherein an
accused exhibits himself or suggests that a minor do so, which
do not cause some minors mental disturbance regardless of the
72 Brown, 3 C.M.A. at 457, 13 C.M.R. at 13 (quoting Beausoliel, 107 F.2d at 296).
73 Schmidt I, 80 M.J. at 596 (quoting Brown, 3 C.M.A. at 457–58, 13 C.M.R. at 13–
14).
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Opinion of the Court
depravity of the exhibition, and so there is a necessity for pro-
scribing acts which are degrading to minors even though an as-
sault in the usually accepted sense has not actually been com-
mitted. That is why we believe the recent trend of legislation has
been toward affording the minor more protection and why we
further believe the District of Columbia Code and the Manual
provisions are sweeping and set out the elements in the alterna-
tive. This eliminates any uncertainty, as the language used is
broad enough to cover specifically those offensive situations in
which an assault or battery is missing but the immoral and in-
decent liberties are so offensive that the minor is harmed. 74
Reviewing the CMA’s analysis, it is plain to see that the offense of indecent
liberties codified by the Article 134 predecessor offense, contemplated crimi-
nalizing conduct that neither involved physical assault nor required a minor
to even “be aware of the nature of the conduct” or experience “mental disturb-
ance” as a result of the conduct. 75
It is axiomatic that we may resort to case law to resolve any ambiguity, so
long as we are cautious that “case law must comport with [the statute] and not
vice versa.” 76 After further consideration of our prior reading of Brown, we now
conclude that Brown, rather than only focusing on an “indecent liberty due to
the connection between the conduct and the harm it causes to the child,” 77 more
accurately states that certain conduct done in the presence of a child could
amount to an indecent liberty due to the tendency that such acts have to cause
harm to children.
This conclusion is directly supported by Brown itself. While it is true that
the CMA stated that the statutory language was “broad enough to cover spe-
cifically those offensive situations in which an assault or battery is missing but
the immoral and indecent liberties are so offensive that the minor is harmed,”
that statement refers to the specific factual underpinnings at issue in Brown. 78
Recall that in Brown, the question before the CMA was whether the appellant
could have been convicted under Article 134, UCMJ, for exposing his genitals
while driving by children who were riding bicycles. Indeed, the Court deter-
74 Brown, 3 C.M.A. at 457–58, 13 C.M.R. at 13–14 (emphasis added).
75 Beausoliel, 107 F.2d at 296; Brown, 3 C.M.A. at 457–58, 13 C.M.R. at 13–14.
76 United States v. Warner, 62 M.J. 114, 120 n.30 (CA.A.F. 2005).
77 Schmidt I, 80 M.J. at 596.
78 Brown, 3 C.M.A. at 457–58, 13 C.M.R. at 13–14 (emphasis added).
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mined that the specific harmful act fell within the scope of the statute. How-
ever, the Brown court did not read into the law a general requirement that the
government demonstrate that a minor actually be aware of the conduct in
every prosecution under the statute.
We are thus unpersuaded that Brown stands for the proposition that cer-
tain conduct done in the presence of a child amounts to indecent liberties be-
cause some cognizable harm results from the conduct. Instead, we read Brown
to criminalize those offenses which would have a tendency to harm children,
regardless of whether the actual victim formed an understanding or apprecia-
tion of the act at hand. Therefore, Brown does not cause us to read into the
current statute, Article 120b(c), UCMJ, a requirement that the victim need
have an awareness of the act for the act to have been done “in the presence of”
the victim.
Similarly, we also do not understand CMA’s holding in Knowles to read
such a requirement into the statute. As a preliminary matter, it is clear from
that opinion the thrust of the analysis in Knowles pertains to the physical lo-
cation of the accused relative to the victim. There is nothing in Knowles that
would suggest that the Court strayed from the question before them to opine
on the level of sensory awareness a victim must have to be the victim of an
indecent liberty. Moreover, we are reluctant to assume that the Court would
so deviate and would read a new element into the statute via a three-page
opinion. CMA’s holding that “greater conjunction of the several senses of the
victim with those of the accused” than that relationship present over the tele-
phone, merely speaks to the notion that an accused’s telephonic presence was
not, at the time, proscribed by the statute. We conclude that the Court’s anal-
ysis was singularly focused on the accused’s physical presence with relation to
the victim, rather than with the victim’s sensory awareness of the accused.
First, we find the plain language of the Knowles opinion clear on this point.
Second, CMA did not rely on any of the analysis from Brown which dealt with
the understanding, awareness, or even harm suffered by the victim. Finally,
after delivering its holding, the Court commented that it was open to consider-
ation in the future of whether the addition of video to the audio would cause
conduct to be properly captured by the statute. 79 In so doing, the Court did not
provide any indication that the additional “conjunction of the several senses”
79 Knowles, 15 C.M.A. at 406, 35 C.M.R. at 378. (“We leave for such time as it may
be directly before us consideration of whether the offense is committed by performance
of indecent acts and the use of obscene language over an audio-visual system.”).
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Opinion of the Court
provided by video may waiver and vacillate depending upon the intended tar-
get’s awareness or understanding of the conduct. 80 Therefore, we cannot read
from Knowles that the predecessor offense required any additional level of
awareness on the part of the child victim.
Turning to CAAF’s analysis in Miller, we find it salient that the Court was
not considering the question of whether a victim’s awareness of the indecent
act or an understanding of the act was required. Indeed, here, as with Knowles,
the focus of the Court’s inquiry was whether the appellant could satisfy the
physical presence requirement of the predecessor statute via the use of elec-
tronic means. To that end, the government in Miller argued that the appel-
lant’s use of the webcam tended to bring about the required physical pres-
ence. 81 CAAF rejected this argument. First, the Court noted that the Manual
was revised in response to Knowles and now stated in the explanation section
that “the liberties must be taken in the physical presence of the child, but phys-
ical contact is not required.” 82 Relying on these changes to the Manual, the
court held that “for the offense of taking indecent liberties with a child, pres-
ence means physical presence, rather than presence created through the use
of “an audio-visual system.” 83, 84
The statutory definition of “physical presence,” CAAF explained, did not
allow for a “constructive presence” created by technology to satisfy the physical
presence requirement. The Court stated that “the definition and common un-
derstanding of ‘presence’ is: ‘[t]he state or fact of being in a particular place
and time’ and ‘[c]lose physical proximity coupled with awareness.’ [citing to
Black’s Law Dictionary 1221 (8th ed. 2004)] The modifying word ‘physical’ is
commonly defined and understood as ‘having material existence’ and ‘of or re-
lating to the body.’ [citing to Merriam-Webster’s Collegiate Dictionary 935 (11th
80 Id., 15 CMA at 405–06, 35 C.M.R. at 377–78.
81 Miller, 67 M.J. at 90.
82 Miller, 67 M.J. at 89; MCM pt. IV, para. 87.c.(2) (2005).
83 Miller, 67 M.J. at 90.
84 We pause here to note that the definitional language under which Appellant
was convicted is the same as the language used in the former indecent liberties of-
fenses, except that in the current statute, Article 120b(c), Congress “filled the gap
created by Knowles and Miller by more broadly defining ‘in the presence of a child’ as
‘including via any communication technology.’” Schmidt I, 80 M.J. at 597 (quoting Ar-
ticle 120b(h)(5)(D), UCMJ).
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Opinion of the Court
ed. 2003)]. 85 As discussed below, as well as at length in our Schmidt I analysis,
the service courts adopted Miller’s use of “close proximity coupled with aware-
ness” and found that “in order to sustain a conviction for indecent liberties with
a child, the child had to be aware of the conduct.” 86 We find this result rather
curious.
First, in Miller, CAAF did not hold that the definitions require an aware-
ness on the part of the victim for an act to be done “in the presence of” a child.
Rather, the Court found that the above definitions “taken together compel the
conclusion that ‘physical presence’ requires that an accused be in the same
physical space as the victim.” 87 It seems to be an incongruous result that the
service courts would take Miller to require a child victim to be aware of an act
in order to satisfy the “presence” requirement when CAAF not only did not do
so, but affirmatively stated the definitions only require that the accused and
victim share the same physical, vice virtual, space. 88 Second, the “ordinary
meaning of the language” is used to interpret words and phrases in the
UCMJ. 89 Using a legal dictionary such as Black’s Law Dictionary to find mean-
ing in a word with an “easily graspable definition outside of a legal context” is
problematic. 90 Such an interpretation would require servicemembers to under-
85 Miller, 67 M.J. at 90.
86 Schmidt I, 80 M.J. at 596. See United States v. Burkhart, 72 M.J. 590 (A.F. Ct.
Crim. App. 2013); United States v. Anderson, No. 201200499, 2013 CCA LEXIS 517(N-M. Ct. Crim. App. June 27, 2013) (unpublished); United States v. Gould, No.
20120727, 2014 CCA LEXIS 694 at *2 (A. Ct. Crim. App. Sep. 16, 2014) (unpublished),
rev’d in part on other grounds, 75 M.J. 22 (2015).
87 Miller, 67 M.J. at 90.
88 See Schmidt II, 82 M.J. at 77 (CJ. Ohlson, concurring in the judgment) (noting
that “the most that can be said about the Miller case is that the Court cited the second
definition from Black’s Law Dictionary, not that it relied upon that second definition
or that the second definition played a central role in the disposition of the case. In fact,
the Miller Court held that ‘physical presence’ merely ‘requires that an accused be in
the same physical space as the victim.’ Therefore, Miller actually serves to undermine
[a]ppellant’s position.”) (internal citation omitted).
89 United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016).
90See Schmidt II, 82 M.J. at 75 (Ohlson, C.J. concurring in the judgment). See also
Wooden v. United States, ___ U.S. ___, 142 S. Ct. 1063 (2022). The separate opinion
authored by Senior Judge Gaston disagrees with this proposition. The separate opinion
points to a recent decision from the Supreme Court of Florida to support its ultimate
conclusion as well as its reliance on one technical definition of “presence” from Black’s
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Opinion of the Court
stand what is expected of them not through a plain interpretation of the stat-
utes written by Congress, but through the use of a legal interpretive tool. 91
Third, it is our view that such a conclusion would directly contradict the hold-
ing of the CMA in Brown that an indecent liberty does not require a minor to
“be aware of the nature of the conduct” or experience “mental disturbance” as
a result of the conduct. 92
Returning to our prior decision in Schmidt I, we must conclude, in light of
the foregoing analysis, that our holding in that case was wrong. We can no
longer say that “the offense of sexual abuse of a child by indecent conduct—
like its predecessor, indecent liberties with a child—requires that in order for
the accused’s conduct to be done ‘in the presence of’ a child, the child must be
aware of it.” 93 Indeed, this understanding would conflict with our superior
court’s holding in Brown that the indecent liberties offense, the precursor for
the sexual abuse of a child statute in the instant case, does not require that a
child have an understanding or awareness of an act in order for it to be com-
pleted in their presence. 94 Instead, we find that the plain definition of “pres-
ence” should be used to interpret the statute.
Law Dictionary. See discussion infra United States v. Tabor, ___ M.J. ___, No.
202100046, slip op. at 60 (N-M Ct. Crim. App. May 25, 2022), https://www.jag.navy.mil
/courts/documents/archive/2022/TABOR_202100046_EN-BANC_PUB-Concur-Dissent
.pdf (Gaston, S.J., concurring in part, dissenting in part, and concurring the judgment)
(citing State v. Werner, 609 So. 2d 585, 587 (Fla. 1992) (relying in part on Black’s Law
Dictionary for the court’s holding that a child “must see or sense that a lewd or lasciv-
ious act is taking place for a violation [of a similar Florida statute] to occur.”)) However,
this holding of the Supreme Court of Florida has not been immune from scrutiny and
criticism from other jurisdictions. See Clemens v. State, 318 Ga. App. 16, 20 n.10, 733
S.E.2d 67, 71 (2012) (rejecting Werner as unpersuasive); State v. Bryan, 102 P.3d 496,
500–01 (Kan. Sup. Ct. 2004) (rejecting the Supreme Court of Florida’s framework
based on the “common understanding” of the statutory language).
91We note as well, as Chief Judge Ohlson does in his concurrence in Schmidt II,
that even other legal dictionaries do not define the word “presence” to require aware-
ness. See Schmidt II, 82 M.J. at 75 n.3 (Ohlson, C.J. concurring in the judgment).
92 Beausoliel, 107 F.2d at 296; Brown, 3 C.M.A. at 457–58, 13 C.M.A. at 13–14.
93 Schmidt I, 80 M.J. at 598.
94 Beausoliel, 107 F.2d at 296; Brown, 3 C.M.A. at 457–58, 13 C.M.A. at 13–14.
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4. The Plain Definition of Presence is Most Appropriate
The plain language of the statute requires an accused who is intentionally
engaged in a lewd act to be aware of the child’s presence. There is no require-
ment, either explicitly or implicitly in the statute, that the child victim be
aware of the accused’s lewd act. There is no question here whether masturbat-
ing can constitute indecent conduct. Thus the focus of our inquiry is whether
masturbating “intentionally . . . in the presence of a child” requires that child
be aware of the masturbation in order for that act to be criminalized by Article
120b(c), UCMJ. 95
Like the opinion authored by Chief Judge Ohlson in Schmidt II, we too
begin with an in-depth examination of the definition at issue. Before consider-
ing the definition of the word “presence” we would look at the term “upon,” first
used in the 1951 predecessor Article 134, offense. The 1951 offense proscribed
“lewd acts” done “upon or with the body of” a child. We know from Brown that
“with” is understood to mean a lewd or lascivious act that was a touching and
“upon” would be similar conduct that did not involve a touching.
The first time the word “presence” is used in the statute is in the 1969 edi-
tion of the Manual. The definition for “presence” in Black’s Law Dictionary
reads as follows:
1. The quality, state, or condition of being in a particular time
and place, particularly with reference to some act that was done
then and there .
2. Close physical proximity coupled with awareness . 96
Appellant points to the second definition for this word, as we did in Schmidt I
and as the service courts have done in reliance on Miller, for the proposition
that if a child is asleep or otherwise oblivious to the conduct, then the conduct
is not done in the presence of the child. 97 Applied to the specific facts of his
case, Appellant argues that the evidence demonstrates that Miss Bravo was
asleep before Ms. Charles began the lewd act and, therefore, was unaware that
the lewd act was occurring. Stated differently, Appellant asserts that if Miss
Bravo is not aware of her mother masturbating beside her, then it is impossible
95 Id.
96 Presence, Black’s Law Dictionary (11th ed. 2019). See Schmidt II, 82 M.J. at 75
(CJ. Ohlson, concurring in the judgment).
97 Appellant’s Br. at 11–12.
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Opinion of the Court
for that masturbation to have been done in her presence. Since completion of a
lewd act in the presence of a child is a required element of the statute, he ar-
gues, there exists substantial basis in law and fact to question his plea. 98
We disagree. As pointed out by Chief Judge Ohlson’s concurrence in
Schmidt II, “[a]lthough Black’s Law Dictionary may be the preeminent source
for definitions of legal terms and phrases, when a word has an easily graspable
definition outside of a legal context, authoritative lay dictionaries may also be
consulted.” 99 We think, too, that the undertaking of statutory interpretation,
which strives to derive plain and ordinary meaning from criminal statutes, is
most appropriately approached by using the lay, nontechnical, definitions of
words and phrases first. 100 Indeed, “a number of authoritative lay dictionaries
do not require awareness in order for one person to be in the presence of an-
other person[,]” nor do other legal dictionaries. 101
The primary definition of “presence” is the “quality, state, or condition of
being in a particular time and place, particularly with reference to some act
98 Id. at 14.
99 Schmidt II, 82 M.J. at 75 (CJ. Ohlson, concurring in the judgment) (citing Brack-
ett v. Focus Hope, Inc., 482 Mich. 269, 753 N.W.2d 207, 211 (Mich. 2008) (“A lay dic-
tionary may be consulted to define a common word or phrase that lacks a unique legal
meaning.”))
100See United States v. Daniels, 7 M.J. 560, 562 (N-M Ct. Crim. App. 2002) (“[I]n
interpreting a Manual provision, this Court gives the terms used their natural, plain,
and ordinary meaning.”) (citing United States v. Ray, 51 M.J. 511, 517 (N-M. Ct. Crim.
App. 1999).
101Schmidt II, 82 M.J. at 75–76 (CJ. Ohlson, concurring in the judgment) (citing
Merriam-Webster’s Unabridged Online Dictionary, https://unabridged.merriam-web-
ster.com/unabridged/presence (last visited Jan. 27, 2022) (defining “presence,” in rele-
vant part, as “the state of being in one place and not elsewhere[,] the condition of being
within sight or call, at hand, or in a place being thought of[, or] the state of being in
front of or in the same place as someone or something”); The American Heritage Dic-
tionary of the English Language 1393 (5th ed. 2018) (defining “presence,” as “[t]he
state or fact of being present” and “present,” in relevant part, as “‘[b]eing at hand or in
attendance”); Merriam-Webster’s Collegiate Dictionary 982 (11th ed. 2020) (defining
“presence,” in relevant part, as “the part of space within one’s immediate vicinity”));
See also Schmidt II, 82 M.J. at 75 n.3 (citing to several legal dictionaries which do not
define presence as requiring awareness).
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Opinion of the Court
that was done then and there . . . .” 102 The secondary definition defines “pres-
ence” as “close physical proximity coupled with awareness . . . .” 103 Appellant,
as well as our prior holding in Schmidt I, fail to explain why the second defini-
tion for “presence” in Black’s Law Dictionary should be used instead of the pri-
mary definition. “In making a choice between two competing definitions, if only
one of the definitions gives effect to the clear statutory purpose, then that def-
inition must be the one intended by Congress.” 104 Prior reliance by us and our
sister service courts on the secondary definition is misplaced.
“The prefatory material in Black’s Law Dictionary explains that infor-
mation contained within angle brackets provides ‘[c]ontextual illustration of a
headword.’” 105 “We interpret words and phrases used in the UCMJ by examin-
ing the ordinary meaning of the language, the context in which the language is
used, and the broader statutory context.” 106 In Black’s secondary definition of
presence, the angle brackets inform the reader that the awareness require-
ment arises in the context of the bracketed example: “the agent was in the
presence of the principal.” 107 To us, this additional context makes crystal clear
that the secondary definition speaks exclusively to the type of presence re-
quired for certain legally significant events, “such as the binding of the princi-
ple or attestation of a will.” 108
Context is key. Defining “presence” as “proximity, coupled with awareness”
makes sense when viewed through the lens of traditional canons and principles
of agency and attestation. 109 In the context of the instant case, indecent acts
102 Presence, Black’s Law Dictionary (11th ed. 2019).
103 Id.
104 Schmidt II, 82 M.J. at 76 (CJ. Ohlson, concurring in the judgment) (citing Al-
bernaz v. United States, 450 U.S. 333, 342 (1981) (“[w]here Congress has manifested
its intention, we may not manufacture ambiguity in order to defeat that intent.”)).
105Id. at 77. (quoting Black’s Law Dictionary xxix (11th ed. 2019) (emphasis in
original).
Schmidt II, 82 M.J. at 76 (CJ. Ohlson, concurring in the judgment) (citing Pease,
106
75 M.J. at 184).
107 Presence, Black’s Law Dictionary (11th ed. 2019).
Schmidt II, 82 M.J. at 76 (CJ. Ohlson, concurring in the judgment) (citing Pease,
108
75 M.J. at 184).
109Id. (citing N. Owsley & Sons v. Woolhopter, 14 Ga. 124, 128 (1853) (“[I]f one, in
the presence of the principal, sell[s] a parcel of goods of the latter, as his agent, without
objection, the tacit consent of the principal will be presumed; and it will bind him.”);
Meyer v. Fanning (In re Estate of Meyer), 2016 WY 6, 367 P.3d 629 (“[T]he will must be
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Opinion of the Court
performed in the presence of children bear absolutely no similarities to the
principal-agent relationship. It would thus be inappropriate to apply the sec-
ondary definition of Black’s Law Dictionary to Appellant’s case. We con-
clude,”[t]herefore, it is the first definition of ‘presence’ in Black’s Law Diction-
ary—and all of the similar definitions in lay dictionaries—that should guide us
in the instant case. And in those definitions, there is no implication that
‘awareness’ is required for one person to be ‘in the presence of’ another.” 110
While we are confident that this approach is well-reasoned and sound
within the bounds of our usual statutory interpretation frameworks, we also
find that this approach simply makes sense. At bottom, this understanding
comports with our superior court’s earliest interpretation of the type of statute
at issue. In Brown, the CMA determined that the predecessor statute to Article
120b(c), UCMJ, was intended to criminalize acts which have a tendency to
cause harm to a victim, regardless of whether the victim “is aware of the nature
of the act or the danger.” 111 The phrase “in the presence of” for the purposes of
Article 120b(c), UCMJ, “simply means that one person is in the immediate vi-
cinity of another person.” 112
The approach we now adopt is also free from the ambiguities and incon-
sistent results created by application of our prior holding in Schmidt I. On its
face, our prior holding seems straightforward and workable: “ . . . with respect
to the offense of sexual abuse of a child by indecent conduct, in order for the
conduct to be done ‘in the presence of’ a child, there must be a sufficient sensory
connection for the child to be aware of it.” 113 However, strange results arise
when considering the application of this interpretation of the law to facts that
may feasibly arise. Take for example an accused who is charged under the stat-
ute for sexually abusing a child by masturbating in front of his step-child be-
cause he was sexually aroused by the child. Assume for this hypothetical that
the accused’s step-child suffers from a severe mental disability that prevents
him from connecting to the world around him and leaves him with the mental
capacity and functioning of a one-year-old. Under Schmidt I, the accused’s
step-child lacked sufficient “sensory connection” and awareness to criminalize
signed by the testator in the presence of both witnesses, and the signatures of both
witnesses must be made in the presence of the testator and in the presence of each
other . . . .”)).
110 Schmidt II, 80 M.J. at 77 (CJ. Ohlson, concurring in the judgment).
111 Id.
112 Id. at 78.
113 Schmidt I, 80 M.J. at 586.
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Opinion of the Court
the accused’s actions. It cannot be the case that the accused would be exposed
to no more criminal liability for masturbating before his step-child than if he
would under an indecent exposure framework. Were the minor at issue in the
example an infant, much the same problem would apply: a newborn likely lacks
the necessary sensory connections with the accused to be aware of and appre-
ciate the conduct.
Consider, too, our prior holding in Schmidt I would similarly fall short of
protecting minors who were awake during, but simply not alert to the indecent
acts of the accused. Take for example a school assembly in an auditorium. As
a reward for good behavior, the children are being shown a movie to round out
their school day. During the film, an accused slips into the back of the darkened
room and begins masturbating behind the crowd of children. The children, en-
thralled with the film, are not alerted to the actions of the accused just feet
behind them. It simply cannot be the case that Congress intended for Article
120b(c), UCMJ, to only criminalize indecent acts performed in the presence of
children who were alert, while carving out an exception for an accused who
preyed upon vulnerable, unalert, victims. 114
“We assume that Congress is aware of existing law when it passes legisla-
tion.” 115 After CAAF’s decision in Miller, Congress updated the statute. To fill
the “gap created by Knowles and Miller”, Congress more broadly defined “in
the presence of a child” to include “via any communication technology.” 116
When Congress did so, they were surely well aware of Article 120, UCMJ. Spe-
cifically, in Article 120(b)(2)(B), Congress criminalized committing a sexual act
upon another person “when the person knows or reasonably should know that
the other person is asleep, unconscious, or otherwise unaware that the sexual
114 See Schmidt II, 82 M.J. at 77 (CJ. Ohlson, concurring in the judgment) (citing
United States v. Finley, 726 F.3d 483, 495 (3d Cir. 2013) (“It would be absurd to suppose
that Congress intended the statute to protect children actively involved in sexually
explicit conduct, but not protect children who are passively involved in sexually explicit
conduct while sleeping, when they are considerably more vulnerable.”). Also See
United States v. O’Neal, 835 F. App’x 70, 72 (6th Cir. 2020) (“Even if the minor is una-
ware of the masturbation (perhaps because the child is asleep), such conduct creates
serious risks anyway because the child could wake up or find out about it after the
fact.”).
United States v. McDonald, 78 M.J. 376, 380 (C.A.A.F. 2019) (quoting Miles v.
115
Apex Marine Corps, 498 U.S. 19, 32 (1990)).
116 MCM, pt. IV, ¶ 45b.h(5)(D) (2016 ed.). See Schmidt II, 82 M.J. at 73.
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act is occurring.” 117 Demonstrably, had Congress desired to limit the scope of
Article 120b(c), UCMJ, to just those minors that were aware of the indecent
act being performed, they had the language to do so. Instead, Congress did not
limit the scope of Article 120b(c), UCMJ, to a particular category of child vic-
tims. We find that in so doing they threw “a cloak of protection around minors
… to discourage sexual deviants from performing with or before them.” 118 Fur-
ther, we would find it incredible to conclude that Congress wished to protect
adults from sex acts performed on them while they were “unaware,” but de-
sired to exempt from criminal liability under Article 120b(c), UCMJ, individu-
als who performed indecent acts done in the presence of a sleeping or unaware
child. 119
Our prior holding in Schmidt I would also cut against the intended aims of
the predecessor to Article 120b(c) as articulated by the CMA in Brown. There,
the Court said of the predecessor statute that the goal of the legislation was
“to protect children under a certain age from those acts which have a tendency
to corrupt their morals . . . .” 120 Accepting the premise that the purpose of leg-
islation criminalizing sexual abuse of children is, at least partially, the protec-
tion of children, reading an awareness element into Article 120b(c), UCMJ
would do just the opposite. Many investigations into child sexual abuse are not
initiated by the victim. In such a case, it may be unclear from the facts availa-
ble during the investigation whether the child was aware of the conduct at
issue. The facts before us in Appellant’s case, where there was some ambiguity
as to whether the victim, Miss Bravo, was awake demonstrate this possibility.
Under Schmidt I, the government would likely frequently be required to gather
117 Article 120b(2)(B), UCMJ (emphasis added).
118 Brown, 3 C.M.A. at 461, 13 C.M.R. at 17.
119 We note, as well, that this understanding comports with our unpublished
opinion in United States v. Lopez, No. 201700252, 2019 CCA LEXIS 37 (N-M Ct.
Crim. App. Jan. 31, 2019) (unpublished). In Lopez, we held that a conviction could be
upheld under Article 120b(c) for “intentionally exposing one’s genitalia . . . to a child
. . . with an intent to . . . arouse or gratify the sexual desire of any person” when the
child victim was asleep. Lopez, 2019 CCA LEXIS 27 at *5. In Schmidt I, we distin-
guished our opinion there from the holding in Lopez, noting that exposing one’s geni-
talia to a child was a separately defined offense which did not use the “in the pres-
ence of” language. Schmidt I, 80 M.J. at 597 n.8. Now, having determined that
neither the language at issue in Schmidt nor the language in Lopez requires proof of
the victim’s awareness, we find merit in our brief analysis in Lopez as applied to the
instant case. Specifically, both definitions of “lewd act” as used in Article 120b(c)
place “focus on the appellant’s actions, not [the victim’s] awareness.” Lopez, 2019
CCA LEXIS 37 at *6.
120 Brown, 3 C.M.A. at 457, 13 C.M.R. at 13.
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evidence of the victim’s awareness of a lewd act performed in their proximity.
This evidence gathering would require alerting the child to the fact that an act
occurred—creating a secondary harm that may not have existed otherwise. We
find this result incompatible with Congressional intent.
We appreciate that concerns may arise that our holding, which broadens
the reach of the statute from its current posture under Schmidt I, may sweep
into Article 120b(c), UCMJ, conduct that Congress never intended to criminal-
ize. We now briefly turn to address such speculative concerns to evaluate
whether our holding would serve to erroneously capture otherwise innocent
conduct within the statute. We are convinced that it will not.
Consider a married couple who live together in small quarters – such as a
studio apartment. The couple has a young child who sleeps in a crib near their
bed. One night, after the child has fallen asleep, the couple engages in sexual
intercourse in their own bed. The couple desires to have separate spaces for
their child and themselves, but finds no harm in engaging in marital intima-
cies while the child is asleep and unaware of their conduct. We find that on
these facts alone, no part of Article 120b(c), UCMJ, would criminalize this con-
duct. A “lewd act” within the meaning of the statute has two definitions poten-
tially applicable to this fact pattern. First, this situation may contemplate the
“intentional[] expos[ure]” of “one’s genitalia anus, buttocks, or female areola or
nipple to a child by any means.” 121 However, to constitute a criminal offense,
such intentional exposure to the child would require the proper criminal intent.
Here, the couple would have to complete the exposure to the child “with an
intent to abuse, humiliate, or degrade any person” or for the purpose of “arous-
ing or gratifying the sexual desire of any person.” 122 Second, the situation may
contemplate “indecent conduct, intentionally done with or in the presence of a
child.” 123 Similarly, to constitute a criminal offense such indecent acts must
amount to “a form of immorality relating to sexual impurity which is grossly
vulgar, obscene, and repugnant to common propriety, and tends to excite sex-
ual desire or deprave morals with respect to sexual relations.” 124
To be guilty of sexual abuse of a child, the government would have to pro-
vide evidence that the accused held in his or her mind some form of criminal
121 Article 120b(h)(5)(B), UCMJ (2018).
122 Id.
123 Article 120b(h)(5)(D), UCMJ (2018).
124 Id. (emphasis added).
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mens rea. The factual circumstances of Appellant’s case provides a useful con-
trast to the innocent actors in the example above. Appellant was convicted of
child sexual abuse for counseling Ms. Charles to intentionally masturbate in
the presence of her daughter, Miss Bravo. In the text messages introduced by
the Government at trial, Miss Bravo is the subject and motivation for the in-
decent acts themselves. 125 Specifically, Appellant and Ms. Charles discussed
engaging in sexual intercourse with Miss Bravo, undressing Miss Bravo, and
what she was doing while Ms. Charles was masturbating beside her. 126 In light
of these two scenarios, it is clear from the construction of the statute that Con-
gress intended to criminalize conduct like Appellant’s, but did not intend to
criminalize conduct like that of the hypothetical couple. In both scenarios, acts
of a sexual nature were intentionally done in the presence of a child. However,
only in the latter example did that indecent conduct amount “to a form of im-
morality relating to sexual impurity which is grossly vulgar, obscene, and re-
pugnant to common propriety, and tend[ed] to excite sexual desire or deprave
morals with respect to sexual relations.” 127 Accordingly, our “definition places
the focus on appellant’s actions, not [the victim’s] awareness,” and we are con-
fident that our holding does not cause Article 120b(c) to criminalize the conduct
of innocent actors. 128
5. As Awareness is not Required Under the Statute, the Military Judge Did
Not Abuse His Discretion by Accepting Appellant’s Plea to Sexual Abuse of a
Child
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. 129 “In doing so, we apply the substantial basis test, looking at
whether there is something in the record of trial, with regard to the factual
basis or the law, that would raise a substantial question regarding the appel-
lant’s guilty plea.” 130 A military judge abuses this discretion if he fails to obtain
125 Prosecution Exhibit 5.
126 Id.
127 Article 120b(h)(5)(D), UCMJ (2018).
128 Lopez, 2019 CCA LEXIS 37 at *5.
129 Inabinette, 66 M.J. at 322 (citing United States v. Jordan, 57 M.J. 236, 238
(C.A.A.F. 2002).
130 Id.29
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Opinion of the Court
from the accused an adequate factual basis to support the plea—an area in
which we afford significant deference.” 131
Appellant argues that the Record provides a substantial basis in fact and
law to question the providence of Appellant’s guilty plea to Charge I, Specifi-
cation 2, sexual abuse of a child in violation of Article 120b, UCMJ. First, Ap-
pellant submits that the text messages themselves contradict the statements
made to the military judge during his plea colloquy that he believed Miss Bravo
to be awake. Specifically, Appellant highlights that there is a ten-minute gap
between Ms. Charles texting that Miss Bravo’s eyes were closed and that she
was not sure if she was awake, and Appellant’s reply telling Ms. Charles to
“play.” 132
Second, Appellant contends that, even if he believed that Miss Bravo was
awake, his encouragement was not physical contact with Miss Bravo. Further,
Appellant submits that even if Miss Bravo may have been awake while he was
encouraging Ms. Charles to masturbate, the crime itself was not complete until
Ms. Charles actually committed indecent conduct in the presence of Miss
Bravo. Appellant contends that Miss Bravo was asleep before Ms. Charles be-
gan the indecent act, and thus he cannot be guilty of Charge I, Specification 2
because the lewd act was not then committed in the presence of a child. Finally,
Appellant notes that the military judge accepted Appellant’s plea based upon
his reading of United States v. Lopez and argues that, per our opinion in
Schmidt I, such reliance was misplaced where the indecent exposure at issue
in Lopez did not require that the act be done “in the presence” of a child. 133
We find that, because the statutory stricture that the indecent act must be
done “in the presence” of a child to constitute a lewd act does not require the
child’s awareness, Appellant was provident in his pleas.
The elements of sexual abuse of a child, as charged in Appellant’s case, in
violation of Article 120b(c), UCMJ, are: (1) that Appellant committed a lewd
act upon Miss Bravo by engaging in indecent conduct, to wit: counseling
Ms. Charles to engage in indecent conduct (masturbation, intentionally done
in the presence of Miss Bravo); (2) That, at the time, Miss Bravo had not at-
tained the age of 16 years, and; (3) that the conduct amounted to a form of
immorality relating to sexual impurity which is grossly vulgar, obscene, and
131 United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).
132 Pros. Ex. 5 at 8.
133 Lopez, 2019 CCA LEXIS 37.
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Opinion of the Court
repugnant to common propriety, and tends to excite sexual desire or deprave
morals with respect to sexual relations.
During the plea colloquy with the military judge, Appellant admitted to
performing acts to satisfy each element of the offense. Specifically, Appellant
admitted to counseling Ms. Charles to engage in indecent conduct by mastur-
bating while her daughter was in the bed next to her. The military judge elic-
ited the following facts from Appellant:
MJ: So, Staff Sergeant Tabor, we were discussing your
guilty plea to Specification 2 of Charge I, sexual abuse
of a child, and there was some confusion as to whether
or not you believed that [Miss Bravo] was awake when
her mother was masturbating, as you had counseled
her to do or encouraged her to do; is that correct?
ACC: Sir, after . . . reviewing the evidence and talking with
the counsel, the text messages were, “Was gonna mas-
turbate when she fell asleep but she is still awake.” And
I said, “Do it anyway.” And she said, “She’s in bed with
me.” And then I said, “Even if she’s awake do it. Hotter
if she is.”
....
MJ: Okay. So based on those text messages, do you believe
that at certain parts during this interaction when you
were encouraging [Ms. Charles] to masturbate in front
of her daughter that she was, in fact, awake?
ACC: Yes, sir. I believed so shortly after she sent me photos
of her masturbating.
....
MJ: And this was—as in conjunction with you counseling
her intentionally to do so?
ACC: Yes , sir.
....
MJ : Do you agree and admit that this intentional exposure
of her vagina and masturbating in front of [Miss Bravo]
was with the specific intent to gratify your sexual de-
sire?
ACC: Yes, sir.
MJ: It was to gratify your sexual desire?
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ACC: Yes, sir.
....
MJ: Did this—masturbating in front of her—amount to a
form of immorality relating to sexual impurity, which
is grossly vulgar, obscene, and repugnant to common
propriety and tends to excite the sexual desire or de-
prave morals with respect to sexual relations?
ACC: Yes , sir.
MJ: How so?
ACC: I understand that this conduct, of [Ms. Charles] mas-
turbating in the presence of [Miss Bravo] amounted to
a form of immorality relating to sexual impurity that’s
gross, vulgar, obscene, or repugnant to common propri-
ety.
MJ: Why? . . . .
ACC: Because of her touching her vagina and masturbating
in front of her daughter is gross and vulgar.
MJ: And it excited sexual desires and deprave morals?
ACC: Yes, sir .
MJ-: Whose?
....
ACC: Sir, myself and [Ms. Charles]
MJ: Again, there was no mistake , on your part, as to her
age? You were well aware that she was ten years old?
ACC: Yes, sir.
MJ: Could you have avoided engaging in this behavior if you
had wanted to?
ACC: Yes, sir.
MJ: Did anyone or anything force you to encourage
[Ms. Charles] to masturbate in front of her daughter?
ACC: No, sir.
MJ: Do you believe you had any legal justification or excuse
for what you did?
ACC: No, sir.
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Opinion of the Court
MJ: Do you believe that your actions were wrongful?
ACC: Yes, sir.
MJ: Why?
ACC: Because she masturbated in the presence of her daugh-
ter.
MJ: Did you know it was wrong to engage in sexual activity
or lewd acts in front of a child?
ACC: Yes.
....
MJ: So you would agree that engaging in lewd acts in front
of a child is wrongful?
ACC: Yes. 134
We are convinced that the elements were satisfied. Appellant admitted that
(1) Appellant’s exchange with Ms. Charles where he encouraged her to mas-
turbate beside (in the presence of) Miss Bravo, as described to the military
judge and contained in the stipulation of fact, constituted a lewd act; 135 (2) Ap-
pellant was well aware at the time that Miss Bravo was ten years-old; and, (3)
Appellant admitted that the conduct of encouraging Ms. Charles to masturbate
next to Miss Bravo amounted to a form of immorality relating to sexual impu-
rity which was grossly vulgar, obscene, and repugnant to common propriety,
and excited Appellant’s sexual desire with respect to sexual relations. Based
on Appellant’s admissions, it was not an abuse of discretion for the military
judge to accept Appellant’s guilty plea.
The separate opinion authored by Senior Judge Gaston would likewise con-
clude that Appellant was provident in his pleas; however, the separate opinion
would arrive at that conclusion under the existing framework of Schmidt I. 136
We respectfully disagree. The separate opinion maintains that, under Schmidt
I, in order for indecent conduct to be done “in the presence of” a child, “there
134 R. at 428–33.
135 Whether Miss Bravo was awake or asleep is now an irrelevant consideration in
light of our holding.
136See discussion infra United States v. Tabor, ___ M.J. ___at ___, slip op. at 58 et
seq. (Gaston, S.J., concurring in part, dissenting in part, and concurring in the judg-
ment).
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Opinion of the Court
must be a sufficiency sensory connection for the child to be aware of it.” 137 Ap-
plying such an interpretation would, in our view, “raise a substantial question
regarding [A]ppellant’s guilty plea” based on the facts and the law. 138 As a pre-
liminary matter, this view of the law would render any lewd act committed
while Miss Bravo was asleep ineligible to satisfy the elements of the statute.
We are then left to examine the record to determine whether Appellant be-
lieved that Miss Bravo was awake and had a “sensory awareness” of the con-
duct being performed next to her by Ms. Charles. 139
In the instant case, we are left only with what Appellant knew at the time
he encouraged Ms. Charles to masturbate, which is contained in Prosecution
Exhibit 5, their text message exchange, and which is supplemented by Appel-
lant’s colloquy with the military judge. Appellant told the military judge that
he believed that Miss Bravo was awake “shortly after [Ms. Charles] sent [him]
photos of her masturbating.” 140 Appellant’s text messages contradict his state-
ments to the military judge during the plea colloquy that he believed her to be
awake. Ms. Charles told Appellant that she intended to begin masturbating
when Miss Bravo was asleep. 141 Prior to Ms. Charles masturbating, she sent a
photo to Appellant that depicted Miss Bravo with her back to Ms. Charles. 142
She also told Appellant that Miss Bravo’s eyes were closed and she was not
sure if she was awake. 143 Ten minutes then elapsed before Appellant instructed
Ms. Charles to “play.” 144
Even if the military judge felt satisfied that at some point during the mas-
turbation Miss Bravo was awake, there is zero basis in the record that suggests
that she was aware, as required under Schmidt I. Simply being awake is not
enough. The record must support that Miss Bravo had a sufficient sensory con-
nection to what was occurring, and that is lacking here. Further, Appellant’s
137 Id., ___ M.J. at ___, slip op. at 61 (quoting Schmidt I, 80 M.J. at 598).
138 Inabinette, 66 M.J. at 322 (citing United States v. Jordan, 57 M.J. 236, 238
(C.A.A.F. 2002).
139 Schmidt, 80 M.J. at 598.
140 R. at 428–29.
141 Pros. Ex. 5 at 7
142 R. at 419–24.
143 Pros. Ex. 5 at 7–8
144 Id. at 8.
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Opinion of the Court
belief that she was awake is irrelevant, if, as she was here, she was asleep and
unaware.
Appellant’s answers to the military judge’s questions were insufficient to
resolve these inconsistencies and support his plea that he encouraged Ms.
Charles to masturbate next to Miss Bravo at a time when she had a sensory
awareness of the conduct. Were the framework from Schmidt I to be applied to
these facts, we would, however, find that Appellant is nonetheless guilty of the
lesser-included offense of attempt.
B. The Military Judge Did Not Abuse His Discretion in Denying Appel-
lant’s Motion to Recuse Himself
We review a military judge’s decision not to recuse himself for an abuse of
discretion. 145 The abuse of discretion standard calls for more than a mere dif-
ference of opinion. The challenged decision must be “arbitrary, fanciful, clearly
unreasonable, or clearly erroneous.” 146
An accused has a constitutional right to an impartial judge. 147 “There is a
strong presumption that a judge is impartial, and a party seeking to demon-
strate bias must overcome a high hurdle . . . .” 148 The moving party has “the
burden of establishing a reasonable factual basis for disqualification,” which
requires “more than a mere surmise or conjecture.” 149 Disqualification is re-
quired when “that military judge’s impartiality might reasonably be ques-
tioned” and such disqualification can be the result of actual bias or the mere
appearance of bias. 150, 151 The test under R.C.M. 902(a) is objective, asking
whether there exists “any conduct that would lead a reasonable man knowing
145 United States v. Hoffmann, No. 201400067, 2020 CCA LEXIS 198 at *46 (N-M
Ct. Crim. App. June 8, 2020).
146 United States v. Sullivan, 74 M.J. 448, 453 (C.A.A.F. 2015) (cleaned up).
147 United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F. 2001).
148 United States v. Quintanilla, 56 M.J. 37, 44 (C.A.A.F. 2001).
149 Wilson v. Ouelette, 34 M.J. 798, 799 (N.M.C.M.R. 1991) (citing United States v.
Allen, 31 M.J. 572, 601 (N.M.C.M.R. 1990), aff’d, 33 M.J. 209 (C.M.A. 1991)).
150 R.C.M. 902(a).
151 The appearance standard is designed to enhance public confidence in the integ-
rity of the military judicial system. Quintanilla, 56 M.J. at 45.
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Opinion of the Court
all the circumstances to the conclusion that the judge’s impartiality might rea-
sonably be questioned.” 152
We conclude that Appellant has failed to establish any actual bias and that
he waived the issue of apparent bias. We first analyze the question of actual
bias. Rule 902(b) specifically addresses situations in which the military judge
has a duty to disqualify himself or herself for actual bias. Here, Appellant con-
tends that the military judge had a duty to disqualify himself where he had “a
personal bias or prejudice concerning a party or personal knowledge of dis-
puted evidentiary facts concerning the proceeding” or had “acted as counsel . . .
in the same case generally.” 153 “To be disqualifying under R.C.M. 902(b)(1) the
judge’s bias must be based upon extra-judicial, personal knowledge, not
knowledge gained through the performance of judicial duties.” 154 “‘Personal’
means the ‘bias or prejudice’ must stem from an extrajudicial source and result
in an opinion on the merits on some basis other than what the judge learned
from his participation in the case.” 155
The military judge disclosed that in June 2017, he was serving as the Re-
gional Trial Counsel [RTC] for Legal Service Support Section West, where he
was in a supervisory and training role over the Senior Trial Counsel [STC] at
Marine Corps Air Station [MCAS] Miramar. That month, the Naval Criminal
Investigative Service [NCIS] agent assigned to investigate Appellant’s case re-
ceived a printout of Appellant’s text messages with Ms. Charles. Unsure what
criminal offenses to investigate, the NCIS agent consulted with the STC at
MCAS Miramar, who advised him to investigate evidence of indecent exposure
and indecent language and detailed a trial counsel to Appellant’s case during
this investigatory stage. The military judge, while RTC, did not have any dis-
cussions regarding Appellant’s case, but was copied on an email containing a
summary of Appellant’s case along with several other high-visibility case sum-
maries. The military judge left the RTC position the following month.
Appellant argued at trial and argues on appeal that the military judge
should have recused himself because, as RTC, he held a prosecutorial role dur-
ing the investigation of this case. During voir dire of the military judge, trial
defense counsel elicited from the military judge his responsibilities in his role
as RTC, including: discussing cases with STCs and trial counsel; providing rec-
ommendations on detailing trial counsel to cases; conducting regular training
152 Butcher, 56 M.J. at 91 (cleaned up).
153 Rule for Courts-Martial 902(b)(1)–(2).
154 United States v. Wiggers, 25 M.J. 587, 592 (A.C.M.R. 1987) (citation omitted).
155 Black, 80 M.J. at 574 (cleaned up).
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Opinion of the Court
for STCs and trial counsel; consulting with NCIS; and serving as the reporting
senior for the region’s STCs. Arguing that the military judge’s impartiality may
be questioned given that his time as RTC overlapped the initial investigation
of Appellant, Appellant’s defense counsel made a verbal motion for the military
judge to recuse himself. After consultation with other members of the judiciary,
including the chief trial judge, the military judge provided a written ruling
denying defense counsel’s motion to recuse himself. In his written ruling, the
military judge stated that he had no knowledge about Appellant’s case from
his time as the RTC, nor did he have any personal bias against any party to
Appellant’s case. 156
Appellant concedes in his brief that the military judge did not appear to
have “much, if any, actual knowledge of the case,” but argues that the military
judge did hold a prosecutorial role during the time of the investigation as cap-
tured by R.C.M. 902(b)(2). 157 We disagree. In our review, we find the record
devoid of any evidence which would support a claim of actual bias. The fact
that the military judge held a role as RTC during the pre-preferral investiga-
tory steps in Appellant’s case, without more, is insufficient to support a claim
under R.C.M. 902(b). While that fact alone may be relevant to a consideration
for apparent bias under R.C.M. 902(a), to the extent that appellant relies upon
R.C.M. 902(b) for relief, that reliance is misplaced.
Turning to the question of apparent bias, we find that Appellant waived
the issue of apparent bias under R.C.M. 902(a). 158 Whether an appellant has
waived a claim is a legal question we review de novo. 159 “Unlike claims based
on actual bias, disqualification under R.C.M. 902(a) is subject to waiver after
full disclosure on the record of the basis for disqualification.” 160
Here, the basis for Appellant’s claim of apparent bias under R.C.M. 902(a)
is the role of the military judge as RTC during the early stages of law enforce-
ment’s investigation into Appellant. We find that Appellant, having conducted
voir dire to inquire into this very issue, was fully informed and aware of the
extent of the military judge’s role as RTC when he agreed to waive all waivable
156 App. Ex. LXXXI at 11–12.
157 Appellant’s Brief at 21.
158Waiver is the intentional relinquishment or abandonment of a known right.
United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020).
159 Id.160 Black, 80 M.J. at 574 (citing R.C.M. 902(e); United States v. Quintanilla, 56
M.J. 37, 77 (C.A.A.F. 2001)).
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Opinion of the Court
motions in accordance with his pretrial agreement and when he elected trial
by military judge alone knowing that the military judge would be the trier of
fact and sentencing authority. Accordingly, we find that Appellant waived any
claim for disqualification of the military judge under R.C.M. 902(a).
Even assuming Appellant did not waive the claim, we find no error in the
military judge’s decision not to recuse himself. In United States v. Hoffman,
this Court reviewed the appellant’s claim, inter alia, that the military judge
abused his discretion by denying appellant’s motion for recusal. 161 There, ap-
pellant was accused of committing indecent liberties with a child and child en-
ticement, in violation of Articles 120 and 134, UCMJ. During voir dire of the
military judge, appellant’s defense counsel elicited that the military judge had
served as the officer in charge of the legal services support section that was
involved with the investigation of Appellant’s case prior to charges being
filed. 162 In that role, the military judge served as the reporting senior for the
Military Justice Officer and was copied on correspondence with NCIS involving
ongoing investigations. In Hoffmann, we took particular note of the fact that
there was no evidence that the military judge had actual knowledge of the ap-
pellant’s case, no evidence that the military judge acted as trial counsel, and
no evidence that the military judge remembered any facts from the appellant’s
case. 163
In the present case, there is likewise no evidence that the military judge
ever acted in the role of trial counsel had any knowledge of the facts of Appel-
lant’s case. Neither the STC nor the detailed trial counsel had any recollection
of discussing Appellant’s case with the military judge. Although the military
judge was copied on an email written by the STC which contained a summary
of Appellant’s case, the military judge stated he had no recollection of Appel-
lant’s case from his time as RTC. 164 Further, the military judge was no longer
serving as RTC by the time charges against Appellant were preferred. 165 Fi-
161 United States v. Hoffmann, No. 201400067, 2020 CCA LEXIS 198 (N-M. Ct.
Crim. App. June 8, 2020) (unpublished) [Hoffman II].
162 United States v. Hoffmann, No. 201400067, 2018 CCA LEXIS 326 at 29* (N-M.
Ct. Crim. App. July 9, 2018) (unpublished) [Hoffman I], rev. on other grounds by Hoff-
mann II.
163 Hoffmann II, 2020 CCA LEXIS 198 at *47.
164 App. Ex. LXXXI at 3.
165 Id.38
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Opinion of the Court
nally, the military judge stated that during the time law enforcement was in-
vestigating Appellant and consulting with the STC, the military judge’s role
was purely administrative as he prepared to turnover with his relief and take
command of another 166 Given these facts, we find that an objectively reason-
able person aware of all the relevant facts concerning the military judge’s role
as RTC would have no questions about the military judge’s impartiality. We
find no error in the military judge’s decision to deny Appellant’s motion and
not recuse himself.
C. Post-Trial Processing Delay
Appellant was sentenced on 12 June 2020. Six days later, Appellant’s trial
defense counsel submitted a request for deferral of adjudged forfeitures, which
was granted by the Convening Authority just five days after it was received.
The military judge verified the Record of Trial and signed the Entry of Judg-
ment on 20 August 2020. The detailed court reporter certified the Record of
Trial on 21 August 2020. However, Appellant’s case was not docketed with this
Court until 22 February 2021, 256 days after announcement of sentence. Ap-
pellant argues that the 256-day delay is presumptively unreasonable and war-
rants relief.
Servicemembers convicted of a crime have a constitutional due process
right to “timely review and appeal of courts-marital convictions.” 167 Whether a
service member has been denied his due process right to speedy appellate re-
view is a question of law we review de novo. 168
CAAF promulgated a four-factor balancing test in United States v. Moreno
to determine whether post-trial delay constitutes a due process violation. 169
The factors are: “(1) the length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of the right to timely review and appeal; and (4) prej-
udice.” 170 No single Moreno factor is required, but a facially unreasonable
166 Id. at 2–4.
167 United States v. Merritt, 72 M.J. 483, 489 (C.A.A.F. 2013).
168 United States v. Arriaga, 70 M.J. 51, 55 (C.A.A.F. 2011).
169 United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).
170 Moreno, 63 M.J. at 142.
39
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Opinion of the Court
length of time triggers the full due process analysis. 171 No single factor is dis-
positive. 172 Instead, we must “weigh all the factors collectively before deciding
whether an accused’s right to a speedy post-trial processing has been vio-
lated.” 173 “If we conclude that an appellant has been denied the due process
right to speedy post-trial review and appeal, we grant relief unless this court
is convinced beyond a reasonable doubt that the constitutional error is harm-
less.” 174 As we discussed recently in United States v. Rivera, 175 appellants have
a right to records that are docketed with our court within 150 days from the
execution of the entry of judgment [EOJ]. We will find presumptive unreason-
able delay in cases that take longer than the required 150 days, and will look
to the Barker factors to determine if relief is warranted.
1. Length of Delay
As noted above, the total length of time from EOJ until docketing with this
court in this case was 256 days, which is 106 days more than the 150-day re-
quirement per instruction and Rivera. This factor weighs in favor of Appellant.
2. Reasons for the Delay
Per affidavits attached to the record by the Government, the delay was due
to Appellant’s record of trial being misplaced in a storeroom. This factor weighs
in favor of Appellant.
3. Demand for Speedy Trial
Appellant did not file a demand for speedy post trial review; thus, this fa-
vors factor weighs against him.
4. Prejudice to Appellant
In assessing the prejudice factor, courts consider: (1) prevention of oppres-
sive incarceration; (2) minimization of anxiety and concern; and (3) limitation
of the possibility that a convicted person’s grounds for appeal, and his or her
171 Id. at 136.
172 United States v. Wilson, 72 M.J. 347, 354–55 (C.A.A.F. 2013).
173United States v. Delgado, No. 201900065, 2021 CCA LEXIS 657 at *8 (N-M Ct.
Crim. App. Dec. 8, 2021) (cleaned up).
174 United States v. Allison, 63 M.J. 365, 370 (C.A.A.F. 2006) (cleaned up).
175 United States v. Rivera, 81 M.J. 741, 746 (N-M. Ct. Crim. App. 2021).
40
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Opinion of the Court
defenses in case of reversal and retrial, might be impaired. 176 Here, Appellant
only alleges generalized anxiety during continued confinement pending appel-
late review. We find that this allegation of prejudice is not enough to warrant
relief. Balancing these factors, we conclude that Appellant was not denied his
due process right to speedy appellate review.
Despite finding no due process violation warranting relief, we still look to
our affirmative obligation to consider sentence appropriateness, and look at
“all the facts and circumstances reflected in the record, including [any] unex-
plained and unreasonable post-trial delay.” 177 Here, Appellant’s delay of over
100 days, due to government neglect in misplacing his record of trial, warrants
relief in the form of one month’s confinement, which we announce in our decre-
tal paragraph.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and only so much of the sentence that in-
cludes a dishonorable discharge, seven years and five months’ confinement,
forfeiture of all pay and allowances, and reduction to E-1 are correct in law and
fact. Accordingly, the findings and the sentence, as deemed appropriate by this
Court, are AFFIRMED. 178
176 Moreno, 63 M.J. at 138–39.
177 United States v. Bodkins, 60 M.J. 322, 324 (C.A.A.F. 2004) (quoting Tardif, 57
M.J. at 224.)
178 Articles 59 & 66, UCMJ.
41
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STEPHENS, S.J. (concurring)
STEPHENS, Senior Judge (concurring):
I concur with the Opinion of the Court and recognize we are supposed to
use a textualist approach to statutory interpretation. But I write separately to
suggest a different methodology. When this Court hears cases en banc we have
sometimes attempted to offer the Court of Appeals for the Armed Forces
[CAAF] a menu of well-reasoned options to aid its final resolution of the legal
issue. 1 I humbly suggest using textualism to interpret the prior version of this
statute has contributed to the confusion over the meaning and effect of Article
120b(c), Uniform Code of Military Justice [UCMJ], 2 and whether it possesses
some penumbric “awareness” element. I believe we could cut the modernist
Gordian knot by returning to the classical tradition of statutory interpretation.
The overall purpose of this statute is to promote the common good by criminal-
izing lewd acts done at Appellant’s direction. I would affirm his conviction and
find the extra element of awareness unnecessary.
Our Court does not regularly conduct statutory interpretation. When we
do, we have followed CAAF’s example of textualism (the Supreme Court does
not always use textualism and its constitutional cousin, originalism). In United
States v. Alkazahg, we interpreted the 1934 National Firearms Act and the
1968 Gun Control Act as a matter of first impression. 3 Central to the case was
what the words “by a single function of the trigger” and “automatically” meant
in the context of the statutes and the new agency rule from the Bureau of Al-
cohol, Tobacco, Firearms, and Explosives. We dutifully followed the textualist
approach and consulted dictionaries from the 1930s and 1960s to discern what
the “ordinary meaning of the word” meant at the time the relevant statutes
were enacted. But the problem with a textualist approach is that at some point
a judge has to make a judgment about the overall meaning of the statute, what
result most comports with the statute’s words and context, and, sometimes,
what result avoids “absurdity.” 4 This renders the textualist approach irrele-
vant or, even worse, allows space for judicial legislating. I will try to briefly
1 United States v. Begani 79 M.J. 767 (N-M. Ct. Crim. App. 2020), aff’d, 81 M.J.
273 (C.A.A.F. 2021); United States v. Brown, 79 M.J. 833 (N-M. Ct. Crim. App. 2020),
aff’d, 81 M.J. 1 (C.A.A.F. 2021).
2 10 U.S.C. § 920b(c).
3 United States v. Alkazahg, 81 M.J. 764 (N-M. Ct. Crim. App. 2021).
4 See Smith v. United States, 508 U.S. 223 (1993) (interpreting the term “use of a
firearm” to include using it to barter in an illegal drug transaction rather than “using”
it as a weapon).
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STEPHENS, S.J. (concurring)
explain how I believe the classical approach avoids the middleman and does
not outsource the role of the judge to a dictionary.
I. DISCUSSION
A. Textualism and Progressivism
The textualist (and originalist) approach alluded to above has many cham-
pions. If I may generally use the terms textualist and originalist interchange-
ably, textualism, as expressed by Justice Gorsuch, means “[t]he text of the stat-
ute and only the text becomes law. Not a legislator’s unexpressed intentions,
not nuggets buried in legislative history, and certainly not the judge’s personal
policy preferences.” 5 Originalism was a legal and political response to the per-
ceived excesses of the progressivism of the Warren Court, particularly in the
area of criminal justice. By most counts, six current Supreme Court justices
consider themselves textualists. Justice Kagan, who would not normally be
counted among the six, famously said, “We’re all textualists now.” 6
Progressivism purports to expand individual liberties and rights in re-
sponse to (or to shape) modern society’s needs. To its proponents, this judicial
philosophy includes analyzing statutes with “the evolving standard of decency
that mark the progress of a maturing society” 7 in mind or considering whether
the statute conflicts with the right to “define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human life.” 8 In practice, it
sometimes looks more like the judge’s personal “reasoned judgment” in the face
of statutory or constitutional silence, or antipathy. 9 Our Court does not see a
lot of the progressive approach, where fundamental legal rights are hidden in
5 Neil Gorsuch, A Republic, If You Can Keep It, 132 (2019).
6 Elena Kagan, The Scalia Lecture: A Dialogue With Justice Kagan on the Reading
of Statutes at 8:28 (Nov. 17, 2015), https://today.law.harvard.edu/in-scalia-lecture
-kagan-discusses-statutory-interpretation/.
7 TROP v. Dulles, 356 U.S. 86, 101 (1958). Chief Justice Warren, writing for the
Court, held the Eighth Amendment did not allow Congress to remove a soldier’s U.S.
citizenship for war-time desertion.
8 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992). This passage by Justice
Kennedy was also cited in his opinion for the Court in Lawrence v. Texas, 539 U.S. 558,
574 (2003). The same concept animated his opinion for the Court in Obergefell v.
Hodges, 576 U.S. 644 (2015).
9 Casey, 505 U.S. at 983 (Scalia, J., dissenting).
43
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STEPHENS, S.J. (concurring)
existing statutes or the text of the Constitution, only to be discerned by coun-
sel. 10 Progressivism seems to be more suited for the rarified air of academia or
the Supreme Court. At least at the working-class levels of the judiciary, textu-
alism appears to be the default method for interpreting statutes.
B. The Classical Approach
The classical approach has been out of favor for nearly a century. It was
replaced with progressivism and then originalism in response. While original-
ism (and textualism) seems to have carried the day politically, its inability to
fend off progressive convergence—even by its own practitioners—is evidence
of its weakness as a judicial philosophy. 11 Perhaps the most visible proponent
of the classical approach is Professor Vermeule of Harvard Law School, whose
many articles on the subject and his most recent book lay out the arguments
for it. 12 The classical judge makes decisions based on the common good, which
can be broadly defined as what is desirable for the community’s happiness,
safety, and prosperity. It directs the judge to draw on the concepts of the nat-
ural law (ius naturale) and the laws of nations or peoples (ius gentium) when
interpreting posited law (lex), whether it be a statute, an agency rule, or even
a constitution. For example, the judge using the classical approach is to con-
sider a statute as a man-made expression of a higher, un-enumerated law. The
10 See, e.g., Begani, 79 M.J. 767 (Fifth Amendment equal protection not violated
when active duty military retirees subject to UCMJ when reservist retirees are not);
United States v. Causey, ___ M.J. ___, No. 202000228, 2022 CCA LEXIS 176 (N-M. Ct.
Crim. App. Mar. 23, 2022) (Sixth Amendment not violated because court-martial pan-
els not required, like civilian criminal juries, to return unanimous verdicts).
11 Bostock v. Clayton County, ___ U.S. ___, 140 S. Ct. 1731 (2020). Justice Gorsuch,
writing for the Court, used textualism to interpret Title VII of the Civil Rights Acts of
1964’s prohibition against discrimination based on “sex” to prohibit an employer from
firing an employee “merely for being gay or transgender.” Justice Alito, in a dissent
joined by Justice Thomas, wrote “[t]he Court’s opinion is like a pirate ship. It sails
under a textualist flag, but what it actually represents is a theory of statutory inter-
pretation that Justice Scalia excoriated—the theory that courts should ‘update’ old
statutes so that they better reflect the current values of a society.” Id. at 1755-56 (Alito,
J., concurring). Steven Calabresi, a leading originalist/textualist and the editor of a
2007 Federalist Society book, Originalism: A Quarter Century of Debate, argued, post-
Obergefell, that originalism mandated a constitutional right to same-sex marriage. See
Steven G. Calabresi and Hannah M. Begley, Originalism and Same-Sex Marriage, 70
U. Miami L.R. 648 (2015).
12 Adrian Vermeule, Common Good Constitutionalism, (2022).
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STEPHENS, S.J. (concurring)
reluctance to return to such an approach likely reflects legal positivism’s com-
plete and total victory over moderns.
Legal positivism—the theory that no law exists save for that made by valid
political authority—demonstrates its inherent shortcomings when the judge
must go beyond the statute. While positivists resort to “reason,” or “the evolv-
ing standards of decency” or “the ordinary meaning” of the (sometimes decon-
structed) text, 13 the classical view seeks the common good as understood in
natural law and applies that to an indeterminate text.
Thomas Aquinas explained two ways natural law becomes posited law. 14
The first was when a general conclusion stems from its principle, such as pro-
scribing murder from the principle that it is objectively wrong to harm an in-
nocent person. The second way natural law effects posited law was explained
by Aquinas’s craftsman analogy where general ideas for the common good take
specific form like a “craftsman who needs to turn the general idea of a house
into the shape of this or that house.” 15 I believe it would be fair to say Article
120b is a combination of the two, where the lex is an overall expression of the
conclusion that it is always wrong to sexualize children and the resulting stat-
ute is the shape of “this or that house” after half-a-century of amendment. Ei-
ther way, the statute did not come into existence ex nihilo, it stemmed from an
unwritten idea—the ius.
The Framers, who were not positivists, textualists, or progressives, em-
braced natural law and the classical approach as they inherited it—not from
their Enlightenment contemporaries—but from their medieval and classical
forbears. Indeed, our Fifth and Sixth Amendments stem from Middle Age can-
onists extrapolating these rights from Biblical texts because such rights served
the common good and comported with natural law. 16 This was centuries before
humanist thinkers considered such rights “self-evident.” William Blackstone
and Sir Edward Coke were the preeminent legal sources for the Framers.
13 Hyper-textualism combined with legal positivism combines the worst aspects of
Derrida’s deconstructionism (“There is nothing outside the text.”) with Nietzsche’s be-
lief that “the power of command rises to the rank of supreme source of law.” See Phil-
lippe Nonet, Essay: What is Positive Law?, 100 Yale L.J. 667, 669 (1990).
14Thomas Aquinas, Summa Theologica, Question 95 Of Human Law, Article II,
Whether Every Human Law is Derived From the Natural Law?.
15 Id.16 R.H. Helmholz, Natural Human Rights: The Perspective of Ius Commune, 52
Cath. U.L. Rev. 301 (2003).
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STEPHENS, S.J. (concurring)
Blackstone’s Commentaries is neatly divided into The Rights of Persons, The
Rights of Things, Of Private Wrongs, and Of Public Wrongs, thus recognizing
the different aspects of the body politic and the common good. 17 The preambles
of the Declaration of Independence 18 and the Constitution19 invoke natural law
and the common good. Today natural law and the common good survive in the
form of legal phrases such as “good cause,” “arbitrary and capricious,” “funda-
mental fairness,” “reasonable,” and the readily familiar, yet seemingly nebu-
lous, “costs to the justice system” from Military Rule of Evidence 311(a)(3). So
we should not look askance at interpreting a statute using the classical ap-
proach with the common good and natural law in mind.
C. Interpreting Article 120b(c) for the Common Good
United States v. Brown and United States v. Knowles had set some param-
eters for the old indecent liberties statute. 20 They expressed the sense of the
un-enumerated ius naturale codified in the lex. The modernist, whether textu-
alist or progressive, would ask “what was the purpose of the statute” and look
to the words, or when that fails, a dictionary and his own private judgment, or
his own private judgment based on his political preferences for a desired out-
come, or even a desire to avoid “absurdity.” The classical judge would attempt
to discern what common good is desired by the statute and recognize that a
statute can have a purpose toward the good of the individual, a purpose toward
the good of the community, and an additional good in harmonizing the inter-
ests between the two. A statute—a lex—is an attempt to codify a higher law
that a nation or a people all know to be true and good, even if it were to limit
individual freedom in certain circumstances.
17William Blackstone’s Commentaries on the Laws of England is available online
at the Yale Law School’s Avalon Project. https://avalon.law.yale.edu/subject_menus
/blackstone.asp. See Common Good Constitutionalism at 53–54.
18 See, Carl J. Becker, The Declaration of Independence: A Study in the History of
Political Ideas (1922). Chapter II: “Historical Antecedents of the Declaration: The Nat-
ural Rights Philosophy” discusses the intellectual background of the Declaration, its
reliance on John Locke, and the impact of Sir Isaac Newton’s Principia on the intellec-
tual and political world.
19 See Lee Strang, The Role of the Common Good in Legal and Constitutional In-
terpretation, 3 U. St. Thomas L.J. 48, 68 (2005) (Of the Preamble: “The People sought
to re-order society to achieve justice, domestic peace, external defense, and the general
welfare of the members of our society. This is the essence of the common good.”)
United States v. Brown, 3 C.M.A. 454, 13 C.M.R. 10 (1954); United States v.
20
Knowles, 15 C.M.A. 404, 35 C.M.R. 376 (1969).
46
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STEPHENS, S.J. (concurring)
In 1954, Brown explained that a touching was not necessary for a convic-
tion for indecent liberties when a soldier exposed himself to two sisters, aged
seven and ten. From the opinion, one supposes the girls were aware of the ex-
posure and saw the soldier’s genitals, but it is not certain. There was a 22-year-
old woman with the girls. Perhaps the woman was the only one who actually
saw the soldier’s exposure. Perhaps only one of the girls saw him. The Brown
court does not dwell on the awareness, because it was irrelevant to the matter
for purposes of findings and it was not “necessary that such a victim should be
aware of the nature of the act or of the danger.” 21 The Brown court did not
resort to dictionaries or to word parsing to discern that a touching of the child
was not a necessary element to be guilty of indecent liberties with a child. It
understood the appellant’s actions came within the ambit of the statute, even
if the statute was not perfectly clear concerning touching. The lex was informed
by the ius.
In 1965, a similar question arose in Knowles. Did the statute for indecent
liberties with a child include making an obscene phone call? Chief Judge
Quinn—who certainly understood Brown as he was on the Brown court—wrote
for the Court of Military Appeals [CMA] using the same approach used in
Brown. The harm contemplated by the indecent liberties statute simply was
not met with just “hearing a voice over a telephone wire.” 22 The Knowles court,
with much less analysis than in Brown, concluded that just hearing the voice
over the telephone was not enough and was covered by the separate offense of
communicating obscene language. Again demonstrating a classical approach
of interpreting the lex through the ius, the CMA commented it would “leave for
such time as it may be directly before us” whether indecent liberties with a
child may be “committed by performance of indecent acts and the use of ob-
scene language over an audio-visual system.” 23 The CMA’s classical approach
demonstrated that, at the time, the statute required physical presence given
the realities of the de minimis harm of hearing obscene language via telephone,
but the same statute—without future legislative amendment—could mean that
future technology could remove the physical presence requirement because of
the reckless and vulgar nature of the act and the possibility of harm to the
child. This could not happen for the textualist. If the textualist judge found the
statute meant presence was a requirement, then it must always mean that.
21 Brown, 3 C.M.A. at 457, 13 C.M.R. at 13.
22 Knowles, 15 C.M.A. at 406, 35 C.M.R. at 378.
23 Id.
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STEPHENS, S.J. (concurring)
That is because for the textualist, “[t]he law is the law.” 24 But the Knowles
court recognized that an expressed lex crafted to conform to an unexpressed
ius—substantial harm to children or society from vulgar sex acts directed to-
ward children—must be read together. An audio-visual system, depending on
the circumstances, could certainly amount to indecent liberties with a child
under the statute, but that question was not before the Knowles court.
While the Knowles court (wisely) did not decide the audio-visual issue that
was not before it, forty years later in United States v. Miller, CAAF used a
textualist approach rather than a classical approach to decide the issue. 25 Mil-
ler’s methodology—along with a misreading of its dicta—is the source of Ap-
pellant’s arguments here. In Miller, the appellant was masturbating on a
webcam where the “child” could see him, but he could not see the child. The
“child” was actually a civilian law enforcement detective. The question in Mil-
ler was whether he was guilty of attempted indecent liberties because he was
in the “constructive presence” of (what he thought was) a child or whether the
statute required his physical presence. CAAF held that constructive presence
was not sufficient and that an accused had to be in the actual physical presence
of the child. 26
The statute from Brown to Knowles to Miller took some interesting turns.
In Brown, an indecent liberty required an act “upon or with the body” of a
child. 27 In 1954, Brown interpreted the 1951 statute to mean that a touching
was not required. In 1965, Knowles interpreted that same statute to mean that
“physical” presence was required. In 1969, the statute still had the “upon or
with” language from the original statute, but had added, “the liberties must be
taken in the physical presence of the child, but it is not essential that the evi-
dence show physical contact between the accused and the child.” 28 But by 1984,
the statute—under its “no physical contact” sub-section removed the word
“physical” and just stated that the indecent liberties had to be taken “in the
presence of” a child. 29 The Presidential explanation to the offense, which is not
24 Brett M. Kavanaugh, Book Review, Fixing Statutory Interpretation, Judging
Statutes, 129 Harv. L. Rev. 2118 (2016).
25 United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008).
26 Id. at 90.
27 Article 134, UCMJ (1951).
28 Article 134, UCMJ (1969).
29 Article 134, UCMJ (1984)
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STEPHENS, S.J. (concurring)
binding, but merely “persuasive authority,” 30 alludes to the 1969 statutory lan-
guage: “the liberties must be taken in the physical presence of the child, but
physical contact is not required.” 31 In 2008, the Miller court examined the 2005
indecent liberties statute unchanged from 1984.
Rather than Miller recognizing that the statute no longer specifically re-
quired “physical” presence and affirming the appellant’s conviction for at-
tempted indecent liberties, it looked to dictionaries for guidance. Miller cited a
2003 CAAF case for the proposition that statutory words should generally be
given their “common and approved usage.” 32 The 2003 CAAF case interpreted
the term “child of” as it appeared in Military Rule of Evidence 504 and cited
the “common and approved usage” canon as stated in United Scenic Artists v.
NLRB, 33 a 1985 opinion by the Court of Appeals for the D.C. Circuit and sub-
cited to the 1984 edition of Sutherland Statutory Construction. The D.C. Cir-
cuit case involved a labor dispute over a provision of the National Labor Rela-
tions Act. The Act did not permit the NLRB to find that a union had engaged
in unfair labor practice unless the union’s “object” was to force a neutral em-
ployer to cease doing business with the employer with whom the union was
involved in a dispute. The D.C. Circuit considered “object” to be a synonym for
“purpose” and cited to 2A Sutherland Statutory Construction § 46.06 at 74 (4th
ed. 1984). That section of Sutherland states:
It is an elementary rule of construction that effect must be given,
if possible, to every word, clause and sentence of a statute. A
statute should be construed so that effect is given to all its pro-
visions, so that no part will be inoperative or superfluous, void
or insignificant, and so that one section will not destroy another
unless the provision is the result of obvious mistake or error. 34
Nothing in Sutherland or United Scenic Artists compels, or even justifies, re-
sorting to dictionaries to determine whether presence can be understood to
30 Miller, 67 M.J. at 89. CAAF recognized that Presidential explanations are not
binding, citing United States v. Miller, 47 M.J. 352, 356 (C.A.A.F. 1997).
31 Article 134, UCMJ (1969).
32 Miller, 67 M.J. at 90 (citing United States v. McCollum, 58 M.J. 323, 340
(C.A.A.F. 2003)).
33 762 F.2d 1027 (D.C. Cir. 1985). A District Court judge for the District of Colum-
bia sat by designation and authored the opinion, joined by Circuit Judges Robert Bork
and Abner Mikva.
34 2A Sutherland Statutory Construction § 46.06 at 74 (4th ed. 1984).
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STEPHENS, S.J. (concurring)
mean “virtual presence” as contemplated by Knowles, or to mean only physical
presence as inserted, and then subsequently deleted by, the words of the stat-
ute.
Nevertheless, in Miller, CAAF looked to dictionaries. It used the 2004 edi-
tion of Black’s Law Dictionary and the 2003 edition of Merriam-Webster’s Col-
legiate Dictionary. Based on the textualist’ s own “rules” the lay dictionary
should have been consulted from either around 1969, when the word “presence”
first entered the statute, or from 1984, when the word was moved from the
statute to the Presidential explanations. That is when the word was inserted
and its meaning was fixed in the statute. Granted, the word “presence” is not
very different from 1969 to 1984 to 2005. 35 Admittedly, this could be considered
a minor transgression. However, for the textualist, the use of Black’s Law Dic-
tionary for a common word would be a significant misstep. Chief Judge Ohlson,
in his concurring opinion in United States v. Schmidt [Schmidt II], pointed out
that using Black’s Law, or any other technical dictionary such as a legal dic-
tionary, should not be done “when a word has an easily graspable definition
outside of a legal context.” 36 And it is the use of Black’s Law that is the source
of the errors made by the various service courts of criminal appeals.
Miller mentioned the first definition of presence from Black’s Law: “the
state of fact of being in a particular place and time.” 37 But it also mentions the
second, more limited, circumstantial, and technical definition: “[c]lose physical
proximity coupled with awareness.” 38 Rather than emphasize the awareness
aspect, CAAF merely concluded, “These definitions taken together compel the
conclusion that ‘physical presence’ requires that an accused be in the same
physical space as the victim.” 39 This brief mention of the word “awareness”—
wholly unnecessary to the holding—was the source and justification for lower
35 See, e.g., Van Buren v. United States, ___ U.S. ___, 141 S. Ct. 1648 (2021). Justice
Barrett, a textualist, writes for the Court and is purposeful and meticulous in her ci-
tation of dictionaries from the relevant time periods. But three of the other textualists
on the Court disagreed with the Court’s application. “But the text makes one thing
clear: Using a police database to obtain information in circumstances where that use
is expressly forbidden is a crime.” (emphasis added). Id. at 1699 (Thomas, J., dissent-
ing).
36United States v. Schmidt, 82 M.J. 68, at 75 (C.A.A.F. 2022) (Ohlson, C.J., con-
curring in the judgment) [Schmidt II].
37 Miller, 67 M.J. at 90.
38 Id.
39 Id.
50
United States v. Tabor, NMCCA No. 202100046
STEPHENS, S.J. (concurring)
courts’ decisions in United States v. Burkhart, 40 United States v. Anderson, 41
United States v. Gould, 42 and this Court’s opinion in United States v. Schmidt
[Schmidt I]. 43
A classical approach to the lex in Miller would have picked up where
Knowles left off, considered that Congress intentionally removed the word
“physical” from the statute, and given due consideration to the non-binding
Presidential explanation of physical. The harm contemplated by the Brown
court was certainly present, albeit in a more remote way. But the additional
harm contemplated by Brown and Knowles was also present. An accused who
has taken the additional step to commit lewd acts in the online presence of a
child—who might see and hear the acts—and where an accused knows this and
is sexually gratified by this form of presence has crossed the threshold into
indecent liberties by taking the “first step toward more serious sex crimes of a
perverted nature.” 44 It is not just that this audio-visual act features a “greater
conjunction of the several senses of the victim” as compared with just an ob-
scene telephone all, but such an act properly recognizes the danger of the ac-
cused’s action to himself, the child, and to the community. 45 A court can cer-
tainly recognize that taking the additional brazen step of using an audio-visual
system to conduct lewd acts upon a child is within the ius as expressed through
a statute that criminalizes sexual acts upon or with children. The conduct is
much more serious, and more dangerous, than an obscene phone call. The tres-
pass on the common good—the happiness, safety, and prosperity of the com-
munity—is significantly elevated over an obscene phone call. In my view the
appellant in Miller violated the lex as viewed through the lens of the ius. That
being said, I recognize CAAF spoke with finality in Miller on whether or not
that particular appellant violated the then-existing statute.
In response to Miller, Congress amended the statute. It also later moved
indecent liberties into a new Article 120b statute, “rape and sexual assault of
a child.” It specifically amended the statute to allow for audio-visual technology
40 72 M.J. 590 (A.F. Ct. Crim. App. 2013).
41 No. 201200499, 2013 CCA LEXIS 517 (N-M. Ct. Crim. App. June 27, 2013) (un-
published).
42No. ARMY 20120727, 2014 CCA LEXIS 694 (Army Ct. Crim. App. Sept. 16, 2014)
(unpublished).
80 M.J. 586 (N-M. Ct. Crim. App. 2020), aff’d, ___ M.J. ___, No. 21-0004, 2022
43
CAAF LEXIS 139 (C.A.A.F. Feb. 11, 2022).
44 Brown, 3 C.M.A. at 461, 13 C.M.R. at 17.
45 Knowles, 15 C.M.A. at 406, 35 C.M.R. at 378.
51
United States v. Tabor, NMCCA No. 202100046
STEPHENS, S.J. (concurring)
to be used to commit an indecent liberty (now referred to as a “lewd act”) upon
a child. The statute and its statutory definitions:
(c) Sexual Abuse of a Child.—Any person subject to this chap-
ter who commits a lewd act upon a child is guilty of sexual abuse
of a child and shall be punished as a court-martial may direct.
....
(h) Definitions.—In this section:
....
(5) Lewd act.—The term “lewd act” means—
....
(D) any indecent conduct, intentionally done with or
in the presence of a child, including via any communication tech-
nology, that amounts to a form of immorality relating to sexual
impurity which is grossly vulgar, obscene, and repugnant to
common propriety, and tends to excite sexual desire or deprave
morals with respect to sexual relations.46
In Schmidt II, Judge Sparks asks a fair question concerning Congressional
intent to capture lewd acts committed by audio-visual means. When Congress
added audio-visual means, which would imply the child victim would be aware
of what the accused was doing, would not this also imply an awareness prong
within the meaning of “in the presence of a child”? I believe a fair possible
answer is that the statute does not imply that, not only for the reasons the
majority opinion lays out using textualist analysis, but also, more simply, un-
der a classical analysis. I also believe the classical analysis suffers less from
charges of absurdity or inconsistency (pointed out by Senior Judge Gaston in
his separate opinion) than the textual analysis.
In the classical view, there is no need to wrangle over the nature of the
word “presence,” whether for the “in-person” lewd acts or the “audio-visual”
lewd acts. The fact that an accused has taken the additional brazen step to
perform these acts and demonstrates a prurient sexual focus on the physical
or audio-visual presence of a child is enough.
The textualist approach has two, or three, equally unsatisfying ways to
square the circle. The statute could possess a different meaning for presence
for each part of the statute—meaning that in-person presence has no aware-
ness requirement, while the audio-visual presence does require the child victim
46 Article 120b, UMCJ (2012 & Supp. IV 2017).
52
United States v. Tabor, NMCCA No. 202100046
STEPHENS, S.J. (concurring)
to be aware. Or, the statute cannot require awareness at all and define “pres-
ence”—using a lay dictionary—as being in the same “place,” whether it is a
physical or virtual space. The problem is that no one really uses the virtual
and the physical definitions interchangeably. Certainly over the last two years
(due to the COVID-19 pandemic) the entire industrialized world has learned
the very real difference between being physically present at an actual meeting
and being on a Zoom call. Finally, as Senior Judge Gaston’s separate opinion
does, a textualist may reach for a more technical definition and find “aware-
ness” within the word “presence” despite it not existing in the statute, or any
previous versions of the statute. So then, if textualism on its own terms pro-
vides such opposing or unsatisfactory answers, what exactly is its utility?
I am not suggesting judges become Platonic Guardians or look to penum-
bras or nebulous “evolving standards of decency” to interpret statutes. Recog-
nizing that the written law is sometimes a poor reflection of the unwritten
law—in this case, the idea that sexualizing children is always wrong—is a good
starting point. To the extent that legal positivism is in the judge’s way, dis-
carding that idea that would be beneficial, too, because positivism recognizes
nothing outside the lex—a stance which incidentally leaves more room for
judges to govern, not less.
With the ius in mind, I believe the best reading of this (somewhat confus-
ing) statute is that awareness is not an element the Government is required to
prove either for a scenario where an accused is in the physical presence of the
child victim or is in the virtual presence of the child using communication tech-
nology. The old indecent liberties statute used to be divided into offenses with
and without physical contact. A new statute could clarify the type of presence
required for physical and virtual lewd acts performed against children: “Any
indecent conduct, intentionally done with or in the presence of a child, or done
in the virtual presence of a child via any communication technology . . . . ” The
“awareness” prong would be irrelevant to either type of presence. The defini-
tion of a lewd act for “communicating indecent language” indicates that the
“virtual presence” under Article 120b(c) would include the possibility of visual
communication so as not to be redundant. 47 And as long as the remaining lan-
guage of this specific intent crime remains in the statute, any “sleeping infant
47 Article 120b(h)(5)(C), UCMJ (2012 & Supp. IV 2017).
53
United States v. Tabor, NMCCA No. 202100046
STEPHENS, S.J. (concurring)
in the room” scenarios simply cannot come into fruition absent prosecutors who
attempt to charge cases without probable cause. 48
D. The Modern View of Consent in Sexual Matters
Part of the difficulty of interpreting this statute—to the modernist—is the
concept of consent and how central it is to whether sexual activity, or adjacent
sexual activity such as contraception and abortion, is licit or illicit; with the
payoff being that everything deemed licit becomes a constitutional right that
is exempt from the rough-and-tumble of the democratic process. I am confident
that for the last 15 years, practitioners of military justice have spent more time
pondering sexual consent than any other group of lawyers in the world. And it
will not shock anyone to observe that over the last half-century sexual conduct
has permeated our society in nearly every possible way. Part of that permea-
tion has been the re-casting of sexual mores, sometimes done by legislatures,
but certainly aided by the judiciary when the voters had not yet acquiesced. It
is probably also not controversial to observe that almost every type of sexual
activity is beyond the proscription of the law and is shielded as a fundamental
constitutional right. And that is where consent enters this fact pattern.
Though Western law universally proscribes sexual contact with children, it
is difficult for the legal progressive (or even some of the originalists) to say why
that is, other than the children being democratically determined to be too
young to consent. Certainly the legal positivist has nothing germane at all to
say about it. The text is the law and the law is the text.
With consent transforming nearly every type of private sexual activity into
a licit act, or at least not an illicit one, we return to this fact pattern. Obviously,
if a child is aware of a lewd act done in his presence he cannot as a matter of
law give consent. He cannot give consent because he is, again as a matter of
law, too young to do so and the law considers this harmful to the child. But
what if consent is taken off the table? What if the nature of the act does not
seek consent because it is at its core a unilateral act? And if done in a private
setting, does it not quickly resemble what the Supreme Court has described as
48 This is especially true with the Fiscal Year 2022 National Defense Authorization
Act’s creation of an Office of Special Trial Counsel for each Service, where an O-7 pros-
ecutor will ultimately decide if charges under Article 120b, and other covered UCMJ
offenses, are ever referred to a general court-martial in the first place. Hopefully this
will limit the Service courts’ need to use Article 66(d), UCMJ, factual sufficiency review
to reverse convictions that should never have been referred to general court-martial.
See National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81,
§§ 531–539C, 135 Stat. 1692–99 (2021).
54
United States v. Tabor, NMCCA No. 202100046
STEPHENS, S.J. (concurring)
a “liberty interest”? Indeed, we use the term “Lawrence liberty interest” to de-
scribe sexual conduct that is consensual and, thus, constitutional.
I submit that the criminality of Appellant’s actions lies in his doing of
them—or directing they be done—in the first place where the child is his sexual
focus, regardless of whether the child is aware. Awareness seems tied to the
concept of consent and its transformative properties. Where no awareness is
had, then there is, and can be, no failure of consent. And a scenario where
consent is not necessary to the sexual act is one that is, to modern senses,
simply not criminal. I am certainly not saying this is the overt thought process
of those who read awareness into the law, but it can be tempting to say “if the
child is not harmed, then what business is the conduct to the state”; or more
precisely, how could this be conduct that is proscribed by a statute that protects
children from sexually vile conduct?
But does society not have the inherent right to put into words the objective
common good of punishing those who sexualize children? I submit that the
common good is not advanced when Appellant, or anyone for that matter, is
allowed to masturbate in the presence of a child even when the child is una-
ware of the conduct for which he is the sexual focus. Even if the child is never
“harmed” by such conduct, society is certainly harmed. An individual has been
allowed to indulge a vulgar prurient interest towards a child and is taking in-
creasingly reckless steps toward “more serious sex crimes of a perverted na-
ture” as the Brown court stated in 1954. 49 How is this conduct not part and
parcel of the legal arena of sexual abuse of a child? How is society unable to
criminalize this as falling within the ambit of sexual crimes against children?
Are we obligated to consign this conduct to Article 134 and not call it what it
is? Could we understand the Brown court to mean merely that a sexual act
coupled with the child’s awareness is criminalized because that act could then
lead to “more serious sex crimes?” If we are considering that masturbating to
gratify one’s sexual desires to an aware child is merely the precursor to more
serious sexual crimes, and that an accused has not already committed a serious
sexual crime in gratifying his sexual desires by masturbating in the presence
of a sleeping or unaware child, then I’d say we’ve lost the plot. Brown did not
mean that and neither should we.
49 Brown, 3 C.M.A. at 461, 13 C.M.R. at 17.
55
United States v. Tabor, NMCCA No. 202100046
STEPHENS, S.J. (concurring)
II. CONCLUSION
Perhaps it is too late for the classical approach and textualism is the best
we can hope for in statutory construction. While society seems to have replaced
Thomas Aquinas, Blackstone, and the Framers with Marx, Sartre, and Fou-
cault, this does not mean the ius naturale has changed with respect to sexual-
izing children or that the lex does not attempt to capture that. 50 I would tear
down the fortress of dictionaries and let judges be guided by a recognition of
the common good that is promoted by the statute. 51 The lex should be informed
by the ius.
Appellant directed that his agent perform a lewd act that was prurient and
vulgar toward a child and did so in the child’s presence. This is wrong for soci-
ety and it is wrong for the individual. And it is much, much more serious than
just “indecent conduct.” This is sexual abuse of a child and it falls within the
statute.
50 Lest anyone misunderstand me, the classical judge’s role is not to decide the
common good for society and to legislate, but rather to discern the common good a
legislature is trying to promote through the statute.
51See Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (“But it is one of the
surest indexes of a mature and developed jurisprudence not to make a fortress out of
the dictionary; but to remember that statutes always have some purpose or object to
accomplish, whose sympathetic and imaginative discovery is the surest guide to their
meaning.”) (Hand, J.). What if dictionaries drive the meaning of words rather than just
record the accepted common usage and understanding? See e.g., Katherine Fung, Mer-
riam-Webster Dictionary’s Definition of Anti-Vaxxer Includes Opposing Mandates,
Newsweek, Oct. 7, 2021, https://www.newsweek.com /merriam–webster–dictionarys
–definition–anti–vaxxer-includes-opposing-vaccine-mandates-1636624. If Derrida
cheers our deconstruction of statutes, Orwell laughs bitterly over our reliance on mod-
ern dictionaries to interpret statutes, particularly in a future with only electronic dic-
tionaries.
56
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
GASTON, Senior Judge, with whom Judge STEWART joins (concurring in
part, dissenting in part, and concurring in the judgment):
The majority breaks new ground today in its broad interpretation of Article
120b(c)’s proscription of indecent conduct “in the presence of” a child. Unlike
the offense of indecent conduct under Article 134, which is at root a crime
against societal norms relating to sexual conduct, the offense to which Appel-
lant pleaded guilty—sexual abuse of a child under Article 120b(c)—is the vic-
tim-oriented crime of “commit[ting] a lewd act upon a child.” 1 The relevant
statutory definition of “lewd act” reflects this difference by incorporating the
element of indecent conduct from Article 134—defined as that “form of immo-
rality relating to sexual impurity which is grossly vulgar, obscene, and repug-
nant to common propriety, and tends to excite sexual desire or deprave morals
with respect to sexual relations” 2—and adding the requirement that such con-
duct be “intentionally done with or in the presence of a child, including via any
communication technology.” 3 Seeking to convert Article 120b(c) from a victim-
oriented offense into a societal one, the majority conflates these requirements
using an interpretation of “in the presence of” that ignores key statutory
changes made by Congress.
And needlessly so, because in this case Appellant intentionally counseled
Ms. Charles to do exactly the kind of conduct that this Court in United States
v. Schmidt [Schmidt I] 4 held Article 120b(c) prohibits: openly masturbate next
to Miss Bravo when she was not yet asleep, and thus was not just reasonably
likely to observe the conduct (satisfying the requirement of “indecent con-
duct”), 5 but had “a sufficient sensory connection . . . to be aware of it” (satisfy-
ing the requirement that the indecent conduct be done “in the presence of a
1 Article 120b(c), Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 920b(c).
2Manual for Courts-Martial, United States [MCM], pt. IV, para. 104.c.(1). Unless
otherwise indicated, all references in the body of this opinion to the Manual for Courts-
Martial are to the 2019 edition.
3 Article 120b(h)(5)(D), UCMJ.
4 United States v. Schmidt, 80 M.J. 586, 598 (N-M. Ct. Crim. App. 2020) [Schmidt
I], aff’d, 82 M.J. 68 (C.A.A.F. 2022) [Schmidt II].
5While private, consensual sexual activity by or between adults is generally not
punishable as indecent conduct absent aggravating circumstances, it may become in-
decent if it is “open and notorious,” meaning intentionally committed “in such a place
and under such circumstances that that it is reasonably likely to be seen by others
even though others do not actually view the acts.” United States v. Sims, 57 M.J. 419,
57
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
child”). 6 The military judge, interpreting the law in the same manner as
Schmidt I before that case was decided, identified the issue of whether Miss
Bravo was asleep during the conduct and thoroughly addressed it during his
providence inquiry. In response to the military judge’s questions, Appellant
admitted that he intentionally counseled Ms. Charles to remove her clothes
and masturbate on the bed next to Miss Bravo while Miss Bravo was still
awake and that he believed based on the evidence that Miss Bravo was awake
for at least part of the time Ms. Charles did so. As the evidence presented at
trial does not reflect otherwise, I would find that under Schmidt I, there is no
substantial basis in law or fact to question Appellant’s plea. Because the ma-
jority, incorrectly in my view, abrogates our holding in Schmidt I, I must re-
spectfully dissent from my colleagues in that part of the majority opinion.
I. DISCUSSION
The majority goes awry by interpreting the meaning of a word, “presence,”
when the issue before the Court requires the interpretation of a phrase, “in the
presence of.” The canons of statutory interpretation require that “we interpret
words and phrases used in the UCMJ by examining [1] the ordinary meaning
of the language, [2] the context in which the language is used, and [3] the
broader statutory context.” 7 All three of these inquiries support that this Court
was correct in holding in Schmidt I that for indecent conduct to be done “in the
presence of” a child, “there must be a sufficiency sensory connection for the
child to be aware of it.” 8
A. Ordinary Meaning of “in the Presence of”
While it is debatable whether the word “presence” is, as the majority main-
tains, descriptive solely of something existing at a particular location and
time, 9 the ordinary meaning of the phrase, conduct done “in the presence of”
421 (C.A.A.F. 2002) (quoting United States v. Izquierdo, 51 M.J. 421, 423 (C.A.A.F.
1999)).
6 Schmidt I, 80 M.J. at 598.
7 United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016) (emphasis added).
8 Schmidt I, 80 M.J. at 598.
9 Even some of the lay dictionaries cited by the majority define “presence” to in-
clude sensory awareness as an aspect of the word’s meaning. See Merriam-Webster’s
Unabridged Online Dictionary, https://unabridged.merriam-webster.com/unabridged
58
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
another person, connotes not mere location or proximity, but awareness of the
conduct by the person. Consider:
“Dearly beloved, we are gathered here in the presence of God and
these witnesses to join to this man and this woman in holy mat-
rimony.”
“The dauphin’s arrogance was discussed in the presence of the
king.”
“Burr shot Hamilton in the presence of their seconds.”
“Corporal Smith made fun of the Sergeant Major’s haircut in the
presence of another marine.”
None of these descriptions of conduct being done “in the presence of” other per-
sons suggests that those other persons are asleep or otherwise unaware of the
conduct. To the contrary, the phrase connotes through ordinary language that
the conduct is occurring under circumstances where the other persons are
aware of it.
Unlike standard dictionaries, which generally define words, not phrases,
Black’s Law Dictionary also provides definitional examples for the phrase at
issue here, conduct done “in the presence of” another person. Each one of the
examples it provides—which are not limited to the principles of agency or at-
testation as the majority maintains—connotes or implies some sort of sensory
awareness of the conduct by that other person:
“The agent was in the presence of the principal” is included as an
illustration of the definition of “presence” as “[c]lose proximity
coupled with awareness.” 10
The “presence-of-defendant rule” is “the principle that a felony
defendant is entitled to be present at every major stage of the
/presence (last visited Apr. 18, 2022) (including definition of “presence” as “the condi-
tion of being within sight or call, at hand”) (emphasis added); Merriam-Webster’s Col-
legiate Dictionary 982 (11th ed. 2020) (including definitions of “presence” as “the fact
or condition of being present” and of “present” as “being in view or at hand”) (emphasis
added).
10 Presence, Black’s Law Dictionary (11th ed. 2019) (emphasis added).
59
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
criminal proceeding,” 11 where he or she will be able to see and/or
hear what is occurring.
“For purposes of contempt, an action is in the presence of the
court if it is committed within the view of the judge or other per-
son in court . . . .” 12
The “presence-of-the-testator” rule is “[t]he principle that a testa-
tor must be aware (through sight or other sense) that the wit-
nesses are signing the will.” 13
The majority posits that these illustrative examples from Black’s Law Diction-
ary should not be relied on because they speak only to the type of presence
required for certain “legally significant events.” 14 But that is exactly what is at
issue here: determining what this same language means for the legally signif-
icant event of conduct that, under the circumstances, may be subject to crimi-
nal sanction as sexual abuse of a child.
Nor would this Court be alone in resorting to a legal dictionary like Black’s
to make the quintessential legal determination of interpreting what certain
language in a criminal statute means. The Supreme Court of Florida did pre-
cisely that in State v. Werner when it interpreted similar language prohibiting
“a lewd or lascivious act in the presence of any child” under a state statute
intended to prohibit “lewd and lascivious acts upon children.” 15 Consulting
both lay and legal dictionaries, the court held that
[a]pplying the legal as well as the common-sense meaning of the
word “presence” to [the above statutory language] leads us to the
conclusion that, while the child need not be able to articulate or
even comprehend what the offender is doing, the child must see
11Presence-of-defendant rule, Black’s Law Dictionary (11th ed. 2019) (emphasis
added).
12 Presence of the court, Black’s Law Dictionary (11th ed. 2019) (emphasis added).
13Presence-of-the-testator rule, Black’s Law Dictionary (11th ed. 2019) (emphasis
added).
14United States v. Tabor, ___ M.J. ___, No. 202100046, slip op. at 24 (N-M Ct. Crim.
App. May 25, 2022), https://www.jag.navy.mil/courts/documents/archive/2022/TABOR
_202100046_EN-BANC_PUB-Concur-Dissent.pdf
15 State v. Werner, 609 So. 2d 585, 586–87 (Fla. 1992).
60
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
or sense that a lewd or lascivious act is taking place for a viola-
tion to occur. 16
This is the same conclusion this Court reached in Schmidt I with respect to
Article 120b(c), that for indecent conduct to be done “in the presence of” a child,
“there must be a sufficiency sensory connection for the child to be aware of it.” 17
B. Context in Which “in the Presence of” Is Used
The conclusion that such sensory awareness is required for conduct to be
done “in the presence of” a child is reinforced by the statute’s inclusion of the
modifying phrase, “including via any communication technology.” 18 In the con-
text of this modifying phrase, “in the presence of” is not about physical pres-
ence at all, since conduct done in the presence of another person “via commu-
nication technology” is not done in the person’s physical presence, or
“immediate vicinity,” as the majority now calls it. 19 Rather, the doing of the
conduct in one location is simply conveyed (i.e., communicated) to the person
in another location through the transfer of sensory data (e.g., sight and
sound). 20
As such, it is virtually impossible to describe conduct as being done “in the
presence of” another person via communication technology without connoting
that the other person was, through the use of that technology, made aware of
it.
“The issue was debated during the weekly Teams meeting in the
presence of the senior partners.”
16 Id. (emphasis added).
17Schmidt I, 80 M.J. at 598. Contrary to the majority’s assertions, Schmidt I did
not hold that the child must have sufficient cognitive understanding to appreciate the
nature of the conduct.
18 Article 120b(h)(5)(D), UCMJ.
19 Tabor, ___ M.J. at ___, slip op. at 25.
20 Lest the issue devolve into a debate over what “immediate vicinity” means, “vi-
cinity” is “1. The state of being near in space or relationship; proximity: two restaurants
in close vicinity. 2. A nearby, surrounding or adjoining region; a neighborhood.” The
American Heritage Dictionary of the English Language 1929 (5th ed. 2018). Thus, con-
duct in one location that is done “in the presence of” another person, miles away, via
communication technology is not conduct done “in the immediate vicinity of” the other
person. If it were, then “in the immediate vicinity of” would be derived from sensory
awareness, not spatial location, which is precisely what Schmidt I held “in the presence
of” means under Article 120b(c).
61
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
“The deployed Sailor showed off his new tattoo via FaceTime in
the presence of his girlfriend and her parents.”
“Due to security concerns, the mob informer testified in the pres-
ence of the jury via closed circuit television.”
“During the pandemic, the counsel delivered oral arguments in
the presence of the appellate court via teleconference.”
Thus, when “including via any communication technology” is added, the
phrase, conduct done “in the presence of” a child, cannot be read to connote
mere physical location or proximity. In context, the phrase can only be read as
requiring the sort of transfer of sensory information that can occur via commu-
nication technology.
The above examples of “in the presence of” from Black’s Law Dictionary
demonstrate why this is so. All of them have the same ordinary meaning (con-
noting sensory awareness by the person of the conduct done “in their presence”)
when the modifier, “including via any communication technology,” is added.
An agent could certainly do an act in the presence of the principal via commu-
nication technology—e.g., enter into a contract on the principal’s behalf while
the principal looks on via FaceTime—which makes the principal aware of the
conduct. Proceedings could occur in the presence of a defendant via video-tele-
conference, which enables him to see and hear what is going on. A counsel could
commit a contemptuous action in the presence of the court—i.e., within view
of the judge or other person in court—while participating in a proceeding via
Teams. And a witness could sign a will in the presence of a testator via
FaceTime, since the use of that communication technology would allow the tes-
tator to be aware (through sight or other sense) of that action. In every case,
we would say that the conduct is done “in the presence of” another person via
communication technology because that technology, through the transfer of
sensory data, enables the other person to observe the conduct.
On the other hand, what doesn’t make sense when the modifier, “including
via any communication technology,” is added is the view that conduct done “in
the presence of” another person simply means that the conduct was done “in
the immediate vicinity of” the person. Consider, for example:
“President Roosevelt talked about the war effort by radio during
his fireside chat in the presence of the American people.”
That sentence does not connote or imply that the President made his remarks
in the immediate vicinity of millions of people, or that he did so without a func-
tioning microphone or at 0400 when everyone was asleep or had their radios
turned off. Rather, it conveys through ordinary language exactly what the def-
62
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GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
initional examples in Black’s Law Dictionary demonstrate: that certain con-
duct (talking) was done “in the presence of” other persons (the American peo-
ple) by transferring sensory information (sound) via communication technology
(radio transmission) to those persons, who were listening to their radios and
thus had sensory awareness of what he was saying. If the President were un-
successful in transferring the sound of his words to the American people, due
to equipment malfunction for example, the most one could say is that he at-
tempted to talk about the war effort in their presence, but his microphone
didn’t work, so no one was aware of what he was saying.
The same is true for the phrase used in Article 120b(c), “indecent conduct,
intentionally done . . . in the presence of a child, including via any communica-
tion technology.” In United States v. Miller, the case in response to which Con-
gress enacted this very language, the accused in one location switched on his
webcam so that a “child” in another location, whose webcam was not on, could
see him masturbating. 21 Irrespective of the accused’s inability to see the child,
ordinary language would describe his conduct as being intentionally done “in
the presence of” the child via communication technology, since the sensory data
of the conduct he did in front of his webcam was transferred to a computer
screen that the child was watching (which is exactly what the accused in-
tended). By contrast, if the accused had been unsuccessful in transferring this
visual data because his webcam was not switched on or functioning, the most
one could say is that he attempted to masturbate in the child’s presence, but
his webcam didn’t work, so the child was unaware of what he was doing.
Thus, the only way to conclude that “in the presence of” means “in the im-
mediate vicinity of” is to disregard the modifying phrase, “including via any
communication technology,” in its entirety. But that approach by the majority,
far from making the statutory context “key,” 22 as it should be, instead flatly
ignores it. As a result, insofar as the majority claims the statutory language is
plain, any lack of ambiguity favors interpreting “in the presence of” to require
sensory awareness, not mere physical proximity. 23
21United States v. Miller, 67 M.J. 87, 88 (C.A.A.F. 2008). While the “child” in Miller
was actually an undercover policeman, we will assume the child was an actual child
for purposes of our analysis here.
22 Tabor, ___ M.J. at ___, slip op. at 24.
23See United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365,
371 (1988) (“A provision that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme . . . because only one of the permissible meanings
63
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
C. Broader Statutory Context
Assuming the statutory language is susceptible to more than one interpre-
tation, “there are a number of factors that provide a framework for engaging
in statutory interpretation . . . includ[ing] the contemporaneous history of the
statute; the contemporaneous interpretation of the statute; and subsequent
legislative action or inaction regarding the statute.” 24 These factors all support
interpreting “in the presence of” as requiring sensory awareness, consistent
with the broader statutory context of sexual abuse of a child under Article
120b(c), which criminalizes indecent conduct as a species of “lewd act” commit-
ted “upon a child.” 25
1. Historical Context of “in the Presence of”
At the time Miller was decided, Congress had imposed the requirement of
“physical” presence when it relocated indecent liberty with a child from Article
134 to Article 120(j), UCMJ (2006), defining the offense as “engag[ing] in inde-
cent liberty in the physical presence of a child—(1) with the intent to arouse,
appeal to, or gratify the sexual desire of any person; or (2) with the intent to
abuse, humiliate, or degrade any person.” 26 In response to Miller’s holding that
indecent liberty with a child required physical presence, Congress amended
the statutory language to its current form in Article 120b, UCMJ. It did so by
incorporating the definition of indecent conduct into the definition of “lewd
produces a substantive effect that is compatible with the rest of the law.”) (citations
omitted).
24 United States v. Tardif, 57 M.J. 219, 226 (C.A.A.F. 2002) (Crawford, C.J., dis-
senting); see also Gundy v. United States, ___ U.S. ___, 139 S. Ct. 2116, 2126 (2019)
(explaining that the Court interprets statutory provisions—including delegations—by
reading the text “in ‘context’ and in light of the statutory ‘purpose’”) (quoting National
Broadcasting Co. v. United States, 319 U. S. 190, 214 (1943)); Stone v. INS, 514 U.S.
386, 397 (1995) (“When Congress acts to amend a statute, we presume it intends its
amendment to have real and substantial effect.”); United Steelworkers v. Weber, 443
U.S. 193, 201 (1979) (examining the legislative history and historical context in which
Title VII of the Civil Rights Act of 1964 arose when determining an issue of statutory
interpretation involving the act.).
25 Article 120b(c), UCMJ.
26 See National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-
163, § 552, 119 Stat. 3257, 3258 (2006) (codified as 10 U.S.C. § 120(j) (2006)) (repealed
2011).
64
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GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
act,” adding the phrase, “including via any communication technology,” and
then specifically deleting the word “physical” from “in the presence of.” 27
These changes clarify that indecent conduct done “in the presence of” a
child under Article 120b(c) does not mean that the conduct must be done in the
child’s immediate vicinity. Quite the opposite, the changes were specifically
designed to remove the requirement of physical proximity altogether, in favor
of a more generalized sort of presence that can be accomplished “via any com-
munication technology”—i.e., the sort of sensory-information transfer that
makes the child aware of the conduct, no matter where on earth it actually
occurs. To put it simply, the majority’s use of “immediate vicinity” as a surro-
gate for the old “physical” presence requirement is precisely the interpretation
of “in the presence of” that Congress’ post-Miller amendments were enacted to
avoid. 28
The majority mistakenly points to a decision by the Court of Appeals for
the District of Columbia, Beausoliel v. United States, 29 in support of its view
that awareness is not required for indecent conduct to be done “in the presence
of” a child. In Beausoliel, a taxi driver driving his cab with a six-year-old girl
in the front seat exposed his private parts to the child and requested that she
hold the same, which she did. The defendant was convicted of assault, which
at common law generally required lack of consent for “improper liberties with
the person of a female.” 30 However, the court affirmed the conviction, finding
that with respect to children,
where persons take advantage of their ignorance and inexperi-
ence for the purpose of violating, outraging, or indecently inter-
fering with their persons, and no actual assent is given to the
act, an offense against it is committed.
27 See National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-
81, § 541, 125 Stat. 1407, 1409 (2011) (codified as 10 U.S.C. § 120b(h)(5)(D) (Supp. V
2012)).
28 If, as the majority maintains, “in the presence of” under Article 120b(c) simply
means that one person is “in the immediate vicinity of” the other, then the appellant’s
conduct in Miller once again falls outside the reach of the statute, since his conduct in
front of his webcam was not done in the “immediate vicinity” of the “child” who viewed
it on a distant computer screen.
29 71 App. D.C. 111, 107 F.2d 292 (1939).
30 Id. at 296.
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GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
In a case such as the present, threat or danger of physical
suffering or injury in the ordinary sense is not necessary. The
injury suffered by the innocent victim may be the fear, shame,
humiliation, and mental anguish caused by the assault. Neither
is it necessary that such a victim should be aware of the nature
of the act or of the danger. 31
Thus, the type of “awareness” discussed in this passage is cognitive under-
standing of the indecent or dangerous nature of the act, not sensory awareness
of the act itself, which the child in Beausoliel clearly possessed. Such was also
the case in United States v. Brown, in which our superior court drew from the
reasoning in Beausoleil to conclude that the elements of indecent liberties with
a child were met when the appellant approached two young children aged 10
and 7, “drew abreast of them and, rising up in the seat of his automobile . . .
exposed” his private parts to them. 32 Moreover, the Beausoleil court’s emphasis
on “the fear, shame, humiliation, and mental anguish caused by the assault”—
which is derived from sensory awareness of the act—is ultimately what Brown
used as the mechanism for holding that even non-assaultive conduct could con-
stitute indecent conduct done “in the presence of” a child. 33
Indeed, Congress’ changes to this statutory language in the wake of Miller
serve to realign Article 120b(c) with the view announced in Brown that the
“purpose of this type of legislation is to protect children under a certain age
from those acts which have a tendency to corrupt their morals.” 34 Irrespective
of where it actually occurs or whether the child completely understands its
nature, indecent conduct that is intentionally done under circumstances in
which a child will have sensory awareness of it (whether in person or via com-
munication technology) has a tendency to cause the sort of harm—shame, em-
barrassment, humiliation, corruption of morals—that the offense was histori-
cally viewed as proscribing. Conversely, such conduct done under
circumstances in which a child is unaware of it does not have a tendency to
31 Id. at 296–97 (emphasis added).
32 United States v. Brown, 3 C.M.A. 454, 455, 13 C.M.R. 10, 11 (1953).
33 Id. at 17 (finding the offense of indecent liberties with a child was designed to
“throw a cloak of protection around minors and to discourage sexual deviates from
performing with, or before, them” by “provid[ing] substantial punishment for those
who perform indecent and immoral acts which cause shame, embarrassment, and hu-
miliation to children, or lead them further down the road to delinquency”).
34 Id. at 13.
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GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
cause such harm. Thus, as our superior court held in United States v. Knowles,
the focus of the phrase, “in the presence of,” is on the “conjunction of the several
senses” between the accused and the child, not the mere physical proximity
between them. 35
Contrary to the majority’s view that the Court overlooked this issue in
Schmidt I, it is precisely what the holding in Schmidt I was premised on: not
that cognitive understanding of the nature of the act is required for indecent
conduct to be done “in the presence of” a child, but that there be “a sufficient
sensory connection for the child to be aware of it.” 36 This understanding of
“awareness” avoids the “strange” results posited by the majority. In Miller, for
example, the appellant was intentionally committing sexual conduct with his
webcam switched on so that the “child” to whom he was communicating would
see it via that communication technology. Since observing such conduct is what
tends to cause the sort of corrupting harm that the statute is designed to pre-
vent, the appellant’s intentional act of doing the conduct “in the presence of”
the “child” via communication technology now falls within the statutory lan-
guage (which was amended in response to Miller to cover exactly this type of
situation). On the other hand, where a child lacks any sensory awareness of
the conduct because the child is either asleep or otherwise unaware that it is
occurring—e.g., watching a movie in a theater while the conduct is taking
35United States v. Knowles, 15 C.M.A. 404, 405–406, 35 C.M.R. 376, 377–78 (1965).
Contrary to the majority’s view, the court in Knowles would not have specifically held
open the issue of whether an indecent act could be performed “in the presence” of a
child via an audio-visual system if it did not conceive of that phrase as requiring sen-
sory awareness, as opposed to physical proximity, of the conduct.
36 Schmidt I, 80 M.J. at 598 (emphasis added).
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and concurring in the judgment)
place, unobserved, in some other row—the conduct may still constitute “inde-
cent conduct” under Article 134 due to its open and notorious nature, 37 but it
would not constitute “sexual abuse of a child” under Article 120b(c). 38
In addition to reverting to a physical presence requirement that Congress
intentionally eliminated, the majority compounds the error by blurring the dis-
tinction between conduct being “indecent” and such conduct being “intention-
ally done . . . in the presence of a child.” Contrary to the statutory language,
which requires both, the majority’s conflated interpretation suggests that any
sexual conduct done in the immediate vicinity of a child (irrespective of
whether the child is intended to, or in fact does, have any awareness of it)
would, in and of itself, be “indecent.” This would mean that parents who dis-
creetly have intercourse in the same room as their sleeping infant could be
subject to criminal prosecution for sexual abuse of a child. Congress could draw
this kind of broad statutory prohibition if it so chose, and it knows how to ac-
complish that through clear, specific language. 39 But that is not the kind of
prohibition Congress did draw with the language it chose to enact in Article
120b.
37 See Sims, 57 M.J. at 421 (holding that otherwise lawful sexual conduct may be
indecent if it is “open and notorious,” meaning intentionally committed “in such a place
and under such circumstances that that it is reasonably likely to be seen by others
even though others do not actually view the acts”) (quoting Izquierdo, 51 M.J. at 423);
United States v. Burkhart, 72 M.J. 590, 596 (A.F. Ct. Crim. App. 2013) (finding the
appellant’s masturbation while sitting on a couch a few feet away from his sleeping
three-year-old, with his attention focused on watching some type of activity on his com-
puter, while not an indecent liberty “in the presence of a child,” was still indecent con-
duct under Article 134 because under the circumstances “it was reasonably likely his
daughter could awaken and see his activity”).
38The majority suggests it would be absurd for Article 120b(c) not to apply to sleep-
ing or unaware children because they are more vulnerable to abuse. But our superior
court in Brown quite reasonably reached the opposite conclusion with respect to such
non-contact offenses, that what makes certain indecent conduct more punishable is its
tendency to cause the sort of harm to a child that depends on their awareness of it. See
Brown, 3 C.M.A. at 461, 13 C.M.R. at 17 (“The remedy for the evil, if any, is to provide
substantial punishment for those who perform indecent and immoral acts which cause
shame, embarrassment, and humiliation to children, or lead them further down the
road to delinquency.”).
39 See, e.g., Article 120(b), 120(d), UCMJ (prohibiting penetrative sexual acts and
contact “when the person knows or reasonably should know that the other person is
asleep, unconscious, or otherwise unaware that the sexual act [or contact] is occur-
ring”).
68
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GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
2. Use of “in the Presence of” Elsewhere in the UCMJ
Finally, interpreting indecent conduct done “in the presence of” of a child
as requiring sensory awareness of the conduct by the child is also in keeping
with how that phrase is generally used and construed in other punitive articles
and definitions in the UCMJ.
For the offense of escape from custody under Article 87a, UCMJ, the Man-
ual for Courts-Martial [MCM] explains that “[c]ustody may consist of control
exercised in the presence of the prisoner by official acts or orders.” 40 Courts
have interpreted “in the presence of” in this context variously as “the condition
of being within sight or call” and the “space within one’s ken, call, or influ-
ence.” 41 Upon reviewing these case precedents, this Court held that “[w]hile a
common thread to these cases is difficult to find, the thread seems to be that
when the detainee reasonably knows that he remains subject to the custodian’s
influence or control, he is in custody.” 42 In other words, for such control to be
exercised “in the presence of” the prisoner, the prisoner must at the very least
have received enough sensory information to be aware of it.
With respect to contempt toward officials under Article 88, UMCJ, the
MCM explains that “the utterance of contemptuous words . . . in the presence
of military subordinates, aggravates the offense,” but “expressions of opinion
made in a purely private conversation should not ordinarily be charged.” 43 Sim-
ilarly, for disrespect toward a superior commissioned officer under Article 89,
UCMJ, the MCM states that “[d]isrespect by acts includes neglecting the cus-
tomary salute, or showing a marked disdain, indifference, insolence, imperti-
nence, undue familiarity, or other rudeness in the presence of the superior of-
ficer,” and “[i]t is not essential that the disrespectful behavior be in the presence
of the superior, but ordinarily one should not be held accountable under this
article for what was said or done in a purely private conversation.” 44 Thus,
what both of these offenses contemplate is that for the offending conduct to be
done “in their presence,” the military subordinates or superiors must observe
40 MCM, pt. IV, ¶ 12.c.(4)(a) (emphasis added).
41 United States v. Borges, 41 M.J. 739, 743–44 (N-M. Ct. Crim. App. 1994) (collect-
ing cases).
42 Id. at 745.
43 MCM (2019), pt. IV, para. 14.c (emphasis added).
44 MCM (2019), pt. IV, para. 15.c.(2)(b)–(c) (emphasis added).
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GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
it (since contemptuous or disrespectful remarks made in a purely private con-
versation are not generally punishable).
Article 94, UMCJ, makes it criminal for a person subject to the UCMJ to
“fail[ ] to do his utmost to prevent and suppress a mutiny or sedition being
committed in his presence . . . .” 45 The use of the phrase, “in his presence,” here
clearly contemplates not merely that the mutiny or sedition occur in the per-
son’s immediate vicinity, but that the person be aware of it. As Winthrop tells
us, “the Article makes it a crime to simply ‘stand by’ while a mutiny is being
committed,” 46 which itself implies awareness. Construing the language other-
wise—as imposing criminal liability for failing to prevent and suppress a mu-
tiny or sedition, however close at hand, that the person is simply unaware is
occurring—would be absurd. 47
Robbery is defined under Article 122, UCMJ, as “tak[ing] anything of value
from the person or in the presence of another, against his will, by means of force
or violence or fear of immediate or future injury to his person or property
. . . .” 48 With respect to whether a taking is “in the presence of” the victim, the
MCM explains that “[i]t is not necessary that the property taken be located
within any certain distance of the victim,” but that a robbery occurs where the
victim is forced “by threats to disclose the hiding place of valuables in an ad-
joining room,” from which they are stolen. 49 In addition, “[t]he offense is not
robbery if . . . a pocket is picked by stealth, no other force is used, and the owner
is not put in fear.” 50 In this context, the taking of valuables “in the presence of”
the victim does not depend on the mere physical location or proximity of the
taking to the victim, but rather on the use of assaultive conduct—i.e., force,
violence, or threat—to effect the taking, through which the victim gains sen-
sory awareness that it is occurring.
45 Article 94(a)(3), UCMJ (emphasis added).
46 William Winthrop, Military Law and Precedents, 585 (Gov’t Print. Off. 1920) (2d
ed. 1895) [Winthrop].
47 See United States v. Custis, 65 M.J. 366, 370 (C.A.A.F. 2007) (“[W]hen the stat-
ute’s language is plain, the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according to its terms.”) (quoting
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)).
48 Article 122, UCMJ (emphasis added).
49 MCM (2019), pt. IV, para. 67.c.(1).
50 MCM (2019), pt. IV, para. 67.c.(2).
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and concurring in the judgment)
Similarly, the offense of stalking under Article 130, UCMJ, prohibits,
among other things, “a repeated conveyance of verbal threats, written threats,
or threats implied by conduct . . . directed at or toward a specific person” 51 that
“would cause a reasonable person to fear death or bodily harm . . . .” 52 The
MCM explains that such a threat “may be made directly to or in the presence
of the person it is directed at or towards . . . .” 53 Thus, for such threatening
conduct to be done “in the presence” of the victim, the crucial factor is not its
mere physical location or proximity to the victim, but the fact that the victim
is aware of it (otherwise, it could not cause reasonable fear of death or bodily
harm). 54
Article 131d, UCMJ, makes it punishable for a person subject to the UCMJ
to, “in the presence of a court-martial, a board of officers, a military commission,
a court of inquiry, preliminary hearing, or an officer taking a deposition . . .
wrongfully refuse[ ] to qualify as a witness or to answer a question after having
been directed to do so by the person presiding.” 55 Use of “in the presence of” in
this context plainly contemplates that the conduct (e.g., refusing to testify) oc-
cur within the sensory awareness (i.e., sight/hearing) of the person presiding
over the proceeding, which is the context in which courts have addressed the
issue. 56
Essentially the only punitive article discussing conduct done “in the pres-
ence of” another person in which that phrase does not connote that the other
person has sensory awareness of the conduct is the offense of “misconduct be-
fore or in the presence of the enemy” under Article 99, UCMJ. But even for this
offense, “before or in the presence of” the enemy does not mean “in the imme-
diate vicinity of” the enemy. As the MCM explains,
51 Article 130(b)(2)(B), UCMJ.
52 Article 130(a)(1), UCMJ.
53 MCM (2019), pt. IV, para. 80.c.(2) (emphasis added).
54See United States v. Gutierrez, 73 M.J. 172, 176 (C.A.A.F. 2014) (holding that the
appellant’s ringing of the victim’s doorbell for an hour at 0200 after she refused to let
him in her apartment was threatening conduct that amounted to stalking under the
statute, since it could cause the victim reasonable fear of bodily harm).
55 Article 131d, UCMJ (emphasis added).
56See, e.g., United States v. Kirsch, 15 C.M.A. 84, 87, 35 C.M.R. 56, 59 (1964) (wit-
ness refused to answer certain questions during testimony at court-martial); United
States v. Quarles, 50 C.M.R. 514, 518 (N.C.M.R. 1975) (same).
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and concurring in the judgment)
[w]hether a person is before or in the presence of the enemy is a
question of tactical relation, not distance. For example, a mem-
ber of an antiaircraft gun crew charged with opposing antici-
pated attack from the air, or a member of a unit about to move
into combat may be before the enemy although miles from the
enemy lines. On the other hand, an organization some distance
from the front or immediate area of combat which is not a part
of a tactical operation then going on or in immediate prospect is
not “before or in the presence of the enemy” within the meaning
of this article. 57
Thus, similar to the way the phrase is used elsewhere in the MCM, the focus
of conduct done “before or in the presence of” the enemy is not on physical lo-
cation or proximity, but on the relationship between the conduct and the other
person or entity. The difference is that for Article 99 the focus is on whether
there is a tactical relationship, as opposed to a sensory one.
As Winthrop tells us, this difference was intentional. Historically, the of-
fense of misconduct before the enemy was intended to reach a wide range of
combat-related misconduct well prior to actual engagement, such as a com-
manding officer “abandoning, or absenting himself from, his post when expect-
ing an enemy attack,” or an officer or soldier “going to the rear or leaving the
command when engaged with the enemy, or expecting to be engaged . . . .” 58
For this reason, the offense did not require the misconduct to be done within
sight of the enemy:
If he is confronting the army or in its neighborhood, though sep-
arated from it by a considerable distance, and the service upon
which the party is engaged, or which he is especially ordered or
properly required by his military obligation to perform, be one
directed against the enemy, or resorted to in view of his move-
ments, the misbehavior committed will be “before the enemy” in
the sense of the Article. 59
Because of this historical difference, the use of the phrase in the offense of
misconduct “before or in the presence of” the enemy has a different meaning
57 MCM (2019), pt. IV, para. 27.c.(1)(c) (emphasis added); see also United States v.
Sperland, 1 C.M.A. 661, 663, 5 C.M.R. 89, 91 (1952) (discussing meaning of “before or
in the presence of the enemy.”).
58 Winthrop at 622–23.
59 Id. at 623.
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and concurring in the judgment)
from the way “in the presence of” is used in other offenses under the UCMJ,
including sexual abuse of a child under Article 120b. Nevertheless, even under
Article 99, as in all the other offenses discussed above, the requirement that
certain conduct be done “in the presence of” a person or entity does not connote
mere physical location or proximity of the person or entity to the conduct.
D. Appellant’s Plea was Provident under Schmidt I
In this context, we review the military judge’s decision to accept Appellant’s
guilty plea to sexual abuse of a child under Article 120b(c), which we review
for an abuse of discretion. 60 “A military judge abuses this discretion if he fails
to obtain from the accused an adequate factual basis to support the plea—an
area in which we afford significant deference.” 61 A guilty plea will not be set
aside on appeal unless there is “a substantial basis in law and fact for ques-
tioning [it].” 62
“[I]n guilty-plea cases the quantum of proof is less than that required at a
contested trial.” 63 A providence inquiry into a guilty plea must establish that
the accused believes and admits he is guilty of the offense, and the factual cir-
cumstances admitted by the accused must objectively support the guilty plea. 64
When the accused’s responses reasonably raise the question of a defense, the
military judge must make a more searching inquiry. 65 However, the military
judge is not required “to embark on a mindless fishing expedition to ferret out
or negate all possible defenses or inconsistencies.” 66
The military judge followed these rules to the letter before accepting Ap-
pellant’s guilty plea. He advised Appellant about the pertinent elements and
definitions relating to the charged offense of sexual abuse of a child. He then
admitted and considered the stipulation of fact, in which Appellant stated
60 See United States v. Simmons, 63 M.J. 89, 92 (C.A.A.F. 2006).
61 United States v. Caldwell, 72 M.J. 137, 144 (C.A.A.F. 2013) (quoting United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)).
62 United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F. 2006).
63 United States v. Pinero, 60 M.J. 31, 33 (C.A.A.F. 2004).
64 United States v. Garcia, 44 M.J. 496, 497–98 (C.A.A.F. 1996).
65 United States v. Timmins, 45 C.M.R. 249, 253 (C.M.A. 1972).
66United States v. Jackson, 23 M.J. 650, 652 (N.M.C.M.R. 1986), pet. denied, 24
M.J. 405 (C.M.A. 1987).
73
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
among other things that (1) when Ms. Charles texted him that she was going
to masturbate in bed next to Miss Bravo when she fell asleep, he directed
Ms. Charles to “[d]o it anyway”; (2) he then encouraged Ms. Charles to mastur-
bate by saying, “[e]ven if she’s awake do it . . . Hotter if she is”; and (3) he
received digital images from Ms. Charles showing her removing her clothes
and underwear and stimulating herself on the bed where she had stated
Miss Bravo was lying next to her.67
During the providence inquiry, Appellant stated he sent these messages to
Ms. Charles because he intended for her to masturbate in the bed next to Miss
Bravo before Miss Bravo fell asleep. 68 Appellant then stated that based on the
photos he received from Ms. Charles he had the impression that Miss Bravo
was asleep, but that he was not in the room at the time to confirm whether she
was or not. At that point, the military judge, noting the issue of whether Miss
Bravo was “completely unaware” of the charged misconduct, informed the par-
ties that “if [Appellant’s] belief is that the kid was asleep, I think we’ve got a
problem with this guilty plea.” 69 He then told Appellant, “If you don’t believe
you’re guilty, then you should not plead guilty for any reason,” 70 before placing
the court in recess for 25 minutes.
After the recess, the military judge asked Appellant specific, tailored ques-
tions that thoroughly addressed the issue of whether Miss Bravo was asleep
and thus unaware of the charged misconduct:
MJ: . . . So , Staff Sergeant Tabor , we were discussing your
guilty plea to Specification 2 of Charge I, sexual abuse
of a child, and there was some confusion as to whether
or not you believed that [Miss Bravo] was awake when
her mother was masturbating, as you had counseled
her to do or encouraged her to do; is that correct?
ACC: Sir, after the talking—reviewing the evidence and talk-
ing with the counsel, the text messages were, “Was
gonna masturbate when she fell asleep but she is still
awake.” And I said, “Do it anyway.” And she said, “She’s
67 Pros. Ex. 1 at 2.
68 R. at 419, 423.
69 Id. at 425–26.
70 Id. at 427.
74
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
in bed with me.” And then I said, “Even if she’s awake
do it. Hotter if she is.”
MJ: Okay. So is it your understanding that she was proba-
bly awake then?
ACC: Probably.
MJ: Okay. And you want to plead guilty to this offense, un-
derstanding that that is a potential issue here? I mean,
your counsel cited the Lewis—the Lopez case, which in-
dicates that you could commit a lewd act with a sleep-
ing child, although, there is some other case law from
other jurisdictions that, potentially, might indicate that
is not the case, from older case law? Do you understand
that?
ACC: Yes, sir, I do.
MJ: Okay. So based on those text messages, do you believe
that at certain parts during this interaction when you
were encouraging [Ms. Charles] to masturbate in front
of her daughter that she was, in fact, awake?
ACC: Yes, sir. I believed so shortly after she sent me photos
of her masturbating.
....
MJ: Okay. How was she masturbating? What exactly was
she doing?
ACC: She was touching her vagina, sir.
MJ: Okay.
ACC: She sent a picture of her touching her vagina.
MJ: And her vagina was exposed, there wasn’t clothing cov-
ering it?
ACC: No, sir.
MJ: And she sent you these images of her touching her ex-
posed vagina via text?
ACC: Yes, sir.
MJ: And this was done by her intentionally?
ACC: Yes, it was, sir.
75
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
MJ: And this was—as—in conjunction with you counseling
her intentionally to do so?
ACC: Yes, sir.
MJ: So you were asking her to do these things?
ACC: Yes, sir.
MJ: Do you agree and admit that this intentional exposure
of her vagina and masturbating in front of [Miss Bravo]
was with the specific intent to gratify your sexual de-
sire?
ACC: Yes, sir.
....
MJ: And was it also to gratify [Ms. Charles’] sexual desire?
ACC: Yes, sir.
MJ: That is in the context of the text messages that were
going back and forth?
ACC: Yes, sir.
MJ: Did this—masturbating in front of her—amount to a
form of immorality relating to sexual impurity, which
is grossly vulgar, obscene, and repugnant to common
propriety and tends to excite the sexual desire or de-
prave morals with respect to sexual relations?
ACC: Yes, sir.
MJ: How so?
ACC: I understand that this conduct, of [Ms. Charles] mas-
turbating in the presence of [Miss Bravo] amounted to
a form of immorality relating to sexual impurity that’s
gross, vulgar, obscene, or repugnant to common propri-
ety.
MJ: Why? . . . .
ACC: Because of her touching her vagina and masturbating
in front of her daughter is gross and vulgar.
MJ: And it excited sexual desires and deprave morals?
ACC: Yes, sir.
....
76
United States v. Tabor, NMCCA No. 202100046
GASTON, S.J. (concurring in part, dissenting in part,
and concurring in the judgment)
MJ: Okay. So that case that was cited [United States v.
Lopez, No. 201700252, 2019 CCA LEXIS 37 (N-M. Ct.
Crim. App. Jan. 31, 2019) (unpublished)] was—alt-
hough it doesn’t apply, I mean, it appears that [Appel-
lant] is provident to the fact that [Miss Bravo] was
awake during some periods of the masturbation.
MJ: Do both sides concur with that?
TC: Yes, sir.
CDC: Yes, sir. 71
Appellant’s answers to these and other questions during the military
judge’s providence inquiry support that he encouraged Ms. Charles to openly
masturbate on the bed next to Miss Bravo, at a time when he reasonably be-
lieved that Miss Bravo was awake and thus had sensory awareness of the con-
duct occurring next to her, and that Ms. Charles committed the conduct under
those circumstances. These factual circumstances admitted by Appellant ob-
jectively support his guilt and are not inconsistent with the other evidence pre-
sented at trial. Therefore, I would find no substantial basis in law or fact for
questioning Appellant’s plea to sexual abuse of a child by indecent conduct in-
tentionally done “in the presence of” Miss Bravo, as that phrase was inter-
preted by this Court in Schmidt I.
II. CONCLUSION
Accordingly, while I do not join the majority’s analysis concluding that
Schmidt I was wrongly decided, I concur with the judgment reached by the
Court and with the majority’s conclusions with respect to Appellant’s second,
third, and fourth assignments of error.
Judge STEWART concurs.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
71 Id. at 428–33.
77