United States v. Miller , 2008 CAAF LEXIS 1214 ( 2008 )

UNITED STATES, Appellee
v.
Christopher R. MILLER, Staff Sergeant
U.S. Air Force, Appellant
No. 08-0307
Crim. App. No. 36829
United States Court of Appeals for the Armed Forces
Argued October 22, 2008
Decided December 3, 2008
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Captain Lance J. Wood (argued); Major Shannon A.
Bennett and Captain Tiaundra Sorrell (on brief); Lieutenant
Colonel Mark R. Strickland and Captain Vicki A. Belleau.
For Appellee: Colonel Gerald R. Bruce (argued); Major Jeremy S.
Weber, Major Matthew S. Ward, and Captain Jamie L. Mendelson.
Military Judge: Gary M. Jackson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, No. 08-0307/AF
Judge RYAN delivered the opinion of the Court.
This case presents the questions whether the United States
Air Force Court of Criminal Appeals (CCA) was correct that the
“nature of [an] appellant’s presence” is not germane to a charge
of attempted indecent liberties with a child, Article 80,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2000),
and whether the constructive presence presented by the facts of
this case is legally sufficient to support Appellant’s
conviction for attempted indecent liberties with a child.1 We
answer both questions in the negative and reverse.2
I. Facts
A general court-martial composed of a military judge
sitting alone convicted Appellant, contrary to his pleas, of one
specification of attempting to take indecent liberties with a
child and two specifications of attempting to communicate
1
Upon Appellant’s petition, we granted review of the following
issue:
WHETHER APPELLANT’S CONVICTION OF ATTEMPTED INDECENT
LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN
APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE
PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS
SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS
VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT.
2
We heard oral argument in this case at Fort Riley, Kansas, as
part of the Court’s “Project Outreach.” See United States v.
Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice
was developed as part of a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.
2
United States v. Miller, No. 08-0307/AF
indecent language to a child, all in violation of Article 80,
UCMJ. The sentence adjudged by the court-martial and approved
by the convening authority included a dishonorable discharge, a
reprimand, confinement for three months, and reduction to the
lowest enlisted grade. The CCA affirmed. United States v.
Miller, 65 M.J. 845, 848 (A.F. Ct. Crim. App. 2007).
Appellant’s convictions resulted from his contact with an
undercover detective from the Charlotte-Mecklenburg, North
Carolina, police department, whom Appellant believed was a
fourteen-year-old girl. The detective was monitoring a Yahoo!
chat room when she was instant messaged by Appellant, who
engaged her in a conversation. While Appellant was chatting
online with the detective, he asked her if she wanted to see a
picture of him on his web camera. The detective responded
affirmatively and Appellant turned on the camera. About eight
minutes later, Appellant asked the detective if she minded if
Appellant showed her his penis. After the detective agreed to
this suggestion, Appellant repositioned the camera. According
to the detective, the conversation continued, and “[w]hile this
discussion was going on, [Appellant] was stroking his penis and
becoming more erect. After about ten minutes of masturbating,
he ejaculated on his hand and then cleaned himself up with a
small white towel.”
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United States v. Miller, No. 08-0307/AF
The record reflects that during this act, Appellant sent
sexually explicit instant messages to the detective. He asked
her several questions about her sexual experience, and she
responded to those questions. After the act was completed,
Appellant asked the detective whether she liked what she had
seen. Later in the same conversation, Appellant proposed
meeting in person for sex. In a subsequent online conversation,
Appellant proposed meeting again, but then told her at the end
of the conversation that he could not have sex with her because
she was fourteen.
II. Discussion
In his appeal to the CCA, Appellant challenged his
conviction for attempting to take indecent liberties because he
was not physically present with the detective while he
masturbated. The CCA relied on its prior decision in United
States v. Cook, 61 M.J. 757 (A.F. Ct. Crim. App. 2005), and
concluded that the “exact nature of the appellant’s presence was
not germane to the charge of attempted indecent liberties.”
Miller, 65 M.J. at 847. The CCA reasoned that Appellant’s
“‘real time’ conversations and his live-feed broadcast of
himself masturbating were sufficient to satisfy the presence
element of indecent liberties, at least for the purposes of an
4
United States v. Miller, No. 08-0307/AF
Article 80, UCMJ prosecution.” Id.3 We disagree with both the
CCA’s reasoning and its conclusion.
An attempt requires an act tending to effect the commission
of the intended offense. Manual for Courts-Martial, United
States pt. IV, para. 4.b(4) (2005 ed.) (MCM).4 Under the 2005
edition of the MCM, which was in effect at the time of
Appellant’s court-martial, the elements of an indecent liberties
charge under Article 134, UCMJ, were:
(a) That the accused committed a certain act;
(b) That the act amounted to the taking of
indecent liberties with a certain person;
(c) That the accused committed the act in the
presence of this person;
(d) That this person was under 16 years of age
and not the spouse of the accused;
(e) That the accused committed the act with the
intent to arouse, appeal to, or gratify the
lust, passions, or sexual desires of the
accused, the victim, or both; and
(f) That, under the circumstances, the conduct
of the accused was to the prejudice of good
order and discipline in the armed forces or
3
The CCA declined to rule on whether this type of presence would
be sufficient for a charge of the completed offense under
Article 134, UCMJ, 10 U.S.C. § 934 (2000). Miller, 65 M.J. at
847 n.1.
4
The elements of Article 80, UCMJ, are:
(1) That the accused did a certain overt act;
(2) That the act was done with the specific intent to
commit a certain offense under the code;
(3) That the act amounted to more than mere
preparation; and
(4) That the act apparently tended to effect the
commission of the intended offense.
MCM pt. IV, para. 4.b.
5
United States v. Miller, No. 08-0307/AF
was of a nature to bring discredit upon the
armed forces.
MCM pt. IV, para. 87.b(2) (emphasis added). Thus the nature of
the presence required by the completed offense is germane. See,
e.g., United States v. Miergrimado, 66 M.J. 34, 37 (C.A.A.F.
2008) (assessing evidence of “heat of sudden passion” element on
a charge of attempted voluntary manslaughter); United States v.
Brooks, 60 M.J. 495, 497-99 (C.A.A.F. 2005) (assessing whether
the federal law the appellant attempted to violate required
direct communication with an actual minor). Indeed, the nature
of the presence required for the completed offense of indecent
liberties with a child is the threshold question.
The element as stated in the MCM does not define presence.
However, the MCM explanation elaborates that “the liberties must
be taken in the physical presence of the child, but physical
contact is not required.” MCM pt. IV, para. 87.c(2) (emphasis
added). Although MCM explanations of offenses are not binding
on this Court, they are generally treated as persuasive
authority, United States v. Miller, 47 M.J. 352, 356 (C.A.A.F.
1997), to be evaluated in light of this Court’s precedent.
United States v. Hemingway, 36 M.J. 349, 351-52 (C.M.A. 1993).
A requirement that the act be done in the “physical
presence” of the child, as described in the MCM explanation, is
supported by this Court’s precedent. In United States v.
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United States v. Miller, No. 08-0307/AF
Knowles, 15 C.M.A. 404, 405, 35 C.M.R. 376, 377 (1965), this
Court considered whether evidence that the appellant had used
indecent language during a telephone conversation with the
victim was sufficient to uphold an indecent liberties charge.
Prior to Knowles, the Court had already established that the
accused must be in the presence of the victim. United States v.
Brown, 3 C.M.A. 454, 457, 13 C.M.R. 10, 13 (1953). In Knowles,
the Court reasoned that “[t]he offense . . . 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”
and therefore the Brown presence requirement was not met. 15
C.M.A. at 405, 35 C.M.R. at 377. And a more recent decision of
this Court treated physical presence as necessary to sustain a
conviction for taking indecent liberties. In United States v.
Rodriguez-Rivera, we said that the question was “whether a
rational trier of fact could find beyond a reasonable doubt that
[the appellant] was physically present with” the victim at the
time the alleged indecent liberties occurred. 63 M.J. 372, 385
(C.A.A.F. 2006) (emphasis added). Because there was evidence
that the victim had watched pornographic movies at the
appellant’s house, but not that the appellant was with her when
she watched them, the conviction was set aside. Id. This
Court’s precedent construing the element of presence
consistently with the MCM explanation dictates that the offense
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United States v. Miller, No. 08-0307/AF
of taking indecent liberties with a child requires the act be
committed in the physical presence of the child.
The Government urges that even if the presence required is
“physical presence,” a reasonable factfinder could conclude that
Appellant’s Internet-based action tended to bring about that
physical presence. It is true that the Knowles decision
expressly left open the question whether an indecent liberties
charge could be based on the “performance of indecent acts and
the use of obscene language over an audio-visual system.” 15
C.M.A. at 405, 35 C.M.R. at 377. We find it instructive that it
was after this decision that the MCM was revised to include the
“physical presence” language in the explanation. See United
States v. Czeschin, 56 M.J. 346, 348-49 (C.A.A.F. 2002) (noting
that a revision to the MCM will be considered a binding
limitation on conduct subject to prosecution if the limiting
purpose of the language is umambiguous on its face). And the
Analysis of the 1969 edition of the MCM indicates that “physical
presence” was added to the MCM explanation in response to
Knowles. See Dep’t of the Army, Pamphlet 27-2 Analysis of
Contents, Manual for Courts-Martial, United States, 1969,
Revised Edition ch. 28, para. 213f(3), at 28-19 (1970) (stating
new language was “added to this paragraph to provide that . . .
the indecent liberties must be taken in the physical presence of
the child” and citing Knowles). Thus the MCM amendment may be
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United States v. Miller, No. 08-0307/AF
said to answer the question left open by Knowles –- for the
offense of taking indecent liberties with a child, presence
means physical presence, rather than presence created through
the use of “an audio-visual system.”
That “constructive presence” will not suffice in the
context of a penal statute that has been construed to require
physical presence is in accordance with the common use of those
words. See United States v. McCollum, 58 M.J. 323, 340
(C.A.A.F. 2003) (“In construing the language of a statute or
rule, it is generally understood that the words should be given
their common and approved usage.”) (quotation marks omitted).
The definition and common understanding of “presence” is:
“[t]he state or fact of being in a particular place and time”
and “[c]lose physical proximity coupled with awareness.”
Black’s Law Dictionary 1221 (8th ed. 2004). The modifying word
“physical” is commonly defined and understood as “having
material existence” and “of or relating to the body.” Merriam-
Webster’s Collegiate Dictionary 935 (11th ed. 2003). These
definitions taken together compel the conclusion that “physical
presence” requires that an accused be in the same physical space
as the victim.
Without deciding whether future advances in technology or
the understanding of physical presence might change the
analysis, at this juncture we are unpersuaded that the actions
9
United States v. Miller, No. 08-0307/AF
in this case tended to bring about physical presence as it is
commonly understood. Appellant was not in the same physical
location as the detective while he was masturbating, and we
cannot accept the Government’s invitation to find that
Appellant’s “constructive presence” via the web camera was
sufficient to satisfy a physical presence requirement without
completely disregarding the plain meaning of “physical presence”
as used in the MCM explanation of the offense. While several
state courts have affirmed convictions for taking indecent
liberties when the appellant was constructively present with the
victim, they are not persuasive authority with respect to
interpreting the meaning of “physical presence.” Those cases
interpreted specific state statutes, none of which by their
terms required “physical presence” or even “presence.” See,
e.g., N.C. Gen. Stat. § 14-202.1 (2008) (criminalizing taking or
attempting to take “any immoral, improper, or indecent liberties
with any child”); Va. Code Ann. § 18.2-370 (2008) (punishing
certain acts such as indecent exposure, when done “with any
child under the age of 15 years”). Rather, those courts
construed the meaning of “with” a child to include constructive
presence in a wide variety of circumstances, including
transmitting a live video of masturbation, Brooker v.
Commonwealth, 587 S.E.2d 732, 736 (Va. Ct. App. 2003), hiding a
video camera to secretly film minors undressing, State v.
10
United States v. Miller, No. 08-0307/AF
McClees, 424 S.E.2d 687, 689-90 (N.C. Ct. App. 1993), and making
an obscene phone call, State v. Every, 578 S.E.2d 642, 648-49
(N.C. Ct. App. 2003), an action this Court specifically found
could not be the basis of an indecent liberties charge in
Knowles.
Although Appellant’s use of a web camera allowed the
detective to see him while he masturbated, no reasonable
factfinder could conclude that Appellant committed an act that
tended to effect the element of being in the detective’s
physical presence. United States v. Dobson, 63 M.J. 1, 21
(C.A.A.F. 2006) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). Therefore, his act did not tend to effect the
commission of the completed offense, and no reasonable
factfinder could find him guilty of the charged offense.
III. Lesser included offense of attempted
indecent acts with another
The Government urges for the first time before this Court
that Appellant’s conviction may nonetheless be affirmed to an
attempt of a lesser included offense, indecent acts with
another. See MCM pt. IV, para. 4.d (providing that when a
conviction for an attempt is set aside, it may be affirmed to an
attempt of a lesser included offense). Indecent acts with
another5 was listed in the 2005 MCM as a lesser included offense
5
Indecent acts with another requires proof:
11
United States v. Miller, No. 08-0307/AF
to indecent liberties with a child, MCM pt. IV, para. 87.d(1),
and contains neither a “physical presence” nor a “presence”
requirement.
The offense does “require[] that the acts be done in
conjunction or participating with another person.” United
States v. Thomas, 25 M.J. 75, 76 (C.M.A. 1987) (emphasis
omitted). There must be some “affirmative interaction” between
the accused and the victim to satisfy the “with another person”
element. United States v. McDaniel, 39 M.J. 173, 175 (C.M.A.
1994). This interaction need not take place between two
individuals who are located in the same physical space. See id.(finding sufficient interaction when the appellant gave the
women he was secretly filming instructions from a separate room
to enhance the view from his hidden video camera). But the
victim must be more than an inadvertent or passive observer.
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996).
The CCA was not presented with the Government’s argument to
affirm the lesser included offense, and thus did not consider
whether the record was legally and factually sufficient to
(1) That the accused committed a certain wrongful act
with a certain person;
(2) That the act was indecent; and
(3) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
MCM pt. IV, para. 90.b (emphasis added).
12
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support the offense of attempted indecent acts. And whether the
facts of this case establish “affirmative interaction” between
Appellant and the undercover detective is an issue that has not
been briefed or argued by either party. Consequently, we remand
to the CCA the question whether the lesser included offense
urged by the Government can be affirmed under Article 66, UCMJ,
10 U.S.C. § 866 (2000).
IV. Decision
The decision of the United States Air Force Court of
Criminal Appeals is reversed as to Specification 1 of the Charge
and the sentence. The decision is affirmed as to Specifications
2 and 3. The record is returned to the Judge Advocate General
of the Air Force for remand to the Court of Criminal Appeals to
consider the factual and legal sufficiency of the evidence for
the lesser included offense of attempted indecent acts with
another under Article 80, UCMJ, 10 U.S.C. § 880 (2000), and for
reassessment of the sentence or for ordering a rehearing on the
sentence.
13