United States v. Sergeant FORREST M. LOFFER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant FORREST M. LOFFER
United States Army, Appellant
ARMY 20120529
United States Army Intelligence Center of Excellence and Fort Huachuca
Karen W. Riddle, Military Judge
Colonel Thomas C. Modeszto, Staff Judge Advocate
For Appellant: Major Amy E. Nieman, JA; Captain J. Fred Ingram, JA .
For Appellee: Lieutenant Colonel James L. Varley, JA.
28 August 2013
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SUMMARY DISPOSITION
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CAMPANELLA, Judge:
A military judge sitting as a general court -martial convicted appellant,
pursuant to his pleas, of taking indecent liberties with a child and committing an
indecent act, in violation of Articles 120(j) and 120(k), Uniform Code of Military
Justice, 10 U.S.C. §§ 920(j), 920(k) (2006) [hereinafter UCMJ]. The military judge
sentenced appellant to a dishonorable discharge, confinement for five year s, and
reduction to the grade of E-1. The convening authority approved only so much of
the sentence as provided for a dishonorable discharge and confinement for thirty -six
months.
Appellant’s case is before this court for review pursuant to Article 6 6, UCMJ.
Appellant submitted a merits pleading to this court and personally raised matters
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find those
matters raised by appellant are without merit. One issue warrants discussion but no
relief.
LOFFER—ARMY 20120529
BACKGROUND
In Specification 7 of Charge II, appellant was charged with engaging in
indecent conduct. The specification alleged:
In that [appellant], U.S. Army, did, at or near Fort
Huachuca, Arizona, between on or about 1 August 2008
and on or about 10 April 2010, engage in indecent conduct
in the physical presence of S.L., a female under 16 years
of age, by showing S.L. a website on a computer
discussing step-father, step-daughter sexual relationships. *
At trial, appellant pleaded guilty and did not object to this specification. The
military judge found appellant guilty in accordance with his pleas.
LAW AND DISCUSSION
To sustain a conviction for committing an indecent act, appellant’s guilty plea
must establish the conduct at issue equates to that “form of immorality relating to
sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety,
and tends to excite sexual desire or deprave morals with respect to sexual relations.”
UCMJ, art. 120 (t)(12). Indecency “depends on a number of factors, including but
not limited to fluctuating community standards of morals and manners, the personal
relationship existing between a given speaker and his auditor , [and] motive. . . .”
United States v. Hullett, 40 M.J. 189, 191 (C.M.A.1994).
In specification 7 of Charge II, appellant was charged with committing an
indecent act with SL, a female under 16 years of age, “by showing S.L. a website on
a computer discussing step-father, step-daughter sexual relationships.” On its face,
this may appear as an indecent liberties with a child charge, but the intent element
for that offense was deleted from the charge sheet and not included in the
providence inquiry. It is, therefore, evident that this was simply an indecent act
charge and carried with it the corresponding maximum punishment of five (5) ye ars
confinement.
In this case, the appellant had been in a familial relationship of trust and
authority over his stepdaughter since she was three months old. Appellant
*
As referenced on the charge sheet, certain language was deleted and added to
specifications 5 and 7 of Charge II prior to arraignment. We find that these
specifications were properly amended prior to arraignment and should have been
recorded on the promulgating order as modified. Accordingly, a certification of
correction will be issued.
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LOFFER—ARMY 20120529
acknowledged that he purposefully searched for incest-related pornography and
subsequently showed the incest-related materials to S.L. He then separately
admitted he showed S.L. incest-related “erotica – letters – and stories” in an effort
to groom her for future sexual encounters with appellant. Appellant admitted
showing SL “incest-based pornography” websites “goes against society norms.” In
addition to his admissions during the providence inquiry, in the stipulation of fact,
appellant acknowledged showing S.L. the incest-related “themes” with the specific
intent to arouse not only his sexual desires but those of his stepdaughter as well.
Further, the stipulation of fact provided appellant’s sexual desires were, in fact,
aroused when he showed SL these websites and that he wanted to commit sexual acts
with her as a result.
Taken together, these facts, as admitted by appellant during his providence
inquiry, clearly establish the act at issue–showing S.L. a website on a computer
discussing stepfather, stepdaughter sexual relationships –is indecent conduct as the
term is defined by UCMJ art. 120 (t)(12). As such, we do not find a substantial
basis in law and fact to question appellant’s plea of guilty to committing an indecent
act.
CONCLUSION
On consideration of the entire record and submissions of the parties, we hold
the findings of guilty and the sentence as approved by the convening authority are
correct in law and fact. Accordingly, the findings of guilty and the sentence are
AFFIRMED.
Senior Judge COOK and Judge HAIGHT concur.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES
SQUIRES,JR.
JR.
Clerk of
Clerk of Court
Court
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