United States v. Kitchen

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40155
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UNITED STATES
Appellee
v.
Larry KITCHEN, Jr.
Major (O-4), U.S. Air Force, Appellant
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Appeal from the United States Air Force Trial Judiciary
Decided 3 February 2023
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Military Judge: Christopher M. Schumann (arraignment); Christina M.
Jimenez (trial).
Sentence: Sentence adjudged 9 April 2021 by GCM convened at Cannon
Air Force Base, New Mexico. Sentence entered by military judge on
5 May 2021: Dismissal, confinement for 24 months, and forfeiture of all
pay and allowances.
For Appellant: Major Jenna M. Arroyo, USAF.
For Appellee: Lieutenant Colonel Thomas J. Alford, USAF; Major John
P. Patera, USAF; Major Brittany M. Speirs, USAF; Major Zachary T.
West, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and CADOTTE, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Senior
Judge POSCH and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Kitchen, No. ACM 40155
RICHARDSON, Judge:
A general court-martial comprised of officer members convicted Appellant,
contrary to his pleas, of one specification each of attempted sexual abuse of a
child on divers occasions and attempted sexual assault of a child in violation
of Article 80, UCMJ, 10 U.S.C. § 880.1,2 The military judge sentenced Appellant
to a dismissal, 24 months of confinement, and forfeiture of all pay and allow-
ances. The convening authority suspended adjudged forfeitures and waived au-
tomatic forfeitures for the benefit of Appellant’s dependents, but otherwise did
not disturb the adjudged sentence.
Appellant raises four assignments of error, claiming: (1) Appellant was de-
prived of a right to a unanimous verdict; (2) the military judge erred in instruc-
tions to the court members on the charged offenses; (3) the convictions for at-
tempted sexual abuse of a child and attempted sexual assault of a child are
legally and factually insufficient; and (4) the trial counsel committed prosecu-
torial misconduct through his findings argument. We have carefully considered
issue (1) and determine no discussion or relief is warranted. See United States
v. Matias, 25 M.J. 356, 361 (C.M.A. 1987); see also United States v. Anderson,
No. ACM 39969, 2022 CCA LEXIS 181, at *50–57 (A.F. Ct. Crim. App. 25 Mar.
2022) (unpub. op.) (finding unanimous court-martial verdicts not required),
rev. granted, 82 M.J. 440 (C.A.A.F. 2022). We find no material prejudice to a
substantial right of Appellant and that Appellant is not entitled to relief.
I. BACKGROUND
Appellant was a 43-year-old pilot stationed at Cannon Air Force Base
(AFB), near Clovis, New Mexico, and at the beginning of the charged time pe-
riod was deployed to Africa. He used a messaging application, Skout, which
identifies other Skout users in the vicinity of the user who want to chat. Users
can click on the profile of another user and initiate a chat. The user’s location
is customizable. Appellant’s profile picture was a head-and-shoulders photo-
graph of a man in Air Force service dress uniform. His rank, badges, and
1Unless otherwise noted, all references in this opinion to the UCMJ and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019
ed.).
2 The court members found Appellant not guilty of certain excepted language relating
to the location alleged in one specification. Additionally, consistent with his pleas, Ap-
pellant was found not guilty of the other two specifications relating to Megan charged
in violation of Article 80, UCMJ.
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awards and medals were discernable. Another photograph was of a black Mus-
tang vehicle with decals depicting the comic book Spawn. Appellant’s name on
Skout was “Spawnstang.”
On 14 September 2019, Air Force Office of Special Investigations (AFOSI)
Special Agent (SA) JN created a Skout account using a persona called “Megan”
as part of an undercover operation in support of mitigating Internet crimes
against children (ICAC). SA JN explained, “So once I was on the Skout appli-
cation, I went to the [‘]wants to chat,[’] and at the time my persona was scroll-
ing through and noticed [Appellant], and clicked on the profile and said hello -
- or said ‘Hi!’” Soon thereafter, Megan told Appellant she was almost 15 years
old and lived with her mother on base. Appellant engaged in message conver-
sations with Megan, first on Skout and then on Kik, another messaging appli-
cation. The conversations quickly became sexual in nature. Ultimately, the
messages led to a plan for Appellant and Megan to meet in person upon his
redeployment and engage in sexual activity. The day Appellant redeployed to
Clovis, on 20 September 2019, Appellant drove to their prearranged meeting
place in enlisted housing on Cannon AFB where AFOSI agents apprehended
him, still in his car. Agents located condoms in Appellant’s vehicle.
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant challenges the sufficiency of the convictions on two bases: the
Government did not prove beyond a reasonable doubt that Appellant (1) was
not entrapped, and (2) had the specific intent to commit the target offenses. We
resolve these issues adverse to Appellant and conclude the convictions are le-
gally and factually sufficient.
1. Additional Background
After Megan first contacted Appellant on Skout, stating “Hi!,” Appellant
responded and a conversation ensued.3
Appellant: How are you
Megan: I’m doing good, just bored lol. How r u?
Appellant: I’m bored too. I’m okay. Currently deployed. Will be
back next weekend.
Appellant: How old are you?
3We transcribe the messages verbatim, to include misspellings and compressing words
and phrases. We note SA JN testified that “Nd” means “and.”
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United States v. Kitchen, No. ACM 40155
Megan: Oh wow! Be safe plz!! Nd I’m almost 15! Wbu?!
Appellant: Oh wow that sucks. I’m 33
Appellant: And thanks
Appellant: What made you message me?
Megan: Idk just wnt to meet new ppl, I’m kinda new here.
Appellant: I completely understand that
Megan: Nd ur car is kinds cool! It’s realy different
Appellant: Oh thanks. I appreciate it. I love working on it
Megan: So how long hve yu been here? Nd Wht is there to do lol
Appellant: Not much really. I always leave out of town. Your
parents would not be happy if you’re talking to me. I can imagine
it’s hard chatting with people your age on here because they are
more than likely not on here.
The conversation continued, with Megan stating she and her active-duty
mother lived on base, she was home alone for much of the day, and she went
to school off base. They talked about what activities were offered around town.
Appellant said he was returning from his deployment the following week. After
Appellant said he typically stayed up late, he said, “It sucks your so young. I’ve
had a better conversation with you than with most women on here. That’s hor-
rible.” Megan did not respond right away; she explained she went for a run and
responded, “Hehe why does it suck?! And well ppl on here can be boring…”
Megan also said, “I like talking to you too!” In response, Appellant said, “It just
sucks cause I can’t ever meet you.” The conversation continued:
Megan: Thanks and awe why not?!
Appellant: Because I have a lot to lose. I’m an officer. A pilot in
the Air Force. Your mom would go nuts on us
Megan: She would nvr find out it can b out secret! [two emojis]
Appellant: My bar is bi secret. It’s not easy sneaking in any-
where with that car.
Appellant: You don’t think your mom have alarms or people
watching your house
Megan: I can always sneak out. Nd she doesn’t lol it’s kinda
weird family
Appellant: Have you sneak out all ready?
Megan: Yep [two emojis] don’t tell on me hehe
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Appellant: Lolol I’m scarred to get in trouble. How do you look
like?
Megan: Wel I don’t Wht to get in trouble either Nd I’m short,
with dark hair. Kinda tan “It’s going away [two emojis]”
Appellant: Send me a pic
They talked about whether Megan told anyone about talking to Appellant.
Appellant repeatedly asked her how she looked and asked for a photo. He ver-
ified that her parents did not monitor her messaging accounts. Appellant sent
her a photo of himself, and Megan’s response was, “Oh I got it!” When Megan
finally did send Appellant a photo—from shoulders to thighs—Appellant re-
sponded, “Well you are pretty sexy” and, “I like your shape.”4
Appellant and Megan moved their conversation to another messaging ap-
plication, Kik. Appellant told Megan his living quarters were cold, which did
not “make it easy to sleep with no clothes.” He then asked Megan what she
normally wore to bed, to which she responded, “PJs.”
The subject of Megan sneaking out of her house came up again. After Me-
gan said she typically stayed up late, the following exchange ensued:
Appellant: We will see about that
Megan: Haha yeah?
Appellant: Yup.
Megan: Nd how will we see about tht? [emoji]
Appellant: I don’t know. You’ll figure out a way to sneak out
Megan: Hehe i can sneak out.. when would u wnt me to?
Appellant: Oh wow.
Appellant: Really?
Megan: Yeah realy? Lol she works overnight so it’s easy
Appellant: What days?
Appellant: How long can you stay?
Appellant: And what do you want to do?
Megan: Monday through Friday night Nd Wel I can stay out late
but I hve to b bck for school lol
4SA JN got consent from AE—at the time a 21-year-old Airman—to take and use pho-
tos of her to send to Appellant as “Megan.”
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United States v. Kitchen, No. ACM 40155
Megan: Nd idk.. I’m open to really anything wht do u wnt to do?
Appellant asked Megan when she needed to be back so she did not miss school,
what time her mother worked, and whether her mother ever returned early.
Then they discussed what they would do if they met:
Appellant: Well if can get you out by 8 maybe we can go grab
something to eat. We can hit up a movie and the theater or go by
my house and watch some Netflix.
Megan: That would be so much fun!! Wht would we do at ur
house?
Megan: Nd do you live close?
Megan: I wouldnt want to b seen at the movie theatre..
Appellant: I actually live in the town of Clovis. We can do what-
ever you want. I have a bunch of movies. We can order some food.
Get under the covers and watch anything you want
Megan: Okay good. I was worried you lived like rely far lol. Nd I
would like that.
Megan: Nd under the covers? [two emojis]
Appellant: We don’t have to get under the covers if you don’t
want.
Megan: I’m alright with that hehe
Megan: [eyes covered emoji]
Appellant: I’m nervous
Their conversation soon turned sexual:
Appellant: Do you like to cuddle?
....
Megan: Nd I do [two emojis]
Appellant: Okay cool
Megan: Do u?
Appellant: I do like to cuddle. Just not sure if I would be a good
cuddler coming off this deployment
Megan: Awe why’s tht
Appellant: It’s been a while since I’ve been around a female. So
cuddling will probably get me hard and it may poke you.
Megan: Oh yeah…? [eyes covered emoji] hehe
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Appellant: Hehehe it will be embarrassing [emoji]
Megan: Lol don’t be embarrassed ….
Appellant: It will be hard not to be but I will try. I love cuddling
but I don’t know how’s my body going to react
Megan: Hehe it’s okay…
Appellant: You sure?
Megan: I’m sure!!
Appellant: Damn, send me more pics of you
Megan said she was “just curious wht were gunna do” and that she was nerv-
ous and excited. Besides cuddling, watching movies, and eating, Appellant
asked, “What else would you like to do?”
Megan: Idk. I’m open to suggestions.. Wht else would u like to
do?
Appellant: Truthfully I don’t know. My brain cells are not firing
on all cylinders because I’m hard now [emoji]
....
Appellant: Ok so we’re cuddling and all of sudden you feel some-
thing hard against your back and it starts rubbing against you
Megan: Yeah… wht else?
Megan: Nd rubbing where hehe?
Appellant: Like between your legs [emoji]
As their conversation continued, Appellant told Megan, “I don’t want to
take away your virginity like that,” “[e]ven though I would be super hard.” Af-
ter Appellant confirmed from Megan that she was “down” for that and that he
would be “allow[ed] to touch” her, he listed where he would touch her, including
between her “booty” and legs. Eventually, Appellant described how he would
commit various sexual acts with her, including penetrating her vulva with his
penis. The subject of condoms came up:
Megan: R u going to wear a condom?..
Appellant: Yes because you’re not on the pill most likely
Megan: No I’m not on the pill
Megan: Okay good I jst dnt wnt to get pregnant hehe
Appellant: You shouldn’t get pregnant. I had surgery that won’t
let have kids unless I want to reverse it.
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Megan: Thts a thing?!
Appellant: It sure is.
Megan: Oh wow okay! Wel do we should def still use a condom…
just in case
Appellant: Yes of course
Megan: [two emojis] When r we meeting?!
Appellant expressed some reservation about meeting Megan because of her
age, but more so because she did not send him a photo of her face. In the context
of meeting up with someone for sexual activity whose face he had not seen and
who he had never met in person, Appellant stated that he had “never done this
before.” After Megan wondered if Appellant was mad at her for not sending a
photograph of her face, he stated:
I’m not mad or disappointed. The truth is that thing that caught
my attention of you is your conversation, your thoughtfulness
and kindness. The women I have met today do not have that at
all.
Your age is probably my biggest turn off but you are so engaging
in your conversation makes me forget that.
But I can’t forget it at all. Me, I have so much to lose. And a very
successful career. The thought of not seeing your face gives me
some doubt that’s all.
Appellant continued to worry about getting caught, and ran Megan through
scenarios, such as what she would do if her mother called, knew she was not
at home, and asked where she was. Then Appellant predicted his eventual fate:
Appellant: I’m so nervous
Megan: Why?!
Megan: Dnt b.. [emoji]
Appellant: So scared this is a setup or something
Megan: Wht do u mean?
Appellant: Like show up to meet you and then I get arrested or
something
Megan: [Two emojis] tht would b terrible!!!
Megan did not admit to Appellant she was actually a law enforcement officer,
but—without actually lying—led him to believe she was not. They continued
to shape a plan to meet upon Appellant’s return to Clovis.
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United States v. Kitchen, No. ACM 40155
Appellant kept in touch with Megan as he made his way from Africa,
through Europe, to the United States, and to his home. Megan sent Appellant
a map showing the location on Cannon AFB where they could meet. After Ap-
pellant stated he was nervous, he said, “I won’t do anything. I’ll let you make
the moves if you want to,” to which Megan replied she was nervous and excited
and, “Wel I liked Wht u said we were gunna do [hands covering eyes emoji].”
Appellant asked if she was sure because, “that’s me all over you.” She assured
him she was. After finding some clothes (his luggage did not make his flight)
and a working vehicle (the Mustang was not operating properly), Appellant
messaged Megan that he was ready and then driving. The last two messages
consist of Megan stating, “I’m waiting,” and Appellant replying, “I’m here.”
2. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). “Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at
trial.” United States v. Rodela, 82 M.J. 521, 525 (A.F. Ct. Crim. App. 2021) (cit-
ing United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)), rev. denied,
82 M.J. 312 (C.A.A.F. 2022).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “[I]n resolving questions of legal
sufficiency, we are bound to draw every reasonable inference from the evidence
of record in favor of the prosecution.” United States v. Barner, 56 M.J. 131, 134
(C.A.A.F. 2001) (citations omitted). The evidence supporting a conviction can
be direct or circumstantial. See United States v. Long, 81 M.J. 362, 368
(C.A.A.F. 2021) (citing R.C.M. 918(c)) (additional citation omitted). “[A] ra-
tional factfinder[ ] could use his ‘experience with people and events in weighing
the probabilities’ to infer beyond a reasonable doubt” that an element was
proven. Id. at 369 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
The “standard for legal sufficiency involves a very low threshold to sustain a
conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) (internal
quotation marks and citation omitted).
“The test for factual sufficiency is whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, we are ourselves convinced of the appellant’s guilt beyond a rea-
sonable doubt.” Rodela, 82 M.J. at 525 (alterations, internal quotation marks,
and citation omitted). “In conducting this unique appellate role, we take ‘a
fresh, impartial look at the evidence,’ applying ‘neither a presumption of inno-
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United States v. Kitchen, No. ACM 40155
cence nor a presumption of guilt’ to ‘make [our] own independent determina-
tion as to whether the evidence constitutes proof of each required element be-
yond a reasonable doubt.’” United States v. Wheeler, 76 M.J. 564, 568 (A.F. Ct.
Crim. App. 2017), aff’d 77 M.J. 289 (C.A.A.F. 2018) (alteration in original)
(quoting Washington, 57 M.J. at 399). “The term reasonable doubt . . . does not
mean that the evidence must be free from conflict.” Id. (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)).
In order to convict on an attempt offense under Article 80, UCMJ, the Gov-
ernment is required to prove beyond a reasonable doubt that the accused did a
certain overt act, that the act was done with the specific intent to commit a
certain offense, that the act amounted to more than mere preparation, and that
the act apparently tended to effect the commission of the intended offense. See
Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV, ¶ 4.b.
For Appellant to be found guilty of the offense of attempted sexual abuse of
a child as charged in Specification 1 of the Charge, the Government was re-
quired to prove beyond a reasonable doubt all the elements of attempt, includ-
ing that Appellant specifically intended to commit a lewd act upon Megan, a
child who had not attained the age of 16 years, by intentionally communicating
to Megan indecent language with an intent to arouse his sexual desire. See
MCM, pt. IV, ¶¶ 62.b.(3), 62.a.(h)(5). The communication can be “by any
means, including via communication technology.” MCM, pt. IV, ¶ 62.a.(h)(5);
10 U.S.C. § 920b(h)(5).
For Appellant to be found guilty of the offense of attempted sexual assault
of a child in Specification 3 of the Charge, the Government was required to
prove beyond a reasonable doubt all the elements of attempt, including that
Appellant specifically intended to commit a sexual act upon Megan, a child who
had attained the age of 12 years but not 16 years, by penetrating Megan’s vulva
with his penis. See MCM, pt. IV, ¶ 62.b.(2)(a). A sexual act includes “the pene-
tration, however slight, of the penis into the vulva.” MCM, pt. IV,
¶¶ 62.a.(h)(1), 60.a.(g)(1)(A); 10 U.S.C. §§ 920b(h)(1), 920(g)(1)(A). The term
“sexual act” also includes “the intentional touching, not through the clothing,
of the genitalia of another person who has not attained the age of 16 years with
an intent to [ ] arouse or gratify the sexual desire of any person.” MCM, pt. IV,
¶ 62.a.(h)(1); 10 U.S.C. § 920b(h)(1).
In cases involving attempts to entice minors to engage in sexual activity,
“courts agree that travel constitutes a substantial step.” United States v.
Winckelmann, 70 M.J. 403, 407 (C.A.A.F. 2011) (citations omitted). Analyzing
an attempted larceny conviction, the United States Court of Appeals for the
Armed Forces noted it had “recognized that a substantial step could be com-
prised of something as benign as travel, arranging a meeting, or making hotel
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reservations.” United States v. Hale, 78 M.J. 268, 272 (C.A.A.F. 2019) (citing
Winckelmann, 70 M.J. at 407).
Entrapment is an affirmative defense. Rule for Courts-Martial (R.C.M.)
916(g) states: “It is a defense that the criminal design or suggestion to commit
the offense originated in the Government and the accused had no predisposi-
tion to commit the offense.”
The defense has the initial burden of showing some evidence that an agent
of the Government originated the suggestion to commit the crime. United
States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). Once the defense of entrap-
ment is raised, “the burden then shifts to the Government to prove beyond a
reasonable doubt that the criminal design did not originate with the Govern-
ment or that the accused had a predisposition to commit the offense . . . .” Id.(citations omitted). When a person accepts a criminal offer without an extraor-
dinary inducement to do so, he demonstrates a predisposition to commit the
crime in question. Id. (citations omitted). “Inducement” means more than
merely providing an appellant the means or opportunity to commit a crime.
United States v. Howell, 36 M.J. 354, 360 (C.M.A. 1993) (citations omitted).
Instead, the Government’s conduct must:
create[ ] a substantial risk that an undisposed person or other-
wise law-abiding citizen would commit the offense. Inducement
may take different forms, including pressure, assurances that a
person is not doing anything wrong, persuasion, fraudulent rep-
resentations, threats, coercive tactics, harassment, promises of
reward, or pleas based on need, sympathy, or friendship.
Id. at 359–60 (emphasis, internal quotation marks, and citations omitted).
The Government may use undercover agents and informants to ferret out
crime and afford opportunities or facilities for criminals to act upon. Jacobson
v. United States, 503 U.S. 540, 548 (1992); Howell, 36 M.J. at 358. “Artifice and
stratagem may be employed to catch those engaged in criminal enterprises.”
Sorrells v. United States, 287 U.S. 435, 441 (1932) (citations omitted); see also
United States v. Russell, 411 U.S. 423, 435–36 (1973) (allowing for deceit as a
law enforcement technique). For example, law enforcement officers may pre-
tend to be someone other than a government agent. See Howell, 36 M.J. at 358.
“It is only when the Government’s deception actually implants the criminal
design in the mind of the defendant that the defense of entrapment comes into
play.” Russell, 411 U.S. at 436.
When entrapment is raised at trial, “[t]he test to be applied [on appeal] is
whether the evidence of record supports the factual determinations” that the
defense did not apply. United States v. Vanzandt, 14 M.J. 332, 345 (C.M.A.
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1982) (citations omitted). That is, an “appellant can only prevail by showing
that these findings are incorrect as a matter of law.” Id. (citation omitted).
3. Analysis
a. Entrapment
Appellant claims that he was entrapped into committing both offenses; spe-
cifically, he alleges Government inducement and his lack of predisposition.
From our review of the evidence, and in particular the messages between Ap-
pellant and Megan, we are convinced Appellant was not entrapped.
Appellant points to the uncontradicted evidence that he had no history of
or interest in sexual acts against children. While these factors are relevant,
they are not dispositive. See, e.g., United States v. Hall, 56 M.J. 432, 437
(C.A.A.F. 2002) (finding “the Government was not required to show that [the]
appellant was generally predisposed to sell drugs, but only that he was predis-
posed to facilitate this particular transaction”). Appellant, not Megan, elevated
the conversation from talking about things to do near Cannon AFB, to sneak-
ing out to meet, to engaging in sexual activity upon meeting. Moreover, con-
trary to Appellant’s assertion on appeal, the messages he sent to what he be-
lieved to be a 14-year-old girl do not portray a man “in a vulnerable place in
his life.” The evidence shows Appellant was predisposed to talk about sex and
meet up for sex with a willing female; the age of the female appears to have
been of little importance to him. Appellant’s concern was meeting someone for
sex whose face he had not seen, as well as getting caught. He did not appear to
be concerned that he was actually committing a crime by communicating to a
14-year-old girl his sexual plans for her, or that he was planning to commit a
crime by meeting and having sex with said girl. We find Appellant accepted “a
criminal offer” without an extraordinary inducement to do so, displaying his
“predisposition to commit” the crime in question. See Whittle, 34 M.J. at 208(citations omitted). A rational factfinder could conclude the evidence proved
beyond a reasonable doubt that Appellant was not entrapped to commit at-
tempted sexual abuse or sexual assault of a child in this case. Indeed, Appel-
lant’s findings argument to the court members focused primarily on the de-
fense of entrapment, and the convictions indicate it was rejected. Moreover, we
are convinced Appellant was not entrapped.
b. Specific Intent
Quoting the military judge’s instructions, Appellant claims the Govern-
ment failed “to prove beyond a reasonable doubt that [Appellant’s] overt act in
driving to meet ‘Megan’ was ‘done with specific intent to commit the offense of
sexual assault of a child’ . . . . by penetrating her vulva with his penis.” Instead,
he claims “[i]t is debatable whether [Appellant] himself knew what his inten-
tions were the night he drove to meet ‘Megan.’” We disagree.
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The evidence—primarily the Kik messages—establishes that Appellant in-
tended to have vaginal intercourse with a 14-year-old girl if she would let him,
and she assured him she would let him.5 The fact that he possessed condoms
when he was apprehended in his vehicle lends support for this conclusion. We
find that a rational factfinder could conclude the evidence proved Appellant’s
specific intent, as well as the other elements of the offense, beyond a reasonable
doubt. Moreover, we are convinced Appellant had the requisite specific intent.
In conclusion, we find the convictions are legally sufficient. Moreover, hav-
ing weighed the evidence in the record and having made allowances for not
having personally observed the witnesses in this case, we are convinced of Ap-
pellant’s guilt beyond a reasonable doubt. See Wheeler, 76 M.J. at 568. Thus,
we also find Appellant’s convictions are factually sufficient.
B. Findings Instructions
Appellant claims that the military judge erred in her instructions to the
court members on the elements of the offenses in Specifications 1 and 3 of the
Charge. Specifically, Appellant argues that “the military judge’s instructions
for the first element—the overt act—essentially mirrored the language of the
intended offense.” Put another way, Appellant notes “the overt act identified
in element 1 of the attempted offense was the same act required for the target
offense.” We find Appellant waived this issue and are not persuaded to pierce
that waiver.
1. Additional Background
The military judge provided counsel several opportunities to review, re-
quest, and object to instructions to the court members on findings. The military
judge asked counsel whether they had any objections to her instructing on cer-
tain areas, including on the elements of the offenses. She also told them they
“[would] all get an opportunity to read the[ instructions] and then [they] [could]
discuss.”6
5 See Section C.2.a., infra, for a recitation of some of Appellant’s messages on this point.
6 The military judge stated: “I intend to give the following instructions: Obviously, the
charged offenses and their elements. In that regard, it appears I do have some evidence
of a mistake of fact as to age to the offenses, as well as impossibility. So I have those
introductions [sic] in here. Counsel, just for your [situational awareness], I don’t think
any of you have you been in my courtroom before. We’ll go through this now. You can
object now. You will also be provided a draft copy, so do not think your objections are
foreclosed just yet. And we will come back on and discuss those again this evening as
well.”
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United States v. Kitchen, No. ACM 40155
On the record, no party raised an issue with the military judge’s proposed
instructions on the elements, including overt acts. Appellant specifically re-
quested instructions in a filing marked Appellate Exhibit LII. Regarding “overt
acts,” the Defense’s proposed instruction read: “the accused did (a) certain
act(s), that is: (state the act(s) alleged or raised by the evidence).” The military
judge addressed counsel’s specific requests, which for the Defense focused pri-
marily on the defense of entrapment. The military judge sent counsel a draft
of her instructions, and later discussed instructions with counsel before provid-
ing the instructions to the court members.
The military judge provided the court members instructions on all four el-
ements of each specification, relevant definitions, and the elements of the at-
tempted offenses. For the first element of Specification 1, the military judge
instructed the court members that, for “the offense of attempted sexual abuse
of a child involving indecent communication in violation of Article 80, [UCMJ,]”
they needed to be convinced beyond a reasonable doubt of the following:
One, that on divers occasions, between on or about 14 September
2019 and on or about 20 September 2019, within the continent
of Africa, the continent of Europe, and the continental United
States, the accused did a certain overt act, that is, attempt to
commit a lewd act upon Megan, a person whom he believed to be
a child who had not attained the age of 16 years by intentionally
communicating to Megan indecent language with the intent to
arouse his sexual desire.
For the first element of Specification 3, the military judge instructed the court
members that, for “the offense of attempted sexual assault of a child in viola-
tion of Article 80, [UCMJ],” they needed to be convinced beyond a reasonable
doubt of the following:
One, that on or about 20 September 2019, at or near Cannon Air
Force Base, New Mexico, the accused did a certain overt act, that
is, attempt to commit a sexual act upon Megan, a person whom
he believed to be a child who had attained the age of 12 years
but had not attained the age of 16 years, to wit, penetrating Me-
gan’s vulva with his penis.
Before the military judge provided the court members instructions on the
specifications, she noted that counsel had indicated they had no objections. Af-
ter reading the instructions to the court members, the military judge specifi-
cally asked counsel whether they “object[ed] to the instructions given or re-
quest[ed] additional instructions.” Counsel for both parties stated “No, Your
Honor.” Trial defense counsel did not raise an issue with the instructions on
14
United States v. Kitchen, No. ACM 40155
the elements. The court members did not ask the military judge questions
about the instructions on the offenses.
2. Law
“Failure to object to an instruction or to omission of an instruction before
the members close to deliberate forfeits the objection.” R.C.M. 920(f). We re-
view forfeited issues for plain error. United States v. Davis, 79 M.J. 329, 331
(C.A.A.F. 2020). “[T]o establish plain error an appellant must demonstrate (1)
error, (2) that is clear or obvious at the time of the appeal, and (3) prejudicial.”
United States v. Long, 81 M.J. 362, 369–70 (C.A.A.F. 2021) (internal quotation
marks and citation omitted).
In contrast to forfeiture, an appellant waives a right to raise the issue on
appeal where he “affirmatively declined to object to the military judge’s in-
structions and offered no additional instructions,” even “in regards to the ele-
ments of the offense.” Davis, 79 M.J. at 331 (citations omitted). However,
“when there is a new rule of law, when the law was previously unsettled, and
when the [trial court] reached a decision contrary to a subsequent rule,” we
instead review for plain error. United States v. Schmidt, 82 M.J. 68, 72
(C.A.A.F. 2022) (alteration in original) (quoting Davis, 79 M.J. at 331).
“Whether an appellant has waived an issue is a legal question we review de
novo.” Id. (citation omitted).
Generally, an affirmative waiver leaves “nothing left” to correct on appeal.
Davis, 79 M.J. at 331 (citations omitted). However, pursuant to Article
66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1), Courts of Criminal Appeals (CCA) have
the unique statutory responsibility to affirm only so much of the findings and
sentence that they find are correct and “should be approved.” This includes the
authority to address errors raised for the first time on appeal despite waiver of
those errors at trial. See, e.g., United States v. Hardy, 77 M.J. 438, 442–43
(C.A.A.F. 2018). A CCA assesses the entire record and determines “whether to
leave an accused’s waiver intact, or to correct the error.” United States v. Chin,
75 M.J. 220, 223 (C.A.A.F. 2016).
“The military judge has an independent duty to determine and deliver ap-
propriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008)
(citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A. 1990)).
This duty includes giving required instructions that “provide an accurate, com-
plete, and intelligible statement of the law.” United States v. Behenna, 71 M.J.
228, 232 (C.A.A.F. 2012) (citations omitted). “Whether a panel was properly
instructed is a question of law reviewed de novo.” United States v. Hale, 78
M.J. 268, 274 (C.A.A.F. 2019) (quoting United States v. Medina, 69 M.J. 462,
465 (C.A.A.F. 2011)).
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United States v. Kitchen, No. ACM 40155
Military judges are required to instruct court members on the elements of
charged offenses. R.C.M. 920(e)(1). “When a military judge’s instruction incor-
rectly describes elements of an offense, we analyze that error for prejudice un-
der a standard of harmlessness beyond a reasonable doubt.” United States v.
Forney, 67 M.J. 271, 280 (C.A.A.F. 2009) (Effron, C.J., concurring) (citing
Neder v. United States, 527 U.S. 1, 17 (1999)); see also United States v. Payne,
73 M.J. 19, 25 (C.A.A.F. 2014) (finding beyond a reasonable doubt that the
omission of instructions on elements was not materially prejudicial). “This
standard is met ‘where a court is confident that there was no reasonable pos-
sibility that the error might have contributed to the conviction.’” United States
v. Upshaw, 81 M.J. 71, 74 (C.A.A.F. 2021) (quoting United States v. Prasad, 80
M.J. 23, 29 (C.A.A.F. 2020)).
The elements of the offense of attempt, in violation of Article 80, UCMJ,
are that: (1) the accused did a certain overt act; (2) the act was done with the
specific intent to commit a certain offense under the UCMJ; (3) the act
amounted to more than mere preparation; and (4) the act apparently tended to
effect the commission of the intended offense. See MCM, pt. IV, ¶ 4.b.(1)–(4).
In charging an attempted offense under the UCMJ, it is not necessary to allege
the overt act or the elements of the underlying target offense, as long as the
“accused is aware of the nature of [that] offense.” United States v. Norwood, 71
M.J. 204, 207 (C.A.A.F. 2012).
3. Analysis
The threshold question is whether Appellant preserved, forfeited, or waived
his allegation of error in the military judge’s instructions of the elements of
Specifications 1 and 3. Trial defense counsel did not object to the challenged
instructions, even when the military judge asked, so the issue was neither pre-
served nor forfeited. See Davis, 79 M.J. at 331. Instead, Appellant waived this
issue, and we decline to pierce that waiver.
The military judge involved counsel in the drafting and tailoring of her in-
structions. She determined what kinds of instructions counsel wanted, she pro-
vided counsel with draft instructions, and she solicited objections to and re-
quests for additional instructions. She considered Appellant’s proposed draft
instructions, which in essence asked the military judge to tailor the language
regarding overt acts as she saw fit. After the military judge provided the in-
structions to the court members, she again asked counsel for objections, and
received none. Because trial defense counsel affirmatively declined to object to
the findings instructions and offered no additional instructions, Appellant ex-
pressly and unequivocally acquiesced to them, constituting waiver. See United
States v. Rich, 79 M.J. 472, 476 (C.A.A.F. 2020) (citation omitted).
16
United States v. Kitchen, No. ACM 40155
Finding waiver, we next consider whether to pierce Appellant’s waiver re-
lating to the instructions on the elements of Specifications 1 and 3. Having
reviewed the entire record, and mindful of our mandate to “approve only that
which ‘should be approved,’” we have determined to leave intact Appellant’s
waiver of the alleged error. See Chin, 75 M.J. at 223.
C. Trial Counsel’s Findings Argument
Appellant claims the trial counsel committed prosecutorial misconduct
through improper argument when he: (1) misstated the law and misapplied
the facts to the law, (2) attacked the defense counsel’s integrity, and (3) im-
properly vouched for evidence. Trial defense counsel did not object to trial coun-
sel’s arguments detailed above. Therefore, we review for plain error. We find
no relief is warranted.7
1. Law
“Trial prosecutorial misconduct is behavior by the prosecuting attorney
that ‘oversteps the bounds of that propriety and fairness which should charac-
terize the conduct of such an officer in the prosecution of a criminal offense.’”
United States v. Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v.
United States, 295 U.S. 78, 84 (1935)). “Prosecutorial misconduct can be gen-
erally defined as action or inaction by a prosecutor in violation of some legal
norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or
an applicable professional ethics canon.” United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996) (citing Berger, 295 U.S. at 88).
We review claims of prosecutorial misconduct and improper argument de
novo. See United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019). “When a party
does not object to comments by the prosecutor during voir dire, opening state-
ment, argument on the findings, or argument on the sentence, we review for
plain error.” United States v. Palacios Cueto, 82 M.J. 323, 333 (C.A.A.F. 2022)
(citations omitted).
Plain error occurs when (1) there is error, (2) the error is clear
or obvious, and (3) the error results in material prejudice to a
substantial right of the accused. Thus, we must determine: (1)
whether trial counsel’s arguments amounted to clear, obvious
error; and (2) if so, whether there was a reasonable probability
that, but for the error, the outcome of the proceeding would have
been different.
7We have carefully considered all claims Appellant raised in assignment of error (4);
some compel discussion, but none warrant relief. See Matias, 25 M.J. at 361.
17
United States v. Kitchen, No. ACM 40155
Voorhees, 79 M.J. at 9 (internal quotation marks and citations omitted). “[T]he
best approach for assessing the prejudice from prosecutorial misconduct ‘in-
volves a balancing of three factors: (1) the severity of the misconduct, (2) the
measures adopted to cure the misconduct, and (3) the weight of the evidence
supporting the conviction.’” Palacios Cueto, 82 M.J. at 334 (quoting Fletcher,
62 M.J. at 184). The burden to establish plain error, including prejudice, is on
the appellant. Id. “[T]he lack of a defense objection is ‘some measure of the
minimal impact of a prosecutor’s improper comment.’” United States v. Gilley,
56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v. Carpenter, 51 M.J.
393, 397 (C.A.A.F. 1999)).
In presenting argument, trial counsel may “argue the evidence of record,
as well as all reasonable inferences fairly derived from such evidence.” United
States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citation omitted). Trial counsel
may strike hard but fair blows, but may not “inject his personal opinion into
the panel’s deliberations, inflame the members’ passions or prejudices, or ask
them to convict the accused on the basis of criminal predisposition.” United
States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citations omitted). In deter-
mining whether trial counsel’s comments were fair, we examine them in the
context in which they were made. Gilley, 56 M.J. at 121. We do not “‘surgically
carve’ out a portion of the argument with no regard to its context.” Baer, 53
M.J. at 238.
2. Additional Background and Analysis
a. Misstatement of the Law and Facts
Appellant claims trial counsel misstated the definition of “sexual act” in
relation to Specification 3. He asserts “the law defines ‘sexual act’—in the con-
text of penile penetration—as requiring ‘the penetration, however slight, of the
penis into the vulva or anus or mouth,’” and cites to the military judge’s in-
structions in support.
The military judge instructed, inter alia, that the meaning of “sexual act”
in Specification 3 included “the penetration, however slight, of the penis into
the vulva, or anus or mouth,” “contact between the mouth and the penis, vulva,
scrotum or anus,” or “the intentional touching not through the clothing of the
genitalia of another person who has not attained the age of 16 years with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual de-
sire of any person.” Appellant does not challenge the military judge’s instruc-
tions on this point.
Appellant takes issue with the italicized part of the following portion of
trial counsel’s argument:
Specification 3, penetrating Megan’s vulva with his penis. Now
we have to prove that he attempted to penetrate Megan’s 14-
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United States v. Kitchen, No. ACM 40155
year-old vulva with his penis. Overt act, specific intent, substan-
tial step but for. Same thing, [Specifications] two through four.
How does he do it, “Well, I want to lick and suck until you’re nice
and wet, then I want to slap my thing—his penis—on your
thing,” her 14[-]year-old vulva, “to see if you’re ready.” You’ll see
in the instructions contact is all that’s required. In order to com-
mit the offense, contact one sexual organ to another. “Then I will
start rubbing my tip between your slit.” His 43-year-old penis on
her 14-year-old vulva.
Trial counsel then read more quotes from Appellant’s Kik messages to Me-
gan, indicating Appellant planned penile/vaginal penetration and not mere
contact:
“My favorite is doggie.” Doggie style, right. We have missionary
and we have doggie style. This is actual sex that he is telling her
he wants to do. Sexual assault of a child. “Best view.” “I get to
mess with your booty and legs.” “Best view to see me going in
and out.” “Mount me like a horse while I lay on my back.” “You
get on top of my d[*]ck and stick it in, then you move it in a way
that you’re bouncing.”
We understand Appellant’s argument to be that, although a “sexual act”
can be “the intentional touching, not through the clothing, of the genitalia of
another person who has not attained the age of 16 years with the proscribed
intent,” see MCM, pt. IV, ¶ 62.a.(h)(1), because Appellant was charged with an
attempted penile/vaginal penetration, “sexual act” in this case required “the
penetration, however slight, of the penis into the vulva,” see MCM, pt. IV,
¶¶ 62.a.(h)(1), 60.a.(g)(1)(A). We find trial counsel’s argument was based on
one of the military judge’s definitions of “sexual act” and was not improper.
We conclude trial counsel did not misstate the law that the military judge
provided to the court members.8 Trial counsel outlined graphic evidence of Ap-
pellant’s sexual intent before stating: “You’ll see in the instructions contact is
all that’s required. In order to commit the offense, contact one sexual organ to
another.” After this single reference to contact being required for Specification
3, trial counsel then provided several examples of Appellant describing not just
contact but penetrative sexual acts. Thus, while trial counsel recited an inac-
curate definition of “sexual act” for the particular charging scheme in Appel-
lant’s case, he provided examples that supported an accurate definition based
8 Appellant does not assert the military judge’s definitions of “sexual act” with respect
to Specification 2 of Charge II were erroneous.
19
United States v. Kitchen, No. ACM 40155
on the allegation in Specification 3: the penetration, however slight, of the pe-
nis into the vulva.
Additionally, Appellant claims trial counsel misapplied the facts to the el-
ements of Specification 3. During argument, trial counsel specifically noted
that the communications Appellant intentionally made to Megan about what
they would do upon their meeting were the overt acts leading to Appellant’s
attempt to commit sexual abuse of a child. Additionally, he argued that Appel-
lant’s drive to a designated location in enlisted housing to meet Megan and
possession of newer condoms were a “substantial step.” Appellant explains the
alleged error:
Essentially, the trial counsel misapprehended the elements of
attempt and split them into (1) an overt act, and (2) a substantial
step. It is obvious from the trial counsel’s argument that he be-
lieved [Appellant]’s overt act (sending indecent messages) and
his substantial step (driving to the meet up location) were not
the same action.
We find trial counsel’s arguments about “overt acts” and “substantial steps”
potentially were confusing but were not improper. While he may have created
an unnecessary distinction, his argument is best understood to highlight mul-
tiple acts of Appellant that were a substantial step towards commission of the
charged offense, including the acts of driving to enlisted housing with condoms.
In a similar vein, Appellant claims that, in relation to Specification 3, trial
counsel argued that the overt act of sending indecent messages was done with
the specific intent to send those messages, not the specific intent to sexually
assault. Appellant emphasizes the italicized part of the following portion of
trial counsel’s argument:
This is the overt act. The overt act is sending the message to the
14-year-old girl. The specific intent is right there. What’s in his
mind? We know because he specifically intended to do these
things.
What’s a substantial step? Well, you can use the substantial step
of him driving from his house to enlisted housing. But there’s
more here. There’s another substantial step that I hope you’ll
consider. I hope you think about. It’s the condoms.
We do not agree with Appellant’s interpretation. While trial counsel mis-
used the phrase “overt act” when he argued evidence of specific intent, we read
his argument to convey that the messages show what sexual acts Appellant
had the specific intent to commit upon Megan when they met. Such inference
from the evidence is reasonable under these circumstances.
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United States v. Kitchen, No. ACM 40155
b. Attack on Defense Counsel’s Integrity
During Appellant’s conversation with Megan, the topic of his genitalia be-
ing shaved for their rendezvous was raised. After apprehending him, AFOSI
agents, including SA TN, photographed Appellant’s genitalia.9
Trial counsel asked SA TN at the end of direct examination what hair he
observed in Appellant’s pubic area. SA TN responded, “[T]he top portion above
the penis had a little bit of pubic hair there. Looking at the testicles and the
sac area, it appeared to be completely shaved, or no hair, however you want to
describe it.” Defense counsel began her cross-examination of SA TN where trial
counsel left off. She showed SA TN one photo to refresh his memory, then
asked, “Did it appear [Appellant] had shaved?” SA TN replied, “No, ma’am.”
The Defense did not offer this photograph into evidence. In an Article 39(a),
UCMJ, session before its re-direct examination, the Government declared it
now sought to admit four photos AFOSI agents took of Appellant’s genitalia.
To overcome a Defense objection, trial counsel argued that they had not in-
tended to introduce the photographs, “to have decency to [Appellant].” With
the Defense’s cross-examination of SA TN, however, trial counsel argued the
court members—and, to some extent, SA TN—had been misled. Moreover, the
Government argued: “Part of our theory is that the substantial step was for
[Appellant] to shave his hair” and the photographs were evidence of that step.
The military judge overruled the Defense’s objection and allowed the Govern-
ment to enter the photographs into evidence.
In claiming prosecutorial misconduct, Appellant emphasizes the italicized
portions of the following statements from trial counsel’s findings arguments:
I’m going to stop here and pause and talk about this just for a
moment. During direct and cross-examination of Special Agent
[TN], when we put him up on the stand, we specifically intended
to ask him questions about this and to not get into any pictures.
We didn’t want to embarrass [Appellant]. We didn’t want to in-
vade in his privacy. But what you will notice is when he was on
cross-examination, Defense gave him one picture, just one. And
the one picture they gave him was of what appeared to be the
top area not shaved. It was an attempt to mislead. So, our intent
to not embarrass [Appellant], to not take his privacy away, was
that overcome by them wanting to mislead. That’s why we put
those pictures in, so you can look at them yourself. You can tell
whether or not he was shaved or not. He says in the messages,
9Before trial, the Government informed the Defense that it did not intend to offer the
photographs into evidence.
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United States v. Kitchen, No. ACM 40155
“Do you want me to shave?” That’s a substantial step. He’s just
coming back from deployment. He’s shaving his pubic hairs to
get ready so she can do oral sex on him.
In his argument, trial defense counsel stated:
And I have to respond to the trial counsel’s argument here.
Somehow the Defense is trying to mislead [SA TN] by providing
him with a picture that he took, and asking him does this refresh
his recollection from what he previously told us in a prior inter-
view where he said there was no shaving? That’s misleading
him? A picture he took and asking if that refreshed his recollec-
tion? Besides the point, you have the pictures. As uncomfortable
as it may be, look at them. Does it make any sense that he would
shave his scrotum and nothing in between his thighs, nothing
above, nothing around, just the scrotum?
In rebuttal, trial counsel argued:
So I brought it up in my close and then [defense counsel] com-
mented on it, now I’m going to finish it out here with what hap-
pened with [SA TN]. The privacy. I already explained to you why
we did what we did and the misleading. It is misleading, mem-
bers. They gave him one picture on cross-examination. He was
being cross-examined by a skilled defense attorney and they
gave him one picture and asked him, “Isn’t it true that in this
picture he’s not shaved?” They put him in that spot. They put
him in a spot to really just say at that point, “Yeah, it’s true.”
That is it. Absolute attempt to mislead. Absolute. There was [sic]
four pictures.
And even though he took all four of them, took the one, there
was [sic] four pictures. If they would’ve provided him with all
four pictures and said, “Take a look at these pictures,” then
maybe [SA TN’s] response is totally different. Maybe it’s like,
“Well in this one it looks one way but in the rest of these you can
clearly see.” Members, I’m not going to talk about this anymore.
You have the pictures. You can look at it.
Appellant claims trial counsel improperly argued to the court members that
(1) trial defense counsel tried to mislead them by showing SA TN only one pho-
tograph, and (2) the Government had not offered the photographs initially be-
cause it wanted to respect Appellant’s privacy—a fact not in evidence. The Gov-
ernment counters that (1) trial counsel argued that trial defense counsel mis-
led SA TN, not the court members, and (2) the “fleeting remark” about not
22
United States v. Kitchen, No. ACM 40155
wanting to embarrass Appellant was “a fair inference from the record.” More-
over, the Government maintains counsel was not “trying to win favor with the
members” but instead was answering the “question in the members’ minds why
the Government did not introduce these photos in the first place.”
Trial counsel accusing trial defense counsel of misleading the court mem-
bers or SA TN was inflammatory, even if it was a fair inference based on how
evidence was presented. The Prosecution’s reasons for offering or not offering
evidence ordinarily is not an appropriate matter for findings argument. Cf.
R.C.M. 919(b), Discussion (“Argument may include comment about the testi-
mony, conduct, motives, interests, and biases of witnesses to the extent sup-
ported by the evidence.”). In this case, the Prosecution’s reasons for not offering
the photographs into evidence earlier were neither “evidence of record” nor
“reasonable inferences fairly derived from such evidence.” See Baer, 53 M.J. at
237.
c. Improper Vouching
Appellant claims trial counsel committed prosecutorial misconduct by in-
jecting personal opinions during findings argument. He takes issue with the
italicized portions from the following portion of findings argument:
How do you look, a 43-year-old man talking to a 14-year-old girl?
Why does he care? Why does he care how she looks? He starts it.
He brings it up. [SA JN] told you if he would have just commu-
nicated with him and it would have never gone sexual, this
wouldn’t be a case at all. [SA JN], fresh off his ICAC training,
was doing exactly what he thought was right within the left and
the right boundaries. He had supervision. His leadership was
talking to him every day. In fact, he won an award. He got a
commendation medal. [Defense counsel] told you that. They
don’t give commendation medals to people for violating rights,
for entrapping people. “Send me a pic.” How many times did he
say “Send me a pic?” “Send me a pic.” “Send me a pic.” “I want to
get rock hard.” He started it. Skout, page 8, very beginning. This
is him. This is [Appellant].
....
Thirty-three years old. I’m going to touch on this just for a sec-
ond. So on one of the very first messages he tells her, “I’m 33
years old.” [Defense counsel] has implied that was a fat finger,
like an accident. 33 instead of 43. You’ll find that it actually
comes up twice. Page 2 of Skout and then page 32 of Kik. Coin-
cidence? Who knows? I think not. What I think is this: She’s a
14-year-old girl, he’s a 43-year-old man. To a 14-year-old girl,
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United States v. Kitchen, No. ACM 40155
someone in their 20’s is kind of cool, right? That’s cool. He’s in
college. Someone in their 30’s, still maybe kind of cool. That’s not
too old. Forties, someone in their 40’s. That’s too old. It’s kind of
gross, right? So he intentionally takes 10 years off his life to
make himself more appealable to her. He didn’t fat-finger it. He
did it twice. Why did he do it? Because he knew if he said 43 she
wouldn’t be interested anymore. She would lose interest.
During cross-examination, trial defense counsel asked SA JN about how
maintaining his conversations with Appellant was “taxing,” and included
working “into nights and weekends.” He then asked: “And based on this, you
received accolades for your work in this, correct? You were able to get an [en-
listed performance report] bullet out of this, correct?” to which SA JN replied,
“I got a performance report bullet.” During a redirect examination, trial coun-
sel asked SA JN whether he “ever receive[d] any feedback or criticism from
[AF]OSI at any level that [he had] done anything wrong here” to which SA JN
replied: “I received no feedback or any criticism, sir.” SA JN did not testify
about receiving a commendation medal.
Trial counsel argued facts not in evidence when he commented on SA JN
receiving a medal. What a prosecutor “thinks” during argument is not an ap-
propriate consideration for the court members. In this case, we find that trial
counsel twice saying “I think” when implying that Appellant lied to Megan
about his age was an inartful way to introduce fair inferences the court mem-
bers could draw from the evidence and a call upon their knowledge of human
nature and the ways of the world.
d. Prejudice
Assuming that trial counsel’s arguments outlined above were clear or obvi-
ous error, we considered the three Fletcher factors, see 62 M.J. at 184, and find
no prejudice. Read as a whole, trial counsel’s misstatement of the law or facts
in findings argument did not create confusion. Trial defense counsel did not
object nor ask the military judge for an instruction to cure any of the alleged
errors. Regarding the “misleading” photographs, trial defense counsel chose to
address the matter directly with the court members, thereby minimizing the
impact of trial counsel’s error. Finally, whether Appellant was shaven and why
the Government only later offered photographic proof thereof, the significance
of SA JN getting accolades for his efforts, and whether Appellant reduced his
age by ten years were of minimal weight compared to the extensive evidence
of Appellant’s indecent communications with Megan and his efforts to meet her
for sex. We find there was no reasonable probability that, but for the alleged
errors, the outcome of the proceeding would have been different. Therefore, we
conclude that any error during argument did not result in material prejudice
to Appellant’s substantial rights.
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United States v. Kitchen, No. ACM 40155
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
25