United States v. Cabuhat

U NITED S TATES A IR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 40191
________________________
UNITED STATES
Appellee
v.
Domingo J. CABUHAT, Jr.
Staff Sergeant (E-5), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 13 September 2023 1
________________________
Military Judge: Charles E. Wiedie (motions and arraignment); Willie J.
Babor (trial); Sterling C. Pendleton (entry of judgment).
Sentence: Sentence adjudged 16 June 2021 by GCM convened at Ram-
stein Air Base, Germany. Sentence entered by military judge on 10 Au-
gust 2021: Dishonorable discharge, confinement for 30 years, and re-
duction to E-1.
For Appellant: Major Heather M. Caine, USAF (argued); Colonel An-
thony D. Ortiz, USAF; Major Ryan S. Crnkovich, USAF; Mark C.
Bruegger, Esquire.
For Appellee: Captain Jocelyn Q. Wright, USAF (argued); Colonel Naomi
P. Dennis, USAF; Lieutenant Colonel Thomas J. Alford, USAF; Major
John P. Patera, USAF; Mary Ellen Payne, Esquire.
Amicus Curiae for Appellant: Hannah Turner (law student, argued);
Charles E. Watkins, Jr., Esquire (supervising attorney); Angelle Bou-
dreaux (law student); Broxton Lance Harvey, Jr. (law student)—The
Louisiana State University Paul M. Hebert Law Center , Baton Rouge,
Louisiana.
1 The court heard oral argument in this case on 22 March 2023 at the Louisiana State
University Paul M. Hebert Law Center in Baton Rouge, Louisiana, as part of this
court’s Project Outreach Program.
United States v. Cabuhat, No. ACM 40191 (en banc)
Amicus Curiae for Appellee: Chad Thornton (law student, argued); Jef-
frey C. Brooks, Esquire (supervising attorney); John R. Arboleda (law
student); Kimberly Cook (law student)—The Louisiana State University
Paul M. Hebert Law Center, Baton Rouge, Louisiana. 2
Before THE COURT EN BANC.
Senior Judge CADOTTE delivered the opinion of the court, in which
Senior Judge RICHARDSON, Senior Judge ANNEXSTAD, Judge MER-
RIAM, 3 Judge DOUGLAS, Judge MASON, Judge KEARLEY, and Judge
WARREN joined. Chief Judge JOHNSON filed a separate dissenting
opinion, in which Judge GRUEN joined.
________________________
PUBLISHED OPINION OF THE COURT
________________________
CADOTTE, Senior Judge:
A military judge sitting alone as a general court-martial convicted Appel-
lant of four specifications of sexual abuse of a child under the age of 16 years
on divers occasions;4,5 one specification of making an indecent recording on di-
vers occasions; one specification of obstruction of justice; and five specifications
of viewing or possessing child pornography on divers occasions, in violation of
Articles 120b, 120c, 131b, and 134, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 920b, 920c, 931b, 934.6 The military judge sentenced Appellant to
2 The Amicus Curiae supervising attorneys for Appellant and Appellee were both
properly admitted to practice before this court.
3 In accordance with Rule 7(c) of the Joint Rules of Appellate Procedure for Courts of
Criminal Appeals, Judge Merriam, a reserve component appellate military judge, was
duly assigned by the Chief Appellate Military Judge to participate in this matter and
was deemed to be in regular active service with respect to this matter.
4 Specifications 1, 2, 4, and 5 of Charge I each alleged Appellant sexually abused his
daughter, a child under the age of 16 years, on divers occasions. In this opinion, Spec-
ification 5 is discussed further and is the only specification in issue.
5 Appellant was acquitted of a fifth specification alleging a sexual act upon a child who
had not attained the age of 12 years, with the intent to gratify his sexual desires.
6 References to Articles 120b and 120c, UCMJ, 10 U.S.C. §§ 920b, 920c, are to the Man-
ual for Courts-Martial, United States (2016 ed.) (2016 MCM). Unless otherwise noted,
all other references in this opinion to the UCMJ and Rules for Courts-Martial are to
the Manual for Courts-Martial, United States (2019 ed.).
2
United States v. Cabuhat, No. ACM 40191 (en banc)
a dishonorable discharge, confinement for 30 years, and reduction to the grade
of E-1.
Appellant raised three issues on appeal: (1) whether the military judge
abused his discretion by accepting Appellant’s guilty plea to sexual abuse of a
child by indecent conduct (Specification 5 of Charge I; hereafter, “Specification
5”) done in the “presence” of that child without defining “presence” to mean the
child had to be aware of the indecent conduct; (2) whether Appellant’s convic-
tion for Specification 5 is legally and factually insufficient; and (3) whether his
sentence is inappropriately severe.7 We ordered oral argument on three addi-
tional issues relating to Appellant’s assignments of error: (4) whether Appel-
lant’s guilty plea by exceptions to Specification 5 was provident; (5) whether
Appellant’s conviction for Specification 5, to include the words, “at or near
Dyess Air Force Base, Texas and,” to which Appellant pleaded not guilty,
should be set aside if Appellant’s guilty plea is found improvident; and (6)
whether Appellant’s conviction for Specification 5, including the words to
which Appellant pleaded not guilty, is legally or factually insufficient because
the evidence did not demonstrate when and where the charged conduct oc-
curred. We also considered an additional issue, not raised by Appellant, that
was identified during this court’s Article 66(d), UCMJ, 10 U.S.C. § 866(d), re-
view: (7) whether Appellant is entitled to relief for facially unreasonable ap-
pellate delay in accordance with United States v. Moreno, 63 M.J. 129 (C.A.A.F.
2006), or United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).
We address issues (1), (4), and (5) together as they concern issues related
to Appellant’s guilty plea. Likewise, we consider issues (2) and (6) together as
they relate to the legal and factual sufficiency of Appellant’s conviction. We
find Appellant’s convictions both legally and factually sufficient, and no error
materially prejudicial to the substantial rights of Appellant occurred. As dis-
cussed later, our opinion in United States v. Burkhart, 72 M.J. 590 (A.F. Ct.
Crim. App. 2013), is overruled. We affirm the findings and sentence.
I. BACKGROUND
The investigation into Appellant’s crimes began after his 12-year-old
daughter reported to her middle school guidance counselor that Appellant had
sexually touched her. Appellant began touching his daughter on the breasts,
thighs, and buttocks with his hands to gratify his sexual desires in 2014 while
he was stationed at Dyess Air Force Base (AFB), Texas. This opinion primarily
focuses on Appellant’s plea of guilty, by exceptions, to sexual abuse of his
7 Appellant personally raised issue (3) pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982).
3
United States v. Cabuhat, No. ACM 40191 (en banc)
daughter, a child under the age of 16, as alleged in Specification 5, and the
military judge’s finding of guilty as charged.
At his court-martial, Appellant entered a plea of guilty by exceptions to
Specification 5, which alleged Appellant
did, at or near Dyess [AFB], Texas, and at or near Ramstein Air
Base, Germany, on divers occasions, between on or about 13 Feb-
ruary 2014 and on or about 10 September 2019, commit a lewd
act upon [his daughter], a child who had not attained the age of
16 years, by engaging in indecent conduct, to wit: rubbing his
penis with his hand, intentionally done in her presence, which
conduct amounted to a form of immorality relating to sexual im-
purity which is grossly vulgar, obscene, and repugnant to com-
mon propriety, and tends to excite sexual desire or deprave mor-
als with respect to sexual relations.
Appellant entered a plea of guilty to this specification except for the words “at
or near Dyess Air Force Base, Texas and.” To the excepted words, Appellant
pleaded not guilty. In findings, the Government presented evidence on the ex-
cepted words. The military judge ultimately found Appellant guilty of the en-
tire specification, to include the excepted words.
II. DISCUSSION
A. Providence Inquiry
The crux of Appellant’s argument on appeal is that the military judge
abused his discretion by accepting Appellant’s guilty plea, and consequently
that the guilty plea was not provident, because the words “intentionally done
in her presence” as alleged in Specification 5 required the child-victim to be
aware of the charged indecent conduct. We find the military judge did not
abuse his discretion in accepting Appellant’s guilty plea and Appellant’s plea
of guilty was provident.
1. Additional Background
During his guilty plea inquiry, Appellant explained he rubbed his penis
with his hands on six or seven different occasions in his daughter’s presence
while he believed she was asleep. Appellant engaged in the following colloquy
with the military judge:
[Appellant]: After I was stationed at Ramstein Air Base on 13
August 2018, I lived in my house at . . . Miesenbach. It was about
[eight] minutes from Ramstein Air Base, with my wife and
daughter. There was approximately [six to seven] times of going
to [my daughter’s] room where I thought she was sleeping. I’d sit
4
United States v. Cabuhat, No. ACM 40191 (en banc)
on the edge of the bed without saying anything or turning on the
lights. I placed my hand in my pants and masturbated when I
removed my penis from my pants. I masturbated while I sat on
the end of the bed. Sometimes I would also reach out and rub her
legs with my other hand. Sometimes I would also take photo-
graphs of her with my other hand as well. On [one other] occa-
sion . . . that occurred in my bedroom where she was laying on
the bed watching television, I also rubbed my penis with my
other hand. I did these actions to gratify my sexual desire. My
actions were immoral and grossly vulgar. I was ashamed for my
actions and knew everything that I was doing was immoral. This
was wrong because she shouldn’t be exposed to anything like
this. She’s my daughter. I should be trying to protect her and not
hurt her. I knew that it was unacceptable and illegal behavior
because I never shared this information with anyone. Sexual
acts should only be between consenting adults. In doing that
next to her was exposing her to sexual acts that she was too
young to be exposed to.
While at or near Ramstein Air Base, Germany, I rubbed my pe-
nis with my hand intentionally in my daughter’s presence. This
conduct amounted to [a] form [of] immorality relating to sexual
impurity [which] is grossly vulgar, obscene and repugnant to
common propriety. It also depr[a]ves morals with respect to sex-
ual relations. She was under the age of 16 at the time.
[Military Judge (MJ)]: So this all occurred in your house . . . in
Miesenbach; is that correct?
[Appellant]: Yes, sir.
MJ: And do you agree that is at or near Ramstein Air Base?
[Appellant]: Yes, sir.
MJ: And this happen [sic] then after August of 2018?
[Appellant]: Yes, sir.
MJ: And at this time how old was [your daughter]?
[Appellant]: So 2018 she would be --
MJ: So beginning in August of 2018 she would have turned 11
[prior to this date]; is that correct?
[Appellant]: Yes.
MJ: And so then she was 11. And how long did this continue? I
mean you said 6 to 7 times; is that correct?
5
United States v. Cabuhat, No. ACM 40191 (en banc)
[Appellant]: Yes, sir.
MJ: Was it -- over the course of how long? When did it first begin
in Ramstein?
[Appellant]: Around October 2018.
MJ: So she was still 11 at the time. How long would you say that
it continued until?
[Appellant]: It would be once a month for 6 or 7 months -- 6, 7 or
8 months.
MJ: So until anywhere from April to June of 2019?
[Appellant]: Yes, Sir.
....
MJ: And this indecent conduct, describe it for me the first time
that you can remember it happening in Miesenbach[.]
[Appellant]: One of the first times that I can remember was in
her bedroom. She was asleep. I touched her legs and started
masturbating, sir.
MJ: When you were masturbating did you -- where was your pe-
nis?
[Appellant]: Right hand, sir.
MJ: And was it inside or outside of your pants?
[Appellant]: Sometimes inside, sometime outside.
MJ: Were you rubbing your penis?
[Appellant]: Yes, sir.
MJ: Were you rubbing your penis intentionally?
[Appellant]: Yes, sir.
MJ: And were you doing it in her presence?
[Appellant]: Yes, sir.
MJ: Now is there something about in regards to rubbing your
penis in her presence, was that an intentional setup? Let me get
there -- what’s different between this and you potentially rub-
bing your penis in the bathroom for example? Why -- why were
you rubbing your penis in your daughter’s room while you were
touching her?
[Appellant]: Because I was aroused by her.
6
United States v. Cabuhat, No. ACM 40191 (en banc)
MJ: And you were aroused by this conduct?
[Appellant]: Yes, sir.
MJ: Is this vulgar?
[Appellant]: Yes, sir.
MJ: How so? I’m going to ask you the same question and you
might want to talk to your lawyers about this -- you’re charged
with conduct which amounted to a form of immorality relating
to sexual impurity, which you’ve talked about, which is grossly
vulgar, obscene and repugnant to common propriety. So --
[Appellant]: She’s my daughter, sir. I shouldn’t be doing things
like that in front of her. It’s not normal to society. I should be
protecting her, sir. I shouldn’t have done it while she was sleep-
ing. I shouldn’t have done it at all.
MJ: Okay.
[Appellant]: I shouldn’t have my penis out around my daughter.
You shouldn’t be doing that to people you love.
MJ: Would you agree that it’s vulgar?
[Appellant]: Yes, sir.
MJ: Was it obscene?
[Appellant]: Yes, sir.
MJ: Was repugnant?
[Appellant]: Yes, sir.
MJ: That was the first time. How many times did you say it hap-
pened in total?
[Appellant]: There are some months where it happened twice.
Some months where it never happened. All I can think of is 6 to
7 times, sir.
MJ: And were each of these times intentional?
[Appellant]: Yes, sir.
7
United States v. Cabuhat, No. ACM 40191 (en banc)
MJ: And but for the one time that it happened in your bedroom
that you discussed, did these all happen in her room?[8]
[Appellant]: Yes, sir.
MJ: Was she asleep all the time?
[Appellant]: When she was in her room, yes. When she was in
my room, no. When she was in the living room, no, sir.
MJ: Do you agree that even though she was asleep for some of
these occasions, those occasions where she was asleep it was in
her presence?
[Appellant]: Yes, sir.
MJ: Is it still wrongful even though she was asleep?
[Appellant]: Yes, sir.
MJ: And in each of these times, what was your intent in touching
your penis in her presence?
[Appellant]: To arouse myself, sir.
During the guilty plea inquiry, the military judge informed Appellant of
the elements of Specification 5. Appellant said he understood the elements and
definitions.9 At no point during the providence inquiry did the military judge
define “in the presence” of a child to Appellant, nor did Appellant request a
definition. Instead, the subject of Appellant’s “awareness” of his daughter’s
presence during his alleged indecent acts arose in the context of the colloquy
with Appellant, in which he expressed that he was aware of his daughter’s
presence during each alleged indecent act. The military judge did not advise
Appellant during the providence inquiry that his daughter must have been
aware of the indecent acts in question, nor did Appellant admit his daughter
was aware on any of those occasions that he was masturbating.
8 Previously, during the providence inquiry on another specification, Appellant de-
scribed one occasion in his bedroom during which his daughter was awake watching
television while he masturbated.
9 The military judge previously had defined for Appellant relevant legal terms; Appel-
lant stated he did not need the military judge to re-read them to him.
8
United States v. Cabuhat, No. ACM 40191 (en banc)
2. Law
a. Guilty Plea
We review a military judge’s decision to accept an accused’s guilty plea for
an abuse of discretion. United States v. Riley, 72 M.J. 115, 119 (C.A.A.F. 2013)
(citing United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). The mil-
itary judge’s legal conclusion about the providency of a plea is reviewed de
novo. United States v. Harris, 61 M.J. 391, 398 (C.A.A.F. 2005).
“The military judge shall not accept a plea of guilty without making such
inquiry of the accused as shall satisfy the military judge that there is a factual
basis for the plea.” Rule for Courts-Martial (R.C.M.) 910(e). “The military judge
must ensure there is a basis in law and fact to support the plea to the offense
charged.” United States v. Soto, 69 M.J. 304, 307 (C.A.A.F. 2011) (citing Inabi-
nette, 66 M.J. at 321–22) (additional citation omitted). “[A] military judge must
elicit actual facts from an accused and not merely legal conclusions.” United
States v. Price, 76 M.J. 136, 138 (C.A.A.F. 2017). “A guilty plea is provident if
the facts elicited make out each element of the charged offense.” United States
v. Harrow, 65 M.J. 190, 205 (C.A.A.F. 2007). The record of trial must show the
military judge “questioned the accused about what he did or did not do, and
what he intended (where this is pertinent), to make clear the basis for a deter-
mination by the military trial judge or president whether the acts or the omis-
sions of the accused constitute the offense or offenses to which he is pleading
guilty.” United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969).
“If an accused sets up matter inconsistent with the plea at any time during
the proceeding, the military judge must either resolve the apparent incon-
sistency or reject the plea.” United States v. Hines, 73 M.J. 119, 124 (C.A.A.F.
2014) (internal quotation marks and citation omitted). Appellate courts will
not speculate on the existence of facts that might invalidate a plea, especially
where the matter raised post-trial contradicts an appellant’s express admis-
sion on the record. See United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F.
1995).
A military judge “has a duty to accurately inform an appellant of the nature
of his offense and an essential aspect of informing is a correct definition of legal
concepts.” United States v. Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (internal
quotation marks, alterations, and citations omitted). However, “failure to de-
fine correctly a legal concept or explain each and every element of the charged
offense to the accused in a clear and precise manner is not reversible error if it
is clear from the entire record that the accused knew the elements, admitted
them freely, and pleaded guilty because he was guilty.” Id. (internal quotation
marks and citations omitted).
9
United States v. Cabuhat, No. ACM 40191 (en banc)
“Once the military judge has accepted a plea as provident and has entered
findings based on it, an appellate court will not reverse that finding and reject
the plea unless it finds a substantial conflict between the plea and the ac-
cused’s statements or other evidence of record.” United States v. Garcia, 44
M.J. 496, 498 (C.A.A.F. 1996). “Even if a guilty plea is later determined to be
improvident, a reviewing court may grant relief only if it finds that the military
judge’s error in accepting the plea ‘materially prejudice[d] the substantial
rights of the accused.’” United States v. Mortadella, 82 M.J. 1, 4 (C.A.A.F. 2021)
(alteration in original) (quoting Article 45(c), UCMJ, 10 U.S.C. § 845(c)). In
reviewing the providence of an appellant’s guilty pleas, “we consider his collo-
quy with the military judge, as well as any inferences that may reasonably be
drawn from it.” United States v. Timsuren, 72 M.J. 823, 828 (A.F. Ct. Crim.
App. 2013) (quoting United States v. Carr, 65 M.J. 39, 41 (C.A.A.F. 2007) (cita-
tion omitted)).
“[W]hen a plea of guilty is attacked for the first time on appeal, the facts
will be viewed in the light most favorable to the [G]overnment.” United States
v. Arnold, 40 M.J. 744, 745 (A.F.C.M.R. 1994) (citation omitted).
b. Statutory Construction
We review interpretation of a statute de novo. United States v. Kohlbek, 78
M.J. 326, 330–31 (C.A.A.F. 2019) (citation omitted). “In conducting this de novo
review, this Court employs principles of statutory construction.” United States
v. Beauge, 82 M.J. 157, 162 (C.A.A.F. 2022) (citing Kohlbek, 78 M.J. at 330).
“As in all statutory construction cases, we begin with the language of the stat-
ute.” United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019) (quoting
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)). In the absence of a
statutory definition, the plain language of a statute will control unless it is
ambiguous or leads to an absurd result. United States v. Lewis, 65 M.J. 85, 88
(C.A.A.F. 2007) (citations omitted). “[W]hether the language at issue has a
plain and unambiguous meaning with regard to the particular dispute in the
case” is the starting point for determining the meaning of the statute. Robinson
v. Shell Oil Co., 519 U.S. 337, 340 (1997). Such “inquiry must cease if the stat-
utory language is unambiguous and ‘the statutory scheme is coherent and con-
sistent.’” Id. “The plainness or ambiguity of statutory language is determined
by reference to the language itself, the specific context in which that language
is used, and the broader context of the statute as a whole.” Id. at 341 (first
citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477 (1992); then
citing McCarthy v. Bronson, 500 U.S. 136, 139 (1991)). When we see a “facial
ambiguity . . . , we must interpret it in light of the broader context of the rule.”
Beauge, 82 M.J. at 162 (citation omitted).
Finally, “when a word has an easily graspable definition outside of a legal
context, authoritative lay dictionaries may also be consulted.” United States v.
10
United States v. Cabuhat, No. ACM 40191 (en banc)
Schmidt, 82 M.J. 68, 75–76 (C.A.A.F. 2022) (Ohlson, C.J., concurring in the
judgment) (footnote and citation omitted), cert. denied, Schmidt v. United
States, 143 S. Ct. 214 (2022); see also Wooden v. United States, __ U.S. __, 142
S. Ct. 1063 (2022) (utilizing only lay dictionaries to define the word “occasion”).
c. Stare Decisis
The doctrine of stare decisis ordinarily obliges us to adhere to our own prec-
edent in interpreting successive cases on the same subject matter. “The doc-
trine of stare decisis is ‘the preferred course because it promotes the even-
handed, predictable, and consistent development of legal principles, fosters re-
liance on judicial decisions, and contributes to the actual and perceived integ-
rity of the judicial process.’” United States v. Rorie, 58 M.J. 399, 406 (C.A.A.F.
2003) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). “The doctrine is
‘most compelling’ where courts undertake statutory construction.” Id. (first cit-
ing Hilton v. South Carolina Public Ry. Comm’n, 502 U.S. 197, 205 (1991); and
then citing Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989)). How-
ever, this doctrine “is not an inexorable command; rather, it is a principle of
policy and not a mechanical formula of adherence to the latest decision.” United
States v. Falcon, 65 M.J. 386, 390 (C.A.A.F. 2008) (internal quotation marks
and citation omitted). Instead, stare decisis is a principle of decision making,
not a rule, and need not be applied when the precedent at issue is “unworkable
or poorly reasoned.” United States v. Quick, 74 M.J. 332, 336 (C.A.A.F. 2015)
(footnote omitted).
“[A]dhering to precedent ‘is usually the wise policy, because in most mat-
ters it is more important that the applicable rule of law be settled than it be
settled right.’” United States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000) (quot-
ing Payne, 501 U.S. at 827). In evaluating the application of stare decisis, we
consider the following factors: “whether the prior decision is unworkable or
poorly reasoned; any intervening events; the reasonable expectations of ser-
vicemembers; and the risk of undermining public confidence in the law.”
United States v. Blanks, 77 M.J. 239, 242 (C.A.A.F. 2018) (quoting Quick, 74
M.J. at 336).
d. Sexual Abuse of a Child
The applicable language in Article 120b, UCMJ, for sexual abuse of a child
is substantially the same in the 2012, 2016, and 2019 versions of the Manual
for Courts-Martial (MCM).10 A person “who commits a lewd act upon a child is
guilty of sexual abuse of a child.” Article 120b(c), UCMJ. A lewd act includes,
inter alia,
10 Specification 5 of Charge I alleges conduct occurring between 2014 and 2019.
11
United States v. Cabuhat, No. ACM 40191 (en banc)
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.
Article 120b(h)(5)(D), UCMJ, 10 U.S.C. § 920b(h)(5)(D).
For Appellant to be found guilty of child sexual abuse by indecent conduct
in violation of Article 120b(c), UCMJ, as alleged in Specification 5 of Charge I,
the Government was required to prove beyond a reasonable doubt that Appel-
lant: (1) “engaged in indecent conduct, intentionally done with or in the pres-
ence of a child,” and (2) his “indecent conduct amounted 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.” See, e.g., Manual for Courts-Martial, United States
(2016 ed.) (2016 MCM), pt. IV, ¶45b.b.(4)(e) (emphasis added).
The Analysis of the Punitive Articles states:
The new “Sexual Abuse of a Child” offense under Article 120b.(c),
which proscribes committing a “lewd act” upon a child, was in-
tended to consolidate the 2007 version of Article 120(f), Article
120(g), Article 120(i), and Article 120(j), by expanding the defi-
nition of “lewd act” to include any sexual contact with a child,
indecent exposure to a child, communicating indecent language
to a child, and committing indecent conduct with or in the pres-
ence of a child. Exposure, communication, and indecent conduct
now include offenses committed via any communication technol-
ogy to encompass offenses committed via the [I]nternet (such as
exposing oneself to a child by using a webcam), cell phones, and
other modern forms of communication. This change expands the
pre-2012 definition of “indecent liberty” which proscribed con-
duct only if committed in the physical presence of a child.
2016 MCM, App. 23, at A23-16.
“In the presence” is not a defined statutory term for Article 120b(c), UCMJ,
10 U.S.C. § 920b(c). The Military Judge’s Benchbook providing instructions for
the indecent act did not provide a definition for “in the presence.” See Military
Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 (29 Feb. 2020) at 643–48
(pre-2019 Article 120b, UCMJ) (Benchbook); Benchbook, at 1416–21 (post-2019
Article 120b, UCMJ).
3. Analysis
12
United States v. Cabuhat, No. ACM 40191 (en banc)
Appellant argues the element of the offense charged in this case—sexual
abuse of a child—which requires that an accused engage in indecent conduct
“in the presence of a child,” requires the child be aware of the indecent conduct.
We conclude it does not.
The case before this court calls upon us to consider whether we ought to
overrule Burkhart, a prior precedent of this court which expressly held that to
be convicted of the predecessor offense of “indecent liberties with a child”11—
now the current Article 120b(c), UCMJ, Sexual Abuse of a Child via lewd acts—
the child must be in “close proximity” to the appellant “coupled with” some
“awareness” of his “presence and actions.” 72 M.J. at 594–95. In Burkhart, the
court further opined that the child’s senses needed to be “conjoined” with those
of the appellant. Id. at 595.
We begin with statutory construction. First, we apply the plain meaning of
the phrase “in the presence of a child” which is clear and unambiguous. See
Robinson, 519 U.S. at 340. “Presence” under this statute, by its plain meaning,
simply requires the offender to be in proximity to the child.12 There is no
“awareness” element in the plain meaning of the word “presence.” Additionally,
we see nothing in the statutory language or context that requires the victim’s
awareness of the offender’s indecent conduct. See id. at 341.
Our interpretation of the term “in the presence of a child,” which does not
require the child’s awareness of the conduct, is consistent with Chief Judge
Ohlson’s concurrence in Schmidt, supra; our sister service court’s decision in
United States v. Tabor, 82 M.J. 637 (N.M. Ct. Crim. App. 2022) (en banc), rev.
denied, 82 M.J. 64 (C.A.A.F. 2022); and recent efforts by Congress more gener-
ally to expand the scope of indecent conduct subject to criminal sanctions.13
However, before addressing these cases, the relevant congressional changes,
11 The appellant in Burkhart was convicted of indecent liberty with a child, in violation
of Article 120, UCMJ (Manual for Courts-Martial, United States (2008 ed.) (2008
MCM)). 72 M.J. at 591.
12 Recognized lay dictionary definitions of “presence” include: “the state of being with
or in the same place as a person or thing; attendance, company, society” and “the part
of space within one’s immediate vicinity.” See OXFORD ENGLISH DICTIONARY, Presence,
https://www.oed.com/search/dictionary/?scope=Entries&q=presence (last visited 12
Sep. 2023); MERRIAM-WEBSTER, Presence, https://www.merriam-webster.com/diction-
ary/presence (last visited 12 Sep. 2023).
13 See, e.g., 2016 MCM, App. 23, at A23-16 (explaining the intent of the 2012 amend-
ments to Article 120b, UCMJ, to include the intent to “consolidate” the previous stat-
utes and “expand” the definition of “lewd acts” pertaining to children); see also the
National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5430(23 Dec. 2016) (Military Justice Act 2016) (broadening the definition of sexual act to
conform with federal law under 18 U.S.C. §§ 2246(2)(A)–(C)).
13
United States v. Cabuhat, No. ACM 40191 (en banc)
and why we are compelled to overrule Burkhart, we must address United
States v. Miller, 67 M.J. 87 (C.A.A.F. 2008), and Burkhart’s application of Mil-
ler.
The issue in Miller involved an offense—indecent liberties with a
child⎯that no longer is enumerated under Article 134, UCMJ. See Manual for
Courts-Martial, United States (2005 ed.). The United States Court of Appeals
for the Armed Forces (CAAF) in Miller considered whether an appellant’s crim-
inal conduct—which took place remotely by use of a web camera—could satisfy
an element of that former offense of taking indecent liberties with a child; spe-
cifically, that part of the offense which required the accused to commit the
criminal conduct “in the presence of” a child. Id. at 89. The CAAF held the
element required evidence that the accused’s conduct occurred “in the physical
presence of the child” and “same physical space” as the child, and therefore
concluded the offense could not be committed remotely by use of a web camera.
Id. at 90–91.
The nature of the “awareness” was not at issue in Miller. In defining “phys-
ical presence,” the CAAF stated in two parts the definition of “presence:” (1)
“[t]he state or fact of being in a particular place and time,” and (2) “[c]lose
physical proximity coupled with awareness.” Id. at 90 (alterations in original)
(internal quotation marks omitted) (quoting Presence, BLACK’S LAW DICTION-
ARY (8th ed. 2004)). The CAAF did not specify whose awareness was required,
and did not address the second definition from Black’s Law Dictionary that
included “awareness” elsewhere in the opinion. The CAAF’s citation to the
Black’s Law Dictionary definition of “presence” which included “awareness” did
not create a requirement for “awareness” on the part of the child to satisfy the
element including “in the presence of.”
In Burkhart, five years after Miller, our court considered a different but
related statute, Indecent liberties with a child, under Article 120, UCMJ.14 72
M.J. at 590. Our court found that physical presence for that offense required
both close physical proximity and awareness by the victim. See Burkhart, 72
M.J. at 595. As the Burkhart court created a requirement for awareness, it
specifically cited the second definition for “presence” that Miller cited but itself
did not apply. The statute at issue in Burkhart, namely Article 120(j), UCMJ
(2008 MCM), is different from the statute at issue in Appellant’s case, namely
Article 120b(h)(5)(D), UCMJ (2012, 2016 and 2019 MCMs); however, the stat-
utory language at issue—in the “presence of a child”—is the same in both
14 All references in this opinion to Article 120, UCMJ, are to the 2008 MCM.
14
United States v. Cabuhat, No. ACM 40191 (en banc)
statutes. To the extent Burkhart is binding precedent on this issue, it is over-
ruled.15
We find that Burkhart was “poorly reasoned.” It substantially relied upon
dicta in Miller to reach the conclusion that a victim’s awareness of the presence
of the accused was a constituent part of the “physical presence” required for
“indecent liberties” with a child. It departed from the “plain meaning” canon of
statutory construction and unnecessarily used a legal dictionary to define a lay
term. See Schmidt, 82 M.J. at 75–76 (Ohlson, C.J., concurring in the judg-
ment). We are mindful of CAAF’s well-reasoned admonition that adherence to
precedent is ordinarily “the preferred course because it promotes the even-
handed, predictable, and consistent development of legal principles, fosters re-
liance on judicial decisions, and contributes to the actual and perceived integ-
rity of the judicial process.” United States v. Cardenas, 80 M.J. 420, 423
(C.A.A.F. 2021) (internal quotation marks and citations omitted). However, de-
monstrably wrong judicial decisions do not contribute to the integrity of the
judicial process.16 Moreover, the absence from the Benchbook of this Burkhart
requirement is some indication trial courts did not follow it. Our court erred in
Burkhart in holding that a victim’s awareness was a component of “physical
presence” for what was then Article 120(j), UCMJ, Indecent liberties with a
child. That error should not be extended to what is contained in Article 120b(c),
UCMJ, Sexual Abuse of a Child via lewd acts (2016 MCM, 2019 MCM). To
correct that error, we expressly overrule Burkhart and conclude that “in the
presence” for purposes of the current Article 120b(c), UCMJ, offense does not
require an “awareness” of the child victim of the accused’s lewd acts.
15 We note that neither party has argued that our court’s holding in Burkhart is con-
trolling.
16 While the fact that a case was wrongly decided, standing alone, is not usually a basis
for overturning a precedent, our superior court has not hesitated to determine a prec-
edent as wrongly decided based solely upon it being an erroneous statement of law. See
e.g. United States v. Piolunek, 74 M.J. 107, 108–09 (C.A.A.F. 2015) (determining
United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012), was wrongly decided based solely
upon legal error and without any reference to other usual stare decisis factors); United
States v. Jones, 68 M.J. 465, 472 (C.A.A.F. 2010) (overruling United States v. Hudson,
59 M.J. 357, 359 (C.A.A.F. 2004) and re-establishing the “elements test” for determin-
ing lesser included offenses); United States v. Miller, 67 M.J. 385, 388–89 (C.A.A.F.
2009) (overruling in part United States v. Foster 40 M.J. 140, 143 (C.M.A. 1994) and
50 years of associated precedent in holding that the Article 134, UCMJ, terminal ele-
ment of “conduct prejudicial to good order and discipline” is not included by implication
in all enumerated punitive articles).
15
United States v. Cabuhat, No. ACM 40191 (en banc)
Our conclusion is not novel.17 While no majority of the court formed to pro-
vide an answer as to whether “in the presence of” requires the child’s “aware-
ness” of an accused committing a lewd act as proscribed by Article 120b(c),
UCMJ, we are persuaded by the concurring opinion by Chief Judge Ohlson
joined by Senior Judge Erdmann, which states:
[I]t is clear to me that Congress did not intend the meaning of
the phrase “in the presence of” in Article 120b(h)(5)(D)[, UCMJ,]
to include any element of “awareness.” For purposes of this arti-
cle, the phrase simply means that one person is in the immediate
vicinity of another person. Because “the language at issue has a
plain and unambiguous meaning” and “the statutory scheme is
coherent and consistent,” our role of judicial interpretation is at
an end.
Id. at 78. (Ohlson, C.J., concurring in the judgment) (quoting Robinson, 519
U.S. at 340).18 Chief Judge Ohlson further addressed the issue of awareness,
stating, “In my view, the plain language of the statute only requires an accused
who is intentionally engaging in a lewd act to be aware of the child’s presence;
it does not require the child victim to be aware of the accused’s lewd act.” Id.
at 74. (Ohlson, C.J., concurring in the judgment).
Moreover, we find the recent decision from our sister court in Tabor—only
three months after Schmidt was decided—also persuasive support for our con-
clusion that proof of a child’s awareness of indecent conduct is not required for
a conviction under Article 120b(c), UCMJ. 82 M.J. at 655. In Tabor, the United
States Navy-Marine Corps Court of Criminal Appeals (NMCCA) also focused
on statutory construction and concluded “[t]here is no requirement, either ex-
plicitly or implicitly in the statute, that the child victim be aware of the ac-
cused’s lewd act.” Id. at 653. We agree with NMCCA that the plain meaning of
“any indecent conduct, intentionally done with or in the presence of a child”
contained in Article 120b(h)(5)(D), UCMJ, does not require the child to be
“aware” of the accused’s conduct. Id.
Accordingly, the military judge in this case did not abuse his discretion by
not defining “intentionally done in her presence” to include “awareness” of the
lewd act by Appellant’s daughter where that term had no statutory definition
17 In Schmidt, the CAAF acknowledged the definition of “in the presence of” required
under Article 120b(h)(5)(D), UCMJ, was “an issue of first impression.” 82 M.J. at 73
(Sparks, J., announcing the judgment of the Court).
18 Only one judge found awareness was required. Schmidt, 82 M.J. at 74 (Sparks, J.,
announcing the judgment of the Court). Two other judges joined a concurring opinion
finding the issue was waived. Id. at 78–79 (Maggs, J., concurring in the judgment).
16
United States v. Cabuhat, No. ACM 40191 (en banc)
and therefore the common and ordinary meaning of “physical presence” ap-
plied. We also find no “substantial conflict between the plea and the accused’s
statements or other evidence of record.” Garcia, 44 M.J. at 498. Appellant’s
plea to Specification 5 of Charge I is provident as the military judge elicited
facts to support each element of sexual abuse of a child. Harrow, 65 M.J. at
205.
B. Legal and Factual Sufficiency
Appellant challenges the legal and factual sufficiency of his conviction re-
garding the words to which he pleaded not guilty in Specification 5. Appellant
argues it is unclear whether the military judge applied the correct legal stand-
ard for “presence,” and Appellant’s daughter’s “testimony does not reference
particular time periods of when Appellant allegedly masturbated or make clear
when and where these incidences actually occurred.” We resolve these issues
adverse to Appellant and conclude the conviction is legally and factually suffi-
cient.
1. Additional Background
Appellant’s daughter testified Appellant began abusing her when she was
7 or 8 years old while she resided in Texas. At that time, Appellant was sta-
tioned at Dyess AFB, Texas. In her testimony, Appellant’s daughter was not
specific as to the dates when Appellant masturbated in her presence. However,
she testified Appellant masturbated in her presence both in Germany and
Texas. During cross-examination, Appellant’s daughter testified:
Q. Did he ever get under the sheets with you?
A. While humping me, no.
Q. Other times?
A. Yes. Sometimes if we were sitting next to each other on the
bed or on the couch, he would put a blanket over us and he would
start -- he wouldn’t touch me, but he would start masturbating
next to me when we were watching or sitting next to each other.
Q. Where do you remember that happening?
A. In Texas.
Q. So in Texas sometimes he would masturbate while he was
under the covers with you, even though he wasn’t touching your
body?
A. Yeah. He did this in Germany too.
2. Law
17
United States v. Cabuhat, No. ACM 40191 (en banc)
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)
(citing 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[ ] [may] use [its] ‘experience with people and events in weigh-
ing 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) (alteration
and citation omitted). The test for legal sufficiency “gives full play to the re-
sponsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ulti-
mate facts.” United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1973)).
“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-
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)).
For Appellant to be found guilty of sexual abuse of a child by indecent con-
duct, the Government was required to prove beyond a reasonable doubt: (1)
18
United States v. Cabuhat, No. ACM 40191 (en banc)
“That the accused engaged in indecent conduct, intentionally done with or in
the presence of a child;” and (2) “That the indecent conduct amounted 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.” 2016 MCM, pt. IV, ¶ 45b.b.(4)(e).
3. Analysis
One of Appellant’s claims is that his conviction for the excepted words of
sexual abuse of a child is not legally or factually sufficient because it is unclear
whether the military judge applied the correct legal standard for “in the pres-
ence of a child.” As we resolved above, “in the presence of a child” language
does not require awareness as Appellant asserts. Consequently, there is no ba-
sis to conclude the military judge applied an incorrect legal standard. We now
turn to Appellant’s other claims and related issue for which we heard oral ar-
gument.
Appellant argues his daughter’s testimony: (1) is not specific as to when
and where the incidences she described occurred; (2) contains several incon-
sistencies; (3) lacks sufficient detail; and (4) conflates masturbation with other
instances of charged and uncharged conduct. We have thoroughly considered
the points raised by Appellant. From our review of the record, however, we are
convinced the evidence is both legally and factually sufficient. We find there
was ample evidence for the military judge to determine Appellant masturbated
in the presence of his daughter “at or near Dyess [AFB], Texas,” during the
charged timeframe. Although her testimony was at times general in nature as
to when and where acts occurred, Appellant’s daughter was specific in describ-
ing that “[i]n Texas,” Appellant “would start masturbating next to [her] when
[they] were watching [television] or sitting next to each other.” She also agreed
during questioning that Appellant would masturbate under the covers, but he
was not touching her.
As an evidentiary standard, proof beyond a reasonable doubt does not re-
quire more than one witness to testify credibly. See United States v. Rodriguez-
Rivera, 63 M.J. 372, 383 (C.A.A.F. 2006). We are not persuaded that any in-
consistencies in Appellant’s daughter’s testimony are more than minor or
equate to reasonable doubt, and we are convinced of the legal and factual suf-
ficiency of the conviction. Consequently, we disagree with Appellant’s asser-
tions.
When viewing the evidence offered at trial in the light most favorable to
the Government, a rational factfinder could readily find the essential elements
of the charged sexual abuse of a child beyond a reasonable doubt. We therefore
conclude the evidence is legally sufficient to support Appellant’s conviction.
Giving the appropriate deference to the trial court’s ability to see and hear the
19
United States v. Cabuhat, No. ACM 40191 (en banc)
witnesses, and after our own independent review of the record, we ourselves
are convinced of Appellant’s guilt beyond a reasonable doubt. Accordingly, we
also find the evidence factually sufficient.
C. Sentence Severity
Appellant claims his sentence is inappropriately severe when compared to
“similar unrelated cases as outlined” in Appellant’s brief. We disagree with
Appellant’s assertions that his sentence is inappropriately severe and find no
relief is warranted.
We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2016) (footnote omitted). We “may affirm only such findings
of guilty and the sentence or such part or amount of the sentence, as [we] find
correct in law and fact and determine[ ], on the basis of the entire record,
should be approved.” Article 66(d)(1), UCMJ, 10 U.S.C. § 866(d)(1). The CAAF
instructs that:
Article 66(d)(1), UCMJ, provides the “[Courts of Criminal Ap-
peals (CCAs)] “broad discretion to determine whether a sentence
‘should be approved,’ a power that has no direct parallel in the
federal civilian sector.” “The [CCAs’] power to review a case for
sentence appropriateness . . . includes but is not limited to con-
siderations of uniformity and even-handedness of sentencing de-
cisions.”
United States v. Behunin, 83 M.J. 158, 161 (C.A.A.F. 2023) (second alteration
and omission in original) (quoting United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001)).
When considering uniformity with regard to an appellant’s sentence, we
are “not required . . . to engage in sentence comparison with specific [other]
cases ‘except in those rare instances in which sentence appropriateness can be
fairly determined only by reference to disparate sentences adjudged in closely
related cases.’” United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting
United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985)) (additional citation
omitted). Under Lacy,
[a]t a Court of Criminal Appeals, an appellant bears the burden
of demonstrating that any cited cases are “closely related” to his
or her case and that the sentences are “highly disparate.” If the
appellant meets that burden, or if the court raises the issue on
its own motion, then the Government must show that there is a
rational basis for the disparity.
Id. at 288. Notwithstanding a failure to demonstrate cases are closely related,
we may consider “unrelated cases” as “CCAs typically have ‘discretion to
20
United States v. Cabuhat, No. ACM 40191 (en banc)
consider and compare other [specific] courts-martial sentences when [they are]
reviewing a case for sentence appropriateness and relative uniformity.’” Be-
hunin, 83 M.J. at 161 (alterations in original) (quoting United States v. Wacha,
55 M.J. 266, 267 (C.A.A.F. 2001)).
We “assess sentence appropriateness by considering the particular appel-
lant, the nature and seriousness of the offense[s], the appellant’s record of ser-
vice, and all matters contained in the record of trial.” United States v. Ander-
son, 67 M.J. 703, 705 (A.F. Ct. Crim. App. 2009) (per curiam) (citations omit-
ted). While we have discretion in determining whether a particular sentence is
appropriate, we are not authorized to engage in exercises of clemency. United
States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010) (citation omitted).
For the offenses of which Appellant was found guilty, the maximum sen-
tence available included 105 years of confinement.19 Appellant contends his
sentence of a dishonorable discharge, confinement for 30 years, and reduction
to the grade of E-1 is inappropriately severe when compared to “similar unre-
lated cases.” Appellant does not claim, nor do we find, Appellant’s case is
“closely related” to any other case. Lacy, 50 M.J. at 288. Appellant’s argument
focuses on a claim that his “significant confinement sentence” is inappropriate
when compared to other cases. We disagree.
Appellant not only repeatedly sexually abused his biological daughter over
a period of years, on two continents, he also indecently recorded her, viewed
and possessed child pornography, and obstructed justice. On multiple occa-
sions, Appellant touched his daughter’s breasts, thighs, and buttocks; touched
her genitalia and buttocks with his penis through the clothing; touched her
genitalia directly; and rubbed his penis with his hand in her presence. Also, in
both Germany and Texas, once or twice a month for a year, Appellant made
indecent recordings of his daughter’s breasts, vagina, genitalia, and buttocks.
Appellant would record his daughter’s private areas while she was asleep, and
even move her leg with his hand to facilitate his recording. Appellant also rec-
orded himself with his penis in his hand and placed it on his daughter’s but-
tocks and genitalia over her underwear.
At the court-martial, Appellant’s daughter provided a victim impact state-
ment to the court in which she explained that she had “extremely detailed and
haunting nightmares that feature[d her] dad” in which she relived what Ap-
pellant had done to her. Appellant’s daughter further explained that she had
“gotten to the point that [she was] scared to sleep every night without [her]
mother l[a]ying beside [her] or, at least, in the same room.” She described that
19 At trial, the military judge granted a defense motion for unreasonable multiplication
of charges and merged the child pornography specifications for sentencing.
21
United States v. Cabuhat, No. ACM 40191 (en banc)
the “trauma of [her] father molesting [her] over so many years has impacted
[her] day-to-day life in ways [she] never imagined.” Appellant’s daughter ex-
pressed she had difficulty completing simple tasks, feared males, experienced
anxiety, and had difficulty in school, both academically and socially.
During the sentencing phase, Appellant’s case consisted only of a written
and verbal unsworn statement. Appellant described that he was from a small
village in Guam and that his “elementary years were rough.” Appellant ex-
plained that one of his teachers “got strangely close” to him and that he “didn’t
know that [his] first sexual experience wasn’t normal.” Appellant highlighted
his military record, apologized for his misconduct, and expressed remorse.
We have considered Appellant’s case for sentence appropriateness and rel-
ative uniformity. After our careful consideration of the matters contained in
the “entire record,” the nature and seriousness of Appellant's offenses, and his
record of service, we find the sentence is not inappropriately severe.
D. Timeliness of Appellate Review
Additionally, we consider whether Appellant is entitled to relief for a fa-
cially unreasonable appellate delay. Moreno, 63 M.J. at 135 (citations omitted);
Tardif, 57 M.J. at 223–24. We decline to grant such relief.
1. Law
We review de novo whether an appellant has been denied the due process
right to speedy appellate review. Moreno, 63 M.J. at 135 (citations omitted). A
presumption of unreasonable delay arises when appellate review is not com-
pleted, and a decision rendered within 18 months of a case being docketed. Id.
at 142. A presumptively unreasonable delay triggers an analysis of the four
factors specified in Barker v. Wingo, 407 U.S. 514, 530 (1972): “(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) prejudice.” Moreno, 63 M.J. at 135(citations omitted). A presumptively unreasonable delay satisfies the first fac-
tor, but the Government “can rebut the presumption by showing the delay was
not unreasonable.” Id. at 142. Assessing the fourth factor of prejudice, we con-
sider the interests of “prevention of oppressive incarceration pending appeal;”
“minimization of anxiety and concern of those convicted awaiting the outcome
of their appeals;” and “limitation of the possibility that . . . grounds for appeal,
and . . . defenses in case of reversal and retrial, might be impaired.” Id. at 138–
39 (citations omitted). In the absence of prejudice as identified in Moreno, a
due process violation exists only when “the delay is so egregious that tolerating
it would adversely affect the public’s perception of the fairness and integrity of
the military justice system.” United States v. Toohey, 63 M.J. 353, 362
(C.A.A.F. 2006).
22
United States v. Cabuhat, No. ACM 40191 (en banc)
Furthermore, we are required by Article 66(d), UCMJ, to determine which
findings of guilty and the sentence or part thereof “should be approved.” 10
U.S.C. § 866(d); see also Tardif, 57 M.J. at 224. In Tardif, the CAAF recognized
“a [CCA] has authority under Article 66[ ][, UCMJ,] to grant relief for excessive
post-trial delay without a showing of ‘actual prejudice’ within the meaning of
Article 59(a).” 57 M.J. at 224 (citation omitted). The essential inquiry under
Tardif is whether, given the post-trial delay, the sentence “remains appropri-
ate[ ] in light of all circumstances.” Toohey, 63 M.J. at 362 (citing Tardif, 57
M.J. at 224).
2. Analysis
Appellant’s case was docketed with the court on 18 October 2021. The delay
in rendering this decision after 18 April 2023 is presumptively unreasonable.
The reasons for the delay include the time required for Appellant to file his
brief on 13 September 2022, the Government to file its answer on 24 October
2022, and Appellant to file his reply on 7 November 2022. Additionally, on 22
December 2022, we issued an order for oral argument which was held on 22
March 2023. Appellant is confined for a term of 30 years and asserted his right
to timely appellate review on 19 May 2023. However, Appellant has made no
specific claim of prejudice, and we find none. Because we find no particularized
prejudice, and the delay is not so egregious as to adversely affect the public's
perception of the fairness and integrity of the military justice system, there is
no due process violation. See Toohey, 63 M.J. at 362.
We also conclude there is no basis for relief under Article 66(d)(2), UCMJ,
or Tardif in the absence of a due process violation. See United States v. Gay,
74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016).
Considering all the facts and circumstances of Appellant’s case, we decline to
exercise our Article 66(d), UCMJ, authority to grant relief for the delay in com-
pleting appellate review.
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.
JOHNSON, Chief Judge (dissenting), joined by Judge GRUEN:
Because I am not persuaded we should overrule this court’s published opin-
ion in United States v. Burkhart, 72 M.J. 590 (A.F. Ct. Crim. App. 2013), I
respectfully dissent.
23
United States v. Cabuhat, No. ACM 40191 (en banc)
As the majority opinion recognizes, “[t]he doctrine of stare decisis is ‘the
preferred course because it promotes the evenhanded, predictable, and con-
sistent development of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the judicial process.’”
United States v. Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003) (quoting Payne v. Ten-
nessee, 501 U.S. 808, 827 (1991)). “The doctrine is ‘most compelling’ where
courts undertake statutory construction.” Id. (citing Hilton v. South Carolina
Public Ry. Comm’n, 502 U.S. 197, 205 (1991); Patterson v. McLean Credit Un-
ion, 491 U.S. 164, 172 (1989)); see also United States v. Quick, 74 M.J. 332, 335
(C.A.A.F. 2015) (quoting Rorie).
Stare decisis is a principle of decision making, not a rule, and
need not be applied when the precedent at issue is “unworkable
or . . . badly reasoned.” As a general matter, however, “adhering
to precedent ‘is usually the wise policy, because in most matters
it is more important that the applicable rule of law be settled
than it be settled right.’”
United States v. Tualla, 52 M.J. 228, 231 (C.A.A.F. 2000) (omission in the orig-
inal) (quoting Payne, 501 U.S. at 827) (additional citation omitted). “Respecting
stare decisis means sticking to some wrong decisions. . . . Indeed, stare decisis
has consequence only to the extent it sustains incorrect decisions; correct judg-
ments have no need for that principle to prop them up.” Kimble v. Marvel
Entm’t, LLC, 576 U.S. 446, 455 (2015). “A party must present a ‘special justi-
fication’ for us to overrule prior precedent.” United States v. Blanks, 77 M.J.
239, 242 (C.A.A.F. 2018) (quoting Kimble, 576 U.S. at 455–56).
In Burkhart, this court held that “in order to sustain a charge of indecent
liberty [with a child] under Article 120(j), [Uniform Code of Military Justice
(UCMJ)],[1] the child must have at least some awareness the accused is in her
physical presence.” 72 M.J. at 593. This court arrived at that conclusion after
reviewing “the intent behind the criminalization of this conduct, the statutory
definition of the offense, and the case law interpreting the requirement of ‘pres-
ence’ for the offense of indecent liberty.” Id. The opinion reviewed the develop-
ment of our superior court’s precedent regarding the offense of indecent liber-
ties with a child through United States v. Brown, 13 C.M.R. 10 (C.M.A. 1953),
and United States v. Knowles, 35 C.M.R. 376 (C.M.A. 1965), and the then-ap-
plicable definition of “indecent liberty” under Article 120(t)(11), UCMJ, 10
U.S.C. § 920(t)(11), to reach the conclusion that “the child must be aware the
1 References to Article 120, UCMJ, 10 U.S.C. § 920, are to the Manual for Courts-
Martial, United States (2008 ed.). Unless otherwise noted, references to Articles 120b
and 134, UCMJ, 10 U.S.C. §§ 920b, 934, are to the Manual for Courts-Martial, United
States (2016 ed.).
24
United States v. Cabuhat, No. ACM 40191 (en banc)
conduct is occurring.” Burkhart, 72 M.J. at 593–94 (citations omitted). Then
the court noted that several decisions of the United States Court of Appeals for
the Armed Forces (CAAF), notably including United States v. Miller, 67 M.J.
87, 90 (C.A.A.F. 2008), included language that “also indicated the child must
be aware of the accused’s conduct.” Burkhart, 72 M.J. at 594. Two of our sister
courts subsequently agreed with Burkhart and held that the offense of indecent
liberties with a child required the child be aware of the accused’s conduct. See
United States v. Gould, ARMY 20120727, 2014 CCA LEXIS 694, at *2 (A. Ct.
Crim. App. 16 Sep. 2014) (unpub. op.), rev’d in part on other grounds, 75 M.J.
22 (C.A.A.F. 2015) (mem.); United States v. Anderson, NMCCA 201200499,
2013 CCA LEXIS 517, at *16 (N.M. Ct. Crim. App. 27 Jun. 2013) (unpub. op.);
but see United States v. Tabor, 82 M.J. 637 (N.M. Ct. Crim. App. 2022) (en
banc), rev. denied, 82 M.J. 64 (C.A.A.F. 2022) (holding that a “lewd act” defined
by Article 120b, UCMJ, does not require the child be aware of the indecent act).
I am not persuaded the holding of Burkhart has proven to be unworkable
or has been demonstrated to have been badly reasoned. There has been no
showing the requirement the child be aware of the accused at the time of the
indecent conduct is “unworkable;” whether the holding of Burkhart has been
adequately communicated to Air Force practitioners is a distinct question.
The majority finds Burkart was “poorly reasoned” because it “substantially
relied” on the definition of “presence” the CAAF used in Miller, because that
language was dicta and “departed from the ‘plain meaning’ canon of statutory
construction and unnecessarily used a legal dictionary to define a lay term.”
United States v. Cabahut, __ M.J. __, No. ACM 40191, slip. op. at *15 (A.F. Ct.
Crim. App. 13 Sep. 2023) (en banc). I do not agree with the majority’s charac-
terization of Burkhart’s purported reliance on Miller. I do agree with my col-
leagues in the majority that Miller itself does not require “awareness” as part
of “presence.” However, I do not read Burkhart to indicate the court was mis-
taken on this point. As described above, this court’s opinion in Burkhart did
not purport to simply follow Miller, or even to find Miller controlling. Rather,
it found language in Miller and other CAAF opinions “also” supported the con-
clusion the court had reached based on its review of older precedent and lan-
guage in the statute. Burkhart, 72 M.J. at 593–94. Moreover, after citing the
definition of “presence” from Miller, Burkhart correctly states the actual hold-
ing of Miller—that “an individual who masturbates while a child watches over
a web camera [wa]s not in the ‘physical presence’ of that child and cannot be
convicted of indecent liberties,” based on the applicable version of Article 120,
UCMJ. Id. at 595 (citing Miller, 67 M.J. at 90–91) (additional citations omit-
ted).
In addition, just because a statement in an opinion is dicta does not make
it wrong or irrelevant. The fact that our superior court had chosen in Miller to
25
United States v. Cabuhat, No. ACM 40191 (en banc)
employ a definition of “presence” that included “awareness” for purposes of an
indecent liberty in the “presence” of a child was surely a reasonable observa-
tion for this court to make. I do not see how this is bad reasoning.
As to the “plain meaning canon of statutory instruction,” the divided CAAF
opinion in United States v. Schmidt, 82 M.J. 68 (C.A.A.F. 2022), and the prior
history of the Courts of Criminal Appeals finding an “awareness” requirement,
are some indication that the definition of “presence” in the context of sexual
abuse of a child is not “plain.” Unlike my colleagues in the majority, I do not
find the phrase “in the presence of a child” as used in Article 120b, UCMJ, to
be clear and unambiguous. I find something strange in the majority’s criticism
of the use of Black’s Law Dictionary to interpret the meaning of “presence”
when that is exactly what our superior court did in Miller. More to the point,
after considering various sources—including inter alia Burkhart itself; Miller;
Brown; Knowles; Judge Sparks’ lead opinion and Chief Judge Ohlson’s concur-
ring opinion in Schmidt; the majority, concurring, and dissenting opinions in
Tabor; statutory changes to the UCMJ over time; and the parties’ briefs and
arguments in the instant case—I am not thoroughly convinced Burkhart inter-
preted Congress’s intent incorrectly. For purposes of this separate opinion, it
is not useful to catalog all the arguments marshalled by these various sources
on both sides of the question and to set forth my thoughts on them. It is enough
to say I am not persuaded we should overrule Burkhart in this case under the
principles of stare decisis, which enjoin us to tolerate even incorrect precedent
absent a “special justification,” particularly in matters of statutory interpreta-
tion. Blanks, 77 M.J. at 242 (citation omitted).
Having said that, I appreciate the effect of the majority’s opinion and have
no hesitation applying our court’s new precedent—also recognizing the CAAF
or Congress could bring greater clarity to this area.
Returning to the instant case, when Appellant pleaded guilty to Specifica-
tion 5 of Charge I with respect to rubbing his penis in the presence of his daugh-
ter at or near Ramstein Air Base, Germany, Appellant described going into his
daughter’s bedroom when he thought she was sleeping. He did not admit his
daughter was awake on any of these occasions in her bedroom. The military
judge prompted Appellant to agree that although his daughter was asleep, on
“those occasions where she was asleep it was in her presence.”
I believe the military judge’s explanation of the law on this point was con-
trary to Burkhart. The offense of indecent liberty with a child under Article
120, UCMJ, this court interpreted in Burkhart is substantially the same of-
fense as sexual abuse of a child in violation of Article 120b, UCMJ, alleged in
Specification 5 of Charge I in the instant case. As explained in Burkhart, “a
military member would be guilty of the offense of indecent liberty if he ‘en-
gage[d] in indecent liberty in the physical presence of a child [ ] with the intent
26
United States v. Cabuhat, No. ACM 40191 (en banc)
to arouse, appeal to, or gratify the sexual desire of any person; or [ ] with the
intent to abuse, humiliate, or degrade any person.’” 72 M.J. at 593 (omissions
in the original) (quoting Article 120(j), UCMJ). Article 120(t)(11), UCMJ, de-
fined “indecent liberty” to “mean[ ] indecent conduct, but physical contact is
not required.” “Indecent conduct,” in turn, “mean[t] that form of immorality
relating to sexual impurity that is grossly vulgar, obscene, and repugnant to
common propriety, and tends to excite the sexual desire or deprave the morals
with respect to sexual relations.” Article 120(t)(12), UCMJ.
“The current version of this offense [indecent liberty] is now codified as sex-
ual abuse of a child by indecent conduct” under Article 120b, UCMJ. Schmidt,
82 M.J. at 73 (Sparks, J., announcing the judgment of the Court). “As of 28
June 2012, Article 120b[, UCMJ,] criminalizes sexual offenses against children
under the age of 16 which were previously contained in the 2007 version of
Article 120[, UCMJ].” Manual for Courts-Martial, United States (2016 ed.),
App. 23, ¶ 45b. The version of sexual abuse of a child under Article 120b(c),
UCMJ, applicable to Specification 5 of Charge I provides a servicemember
“who commits a lewd act upon a child is guilty of sexual abuse of a child.” “Lewd
act,” in turn, is defined to include, in pertinent part:
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 the morals
with respect to sexual relations.
Article 120b(h)(5)(D), UCMJ. Thus the operative language remains largely the
same, with the exception that the “physical presence of a child” requirement
has been replaced by the more expansive “with or in the presence of a child,
including via any communication technology.” I find this change does not un-
dermine the applicability of Burkhart’s interpretation of the term “presence.”
If anything, it suggests that Congress’s use of the term “presence” is not simply
a matter of being “in proximity to the child.” Cabuhat, unpub. op. at *13.
Accordingly, I find the military judge’s colloquy with Appellant raised a
substantial question regarding the providency of the guilty plea with respect
to Specification 5 of Charge I, and the military judge abused his discretion by
accepting it. See United States v. Riley, 72 M.J. 115, 119 (C.A.A.F. 2013)
27
United States v. Cabuhat, No. ACM 40191 (en banc)
(citations omitted). Therefore, I would set aside the finding of guilty as to Spec-
ification 5 of Charge I.2,3
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
2 The Government contends that if this court finds Appellant’s guilty plea inquiry with
respect to his actions in his daughter’s bedroom, while he believed she was asleep, does
not support his guilty plea to Specification 5 of Charge I, we may still affirm the finding
of guilty based on his admissions to the military judge regarding his actions in the
living room and his bedroom. However, I do not find the remainder of Appellant’s guilty
plea inquiry adequately supports his plea of guilty to Specification 5 of Charge I.
3 Of course, the conclusion that Burkhart required the victim to be aware of Appellant’s
conduct to convict him of sexual abuse of a child in violation of Article 120b(c), UCMJ,
does not mean an accused does not commit a different UCMJ offense in the absence of
such awareness. Cf. Burkhart, 72 M.J. at 595–96 (finding the appellant guilty of the
lesser included offense of indecent acts in violation Article 120(k), UCMJ); Manual for
Courts-Martial, United States (2019 ed.), pt. IV, ¶ 104 (providing indecent conduct that
is prejudicial to good order and discipline or of a nature to bring discredit on the armed
forces is punishable by, inter alia, a dishonorable discharge and confinement for five
years).
28