United States v. Yang

United States Navy-Marine Corps
Court of Criminal Appeals
_________________________
UNITED STATES
Appellee
v.
Kong M. YANG
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 201800127
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Decided: 25 March 2019.
Military Judge:
Lieutenant Colonel Eugene H. Robinson, Jr., USMC.
Approved Sentence: Reduction to E-1, total forfeiture of pay and
allowances, confinement for 24 months, 1 and a bad conduct discharge.
Sentence Adjudged: 26 January 2018 by a general court-martial
convened at Camp Foster, Okinawa, Japan, consisting of a military
judge sitting alone.
For Appellant:
Captain Bree A. Ermentrout, JAGC, USN.
For Appellee:
Lieutenant Commander Brian C. Burgtorf, JAGC, USN.
_________________________
1 The Convening Authority (CA) suspended confinement in excess of 15 months
pursuant to a pretrial agreement. As an act of clemency, the CA disapproved the ad-
judged reprimand.
United States v. Yang, No. 20180017
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
Before HUTCHISON, TANG, and GEIS,
Appellate Military Judges.
PER CURIAM:
The appellant was convicted, pursuant to his pleas, of two specifications
of attempted sexual abuse of a child in violation of Article 80, UCMJ, 10
U.S.C. § 880, for attempted violations of Article 120b(c), UCMJ (2012). As
charged, Specification 1 alleged an attempted violation of Article 120b(b),
sexual assault of a child, for the appellant’s attempt to engage in a sexual act
with a person he believed to be a child. Pursuant to a pre-trial agreement, the
appellant pleaded guilty to Specification 1 by exceptions and substitutions,
admitting that he attempted sexual abuse of a child by attempting to touch
the genitalia of a person he believed to be a child. He pleaded guilty to Speci-
fication 2 as charged, admitting that he attempted sexual abuse of a child by
committing the lewd act of intentionally communicating indecent language
via electronic messages to a person he believed to be a child.
The appellant asserts that his conviction of Specification 2 is legally and
factually insufficient 2 because, in his communications with the person he be-
lieved to be a child, he did not use indecent language as that term is defined
in MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part IV, ¶ 89.c (2016 ed.)
(MCM). 3 We disagree and, finding no prejudicial error, affirm.
I. BACKGROUND
On 31 October 2017, the appellant responded to a post on a location-based
social media application from someone identifying herself as “Alexandria,” a
2 In the context of a guilty plea, we do not review the legal or factual sufficiency
of the conviction, but rather, we examine whether the military judge abused his dis-
cretion by accepting the appellant’s plea of guilty. United States v. Simpson, 77 M.J.
279, 282, (C.A.A.F. 2018).
This definition relates to the offense of Indecent Language under Article 134,
3
UCMJ, 10 U.S.C. § 934.
2
United States v. Yang, No. 20180017
female on Okinawa. The appellant engaged in a brief conversation with “Al-
exandria” on the social media application before continuing the conversation
via instant message. The appellant asked “Alexandria” her age, and she re-
sponded that she was 15 years old and the daughter of an Air Force master
sergeant stationed at Kadena Air Base. In fact, “Alexandria” was the under-
cover alias of a Naval Criminal Investigative Service (NCIS) agent.
The appellant engaged “Alexandria” in a sexually charged conversation.
He exchanged photographs with “Alexandria” and sent her a photograph of
himself shirtless. The appellant then went to the house where “Alexandria”
said she lived. When he arrived, NCIS agents apprehended him and found
three condoms in his pocket. He later admitted that he went to “Alexan-
dria’s” home intending to engage in sexual contact with her.
Additional facts necessary to resolve the single AOE are recited below.
II. DISCUSSION
Prior to accepting a guilty plea, a military judge must ensure the plea is
supported by a factual basis. Article 45(a), UCMJ; United States v. Care, 40
C.M.R. 247 (C.M.A. 1969); RULE FOR COURTS-MARTIAL 910(e), MCM.
We review a military judge’s acceptance of a guilty plea for
an abuse of discretion and questions of law arising from the
guilty plea de novo. In the event that an accused sets up a mat-
ter inconsistent with their plea of guilty, the military judge
must resolve the inconsistency or reject the plea. A military
judge abuses this discretion if he fails to obtain from the ac-
cused an adequate factual basis to support the plea—an area in
which we afford significant deference. A ruling based on an er-
roneous view of the law is also an abuse of discretion. This
Court will not set aside an accused’s guilty plea on appeal un-
less there is a substantial basis in law or fact for questioning
the plea.
United States v. Simpson, 77 M.J. 279, 282, (C.A.A.F. 2018) (citations and
quotation marks omitted).
The appellant asserts that his language was not indecent because it did
not include “graphic description[s] of sexual acts or crude language” and was
not accompanied by explicit photographs. 4 Further, the appellant also claims
4 Appellant’s Brief of 2 Jul 2018 at 6.
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United States v. Yang, No. 20180017
that his language was not indecent because, in addition to discussing sex, he
also discussed other activities in which he and “Alexandria” could engage—
such as playing a game, ordering pizza, watching a movie, and cuddling.
In pleading guilty to the attempted sexual abuse of a child, the appellant
admitted that he had committed a “lewd act” by communicating the language
alleged. “Lewd act” is defined in Article 120b(h)(5)(C) as “intentionally com-
municating indecent language to a child by any means, including via any
communication technology, with an intent to abuse, humiliate, or degrade
any person, or to arouse or gratify the sexual desire of any person.” However,
Article 120b, UCMJ, does not specifically define the term “indecent language”
as it is used in Article 120b(h)(5)(C).
The term “indecent language” is defined elsewhere in the MCM, however,
as part of the presidentially-defined UCMJ Article 134 offense of “Indecent
Language”:
“Indecent” language is defined as that which is grossly offen-
sive to modesty, decency, or propriety, or shocks the moral
sense, because of its vulgar, filthy, or disgusting nature, or its
tendency to incite lustful thought. Language is indecent if it
tends reasonably to corrupt morals or incite libidinous
thoughts. The language must violate community standards.
MCM, Part IV, ¶ 89.c.
In evaluating whether language is indecent, we “cannot make th[e] de-
termination in isolation.” United States v. Green, 68 M.J. 266, 270 (C.A.A.F.
2010). Rather, we “must examine the entire record of trial to determine the
precise circumstances under which the charged language was communicat-
ed.” Id. (internal citation and quotation omitted). Further, “the indecency of a
word or sound must be evaluated in the context in which it is made.” Id. (cit-
ing and affirming United States v. Green, No. 200800005, 2008 CCA LEXIS
303 (N-M. Ct. Crim. App. 28 Aug 2008) (unpub. op.)). We must look at “the
surrounding circumstances to establish the context of the utterance.” Id.; see
also United States v. Rheel, No. 201100108, 2011 CCA LEXIS 370, *19-20 (N-
M. Ct. Crim. App. 20 Dec 2011) (unpub. op.) (“Our review of the circumstanc-
es of the communication of the appellant’s language is not limited to the exact
moment of the communication of the alleged innocuous language.”).
“[L]anguage which is on its face innocuous may be indecent if the context in
which the language is used sends an indecent message.” United States v.
Hullett, 40 M.J. 189, 192 (C.M.A. 1994).
In Green, the Court of Appeals for the Armed Forces (CAAF) considered
the history of sexually provocative remarks and behavior by the appellant
toward the victim in concluding that the appellant’s comment, “mmmm-
4
United States v. Yang, No. 20180017
mmmm-mmmm,” which he made while looking down the victim’s blouse, was
indecent. 68 M.J. at 267-68, 270.
In Rheel, the appellant argued that his hour-long text message conversa-
tion with a nine-year-old girl, discussing sexual acts, was not indecent by it-
self, and claimed that the conversation only became indecent when he sent
the child a picture of his penis. Unpub. op. at *23. We disagreed finding that
the words were meant “to corrupt morals or excite libidinous thoughts in the
mind of th[e] nine-year-old girl.” Id.
Here, the language set out in Specification 2 alleged that the appellant
made the following statements “to a child, who he believed had not attained
the age of sixteen years”, which, under the circumstances, constituted inde-
cent language: “Have you done it?”; “What if we end up doing it?”; “I’ll bring
protection just in case”; “Probably do it if you let me”; “Doing IT, being a bad
girl lol”; “Would you have done it”; “Have sex”; and “Can I see your butt?”
The appellant wrote those statements to “Alexandria” in the context of a
two-day text message conversation in which the appellant discussed the idea
of having sex with her and acted upon that idea when he went to her house
with three condoms in his pocket. In the context of the conversation, the ref-
erences to “it” were overt references to sexual intercourse. We find that the
appellant’s language was indecent in that it was both “grossly offensive to
modesty, decency, or propriety” and “grossly offensive because of its tendency
to incite lustful thought.” Green, 68 M.J. at 269. Given the record before us,
we find no substantial basis to question the military judge’s decision to accept
the appellant’s plea of guilty to Specification 2.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to the appellant’s sub-
stantial rights occurred. Arts. 59 and 66, UCMJ. Accordingly, the findings
and sentence as approved by the convening authority are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
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