U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39661
________________________
UNITED STATES
Appellee
v.
Addison W. HARJUNG
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 11 September 2020
________________________
Military Judge: Willie J. Babor.
Approved sentence: Dishonorable discharge, confinement for 18 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence ad-
judged 15 November 2018 by GCM convened at Royal Air Force Laken-
heath, United Kingdom.
For Appellant: Major David A. Schiavone, USAF; Jonathan W. Crisp,
Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Lieutenant
Colonel Brian C. Mason, USAF; Major Charles B. Dunn, USAF; Mary
Ellen Payne, Esquire.
Before J. JOHNSON, POSCH, and RAMÍREZ, Appellate Military
Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Chief
Judge J. JOHNSON and Senior Judge POSCH 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This is an unpublished opinion and, as such, does not serve as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. Harjung, No. ACM 39661
RAMÍREZ, Judge:
A general court-martial composed of a military judge sitting alone found
Appellant guilty, pursuant to his plea, of one specification of attempted sexual
abuse of a child by communicating indecent language (Specification 1 of the
Charge) in violation of Article 80, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 880. 1 Appellant was also found guilty, contrary to his pleas, of one
specification of attempted sexual abuse of a child by touching her breasts and
licking her vulva (Specification 2 of the Charge) and one specification of at-
tempted sexual assault of a child by penetrating her mouth with his penis
(Specification 3 of the Charge), both in violation of Article 80, UCMJ. 2
The military judge sentenced Appellant to a dishonorable discharge, con-
finement for 18 months, forfeiture of all pay and allowances, and reduction to
the grade of E-1. The convening authority approved the adjudged sentence ex-
cept the adjudged forfeiture. He also deferred the adjudged and mandatory for-
feitures from 29 November 2018 to 7 March 2019, and waived the mandatory
forfeiture for a period of six months, with the total pay and allowances directed
to be paid to Appellant’s wife.
Appellant raises one assignment of error on appeal: whether the evidence
is legally and factually sufficient to support a guilty verdict for Specifications
2 and 3. 3 Finding no error, we affirm.
I. BACKGROUND
Appellant enlisted in the Air Force in February 2015, and was stationed at
Royal Air Force (RAF) Lakenheath, United Kingdom. On 20 October 2017, Ap-
1All references in this opinion to the Uniform Code of Military Justice are to the Man-
ual for Courts-Martial, United States (2016 ed.).
2 Specifications 2 and 3 were merged for sentencing purposes.
3 We note that the convening authority denied Appellant’s request to defer the reduc-
tion in grade without explaining his reasons. In accordance with United States v.
Sloan,
35 M.J. 4, 7 (C.M.A. 1992), when a convening authority denies a request for de-
ferment, he must do so in writing and include his reasons. This was not raised by Ap-
pellant. However, we have independently considered it under the “colorable showing
of possible prejudice” standard and are satisfied there is no colorable showing of possi-
ble prejudice in this case. See United States v. Wheelus,
49 M.J. 283, 289 (C.A.A.F.
1998) (citation omitted); cf. United States v. Ward, No. ACM 39648, 2020 CCA LEXIS
305, at *10–11 (A.F. Ct. Crim. App. 3 Sep. 2020) (unpub. op.) (questioning “colorable
showing of possible prejudice” standard for Sloan errors but applying it for purposes
of analysis).
2
United States v. Harjung, No. ACM 39661
pellant read a “Craigslist” advertisement entitled, “Dependent looking for com-
pany, RAF Mildenhall/Lakenheath, UK.” 4 Appellant responded to the adver-
tisement stating, “I work on [L]akenheath, AD air force, married but open to
chatting and maybe more.” Appellant’s response began a series of communica-
tions over 33 days that led to Appellant’s apprehension by special agents of the
Air Force Office of Special Investigations (AFOSI) on 21 November 2017.
During an email exchange on 22 October 2017, Appellant was told that “El-
lie Smith” was a 14-year-old girl in the 9th grade who lived on base and was a
dependent of an active duty servicemember. However, “Ellie Smith” 5 was, in
fact, an Internet persona created by Special Agent GS from the local AFOSI
detachment. Agent GS posted the advertisement as part of an AFOSI under-
cover operation to identify adults interested in exploiting children of military
members. Agent GS testified that he informed Appellant of “Ellie’s” age to en-
sure that Appellant understood he was communicating with a child. Agent GS
explained that he provided several “outs” to ensure that Appellant was leading
the online conversations, and that Appellant had opportunities to cease further
communication with an individual whom Appellant believed was a child.
After the initial contact, there was a 24-hour break in communication be-
tween Appellant and “Ellie” from 22 October 2017 to 23 October 2017 as well
as a nine-day break in communication from 23 October 2017 to 2 November
2017. At trial, Agent GS testified that these breaks in communication were
because of responsibilities that restricted the agent’s ability to respond to Ap-
pellant’s emails. After both breaks in communication, Appellant reinitiated
contact with follow-on messages to “Ellie” after Appellant initially received no
response to his emails. From 2 November 2017 until 10 November 2017 Appel-
lant engaged in flirtatious email messaging with “Ellie” via the Craigslist
email system that had the underlying theme of using “friends” to keep “warm”
during the English winter.
On 10 November 2017, Agent GS—posing again as “Ellie”—asked Appel-
lant to send her a picture of himself. Appellant responded that he did not like
to share personal photographs online but offered to exchange photos via “Snap-
chat.” Agent GS testified that he offered to use the “Kik” messaging application
because Agent GS had not established a Snapchat account for “Ellie.” Appel-
lant agreed and shared pictures of himself, and Agent GS in return sent images
of a female AFOSI agent that had been digitally altered to make the agent
4 Quotes from text messages appear in their original form, without correction.
5Since “Ellie Smith” was a persona and not a real person, we will refer to her simply
as “Ellie.”
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United States v. Harjung, No. ACM 39661
appear younger. Agent GS, through “Ellie,” questioned Appellant if he was “ok
that [she was] 14.” Appellant responded:
I like you for you, and I could get in a lot of trouble for “liking”
you in that way. That’s why I was hesitant about sending a pic-
ture. I’m not mad that you’re 14, but we could never have a sexual
relationship. At least not legally. I like talking to you and you
seem very mature for your age which is why I like flirting . . . I
generally like girls my age but I like you too . . . [were] you hoping
for something more than flirting?
When “Ellie” responded that this sort of talk was new to her, Appellant
stated he “would love to do more than flirt, [and] had [she] not told [him] [he]’d
have guessed [she] w[as] 18, [because she was] very mature.” Appellant asked
her, “if you did not want to do more than flirt, what were you hoping for?”
Again, Agent GS gave Appellant an “out,” responding “I don’t know . . . I don’t
want to get u in trouble.” Appellant clarified: “Talking about stuff isn’t illegal,
just doing the stuff is . . . [I’m] just curious as to what you would do if we were
together . . . [s]orry if that sounded creepy.”
Yet again, Agent GS gave Appellant an “out,” telling Appellant that “some-
one told [her] that talking to [Appellant] would get them in trouble.” Agent GS
clarified that this other person “wanted to talk about kissing and sex but said
it was illegal.” “Ellie” explained to Appellant that she “[didn’t] wanna get any-
one in trouble.” In response, Appellant told “Ellie” he trusted her to keep their
communications about sexual matters “our secret.” Shortly after this exchange,
Appellant’s messages became overtly sexual, and included a remark about
touching “Ellie’s” breasts. Appellant related to her how he “would enjoy taking
[her] shirt off and feeling what’s underneath . . . maybe kissing there too.”
Appellant then directed the conversation to what he and “Ellie” could do if
they got together. Appellant suggested getting coffee or going for a walk or a
drive, after which they would “take it from there.” Appellant asked “Ellie” what
her favorite type of Starbucks was, and she responded hot chocolate with mint.
Appellant suggested a meeting place that would give them privacy and recom-
mended visiting a duck pond on base. Appellant then messaged “Ellie,” telling
her he would put his tongue “between [her] legs, [and Appellant] could put [his]
tongue where [she] touch[es] [her]self . . . [and Appellant] would gently lick it.”
Appellant explained “that’s how [a lot] of girls have an orgasm . . . [and Appel-
lant] would love to help [her] have [her] first orgasm . . . .” Appellant assured
“Ellie” he would “[o]nly get in trouble if [she told] people what [they] do to-
gether.”
Appellant exchanged another photo with “Ellie” and talked about how he
would enjoy being naked in his house with her. Appellant described how “Ellie”
4
United States v. Harjung, No. ACM 39661
could sit naked on his lap to keep warm because “[s]kin on skin contact gener-
ates [a lot] of heat.” Later, Appellant messaged he was “sorry if [he] made [her]
uncomfortable last time [they] talked . . . . [and] maybe [he] pushed some stuff
last time . . . .” Agent GS gave Appellant another “out” by stating, “I feel like
[you] might get tired of me because I don’t understand everything.” Appellant
insisted that he “won’t get tired of it, [and he] actually really enjoy[ed] teaching
and answering questions . . . . Whatever [she]’d like to know.”
Appellant’s messages to “Ellie” repeated a pattern of beginning with cas-
ual conversation that progressed to discussions about kissing and “snuggling”
to keep warm. Appellant discussed making out. He also talked about their
hands wandering over one another and that it would be something he would
be willing to “teach” “Ellie.” Appellant then offered that he had a car and they
could go somewhere if they wanted. Appellant reasoned that if people ques-
tioned why “Ellie” was in Appellant’s car he could explain that he was her
“babysitter.” Appellant told her that she was “[y]oung enough where people
wouldn’t ask questions,” and “old enough to explore [her] sexuality.”
Appellant messaged “Ellie” that “[a] good first step would be to explore
[her] body . . . .” This initiated a conversation about masturbation. Appellant
told “Ellie” that he could touch her vagina and explained, “I could start with
my hand, if you like that I could use my tongue.” This progressed to Appellant
telling “Ellie” she could “[f]eel between [his] legs.” Appellant told “Ellie” that if
she wanted she could “[p]ut [Appellant] in [her] mouth and pretend it’s a lolli-
pop.” After Agent GS, messaged, “[h]ey I have to get ready for bed,” Appellant
responded, “[o]kay sweetie we can talk more about that stuff when we meet.”
In subsequent messages, Appellant told “Ellie” what her “next lesson”
would be, and mentioned Appellant could pick her up in his jeep and they could
kiss. Appellant said he would bring her hot chocolate with mint, and then drive
around for a little while and talk. At the end of their meeting, he would drive
her home and drop her off close to where she lived. Appellant asked her if she
felt comfortable getting in his “big jeep,” explaining he was okay with whatever
she wanted to do. Appellant offered that if anyone saw them together as he
drove around base they could use the excuse that he was just a nice guy giving
her a ride in his jeep.
Appellant again turned the discussion to matters of a sexual nature. He
told Ellie that when they met, he could use his hands to show her how to touch
herself. Appellant explained that the seats fully reclined in his jeep, and told
“Ellie” he “could rub [her] boobs, give [her] kisses, [and they] could make out,
[and do] anything [she]’d like to try.” Appellant related that “guys like having
there penises touched, [and] if [she] wanted [Appellant] could show [her] how?”
Shortly after this discussion, Agent GS gave Appellant another “out,” telling
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United States v. Harjung, No. ACM 39661
him, “[i]f you feel like you shouldn’t talk to me because u said it’s wrong I un-
derstand. Really.” Nonetheless, Appellant continued, telling “Ellie” he “would
like to feel [her] boobs, maybe [her] vagina” and “[i]f [she] were okay with it,
[Appellant] would like to lick [her] vagina too.” Appellant proposed they could
“[f]ind a place where nobody could see [them together].”
Following some extended conversation with “Ellie” and a discussion of po-
tentially limiting their first in-person meeting to getting ice cream, Appellant
returned to discussing sexual things such as licking “Ellie’s” vagina, putting
his penis in her mouth, and taking condoms to their first meeting to alleviate
“Ellie’s” fear of performing oral sex and getting a sexually transmitted disease.
On 19 November 2017, Appellant and “Ellie” finalized plans to meet two
days later. Appellant explained he would drive his jeep with the “reclining
seats,” and bring “Ellie” a present, possibly a “blue and green” necklace, and a
Starbucks peppermint hot chocolate. They originally agreed to meet in the
dorm parking lot across the street from the high school. However, on the day
of the scheduled meeting, “Ellie” changed the meeting location to a duck pond.
Appellant was apprehended at the duck pond on 21 November 2017. Fol-
lowing his apprehension, another AFOSI agent searched Appellant’s car and
observed two Starbucks beverages, one that smelled like a regular coffee and
the other like mint and chocolate. The agent also found a blue and green but-
terfly necklace with a receipt showing it had been purchased just a few days
earlier. The agent also found an unopened box of condoms in the center console.
AFOSI agents observed that the seats in Appellant’s jeep fully reclined.
At trial, Agent GS explained that he mentioned “Ellie’s” age and gave Ap-
pellant an “out” on approximately eight to ten occasions. The agent estimated
Appellant introduced sexual activity or conversations of a sexual nature on ap-
proximately 18 to 20 occasions before Appellant was apprehended and learned
that “Ellie” was the persona of an AFOSI agent.
II. DISCUSSION
A. Legal and Factual Sufficiency
1. Law
We review issues of legal and factual sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington,
57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual suffi-
ciency is limited to the evidence produced at trial. United States v. Dykes,
38
M.J. 270, 272 (C.M.A. 1993) (citations omitted).
The test for legal sufficiency of the evidence is “whether, considering the
evidence in the light most favorable to the prosecution, a reasonable factfinder
could have found all the essential elements beyond a reasonable doubt.” United
6
United States v. Harjung, No. ACM 39661
States v. Turner,
25 M.J. 324, 324 (C.M.A. 1987) (citation omitted); see also
United States v. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002). “[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 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, the court is convinced of the accused’s guilt beyond a reasonable
doubt.” United States v. Reed,
54 M.J. 37, 41 (C.A.A.F. 2000) (internal quota-
tion marks and citation omitted). “In conducting this unique appellate role, we
take ‘a fresh, impartial look at the evidence,’ applying ‘neither a presumption
of innocence nor a presumption of guilt’ to ‘make [our] own independent deter-
mination as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.’” United States v. Wheeler,
76 M.J. 564, 568 (A.F.
Ct. Crim. App. 2017) (alteration in original) (quoting
Washington, 57 M.J. at
399), aff’d,
77 M.J. 289 (C.A.A.F. 2018). “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)).
The elements of attempted sexual abuse of a child as alleged in Specifica-
tion 2 of the Charge are that: (1) at or near RAF Lakenheath, United Kingdom,
on or about 21 November 2017, Appellant did a certain overt act; (2) that the
act was done with the specific intent to commit lewd acts upon “Ellie Smith,”
a person whom Appellant believed to be a child who had not attained the age
of 16 years, by touching “Ellie Smith’s” breasts and licking her vulva, with an
intent to gratify Appellant’s sexual desire; (3) the act amounted to more than
mere preparation; and (4) the act apparently tended to effect the commission
of the offense of sexual abuse of a child. See Manual for Courts-Martial, United
States (2016 ed.) (MCM), pt. IV, ¶¶ 4.b, 45b.b.(4)(a).
The elements of attempted sexual assault of a child as alleged in Specifica-
tion 3 of the Charge are that: (1) at or near RAF Lakenheath, United Kingdom,
on or about 21 November 2017, Appellant did a certain overt act; (2) the act
was done with the specific intent to commit a sexual act upon “Ellie Smith,” a
person whom Appellant believed to be a child who had attained the age of 12
years but had not attained the age of 16 years, by penetrating “Ellie Smith’s”
mouth with his penis; (3) the act amounted to more than mere preparation;
and (4) the act apparently tended to effect the commission of the offense of
sexual assault of a child. See MCM, pt. IV, ¶¶ 4.b, 45b.b.(3)(a).
“That a crime is comprised of both an actus reus and a mens rea necessarily
means both components must exist at the time an offense is committed if the
offense is to amount to a crime at all.” United States v. Rodriguez,
79 M.J. 1, 3
(C.A.A.F. 2019) (citations omitted). “To constitute an attempt there must be a
7
United States v. Harjung, No. ACM 39661
specific intent to commit the offense accompanied by an overt act which di-
rectly tends to accomplish the unlawful purpose.” MCM, pt. IV, ¶ 4.c.(1). “The
overt act must be more than mere preparation to commit the offense.” United
States v. Byrd,
24 M.J. 286, 289 (C.M.A. 1987) (citation omitted). Our superior
court (formerly the Court of Military Appeals, now the United States Court of
Appeals for the Armed Forces), has interpreted this as requiring that the ac-
cused take a “substantial step” toward the commission of the crime. United
States v. Jones,
37 M.J. 459, 461 (C.M.A. 1993) (citing Article 80, UCMJ;
United States v. Schoof,
37 M.J. 96, 102 (C.M.A. 1993)). To constitute a sub-
stantial step, the overt act must amount to “more than mere preparation” and
“unequivocally demonstrat[e] that the crime will take place unless interrupted
by independent circumstances.” United States v. Winckelmann,
70 M.J. 403,
407 (C.A.A.F. 2011) (alteration in original) (internal quotation marks and cita-
tion omitted). “[A] substantial step must be conduct strongly corroborative of
the firmness of the defendant’s criminal intent.”
Byrd, 24 M.J. at 290 (citations
omitted). However, the explanation section of Article 80, UCMJ, states that
“[t]he overt act need not be the last act essential to the consummation of the
offense.” MCM, pt. IV, ¶ 4.c.(2); see also United States v. Thomas,
32 C.M.R.
278, 288 (C.M.A. 1962) (“[T]he overt act need not be the last proximate act to
the consummation of the offense attempted to be perpetrated.”).
“Intent can be shown by circumstantial evidence.” United States v. Acevedo,
77 M.J. 185, 189 (C.A.A.F. 2018) (citing United States v. Vela,
71 M.J. 283, 286
(C.A.A.F. 2012)). “Although a criminal actor must possess the requisite intent
when he commits a criminal act, circumstantial evidence—from before or after
the act—may be used to prove an actor had the requisite intent at the time of
the act.”
Rodriguez, 79 M.J. at 3 (citations omitted). “The conduct of the parties
within a reasonable time before and after [an act] are circumstances which a
[factfinder] may consider in determining such intent, motive or purpose.”
Brooks v. United States,
309 F.2d 580, 583 (10th Cir. 1962) (citation omitted).
“Intent is a state of mind difficult of proof by direct evidence. It may, however,
be established by circumstantial evidence and by inferences reasonably to be
drawn from the conduct of the defendant and from all the attendant circum-
stances in the light of human behavior and experience.” United States v. Brad-
dock, No. ACM 39465, 2019 CCA LEXIS 441, at *13 (A.F. Ct. Crim. App. 29
Oct. 2019) (unpub. op.) (quoting State v. Casady,
491 N.W.2d 782, 787 (Iowa
1992) (other citation omitted)), rev. denied, 2020 CAAF LEXIS 78 (C.A.A.F.
2020).
The concept of “voluntary abandonment” may act as an affirmative de-
fense.”
Byrd, 24 M.J. at 292–3. However, “[v]oluntary abandonment is not an
affirmative defense to attempted criminal conduct where the actor’s purposes
8
United States v. Harjung, No. ACM 39661
were frustrated by external forces, such as fear of immediate detection or ap-
prehension.” United States v. Miller,
30 M.J. 999, 1000 (N.M.C.M.R. 1990) (ci-
tations omitted).
2. Analysis
In attacking the sufficiency of the evidence, Appellant essentially makes
the same argument that his trial defense counsel made in closing argument at
trial. Appellant concedes to the evidence AFOSI agents found in his jeep and
attacks the intent associated with the items in his jeep, his actions, and his
messages to “Ellie.” Specifically, Appellant denies he ever had the specific in-
tent to engage in sexual acts when he carried out his plan to meet with “Ellie.”
Appellant concedes that he had made comments and statements about in-
itiating sexual acts with “Ellie” and that he may very well have intended to
engage in a sexual relationship with her at some point in the future. Addition-
ally, Appellant concedes that he repeatedly expressed a desire to kiss “Ellie”
when they met. However, Appellant argues that his last discussion of a sexual
nature with “Ellie” occurred on 18 November 2017, three days prior to the
meeting Appellant arranged, and, therefore, the passage of time dissipated his
specific intent and the evidence is insufficient to support a conclusion that he
intended to perform any of the alleged acts with “Ellie” on the evening of 21
November 2017 when he was apprehended.
We find the evidence at trial is contrary to this position and that the pas-
sage of time did not dissipate Appellant’s specific intent. Agent GS testified
that Appellant initiated sexual discussions with “Ellie” between 18 and 20
times during their online conversations. These discussions include numerous
references to Appellant’s intent to touch “Ellie’s” breasts and lick her vagina.
The evidence showing how these actions would gratify his sexual desires in-
clude him telling “Ellie” that he would “like,” “enjoy,” or “love” doing those
things when they met in person. Additionally, during those discussions with
“Ellie,” which contemplated an in-person meeting between them, Appellant
referenced his penis and told her that she could “feel it with [her] hands” or
“try putting it in [her] mouth.” These repeated explicit online conversations
followed the similar pattern of progression from a casual conversation, to talk-
ing about kissing and cuddling, and finally to explicit sexual conversations di-
rected at what Appellant would do with “Ellie” when they met in person for the
first time.
Appellant accepts that this record of extensive online conversations—dis-
cussing his desires and intentions to touch “Ellie’s” breasts, lick her vagina,
and penetrate her mouth with his penis—may be proof of a “future” intent to
do those things. However, Appellant cites no legal precedent for the proposition
that a short gap in those repeated and graphic statements negates Appellant’s
9
United States v. Harjung, No. ACM 39661
intent to commit the offenses. While there is no legally recognized amount of
time that may elapse between the forming of intent and the dissipation of the
intent, 6 the three days here between the last direct evidence of intent and the
meet up do not convince us of dissipation in light of the circumstantial evi-
dence.
Appellant does not dispute that he showed up to meet “Ellie” with Star-
bucks drinks, a necklace, and a box of condoms in a jeep with reclining seats.
Instead, Appellant argues these actions do not establish the specific intent re-
quired to prove the offenses of which he was found guilty. Appellant essentially
attempts to negate his intent by parsing his actions before the arranged meet-
ing. He argues that taking coffee and a gift, and being a married man with
condoms in his vehicle, does not equate to having a specific intent to sexually
assault or abuse a child. He argues that driving a jeep with reclining seats does
not equate to an intent to engage in sexual conduct with a child. However, it is
clear that Appellant’s sexually explicit references about what Appellant
wanted to do to “Ellie,” and what he wanted her to do to him, were intertwined
with conversations about what he would bring. It is unreasonable to conclude
that Appellant acted on his stated intent to show up with coffee, a gift, and a
box of condoms, but at the same time had relinquished his intent to touch “El-
lie’s” breasts, lick her vagina, or put his penis in her mouth, which were among
Appellant’s stated reasons for the meeting he arranged. “[E]vidence cannot be
viewed in a vacuum. It must be considered together with all the evidence ad-
duced in determining whether the record as a whole establishes the accused’s
guilt beyond a reasonable doubt.” United States v. Bermudez,
47 C.M.R. 68, 71
(A.F.C.M.R. 1973) (citations omitted). Each one of these items is clear evidence
that Appellant was more than merely preparing to sexually abuse “Ellie.” Pur-
chase of “Ellie’s” favorite drink, a necklace, and the taking of a box of unused
condoms to the meeting location constitutes substantial steps necessary for an
attempt conviction.
Appellant next argues that he expressed to “Ellie” that “we could never
have a sexual relationship” because it would be illegal, but that he did enjoy
flirting. Appellant argues this negates any specific intent to commit the of-
fenses. However, Appellant’s argument does not take into account that Appel-
lant persistently stressed privacy and secrecy in his conversations with “Ellie,”
stating that he would only get in trouble if “someone saw them” or “someone
found out” about them. Specifically, Appellant told “Ellie” that they could never
have a sexual relationship, “[a]t least not legally.” Additionally, he told her
6In United States v. Hoggard, a three- to six-month separation between state-of-mind
evidence to actus reus was too attenuated to “illuminate [an] appellant’s state of mind
at the time he attempted” the actus reus.
43 M.J. 1, 4 (C.A.A.F. 1995).
10
United States v. Harjung, No. ACM 39661
that he could “[o]nly get in trouble if [she told] people what [they] d[id] to-
gether.” Appellant explained that if people saw them together, he could say he
was her “babysitter.” As previously discussed, the extensive record of messages
exchanged between Appellant and “Ellie” repeatedly turned sexual in nature,
with Appellant explicitly stating what sexual acts he intended to do when they
met in person for the first time. There is no evidence within the record that
Appellant ever abandoned this intent prior to his arrest on 21 November 2017.
See
Byrd, 24 M.J. at 292;
Miller, 30 M.J. at 1000 (citations omitted).
Considering the evidence presented at trial in the light most favorable to
the Prosecution, a reasonable factfinder could find beyond a reasonable doubt
that Appellant had the specific intent to touch “Ellie’s” breasts, lick her vulva,
and penetrate her mouth with his penis when he showed up to meet her in his
jeep. Additionally, after weighing the evidence and making allowances for not
having personally observed the witnesses, and taking a fresh, impartial look
at the evidence, applying neither a presumption of innocence nor a presump-
tion of guilt to make our own independent determination, we are convinced of
Appellant’s guilt beyond a reasonable doubt.
III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
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