United States v. King , 71 M.J. 50 ( 2012 )

UNITED STATES, Appellee
v.
Michael D. KING Jr., Builder Third Class
U.S. Navy, Appellant
No. 11-0583
Crim. App. No. 201000406
United States Court of Appeals for the Armed Forces
Argued December 12, 2011
Decided March 13, 2012
ERDMANN, J., delivered the opinion of the court, in which BAKER,
C.J., STUCKY and RYAN, JJ., and EFFRON, S.J., joined.
Counsel
For Appellant: Captain Bow Bottomly, USMC (argued).
For Appellee: Major Paul M. Ervasti, USMC (argued); Colonel
Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on brief);
Colonel Louis J. Puleo, USMC, and Major William C. Kirby, USMC.
Military Judge: Mario H. De Oliveira
This opinion is subject to revision before final publication.
United States v. King, No. 11-0583/NA
Judge ERDMANN delivered the opinion of the court.
Builder Third Class Michael D. King Jr. was charged with
numerous offenses involving sexual misconduct with his
stepdaughter. He entered pleas of not guilty and, at a general
court-martial with members, was convicted of one specification
of indecent conduct and one specification of aggravated sexual
assault in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920 (2006). The convening authority
approved the adjudged sentence of confinement for three years,
reduction to E-1, and a bad-conduct discharge. The United
States Navy-Marine Corps Court of Criminal Appeals (CCA)
affirmed the findings and the sentence. United States v. King,
No. NMCCA 201000406, slip op. at 6 (N-M. Ct. Crim. App. May 5,
2011).
On King’s petition, we granted review in this case to
determine the legality of the specification alleging a violation
of Article 120(k), UCMJ.1 For the reasons set forth below, we
affirm a finding as to the lesser included offense of attempted
1
We granted review of the following issue:
Whether Specification 5 of Charge I alleging an
indecent act under Article 120(k), UCMJ, failed to
state an offense where the indecent act alleged was
Appellant orally requesting during a Skype Internet
conversation that a child under the age of 16 years
expose her breasts so that he could view them
utilizing the web camera.
United States v. King, 70 M.J. 271 (C.A.A.F. 2011).
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United States v. King, No. 11-0583/NA
indecent acts under Article 80, UCMJ, 10 U.S.C. § 880 (2006).
Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2006); Article 79,
UCMJ, 10 U.S.C. § 879 (2006).
Background
While King was deployed with his unit to southwest Asia he
kept in contact with his family utilizing the Skype Internet
site, which provides two-way audio and video communications.
When his wife looked through the texts of previous Skype
conversations she discovered a sexually explicit conversation
between King and her daughter, who was fourteen at the time.
When King’s wife asked her daughter about the conversation, her
daughter showed her a “sex toy” King had purchased for her and
reported that King had been sexually abusing her. King’s wife
subsequently reported the matter to the Naval Criminal
Investigative Service (NCIS).
As part of its investigation, NCIS recorded a Skype
Internet conversation between King and his stepdaughter during
which King discussed the “sex toy” he had given her,
acknowledged his sexual relationship with her, and asked her to
lift her shirt so that he could view her breasts because she
“owe[d] [him].” This recorded conversation between King and his
stepdaughter formed the basis for the violation of Article
120(k) (Indecent Acts) alleged in Specification 5 of Charge I:
In that . . . King . . . did, at or near the Al
Basra Oil Terminal, Iraq, on or about 27 February
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United States v. King, No. 11-0583/NA
2009, wrongfully commit indecent conduct, to wit:
by requesting [GF], a female under 16 years of age,
to expose her breasts during a SKYPE internet
conversation so that he could view them utilizing
the web camera.
At trial King’s defense counsel moved to have the
specification dismissed arguing that it failed to state an
offense. Specifically, King’s defense counsel argued that the
request made by King during the Skype session did not fall under
the definition of indecent acts, but was instead a violation of
indecent liberties, which covers communications. The military
judge denied the motion. King renewed this issue in his appeal
to the Court of Criminal Appeals, which, after reviewing all the
surrounding circumstances, held that King’s behavior satisfied
the definition of an indecent act and the specification stated
an offense because it alleged every element of the offense.
King, No. NMCCA 201000406, slip op. at 6.
Discussion
Whether a specification states an offense is a question of
law that is reviewed de novo. United States v. Crafter, 64 M.J.
209, 211 (C.A.A.F. 2006).2 Specification 5 of Charge I alleges
2
In reviewing the adequacy of the specification, the analysis is
limited to the language as it appears in the specification,
which must expressly allege the elements of the offense, or do
so by necessary implication. See, e.g., United States v.
Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (focusing only on the
“charging language”); United States v. Fleig, 16 C.M.A. 444,
445, 37 C.M.R. 64, 65 (1966) (looking “within the confines of
the specification”).
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United States v. King, No. 11-0583/NA
that King engaged in indecent conduct during a Skype Internet
conversation by requesting that his stepdaughter expose her
breasts so that he could view them utilizing a web camera.
Whether the specification alleges a violation of Article
120(k) depends on the scope of the statutory term “indecent
conduct” as defined by Article 120(t)(12), UCMJ. Article
120(k), UCMJ, provides that:
Any person subject to this chapter who engages in
indecent conduct is guilty of an indecent act and
shall be punished as a court-martial may direct.
The term “indecent conduct” is defined in Article 120(t)(12), in
part, as follows:
[T]hat 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.
The Manual for Courts-Martial, United States (MCM) sets forth
the elements of indecent acts as follows:
(a) That the accused engaged in certain conduct; and
(b) That the conduct was indecent conduct.
MCM pt. IV, para. 45.b.(11) (2008 ed.).
As noted above, the crux of King’s argument is that asking
his fourteen-year-old stepdaughter to lift her shirt so that he
could see her breasts constituted “indecent language” and
“indecent language” is not included under the definition of
“indecent conduct.” However, this court has held that
“language” can be, or be part of, “conduct” in a particular
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United States v. King, No. 11-0583/NA
case,3 so we begin here with an analysis of the specification and
the facts, which leads us to the conclusion that at a minimum,
the facts support an attempted indecent act.
To constitute the lesser included offense of attempted
indecent acts, Article 80, UCMJ, requires:
An act, done with specific intent to commit an
[indecent act], amounting to more than mere
preparation and tending, even though failing, to
effect its commission . . . .
. . . .
. . . . To constitute an attempt there must be a
specific intent to commit the offense accompanied by
an overt act which directly tends to accomplish the
unlawful purpose. . . . Preparation consists of
devising or arranging the means or measures necessary
for the commission of the offense. The overt act
required goes beyond preparatory steps and is a
direct movement toward the commission of the
offense.4
King’s request was an “overt act” that constituted “direct
movement toward the commission” of an indecent act. But for his
stepdaughter’s refusal to lift her shirt, King would have
“view[ed]” his stepdaughter’s breasts using the webcam. Having
3
See, e.g., United States v. Brinson, 49 M.J. 360, 364-65
(C.A.A.F. 1998) (concluding that use of coarse language
constituted disorderly conduct); United States v. Littlewood, 53
M.J. 349, 352, 353-54 (C.A.A.F. 2000) (finding a variety of
offenses, including indecent language, to be indecent conduct of
a nature to bring discredit upon the armed forces and
prejudicial to good order and discipline); United States v.
Lofton, 69 M.J. 386, 390 (C.A.A.F. 2011) (holding that sexual
comments made by an officer to a female enlisted airman
constituted conduct unbecoming an officer).
4
MCM pt. IV, para. 4.a.(a), c.(1)-(2).
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United States v. King, No. 11-0583/NA
determined that King’s request amounted to attempted “conduct,”
we must now decide whether such conduct meets the definition of
“indecent conduct” as required by Article 120(k). To do this we
apply traditional canons of statutory construction. Unless
ambiguous, the plain language of a statute will control unless
it leads to an absurd result. United States v. Lewis, 65 M.J.
85, 88 (C.A.A.F. 2007) (citations omitted). As noted, indecent
conduct under Article 120 is defined as, inter alia, “that 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.” Article 120(t)(12), UCMJ. Under the circumstances
presented in this case, King’s request to his fourteen-year-old
stepdaughter to lift her shirt so that he could view her breasts
because she “owe[d] [him],” constituted an attempt to commit an
indecent act.
Although we conclude that the evidence is legally
sufficient to establish an attempted indecent act, neither the
granted issue nor the briefs in this case specifically address
the legal sufficiency of the evidence to support the charged
offense. Under other circumstances we might request further
briefing. However, we are dealing with a situation in which we
can affirm a finding of attempt that would not change the
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United States v. King, No. 11-0583/NA
sentencing landscape,5 in a case that involves the application of
a statutory provision that has been repealed.6 Therefore, we
find it unnecessary to address the granted issue or to request
further briefing. We approve the modified findings and the
sentence.
Conclusion
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals that the evidence was legally sufficient to
sustain the finding of guilt for a violation of Article 120(k),
UCMJ (Specification 5 of Charge I), is reversed. The lesser
included offense of attempted indecent act under Article 80,
UCMJ, the findings as to Specification 7 of Charge I (aggravated
sexual assault) and Charge I, and the sentence are affirmed.
5
See MCM pt. IV, para. 4.e.
6
The National Defense Authorization Act for Fiscal Year 2012
repealed the version of Article 120(k) that is at issue in this
case. As of its effective date, the circumstances presented in
this appeal will not reoccur. The National Defense
Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, §
541, 125 Stat. 1298 (2011).
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