United States v. Garner

67 M.J. 734, 2009 CCA LEXIS 172, 2009 WL 1416234
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedMay 19, 2009
DocketNMCCA 200800481
StatusPublished
Cited by11 cases

This text of 67 M.J. 734 (United States v. Garner) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Garner, 67 M.J. 734, 2009 CCA LEXIS 172, 2009 WL 1416234 (N.M. 2009).

Opinions

PUBLISHED OPINION OF THE COURT

GEISER, Senior Judge:

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of attempting to communicate indecent language to a child under the age of 16 years, and of violating 18 U.S.C. § 2422(b) by attempting to persuade, entice, and induce1 a minor to engage in intercourse and oral sodomy, in violation of Articles 80 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880 and 934. The approved sentence was confinement for 12 months, reduction to pay grade E-l, and a dishonorable discharge.

The appellant asserted two assignments of error, and we specified three additional issues for briefing by the parties. The appellant first asserts that his plea to attempting to entice a minor to engage in illegal sexual activity was improvident because he did not undertake a “substantial step.” Secondly, the appellant avers that his pleas to both charges were improvident because he had a substantial misunderstanding as to his maximum sentence.2 The issues specified by the court were as follows: (1) whether the appellant was properly apprised of the theory of liability under which he was pleading guilty;3 (2) whether words alone are sufficient to satisfy the “substantial step” element of attempting to entice a minor to engage in illegal sexual activity if they amount to “grooming,” 4 and (3) whether the appellant’s charges constituted an unreasonable multiplication of charges.

After considering the record of trial, the pleadings of the parties, and the oral argument, we conclude that the charges were multiplicious for sentencing. We will reassess the sentence. Following our action, we conclude that the findings and the sentence are correct in law and fact, and no error materially prejudicial to the substantial rights of the appellant remains. Arts. 59(a) and 66(c), UCMJ.

Background

The appellant engaged in on-line conversations in a Yahoo! Messenger chat room with an individual using the screen name “mol-lyl4summers” (“Molly”), from 24 September until 23 October 2007. Record at 30; Prosecution Exhibit 1. The appellant had 11 different conversations with “Molly” which collectively lasted nearly 17 hours. PE 1. At all relevant times the appellant believed “Molly” to be a 14-year-old girl. Record at 34. In reality, “Molly” was an adult undercover police officer. Id. at 34, 38.

The appellant’s conversations with “Molly” initially involved inappropriate flattery and solicitation of general background information. Very quickly, however, the appellant’s comments turned to sexually explicit matters including exchanges of pictures and video. The appellant repeatedly expressed his desires vis-á-vis “Molly” with increasingly [736]*736graphic sexual statements, to include his desire that they commit sodomy with each other. Record at 42; PE 1 at 27, 29, 55, 57. Throughout these sexually explicit conversations, the appellant’s technique of advancing an increasingly explicit sexual agenda, assessing “Molly’s” reaction, then reformulating and re-engaging, appears distinctly as manipulation and “grooming.” This behavior also included the solicitation of photos from “Molly” — which she provided — and the appellant’s transmitting to her a video of himself masturbating. Though there is no specific meeting agreed to in order to consummate the appellant’s articulated desires, he did at various times posit that he would go to her house and “nock” (sic) on her door. The appellant was - aware of the city and state where “Molly” allegedly lived. When the response from “Molly” was ambiguous, the appellant retrenched to attempt alternative “grooming” conversations. PE 1 at 28-29, 55.

As part of the appellant’s providence inquiry, the military judge explained the elements of the various offenses and defined relevant terms. Record at 19-25. The military judge correctly defined the term “substantial step” to be “a direct movement toward the commission of the attended [sic] offense ... [it] is strongly corroborative of your criminal intent and is indicative of your resolve to commit the offense.”5 Id. at 19. In the context of 18 U.S.C. § 2422(b), the military judge stated that the alleged act of using the internet must have “amounted to more than mere preparation; that is, it was a substantial step and a direct movement toward the commission of the intended offense of entie-ing or persuading a minor to engage in illegal sexual [activity].” Id. at 24.

In order to provide a factual basis that his communications to “Molly” constituted a “substantial step” to entice her to agree to a sexual encounter, the appellant admitted trying to convince “Molly” to engage in intercourse and oral sodomy. Id. at 38. He admitted sending “Molly” a video of his erect penis in an attempt to “get the person at the other end turned on,” which, according to the appellant, was “part of the enticing and persuading.” Id. at 4(MU. The appellant acknowledged that everything in the Stipulation of Fact was the truth, and that it contained an accurate recitation of his sexually explicit on-line discussions. Id. at 16. The appellant also stipulated that his statements to “Molly” were made “with the purpose of enticing, persuading and inducing a person he thought to be under 18 years of age to engage in sexual intercourse and oral sodomy with him.” PE 1 at 4.

Analysis

This is an issue of first impression for this court.6 We must decide if actions— short of arranging a specific meeting with a purported minor or making travel preparations — -may amount to a “substantial step” under § 2422(b).7 A number of United States Circuit Courts of Appeals have addressed this issue,8 but not in the context of a guilty plea under Article 45, UCMJ; Rule FOR Courts-MaRtial 910, Manual for Courts-Martial, United States (2008 ed.); United States v. Care, 40 C.M.R. 247, 1969 [737]*737WL 6059 (C.M.A.1969); and United States v. Inabinette, 66 M.J. 320 (C.A.A.F.2008).

“ ‘A military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion.’” Inabinette, 66 M.J. at 322 (quoting United States v. Eberle, 44 M.J. 374, 375 (C.M.A.1996)). “We apply the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law that would raise a substantial question regarding the appellant’s guilty plea.” Id. The appellant “must overcome the generally applied waiver of the factual issue of guilt inherent in voluntary pleas of guilty.” United States v. Dawson, 50 M.J. 599, 601 (N.M.Ct.Crim.App.1999); see also R.C.M. 910(j). Moreover, “where a plea is first attacked on appeal, we must view the evidence in the light most favorable to the Government.” United States v. Hubbard, 28 M.J. 203, 209 (C.M.A.1989)(Cox, J., concurring).

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Cite This Page — Counsel Stack

Bluebook (online)
67 M.J. 734, 2009 CCA LEXIS 172, 2009 WL 1416234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-garner-nmcca-2009.