          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                             Senior Airman WILLIAM J. SIGO
                                  United States Air Force

                                             ACM 38268

                                         19 February 2014

         Sentence adjudged 25 October 2012 by GCM convened at Hill Air Force
         Base, Utah. Military Judge: Grant L. Kratz.

         Approved Sentence: Bad-conduct discharge, confinement for 120 days, and
         reduction to E-1.

         Appellate Counsel for the Appellant:             Captain Nicholas D. Carter and
         Captain Christopher D. James.

         Appellate Counsel for the United States: Colonel Don M. Christensen;
         Lieutenant Colonel C. Taylor Smith; Major Terence S. Dougherty; and
         Gerald R. Bruce, Esquire.

                                                 Before

                             HELGET, WEBER, and PELOQUIN
                                 Appellate Military Judges

                                   OPINION OF THE COURT

                   This opinion is subject to editorial correction before final release.



WEBER, Judge:

       A panel of officer members convicted the appellant, contrary to his pleas, of one
specification each of indecent liberties with a female under the age of 16, attempting to
engage in sexual contact with the underage female, and knowingly soliciting, seducing,
luring, or enticing the underage female to engage in sexual activity through an Internet
website and text messaging, in violation of Articles 120, 80, and 134, UCMJ,
10 U.S.C. §§ 920, 880, 934.1 The adjudged and approved sentence consisted of a bad-
conduct discharge, confinement for 120 days, and reduction to E-1.

        The appellant raises three issues on appeal: (1) Whether his conviction of
attempting to engage in sexual contact with the underage female is legally and factually
sufficient; (2) Whether the charge of knowingly soliciting, seducing, luring, or enticing
the underage female to engage in sexual activity fails to state an offense because the
specification was charged in the disjunctive; and (3) Whether the conviction for indecent
liberties with a child is legally and factually insufficient.2 Finding no error materially
prejudicial to a substantial right of the appellant, we affirm.

                                                Background

       The appellant met BB, then a 15-year-old girl, on the Internet website
“myyearbook.com” in December 2010. BB accurately described her age on her profile
on the website, but the appellant listed his age as 17 years old instead of his true age of 25
years old. Had he listed his age correctly, the website’s security protocols would have
prohibited him from having contact with users under the age of 18. However, because
the appellant listed his age as 17 years old, he was able to view the profiles of users as
young as 14 years old, as well as contact them. The appellant contacted BB in late
December after BB posted a photograph of her 13-year-old sister and indicated that BB’s
sister was looking for boys.3 The appellant responded to the post regarding BB’s sister,
but BB’s sister said the appellant was too old for her (even at his falsely-listed age of 17
years old). Instead, BB began corresponding with the appellant through messages on the
website and cell phone text messages. At some point during their messages, the appellant
learned BB was actually 15 years old and BB learned the appellant was 25 years old.

       After a short time, the appellant made plans to meet BB on New Year’s Eve, but
did not in fact meet her then. In early February, the appellant again made plans to meet
BB near her house. BB instructed the appellant to park his truck around the corner, so
that BB could sneak out and meet the appellant without her parents noticing. BB met the
appellant in his truck, and the two spoke for a short time. The appellant and BB then
began kissing. The appellant reached his hand under BB’s shirt and started to move his
hand up her abdomen toward her breasts, but BB stopped him as he reached her mid-
stomach and told him she wanted him to stop. The appellant responded by holding his
hand there for a short time and asking her, “Why not?” before removing his hand. The
appellant and BB resumed kissing for “a couple seconds,” at which point the appellant
asked BB to “give him a blow job.” She declined, and the appellant again urged her to


1
  The appellant was also charged with a second specification under Article 120, UCMJ, 10 U.S.C. § 920, for
allegedly having sexual intercourse with the minor female. The members acquitted him of this specification.
2
  The appellant raises this last issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
3
  BB listed her sister’s age as 14, but BB’s sister was in fact about two months shy of her fourteenth birthday.


                                                       2                                            ACM 38268
perform the sexual act, saying, “[I]t’s not that bad.” When BB again declined the
appellant’s request, the appellant became withdrawn and departed soon thereafter.

           Legal and Factual Sufficiency – Attempted Abusive Sexual Contact

       The appellant asks this Court to set aside the finding of guilty as to the
specification that alleges he attempted to engage in sexual contact with BB. Specifically,
he argues that his actions merely solicited BB to engage in sexual contact, and until he
knew BB was also willing to engage in sexual activity, he could not have formed the
criminal intent necessary for an attempt offense.

      We review issues of factual and legal sufficiency de novo.          United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

       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] convinced of the [appellant]’s guilt beyond a reasonable doubt.” United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987), quoted in United States v. Reed, 54 M.J. 37,
41 (C.A.A.F. 2000). 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 determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.” Washington,
57 M.J. at 399.

        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.” Turner, 25 M.J. at 324, quoted in
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) (citing United States v. Rogers, 54 M.J. 244, 246 (C.A.A.F. 2000);
United States v. Blocker, 32 M.J. 281, 284 (C.M.A. 1991)). Our assessment of legal and
factual sufficiency is limited to the evidence produced at trial. United States v. Dykes,
38 M.J. 270, 272 (C.M.A. 1993).

       The elements of the charged attempt offense, under Article 80, UCMJ, are:

       (1) That the accused did a certain overt act;
       (2) That the act was done with the specific intent to commit a certain
       offense under the code;
       (3) That the act amounted to more than mere preparation; and
       (4) That the act apparently tended to effect the commission of the intended
       offense.


                                             3                                    ACM 38268
Manual for Courts-Martial, United States (MCM), Part IV, ¶ 4.b. (2008 ed.). The
underlying offense the appellant was charged with attempting to commit was abusive
sexual contact with a child. The elements of that offense, under Article 120, UCMJ, are:

       (1) That the accused engaged in sexual contact with a child; and
       (2) That at the time of the sexual contact the child had attained the age of
       12 years but had not attained the age of 16 years.

MCM, Part IV, ¶ 45.b.(9). “Sexual contact” includes the intentional touching, either
directly or through the clothing, of the breast of another person. MCM, Part IV,
¶ 45.a.(t)(2).

       We conclude that the guilty finding of attempted abusive sexual contact with a
child is legally and factually sufficient. Primarily through BB’s testimony, the
Government established all the elements of the charged offense. The appellant’s actions
in reaching his hand up BB’s shirt in a movement toward her breasts, combined with his
reaction when BB stopped him, unquestionably demonstrate his actions were an overt act
done with the specific intent to engage in sexual contact with BB, a child under the age of
16. By moving his hand underneath BB’s shirt, up her abdomen and toward her breasts,
the appellant engaged in a “direct movement toward the commission of the offense.”
MCM, Part IV, ¶ 4.c.(2). The appellant cannot claim his actions amounted to “mere
preparation” when BB was forced to intervene to stop the appellant as he inched his hand
toward her breasts. Whether the appellant’s actions were aimed at discerning BB’s
consent is irrelevant, as BB’s consent or lack thereof is not at issue in the underlying
offense. The appellant properly stands convicted of Charge II and its Specification.

                        Charge III – Charging in the Disjunctive

      The appellant next alleges Charge III and its Specification fail to state an offense
because the Specification was alleged in the disjunctive, and the appellant’s guilt was
adjudged accordingly. The Specification of Charge III reads as follows:

       In that [the appellant], United States Air Force, 388th Equipment
       Maintenance Squadron, Hill Air Force Base, Utah, did, at or near Morgan,
       Utah, on divers occasions, between on or about 1 December 2010 and on or
       about 31 March 2011, knowingly solicit, seduce, lure, or entice a minor to
       engage in sexual activity, to wit: using both an Internet site, and text
       messaging to set up meetings with [BB], a person under the age of 18, for
       the purpose of engaging in sexual activity, and, under the circumstances,
       the conduct of the Accused was of a nature to bring discredit upon the
       armed forces.



                                             4                                   ACM 38268
        The appellant did not move to dismiss this charge and specification at trial, move
for a bill of particulars, or otherwise object to the wording of this charge and
specification. We normally review the question of whether a specification is defective
under a de novo standard. United States v. Ballan, 71 M.J. 28, 33 (C.A.A.F. 2012).
However, when an appellant alleges for the first time on appeal that a specification fails
to state an offense, we review the specification for plain error. Id. at 34 (citing United
States v. Cotton, 535 U.S. 625, 631-32 (2002)). Under a plain error analysis of alleged
defective specifications, the appellant “has the burden of demonstrating that: (1) there
was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a
substantial right of the accused.” United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F.
2011) (citing United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998)).

       We find no plain error in this specification. Assuming without deciding that the
words “solicit, seduce, lure, or entice” mean distinct concepts, the Government is
permitted to charge in the disjunctive. Military courts may disfavor charging in the
disjunctive, but there is no outright prohibition on doing so. “While charging in the
disjunctive is disfavored, under Article 134, [UCMJ,] it does not automatically render the
specification fatally defective.” United States v. Miles, 71 M.J. 671, 673 (N.M. Ct. Crim.
App. 2012), rev. denied, 72 M.J. 257 (C.A.A.F. 2013). Our superior court has never
explicitly disapproved of charging in the disjunctive, and in fact, the Court recently
affirmed a conviction involving a similar specification as the instant case, although the
sufficiency of the specification was not at issue on appeal. See United States v. Payne,
73 M.J. 19 (C.A.A.F. 2014).4 We presume that if such a specification presents a plain
and obvious error, our superior court would have addressed this matter when presented
with such a defective specification.

       Second, even assuming the specification presented plain or obvious error, no
material prejudice to a substantial right of the accused resulted. “[I]n the plain error
context the defective specification alone is insufficient to constitute substantial prejudice
to a material right.” Humphries, 71 M.J. 209, 215 (C.A.A.F. 2012) (citing Puckett v.
United States, 556 U.S. 129, 142 (2009); Cotton, 535 U.S. at 631-32). Here, the
appellant argues he has been prejudiced because he is unable to argue to this Court
whether he was convicted of soliciting, seducing, luring, or enticing BB to engage in
sexual activity. However, under the military’s general verdict construct, the appellant is
not entitled to know under exactly what theory he was convicted. “It makes no difference
how many members chose one act or the other, one theory of liability or the other. The
only condition is that there be evidence sufficient to justify a finding of guilty on any
theory of liability submitted to the members.” United States v. Brown, 65 M.J. 356, 359
(C.A.A.F. 2007) (quoting United States v. Vidal, 23 M.J. 319, 325 (C.M.A. 1987)). Even
more importantly, the military judge’s instructions in this case cured any possible
4
 The specification at issue in United States v. Payne, 73 M.J. 19, 24 (C.A.A.F. 2014), alleged that the appellant
“wrongfully and knowingly attempt[ed] to persuade, induce, entice, . . . or coerce” a person the appellant believed
was a 14-year-old girl to meet for the purposes of engaging in sexual activity.


                                                        5                                             ACM 38268
prejudice to the appellant. The military judge instructed the members that to find the
appellant guilty of this charge and specification, they would need to find that he
“knowingly enticed a minor to engage in sexual activity.” Thus, the military judge cured
any potential ambiguity by effectively removing the words “solicit, seduce, lure or” from
the specification. It is therefore apparent the members concluded the appellant “enticed”
BB to engage in sexual activity, and the record contains sufficient evidence to support
this finding.5 We therefore find no plain error in the specification.6

                 Legal and Factual Sufficiency – Indecent Liberties with a Child

       Finally, the appellant argues his conviction for indecent conduct is factually and
legally insufficient because his request for BB to “to give him a blow job” was not
indecent under the facts of this case. He argues BB’s previous Internet-based
communications on the subject of sex demonstrate that she had been exposed to sexual
topics and willingly participated in such conversations using graphic terms. He therefore
asserts that his request did not corrupt BB’s morals. We disagree.

        The standard of review for legal and factual sufficiency determinations is outlined
in the first issue above. The elements of indecent liberties with a child are as follows:

         (1) That the accused committed a certain act or communication;
         (2) That the act or communication was indecent;
         (3) That the accused committed the act or communication in the physical
         presence of a certain child;
         (4) That the child was under 16 years of age; and
         (5) That the accused committed the act or communication with the intent to:
         (i) arouse, appeal to, or gratify the sexual desires of any person; or (ii)
         abuse, humiliate, or degrade any person.


5
  We have also examined whether the members’ verdict following the military judge’s instructions creates an error
under United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). We find no such error. Walters only applies in those
“narrow circumstance[s] involving the conversion of a ‘divers occasions’ specification to a ‘one occasion’
specification through exceptions and substitutions.” Id. at 396.
6
  The appellant mistakenly relies on United States v. Autrey, 30 C.M.R. 252 (C.M.A. 1961) for the proposition that
charging in the disjunctive is per se error. In Autrey, the Court stated: “It is settled law that an offense may not be
charged in the conjunctive or the disjunctive. In such instances, the charge is void for lack of certainty.” Id. at 253
(citations omitted). Despite this broad language, Autrey’s holding reflects a more narrow, fact-specific position
based on a determination of whether the specification properly placed the accused on notice of the charge against
him, whether it protected the accused against further prosecution for the same cause, and whether it adequately
guided the court in determining the accused’s guilt or innocence. Id. at 253-54. Thus, where the Government
charged the appellant with wrongfully appropriating “money and/or property,” the Court held that the specification
was not sufficient because the “abominable combination of a conjunctive and a disjunctive” rendered it unclear
exactly what the appellant was alleged to have wrongfully appropriated. Id. at 254. We agree the Government
could have chosen more precise language in this specification. See Rule for Courts-Martial 307(c)(3). However, we
see no cause for concern that the appellant lacked notice of the charge against him, is unprotected against further
prosecution for the same act, or that the members lacked sufficient guidance in determining his guilt or innocence.


                                                          6                                               ACM 38268
MCM, ¶ 45.b.(10). “Language is indecent if it tends reasonably to corrupt morals or
incite libidinous thoughts.” MCM, ¶ 45.c.(3).

       The only element the appellant challenges is whether the appellant’s
communication was indecent. Examining “the entire record of trial to determine the
precise circumstances under which the charged language was communicated,” United
States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010), we find that the appellant’s request
for 15-year-old BB to “give him a blow job” was indecent. BB was legally incapable of
consenting to sexual activity with the appellant; therefore, propositioning her to perform
a sex act necessarily tended to “corrupt morals.” Even if BB had participated in explicit
sexual discussions online, there is a marked difference between engaging in sexual
discussions over the Internet and a 15-year-old girl being directly propositioned face-to-
face by a 25-year-old Airman she had just met to perform a sexual act. BB refused the
appellant’s proposition, advising him that his request was “weird.” The fact that the
appellant lobbed his request to BB soon after meeting her in person, and immediately
after she refused to allow him to touch her breasts, further supports the conclusion that
the appellant’s communication was indecent. We find the appellant’s conviction for
indecent liberties with a child factually and legally sufficient.

                                       Conclusion

       The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c); United States v. Reed, 54 M.J. 37, 41
(C.A.A.F. 2000). Accordingly, the approved findings and sentence are

                                      AFFIRMED.



             FOR THE COURT


             STEVE LUCAS
             Clerk of the Court




                                            7                                   ACM 38268
