UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          COOK, CAMPANELLA, and HAIGHT
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                   Lieutenant Colonel STEVEN F. MICHALKE
                          United States Army, Appellant

                                   ARMY 20111043

                                    Third Army
                         Stephen E. Castlen, Military Judge
                Colonel Stephanie L. Stephens, Staff Judge Advocate


For Appellant: Colonel Patricia A. Ham, JA; Major Jaired D. Stallard, JA ; Captain
Matthew M. Jones, JA (on brief).

For Appellee: Major Catherine L. Brantley, JA; Captain Samuel Gabremariam, JA
(on brief).

                                  27 September 2013
                               ---------------------------------
                                SUMMARY DISPOSITION
                               ---------------------------------

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of attempted indecent liberties with a
child, one specification of rape, two specifications of aggravated sexual assault of a
child, one specification of aggravated sexual abuse of a child, one specification of
indecent liberties with a child, one specification of abusive sexual contact with a
child, one specification of wrongful sexual contact, and two specifications of
forcible sodomy with a child, in violation of Articles 80, 120, and 125, Uniform
Code of Military Justice, 10 U.S.C. §§ 880, 920, 925 [hereinafter UCMJ]. The
military judge sentenced appellant to a dismissal and confinement for forty years.
The convening authority approved only so much of the sentence as provided for a
dismissal and confinement for thirty-five years.

      This case is before this court for review pursuant to Article 66, UCMJ.
Appellate defense counsel raised one assignment of error to this court and appellant
personally raised matters pursuant to United States v. Grostefon, 12 M.J. 431
MICHALKE—ARMY 20111043

(C.M.A. 1982). We find the one assignment of error raised by defense counsel to be
without merit. Within those matters personally raised by appellant , one issue
warrants discussion and relief. We find the remaining issues raised by appellant are
without merit.

                                   BACKGROUND

      In the Specification of Charge IV, appellant was charged with attempting to
engage in an indecent liberty with a minor who had attained the age of twelve but
had not attained the age of sixteen. The specification alleged:

             In that [appellant], U.S. Army, did at or near Douglas
             County, GA, between on or about 26 June 2009 and on or
             about 15 September 2010, attempt to take indecent
             liberties with [SM], a child who had attained the age of 12
             years, but had not attained the age of 16 years, by video
             recording [SM] as she undressed to take a shower
             exposing her breasts, genitalia, buttocks, nipples, and
             areolas, with the intent to gratify the sexual desire of the
             accused.

      At trial, consistent a pretrial agreement, appellant pleaded guilty to all of the
charged offenses. The military judge then questioned him on his plea. In regards to
the Specification of Charge IV, appellant admitted:

             . . . I did attempt to take indecent liberties with [SM] by
             attempting to film her undressing and dressing after she
             would come in and out of the shower. I did arrange the
             camera, as is stated in the statement in here, in order to
             capture her on video with the sole intent of gratifying my
             sexual desires. I could see basically her breast and her
             lower extremities.

He went on to admit his actions constituted more than mere preparation and
constituted a substantial step toward the commission of the offense because his
attempt to record SM in a state of undress was only thwarted when, prior to her
undressing, SM discovered, in the closet, the video recording device which had
already been set to record. She then erased the video recording of her in the
bathroom and returned the device to appellant . Throughout the providence inquiry,
appellant did not describe being in SM’s presence at the time of his attempted
indecent conduct.

       In the stipulation of fact, appellant admitted that he “set his iPhone up in a
closet adjacent to the shower SM was about to use.” He did so by propping the



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MICHALKE—ARMY 20111043

iPhone up with a shoe in the closet; activating the video recorder on the iPhone; and
pointing it in the direction of the shower where Miss SM was about to undress.
Appellant’s attempt to video record SM failed when SM discovered the iPhone and
deleted the recording before returning the iPhone to appellant. While the stipulation
of fact mentions SM witnessing appellant “acting strangely while in her physical
presence in the bathroom shortly before she was to take a shower,” the record does
not establish where appellant was located when SM noticed the closet door cracked
opened, entered the closet, and discovered the surreptitious iPhone set to record her.


                              LAW AND DISCUSSION

       In this case, we find there is a substantial basis in law and fact to question
appellant’s plea of guilty to indecent liberties with a minor where the record does
not indicate appellant was in SM’s presence at the time of the offense. However, we
find an ample factual predicate to find appellant guilty of the lesser-included offense
of an attempted indecent act.

        We review a military judge's acceptance of an accused's guilty plea for an
abuse of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008);
United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). “In doing so, 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.” Inabinette, 66 M.J. at 322. “The military
judge shall not accept a plea of guilty without making such inquiry of the accused as
shall satisfy the military judge that there is a factual basis for the plea.” In order to
establish an adequate factual predicate for a guilty plea, the military judge must
elicit “factual circumstances as revealed by the accused himself [that] objectively
support that plea[.]” United States v. Davenport, 9 M.J. 364, 367 (CMA 1980). It is
not enough to elicit legal conclusions. The military judge must elicit facts to support
the plea of guilty. United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996). The
record of trial must reflect not only that the elements of each offense charged have
been explained to the accused, but also “make clear the basis for a determination by
the military trial judge . . . whether the acts or the omissions of the accused
constitute the offense or offenses to which he is pleading guilty.” United States v.
Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969).

       An attempt requires an act tending to effect the commission of the intended
offense. Manual for Courts–Martial, United States (2008) [hereinafter MCM], pt.
IV, ¶ 4.b.(4). The offense of indecent liberties with a minor requires the act be
committed in the physical presence of the child. MCM, pt. IV, ¶ 45.b.(10); UCMJ
art. 120(j); United States v. Miller, 67 M.J. 87 (C.A.A.F. 2008). The notion that
“constructive presence” will not suffice in the context of a penal statute that has




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MICHALKE—ARMY 20111043

been construed to require physical presence is in accordance with the common use of
those words. See United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F. 2003).

       In this case, the providence inquiry falls short in establishing an essential
element of the charged offense – namely, that the act took place within the physical
presence of the child. While appellant was charged with attempting to engage in an
indecent liberty with SM, both the providence inquiry and the stipulation of f act
establish that the gravamen of appellant’s indecent conduct was his attempt to
covertly videotape his daughter while she was in a state of undress coming in and
out of the shower. During the providence inquiry, appellant admitted he set up the
camera in the closet; pointed the recording device towards the bathroom; and that he
intended to record SM in a state of undress in order to satisfy his own sexual desires.
The record does not establish that he was in h er presence attempting to videotape
her. Rather, it appears from both the providence inquiry and the stipulation of fact
that appellant secretly set up the camera so as to passively tape record SM. The
record does not establish that appellant was in SM’s presence while he was
attempting to video record her actions.

        In order to establish an adequate factual predicate for a guilty plea, the
military judge must elicit “factual circumstances as revealed by the accused himself
[that] objectively support that plea[.]” Davenport, 9 M.J. at 367. Here, appellant
did not provide a sufficient factual basis to establish an essential element of the
offense in that he was not attempting to commit his indecent conduct while in the
presence of his intended victim. As such, we find the military judge abused his
discretion in accepting appellant’s plea of guilty to attempting to take indecent
liberties with a minor. However, we find appellant’s guilty plea adequately
establishes appellant committed the lesser -included offense of attempted indecent
act. That offense requires it to be established that appellant attempted to engage in
indecent conduct, elements supported by the record, but does not require the act take
place in the physical presence of a child . See UCMJ art. 120 (k) and (t).

                                  CONCLUSION

       On consideration of the entire record, submissions by the parties, and those
matters personally submitted by appellant pursuant to Grostefon, this court affirms
only so much of the finding of guilty of the Specification of Charge IV as finds that
appellant did commit the lesser-included offense of indecent conduct in violation of
Article 120 (k), UCMJ.

       The remaining findings of Guilty are AFFIRMED. Reassessing the sentence
on the basis of the error noted, the entire record, and in accordance with the
principles of United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v.
Moffeit, 63 M.J. 40 (C.A.A.F. 2006), to include the factors identified by Judge Baker
in his concurring opinion, the sentence is AFFIRMED. All rights, privileges, and



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property, of which appellant has been deprived by virtue of that portion of the
finding set aside by this decision, are ordered restored. See UCMJ art. 75(a).

      Senior Judge COOK and Judge HAIGHT concur.

                                       FORTHE
                                       FOR THECOURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLMH.H.SQUIRES,  JR. JR.
                                                      SQUIRES,
                                       Clerk of Court
                                       Clerk of Court




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