                       UNITED STATES, Appellee

                                    v.

               Christopher R. MILLER, Staff Sergeant
                     U.S. Air Force, Appellant

                              No. 08-0307
                         Crim. App. No. 36829

       United States Court of Appeals for the Armed Forces

                       Argued October 22, 2008

                      Decided December 3, 2008

RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.


                                 Counsel


For Appellant: Captain Lance J. Wood (argued); Major Shannon A.
Bennett and Captain Tiaundra Sorrell (on brief); Lieutenant
Colonel Mark R. Strickland and Captain Vicki A. Belleau.


For Appellee: Colonel Gerald R. Bruce (argued); Major Jeremy S.
Weber, Major Matthew S. Ward, and Captain Jamie L. Mendelson.


Military Judge:   Gary M. Jackson




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Miller, No. 08-0307/AF


     Judge RYAN delivered the opinion of the Court.

     This case presents the questions whether the United States

Air Force Court of Criminal Appeals (CCA) was correct that the

“nature of [an] appellant’s presence” is not germane to a charge

of attempted indecent liberties with a child, Article 80,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2000),

and whether the constructive presence presented by the facts of

this case is legally sufficient to support Appellant’s

conviction for attempted indecent liberties with a child.1    We

answer both questions in the negative and reverse.2

                            I.   Facts

     A general court-martial composed of a military judge

sitting alone convicted Appellant, contrary to his pleas, of one

specification of attempting to take indecent liberties with a

child and two specifications of attempting to communicate

1
  Upon Appellant’s petition, we granted review of the following
issue:

     WHETHER APPELLANT’S CONVICTION OF ATTEMPTED INDECENT
     LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN
     APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE
     PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS
     SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS
     VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT.
2
  We heard oral argument in this case at Fort Riley, Kansas, as
part of the Court’s “Project Outreach.” See United States v.
Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice
was developed as part of a public awareness program to
demonstrate the operation of a federal court of appeals and the
military justice system.


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United States v. Miller, No. 08-0307/AF


indecent language to a child, all in violation of Article 80,

UCMJ.    The sentence adjudged by the court-martial and approved

by the convening authority included a dishonorable discharge, a

reprimand, confinement for three months, and reduction to the

lowest enlisted grade.    The CCA affirmed.   United States v.

Miller, 65 M.J. 845, 848 (A.F. Ct. Crim. App. 2007).

        Appellant’s convictions resulted from his contact with an

undercover detective from the Charlotte-Mecklenburg, North

Carolina, police department, whom Appellant believed was a

fourteen-year-old girl.    The detective was monitoring a Yahoo!

chat room when she was instant messaged by Appellant, who

engaged her in a conversation.    While Appellant was chatting

online with the detective, he asked her if she wanted to see a

picture of him on his web camera.      The detective responded

affirmatively and Appellant turned on the camera.     About eight

minutes later, Appellant asked the detective if she minded if

Appellant showed her his penis.    After the detective agreed to

this suggestion, Appellant repositioned the camera.     According

to the detective, the conversation continued, and “[w]hile this

discussion was going on, [Appellant] was stroking his penis and

becoming more erect.    After about ten minutes of masturbating,

he ejaculated on his hand and then cleaned himself up with a

small white towel.”




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United States v. Miller, No. 08-0307/AF


        The record reflects that during this act, Appellant sent

sexually explicit instant messages to the detective.    He asked

her several questions about her sexual experience, and she

responded to those questions.     After the act was completed,

Appellant asked the detective whether she liked what she had

seen.    Later in the same conversation, Appellant proposed

meeting in person for sex.    In a subsequent online conversation,

Appellant proposed meeting again, but then told her at the end

of the conversation that he could not have sex with her because

she was fourteen.

                            II.   Discussion

        In his appeal to the CCA, Appellant challenged his

conviction for attempting to take indecent liberties because he

was not physically present with the detective while he

masturbated.    The CCA relied on its prior decision in United

States v. Cook, 61 M.J. 757 (A.F. Ct. Crim. App. 2005), and

concluded that the “exact nature of the appellant’s presence was

not germane to the charge of attempted indecent liberties.”

Miller, 65 M.J. at 847.     The CCA reasoned that Appellant’s

“‘real time’ conversations and his live-feed broadcast of

himself masturbating were sufficient to satisfy the presence

element of indecent liberties, at least for the purposes of an




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United States v. Miller, No. 08-0307/AF


Article 80, UCMJ prosecution.”    Id.3   We disagree with both the

CCA’s reasoning and its conclusion.

       An attempt requires an act tending to effect the commission

of the intended offense.    Manual for Courts-Martial, United

States pt. IV, para. 4.b(4) (2005 ed.) (MCM).4     Under the 2005

edition of the MCM, which was in effect at the time of

Appellant’s court-martial, the elements of an indecent liberties

charge under Article 134, UCMJ, were:

         (a)      That the accused committed a certain act;
         (b)      That the act amounted to the taking of
                  indecent liberties with a certain person;
         (c)      That the accused committed the act in the
                  presence of this person;
         (d)      That this person was under 16 years of age
                  and not the spouse of the accused;
         (e)      That the accused committed the act with the
                  intent to arouse, appeal to, or gratify the
                  lust, passions, or sexual desires of the
                  accused, the victim, or both; and
         (f)      That, under the circumstances, the conduct
                  of the accused was to the prejudice of good
                  order and discipline in the armed forces or

3
  The CCA declined to rule on whether this type of presence would
be sufficient for a charge of the completed offense under
Article 134, UCMJ, 10 U.S.C. § 934 (2000). Miller, 65 M.J. at
847 n.1.
4
    The elements of 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.

MCM pt. IV, para. 4.b.

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United States v. Miller, No. 08-0307/AF


                was of a nature to bring discredit upon the
                armed forces.

MCM pt. IV, para. 87.b(2) (emphasis added).   Thus the nature of

the presence required by the completed offense is germane.    See,

e.g., United States v. Miergrimado, 66 M.J. 34, 37 (C.A.A.F.

2008) (assessing evidence of “heat of sudden passion” element on

a charge of attempted voluntary manslaughter); United States v.

Brooks, 60 M.J. 495, 497-99 (C.A.A.F. 2005) (assessing whether

the federal law the appellant attempted to violate required

direct communication with an actual minor).   Indeed, the nature

of the presence required for the completed offense of indecent

liberties with a child is the threshold question.

     The element as stated in the MCM does not define presence.

However, the MCM explanation elaborates that “the liberties must

be taken in the physical presence of the child, but physical

contact is not required.”   MCM pt. IV, para. 87.c(2) (emphasis

added).   Although MCM explanations of offenses are not binding

on this Court, they are generally treated as persuasive

authority, United States v. Miller, 47 M.J. 352, 356 (C.A.A.F.

1997), to be evaluated in light of this Court’s precedent.

United States v. Hemingway, 36 M.J. 349, 351-52 (C.M.A. 1993).

     A requirement that the act be done in the “physical

presence” of the child, as described in the MCM explanation, is

supported by this Court’s precedent.   In United States v.



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United States v. Miller, No. 08-0307/AF


Knowles, 15 C.M.A. 404, 405, 35 C.M.R. 376, 377 (1965), this

Court considered whether evidence that the appellant had used

indecent language during a telephone conversation with the

victim was sufficient to uphold an indecent liberties charge.

Prior to Knowles, the Court had already established that the

accused must be in the presence of the victim.      United States v.

Brown, 3 C.M.A. 454, 457, 13 C.M.R. 10, 13 (1953).         In Knowles,

the Court reasoned that “[t]he offense . . . requires greater

conjunction of the several senses of the victim with those of

the accused than that of hearing a voice over a telephone wire”

and therefore the Brown presence requirement was not met.           15

C.M.A. at 405, 35 C.M.R. at 377.       And a more recent decision of

this Court treated physical presence as necessary to sustain a

conviction for taking indecent liberties.      In United States v.

Rodriguez-Rivera, we said that the question was “whether a

rational trier of fact could find beyond a reasonable doubt that

[the appellant] was physically present with” the victim at the

time the alleged indecent liberties occurred.      63 M.J. 372, 385

(C.A.A.F. 2006) (emphasis added).      Because there was evidence

that the victim had watched pornographic movies at the

appellant’s house, but not that the appellant was with her when

she watched them, the conviction was set aside.      Id.     This

Court’s precedent construing the element of presence

consistently with the MCM explanation dictates that the offense


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United States v. Miller, No. 08-0307/AF


of taking indecent liberties with a child requires the act be

committed in the physical presence of the child.

     The Government urges that even if the presence required is

“physical presence,” a reasonable factfinder could conclude that

Appellant’s Internet-based action tended to bring about that

physical presence.   It is true that the Knowles decision

expressly left open the question whether an indecent liberties

charge could be based on the “performance of indecent acts and

the use of obscene language over an audio-visual system.”      15

C.M.A. at 405, 35 C.M.R. at 377.       We find it instructive that it

was after this decision that the MCM was revised to include the

“physical presence” language in the explanation.      See United

States v. Czeschin, 56 M.J. 346, 348-49 (C.A.A.F. 2002) (noting

that a revision to the MCM will be considered a binding

limitation on conduct subject to prosecution if the limiting

purpose of the language is umambiguous on its face).      And the

Analysis of the 1969 edition of the MCM indicates that “physical

presence” was added to the MCM explanation in response to

Knowles.   See Dep’t of the Army, Pamphlet 27-2 Analysis of

Contents, Manual for Courts-Martial, United States, 1969,

Revised Edition ch. 28, para. 213f(3), at 28-19 (1970) (stating

new language was “added to this paragraph to provide that . . .

the indecent liberties must be taken in the physical presence of

the child” and citing Knowles).    Thus the MCM amendment may be


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United States v. Miller, No. 08-0307/AF


said to answer the question left open by Knowles –- for the

offense of taking indecent liberties with a child, presence

means physical presence, rather than presence created through

the use of “an audio-visual system.”

     That “constructive presence” will not suffice in the

context of a penal statute that has 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 construing the language of a statute or

rule, it is generally understood that the words should be given

their common and approved usage.”) (quotation marks omitted).

The definition and common understanding of “presence” is:

“[t]he state or fact of being in a particular place and time”

and “[c]lose physical proximity coupled with awareness.”

Black’s Law Dictionary 1221 (8th ed. 2004).   The modifying word

“physical” is commonly defined and understood as “having

material existence” and “of or relating to the body.”   Merriam-

Webster’s Collegiate Dictionary 935 (11th ed. 2003).    These

definitions taken together compel the conclusion that “physical

presence” requires that an accused be in the same physical space

as the victim.

     Without deciding whether future advances in technology or

the understanding of physical presence might change the

analysis, at this juncture we are unpersuaded that the actions


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United States v. Miller, No. 08-0307/AF

in this case tended to bring about physical presence as it is

commonly understood.   Appellant was not in the same physical

location as the detective while he was masturbating, and we

cannot accept the Government’s invitation to find that

Appellant’s “constructive presence” via the web camera was

sufficient to satisfy a physical presence requirement without

completely disregarding the plain meaning of “physical presence”

as used in the MCM explanation of the offense.     While several

state courts have affirmed convictions for taking indecent

liberties when the appellant was constructively present with the

victim, they are not persuasive authority with respect to

interpreting the meaning of “physical presence.”    Those cases

interpreted specific state statutes, none of which by their

terms required “physical presence” or even “presence.”    See,

e.g., N.C. Gen. Stat. § 14-202.1 (2008) (criminalizing taking or

attempting to take “any immoral, improper, or indecent liberties

with any child”); Va. Code Ann. § 18.2-370 (2008) (punishing

certain acts such as indecent exposure, when done “with any

child under the age of 15 years”).   Rather, those courts

construed the meaning of “with” a child to include constructive

presence in a wide variety of circumstances, including

transmitting a live video of masturbation, Brooker v.

Commonwealth, 587 S.E.2d 732, 736 (Va. Ct. App. 2003), hiding a

video camera to secretly film minors undressing, State v.


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United States v. Miller, No. 08-0307/AF

McClees, 424 S.E.2d 687, 689-90 (N.C. Ct. App. 1993), and making

an obscene phone call, State v. Every, 578 S.E.2d 642, 648-49

(N.C. Ct. App. 2003), an action this Court specifically found

could not be the basis of an indecent liberties charge in

Knowles.

       Although Appellant’s use of a web camera allowed the

detective to see him while he masturbated, no reasonable

factfinder could conclude that Appellant committed an act that

tended to effect the element of being in the detective’s

physical presence.    United States v. Dobson, 63 M.J. 1, 21

(C.A.A.F. 2006) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)).    Therefore, his act did not tend to effect the

commission of the completed offense, and no reasonable

factfinder could find him guilty of the charged offense.

             III.   Lesser included offense of attempted
                      indecent acts with another

       The Government urges for the first time before this Court

that Appellant’s conviction may nonetheless be affirmed to an

attempt of a lesser included offense, indecent acts with

another.    See MCM pt. IV, para. 4.d (providing that when a

conviction for an attempt is set aside, it may be affirmed to an

attempt of a lesser included offense).    Indecent acts with

another5 was listed in the 2005 MCM as a lesser included offense

5
    Indecent acts with another requires proof:


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United States v. Miller, No. 08-0307/AF

to indecent liberties with a child, MCM pt. IV, para. 87.d(1),

and contains neither a “physical presence” nor a “presence”

requirement.

     The offense does “require[] that the acts be done in

conjunction or participating with another person.”   United

States v. Thomas, 25 M.J. 75, 76 (C.M.A. 1987) (emphasis

omitted).   There must be some “affirmative interaction” between

the accused and the victim to satisfy the “with another person”

element.    United States v. McDaniel, 39 M.J. 173, 175 (C.M.A.

1994).   This interaction need not take place between two

individuals who are located in the same physical space.     See id.

(finding sufficient interaction when the appellant gave the

women he was secretly filming instructions from a separate room

to enhance the view from his hidden video camera).   But the

victim must be more than an inadvertent or passive observer.

United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996).

     The CCA was not presented with the Government’s argument to

affirm the lesser included offense, and thus did not consider

whether the record was legally and factually sufficient to


  (1)    That the accused committed a certain wrongful act
         with a certain person;
  (2)    That the act was indecent; and
  (3)    That, under the circumstances, the conduct of the
         accused was to the prejudice of good order and
         discipline in the armed forces or was of a nature to
         bring discredit upon the armed forces.

MCM pt. IV, para. 90.b (emphasis added).

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United States v. Miller, No. 08-0307/AF

support the offense of attempted indecent acts.     And whether the

facts of this case establish “affirmative interaction” between

Appellant and the undercover detective is an issue that has not

been briefed or argued by either party.      Consequently, we remand

to the CCA the question whether the lesser included offense

urged by the Government can be affirmed under Article 66, UCMJ,

10 U.S.C. § 866 (2000).

                            IV.   Decision

     The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Specification 1 of the Charge

and the sentence.   The decision is affirmed as to Specifications

2 and 3.    The record is returned to the Judge Advocate General

of the Air Force for remand to the Court of Criminal Appeals to

consider the factual and legal sufficiency of the evidence for

the lesser included offense of attempted indecent acts with

another under Article 80, UCMJ, 10 U.S.C. § 880 (2000), and for

reassessment of the sentence or for ordering a rehearing on the

sentence.




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