          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201600048
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                       v.
                           JACOB A. LASTER
                 Lance Corporal (E-3), U.S. Marine Corps
                               Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

 Military Judge: Lieutenant Colonel Christopher M. Greer , USMC.
         Convening Authority: Commander, Marine Corps Base,
                           Quantico, VA.
  Staff Judge Advocate’s Recommendation: Major Michael J. Eby,
                               USMC.
      For Appellant: LT Jacqueline M. Leonard, JAGC, USN.
  For Appellee: Lieutenant Commander Jeremy R. Brooks, JAGC,
           USN; Lieutenant James Belforti, JAGC, USN.
                      _________________________

                          Decided 26 January 2017
                          _________________________

    Before R UGH , GLASER-ALLEN, and HUTCHISON, Appellate Military
                                 Judges
                        _________________________

   RUGH, Judge:
   A panel of members with enlisted representation sitting as a general
court-martial convicted the appellant, contrary to his pleas, of three
specifications of sexual abuse of a child and once specification of indecent
conduct in violation of Articles 120b and 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 920b and 934 (2012).1 The members sentenced

   1  The members also convicted the appellant of two specifications of wrongfully
enticing a minor to create child pornography in violation of Article 134, UCMJ, 10
U.S.C. § 934 (2012). However, after findings, the military judge conditionally
dismissed these two specifications as an unreasonable multiplication of charges as
applied to findings. Record at 752.
                     United States v. Laster, No. 201600048


the appellant to three years’ confinement, total forfeiture of pay and
allowances, reduction to pay grade E-1, and a dishonorable discharge. The
convening authority approved the sentence as adjudged.
    The appellant now raises four assignments of error (AOE): (1) that his
indecent conduct conviction is legally and factually insufficient; (2) that his
conviction for sexually abusing the child Dede2 on divers occasions is legally
and factually insufficient; (3) that his conviction for sexually abusing the
child Jamie on divers occasions is legally and factually insufficient;3 and (4)
that the military judge erred in the findings instructions provided to the
court-martial members.4
   We disagree, and, finding no error materially prejudicial to the
appellant’s substantial rights, we affirm the findings and sentence. Arts.
59(a) and 66(c), UCMJ.
                                   I. BACKGROUND
    In December 2013, the appellant returned on leave to his family’s home in
rural Oklahoma. His father taught seventh through twelfth-grade math at
the local high school, and the appellant spent his days visiting his father’s
classroom. During this week, the appellant embarked on a whirlwind of
inappropriate conduct with several of his father’s female students.
    Cybil was a 15-year-old 9th-grader who met the appellant in his father’s
algebra class. There, the appellant and Cybil exchanged phone numbers
before he moved to sit behind her. Once there, the appellant rubbed her thigh
with his foot and massaged her side and back with his hand. After class, the
appellant met Cybil at her locker and asked her to text message him. Later,
in the library, the appellant met Cybil and several other girls. Underneath
the library study table, he attempted to grab Cybil’s leg, rubbed his fingertips
up her thigh, and placed her foot on his leg. She moved away, but he pursued
her, trying to re-engage while she remained in the library.

   2   All names are pseudonyms.
   3 AOE (2) and (3) were raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
   4  AOE IV: THE MILITARY JUDGE IS REQUIRED TO ACCURATELY
INSTRUCT THE MEMBERS ON THE LAW. HERE, THE MILITARY JUDGE
INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF
THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS
GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY.” WAS
THIS PLAIN ERROR? In accordance with our holding in United States v. Rendon, 75
M.J. 908, 916-17 (N-M. Ct. Crim. App. 2016), we summarily reject the AOE. United
States v. Clifton, 35 M.J. 79 (C.M.A. 1992).



                                         2
                        United States v. Laster, No. 201600048


    Despite her uncomfortable encounter in the library, Cybil agreed to trade
text messages with the appellant. However, their exchanges became
increasingly sexual with the appellant describing in great detail the various
sexual activities he would like to perform on her. Cybil’s contact with the
appellant ended after the text messages were discovered by her mother.
    Jamie was a 14-year-old 9th-grader when the appellant contacted her via
text message after getting her phone number through his interactions with a
classmate. On the last day of class before holiday break, the appellant met
Jamie and several other girls in the library. As he sat across from her, the
appellant rubbed Jamie’s upper thigh with his foot. In response, Jamie tried
to “scoot away” from the appellant.5 But the appellant hooked his foot around
the leg of her chair and attempted to pull her back towards the table. The
appellant then moved his foot to another student, Katherine, placing his foot
on her leg under the table.
    After the holidays, the appellant returned to his duty station in
Washington, D.C.; however, he continued to contact Jamie via text message.
His messages became increasingly sexual, culminating in requests for
pictures of her breasts and buttocks and an invitation to join him in bed.
   Katherine was a 17-year-old 11th-grader. She was introduced to the
appellant by his father during geometry class, but she had limited interaction
with him until she met him with several other girls in the school library.
While seated at a study table, the appellant hooked his foot behind
Katherine’s knee and pulled her towards him in her chair. He then grabbed
her foot, placed it in his lap, and rubbed her leg. This interaction ended when
another girl joined them at the table.
     Later, Katherine and the appellant traded text messages in which they
flirted and then “sexted.”6 The appellant requested Katherine send him a
picture, to which she responded, “I told him I was not going to send him an
inappropriate photo, and that I would prefer it if he wouldn’t send me any.” 7
Ignoring this appeal, and more than a week after their last “sexting”
communication, the appellant sent Katherine an unsolicited message reading
“nine and a half inches all for you baby” over a picture of his erect penis.
Katherine’s reaction was one of shock: “It came out of nowhere. There wasn’t
a conversation, you know, about sexual, or flirting, or anything like that. . . . I




   5   Record at 413.
   6   Id. at 515.
   7   Id. at 517.

                                          3
                         United States v. Laster, No. 201600048


didn’t know how to respond . . . .”8 Katherine reported this interaction to the
appellant’s father.
   Dede was a 14-year-old 8th-grader when the appellant asked for her
phone number at school. They connected online, and the appellant asked
Dede for a “dirty picture.” In response, she messaged him a picture of her
wearing her sports bra but refused to send anything else more revealing. He
then messaged her to “take it off” referencing her bra. She refused.9
   Later that week, the appellant convinced Dede to meet him at night.
Leaving a sleep-over with her best friend, Dede climbed out a first floor
window of her parents’ home, and rode in the appellant’s truck to a nearby
lake. Once there, the appellant kissed Dede on her neck and lips, fondled her
breasts and genitals, and placed her hand on his penis.10 He then drove her
home.
   As Dede exited his truck, the appellant told her “that he would be back in
July . . . and that he would miss [her].”11 Dede’s best friend woke on Dede’s
return and found her near tears. When the best friend asked what was
bothering her, Dede would only state that the appellant “was mean and she
would never hang out with him again, and that [the appellant] was
aggressive or forceful.”12
                                      II. DISCUSSION
A. Legal and factual sufficiency
    We review questions of legal and factual sufficiency de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is “whether, considering the evidence in the light
most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “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)
(citations omitted).

   8   Id.
   9   Id. at 439-40.
   10  Dede also alleged that the appellant forced her to engage in sexual intercourse.
Based on this allegation, the appellant was charged with rape of a child in violation
of Article 120b, UCMJ. However, the members acquitted him of this offense.
   11   Record at 449.
   12   Id. at 480.



                                           4
                       United States v. Laster, No. 201600048


    The test for factual sufficiency is whether “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
aff’d, 64 M.J. 348 (C.A.A.F. 2007). 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 appellant now argues that his conviction for communicating indecent
language to Katherine was legally and factually insufficient because the
evidence failed to prove that the language he used was indecent. In doing so,
the appellant relies heavily on our holding in United States v. Johnston, 75
M.J. 563 (N-M. Ct. Crim. App. 2016), in which we found that a conviction for
indecent exposure in violation of Article 120c, UCMJ, was factually
insufficient under circumstances in which the 19-year-old appellant
consensually and privately exchanged nude pictures with someone he
believed was 17-years-old. We observe that his reliance on Johnston here is
misplaced and find his indecent language conviction legally and factually
sufficient.
    The appellant’s text message to Katherine was originally charged as
indecent conduct in Specification 3 of Charge II, in violation of Article 134.
During trial, the defense sought dismissal of the specification arguing that
the conduct alleged—the appellant sending a picture of his genitals—was
preempted by the enumerated offense, Article 120b, UCMJ, which prohibits
lewd acts with persons under the age of 16 years.13 The government
countered that the specification did not include the sending of the penis
picture. Consistent with that assertion, the military judge ruled that the
indecent conduct alleged in the specification included only indecent language,
to wit: “nine and a half inches all for you, baby.”14 He subsequently instructed
the members accordingly, informing them that, to find the appellant guilty of
indecent language, they must be convinced beyond reasonable doubt:
            One, that between on or about 1 December 2013, and on or
         about 1 March 2014, at or near . . . Oklahoma, [the appellant]

   13   Katherine was 17-years-old at the time of the offense.

   14  Appellate Exhibit XXVI at 12. The military judge excluded the prior occasions
of “sexting” between the appellant and Katherine from the specification and did not
instruct the members regarding those communications.


                                            5
                       United States v. Laster, No. 201600048


         communicated in writing to [Katherine] certain language, to
         wit: “Nine and a half inches all for you, baby,” or words to that
         effect;
              Two, that the language was indecent; and,
             Three, that under the circumstances, the conduct of [the
         appellant] was of a nature to bring discredit upon the armed
         forces.15
   The military judge further instructed the members:
             “Indecent language” is that which is grossly offensive to the
         community’s sense of modesty, decency, or propriety, or shocks
         the moral sense of the community because of its vulgar, filthy,
         or disgusting nature. . . . or . . . because of its tendency to incite
         lustful thought.
             Language is, therefore, indecent if it tends to reasonably
         corrupt morals or incite lustful thoughts, either expressly or by
         implication from the circumstances under which it is spoken.
         Seemingly chas[te] or innocuous language can constitute this
         offense if the context in which it is used sends an indecent
         message as reasonably interpreted by commonly accepted
         community standards.16
    The determination of whether specific language is indecent cannot be
made in isolation. United States v. Green, 68 M.J. 266, 270 (C.A.A.F. 2010)
(citing to United States v. Brinson, 49 M.J. 360, 364 (C.A.A.F. 1998)). Instead,
it must be based on an examination of “the entire record of trial to determine
the precise circumstances under which the charged language was
communicated.” Id. (citations and internal quotation marks omitted)
    Here those circumstances include increasingly sexual and predatory
contact by the appellant with a 17-year-old high school student, beginning
with aggressively flirtatious behavior in the high school library and ending
with a statement regarding the size of his genitalia embossing an unsolicited
picture of his erect penis. Given the surrounding circumstances, we find no
reason to question the indecency of the specific utterance.
   This case is easily distinguishable from Johnston. In that case, this court
analyzed the definition of indecent exposure under Article 120c, UCMJ.
However, Johnston should not be read to directly limit the scope of indecent
language or indecent conduct as defined under Article 134, UCMJ. While

   15   Record at 694-95.
   16   Id. at 695.

                                           6
                         United States v. Laster, No. 201600048


some overlap exists between the term “indecent language” and the phrase “to
expose, in an indecent manner,” the two provisions are aimed at clearly
separate forms of conduct. And while they should be read harmoniously,17
they need not be read as wholly equivalent.18
    Additionally, to untether the qualifier—indecent—from its subject—either
exposure or language—is unhelpful. To expose one’s self in an indecent
manner encompasses a separate, albeit overlapping set of relevant factors
from communicating indecent language. In Johnston, this court offered a non-
exhaustive list of facts and circumstances which might make exposure
indecent under the statute, including the age of the victim, whether the
exposure was consensual, and whether the exposure was public or wholly
private.19 The list of circumstances that might make a specific utterance
indecent may include those same three factors, but it can encompass many
more—as many as may be relevant within the entire context of the utterance.
    The appellant also asserts that his conviction for sexually abusing the
child, Dede, was legally and factually insufficient because the evidence failed
to prove this abuse occurred on divers occasions. Through his instructions to
the members, the military judge identified the alleged conduct that
comprised the lewd acts on divers occasions with Dede, to wit:
         Kissing her on the lips and neck, placing his hand under her
         underwear and touching her breasts and vaginal area, and
         placing her hand on his penis, requesting photographs of her
         nude body, [and] telling her to “take it off” after receiving a
         picture of her in her sports bra . . . .20
   The appellant now argues that his acquittal on the related rape of a child
charge demonstrates that the members did not believe that the other, non-
penetrative sexual conduct—the kissing and fondling—occurred when the
appellant drove Dede to the lake. As a result, the appellant argues he should
only have been convicted based upon his lewd conduct with Dede over text
messages.

   17  See United States v. Quick, 74 M.J. 517, 520 (N-M. Ct. Crim. App. 2014) (“Just
as a single word cannot be read in isolation, nor can a single provision of a statute.”)
(citations and internal quotation marks omitted), aff’d on other grounds, 74 M.J. 332
(C.A.A.F. 2015).

   18 Indeed, see United States v. Uriostegui, 75 M.J. 857, 864 (N-M. Ct. Crim. App.
2016), in which this court distinguished indecent exposure under Article 120c,
UCMJ, from lewd acts with a child including exposure under Article 120b, UCMJ, in
interpreting the definition of “exposure” for purposes of Article 120c, UCMJ.

   19   75 M.J. at 567-69.

   20   Record at 691.

                                           7
                      United States v. Laster, No. 201600048


    The appellant’s argument proceeds from a faulty premise: that a factually
inconsistent verdict, standing alone, may be cause for relief. Instead, the
opposite is true: “When the same evidence is offered in support of two
separately charged offenses, as the physical encounters were here, ‘an
acquittal on one [may] not be pleaded as res judicata of the other.’” United
States v. Rosario, No. 201500251, 2016 CCA LEXIS 32, at *6, unpublished op.
(N-M. Ct. Crim. App. 28 Jan 2016) (quoting Dunn v. United States, 284 U.S.
390, 393 (1932)).
    However, the issue of inconsistent verdicts should not be confused with
this court’s independent review of the sufficiency of evidence undertaken
pursuant to Article 66, UCMJ. United States v. Gutierrez, 73 M.J. 172, 175
n.4 (C.A.A.F. 2014). Having carefully reviewed the record of trial and
considering the evidence in the light most favorable to the prosecution, we
are convinced that a reasonable fact finder could have found the appellant
guilty of sexually abusing Dede on divers occasions both at the lake and over
text message. Furthermore, after weighing all the evidence in the record of
trial and having made allowances for not having personally observed the
witnesses, we are convinced beyond reasonable doubt of the appellant’s guilt.
    Finally, the appellant asserts that his conviction for sexually abusing the
child, Jamie, was legally and factually insufficient because the evidence
failed to prove that the appellant’s conduct was lewd.
   The military judge generally instructed the members that a lewd act was:
         A, any sexual contact with a child; B, intentionally exposing
         one’s genitalia, anus, buttocks, or female areola or nipple to a
         child by any means, including via any communication
         technology with an intent to arouse or gratify the sexual
         desires of any person; C, intentionally communicating indecent
         language to a child by any means, including via any
         communication technology with an intent to arouse or gratify
         the sexual desires of any person; or, D, any indecent contact
         intentionally done with or in the presence of a child, including
         via any communication technology that amounts to a 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.21
   The military judge defined “sexual contact” as:



   21   Id. at 693.


                                        8
                      United States v. Laster, No. 201600048


         [A]ny touching or causing another person to touch, either
         directly or through the clothing, any body part of any person if
         done with an intent to arouse or gratify the sexual desire of any
         person. Touching may be accomplished by any part of the
         body.22
   The military judge also identified the alleged conduct that comprised the
lewd acts on divers occasions with Jamie, to wit:
         Touching her inner thigh with his foot, requesting a
         photograph of her butt and breasts, [and] asking her via
         electronic media to join him in bed . . . .23
    Having carefully considered the record of trial and the evidence relevant
to this offense, we are satisfied that a reasonable fact finder could have found
the appellant guilty of sexually abusing Jamie on divers occasions. First, the
manner in which the appellant used his foot to rub the Jamie’s inner thigh
clearly indicates that he did so with the intent to arouse or gratify his own
sexual desires. Additionally, requesting pictures of the then-14-year-old girl’s
breasts and buttocks and inviting her, albeit from afar, to join him in his bed
constituted indecent language within the precise circumstances presented
here. Furthermore, after weighing all the evidence in the record of trial and
having made allowances for not having personally observed the witnesses, we
are convinced beyond reasonable doubt of the appellant’s guilt as to this
offense.

B. Incorrect court-martial order
    Although not raised by the appellant, we note that the court-martial order
(CMO) fails to note that the language “were to the prejudice of good order and
discipline in the armed forces and” in Specification 3 of Charge II was
dismissed from the specification by the military judge pursuant to RULE FOR
COURTS-MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012
ed.).24 The appellant does not assert, and we do not find, any prejudice
resulting from this error. Nevertheless, the appellant is entitled to have the
CMO accurately reflect the results of the proceedings. United States v.
Crumpley, 49 M.J. 538, 539 (N-M. Ct. Crim. App. 1998). We thus order
corrective action in our decretal paragraph.




   22   Id.

   23   Id. at 691.

   24   Id. at 572.

                                        9
                  United States v. Laster, No. 201600048


                            III. CONCLUSION
    The findings and sentence are affirmed. The supplemental CMO shall
correctly reflect that the phrase “were to the prejudice of good order and
discipline in the armed forces and” was dismissed from Specification 3 of
Charge II.
   Judge GLASER-ALLEN and Judge HUTCHISON concur.
                             For the Court



                             R.H. TROIDL
                             Clerk of Court




                                   10
