                 UNITED STATES NAVY-MARINE CORPS
                    COURT OF CRIMINAL APPEALS
                         WASHINGTON, D.C.

                                   Before
                K.J. BRUBAKER, M.C. HOLIFIELD, A.Y. MARKS
                          Appellate Military Judges

                         UNITED STATES OF AMERICA

                                         v.

                          JAVON C. ASHWORTH
                    SEAMAN APPRENTICE (E-2), U.S. NAVY

                              NMCCA 201500028
                          GENERAL COURT-MARTIAL

Sentence Adjudged: 26 September 2014.
Military Judge: CAPT R.B. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast, Naval
Air Station, Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans, JAGC,
USN.
For Appellant: CDR Glenn Gerding, JAGC, USN.
For Appellee: LT James M. Belforti, JAGC, USN.

                              3 September 2015

       ---------------------------------------------------
                       OPINION OF THE COURT
       ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS PERSUASIVE
AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

PER CURIAM:

     A military judge, sitting as a general court-martial, found the
appellant guilty, pursuant to his pleas, of two specifications of
sexual abuse of a child, one specification of possession of child
pornography, and one specification of solicitation to distribute
child pornography, in violation of Articles 120b and 134, Uniform
Code of Military Justice, 10 U.S.C. §§ 920b and 934. The adjudged
sentence included 15 months’ confinement, reduction to pay grade E-
1, a $3,000.00 fine, and a bad-conduct discharge. The convening
authority approved the sentence as adjudged but, pursuant to a
pretrial agreement, disapproved the fine to the extent it exceeded
$500.00.

     On appeal, the appellant alleges that his guilty plea to Charge
II, Specification 4, solicitation to distribute child pornography,
was not provident. The appellant argues the military judge failed
to elicit facts to establish the minor girls that the appellant
solicited were aware they were part of a criminal venture. After
careful examination of the record of trial and the pleadings of the
parties, we disagree. The findings and the sentence are correct in
law and fact, and we find no error materially prejudicial to the
substantial rights of the appellant. Arts. 59(a) and 66(c), UCMJ.

                                   Background

     In November 2013, the appellant, a 21-year-old male, resumed
his teenage practice of meeting underage girls online and “sexting” 1
with them. Using social networking websites the appellant initiated
communication with girls under the age of 18. Sometimes the
appellant introduced himself to girls using an account that
reflected his true identity as a 21-year-old male Sailor named
Jovon. Alternatively, the appellant used an account through which
he impersonated a 16-year-old girl with a name such as Ashley. If a
conversation progressed with a girl, the appellant would request her
cell phone number or user name on an application which is used to
exchange text messages and photos via smart phone or computer. The
appellant then transmitted photographs of himself naked, or if he
were posing as a teenage girl, photographs of young women engaging
in sexually explicit conduct. The appellant requested that the
girls receiving the images reciprocate with photos of themselves
unclothed or “doing racy things, slowly stripping and—and the like,
things that would constitute child pornography.” 2 Many of these
underage girls the appellant solicited responded by sending one or
more photos of themselves, often fully or partially naked and/or
touching themselves sexually.




1
  Sexting has been defined as “‘the practice of sending or posting sexually
suggestive text messages and images, including nude or semi-nude photographs via
cell phones or over the Internet.’” Ronak Patel, “Taking it Easy on Teen
Pornographers: States Respond to Minors’ Sexting,” 13 J. High Tech. L. 574, 575
(2013) (quoting Miller v. Skumanick, 605 F. Supp. 2d 634, 637 (M.D. Pa. 2009)).
2
    Record at 55.
                                        2
                                Standard of Review

     A military judge's decision to accept a guilty plea is reviewed
for an abuse of discretion. United States v. Inabinette, 66 M.J.
320, 322 (C.A.A.F. 2008). The test for abuse of discretion in
accepting a guilty plea is whether the record shows a substantial
basis in law or fact for questioning the plea. United States v.
Moon, 73 M.J. 382, 386 (C.A.A.F. 2014) (citing United States v.
Passut, 73 M.J. 27, 29 (C.A.A.F. 2014)). Setting aside a guilty
plea requires “a substantial conflict between the plea and the
accused's statements or other evidence . . . . The mere possibility
of a conflict is not sufficient.” Id. (quoting United States v.
Hines, 73 M.J. 119, 124 (C.A.A.F. 2014)) (additional citation and
internal quotation marks omitted).

                       Solicitation to Commit an Offense

      The first element of soliciting another to commit an offense
is, “[t]hat the accused solicited or advised a certain person or
persons to commit a certain offense under the code other than the
four offenses named in Article 82.” 3 MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.), Part IV, ¶ 105b(1) (emphasis added). Solicitation
exists only in relation to another, stand-alone offense. Committing
solicitation appears to involve nothing more than making a nefarious
request or suggestion, but the recipient must be capable of
committing a separate criminal offense prohibited by the UCMJ.

     In 1957, the United States Court of Military Appeals (CMA)
first analyzed a solicitor’s culpability for solicitation in light
of the solicitee’s potential culpability for the solicited offense.
United States v. Oakley, 23 C.M.R.197 (C.M.A. 1957). In Oakley, the
appellant asked two civilian co-workers to purchase rat poison for
him, a normally lawful act. Id. at 198. However, when pressed, the
appellant admitted to both co-workers he sought the rat poison in
order to contaminate his First Sergeant’s food. Id. This evidence
rebutted the appellant’s claim he made facially innocent requests
that, if heeded, could not amount to a criminal offense. Aware of
the appellant’s murderous intent, the solicitees could not have
agreed to purchase rat poison without consciously joining the
appellant’s criminal venture. Confident the two solicited co-
workers could have committed an offense, the CMA concluded the two
specifications of solicitation adequately alleged an offense. Id.
at 199.


3
  The four offenses named in Article 82 are desertion, mutiny, misbehavior before
the enemy, and sedition. MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), Part IV, ¶
6.
                                           3
     Thirty-seven years later, the CMA cited its opinion in Oakley
for the requirement that a “solicitor’s request be such that the
solicitee know that the act requested of him is part of a criminal
venture.” United States v. Higgins, 40 M.J. 67, 68 (C.M.A. 1994)
(citing Oakley, 23 C.M.R. at 199). As in Oakley, the solicitation
in Higgins was a facially innocent request. Higgins stole an ATM
card from a fellow Soldier but kept the theft secret when soliciting
a friend to withdraw money with the stolen ATM card. Unlike in
Oakley, the Higgins successfully held his tongue, and the solicited
friend withdrew funds with a stolen ATM card in “blissful
ignorance.” Id. Without evidence the solicitee knew he was joining
a criminal venture, the CMA found Higgins’ plea to solicitation
improvident and set aside the conviction. Id. at 70.

     In 2010, the United States Court of Appeals for the Armed
Forces (CAAF) again addressed the crime of solicitation to commit an
offense, this time in the context of whether the specification
stated an offense. United States v. Sutton, 68 M.J. 455 (C.A.A.F.
2010). As in Oakley, the CAAF analyzed the case from the
perspective of the solicited party. However, the CAAF rejected the
argument “that [the Government] need only show that [the solicitee]
knew that the solicitation was an invitation to join in a criminal
venture.” Id. at 458. The Sutton court determined it must analyze
the solicitee’s ability to fulfill each element of the solicited
offense. Id. at 457-59 (citing United States v. Crafter, 64 M.J.
209, 211 (C.A.A.F. 2006); United States v. Dear, 40 M.J. 196, 197
(C.M.A. 1994)). Sutton was charged with soliciting his 10-year-old
stepdaughter to commit indecent acts or liberties with a child by
lifting her shirt and showing him her breasts. Sutton, 68 M.J. at
456. Stepping through the elements of indecent acts or liberties
with a child, Article 134, UCMJ, the CAAF concluded that a child
committing an act that amounted to the taking of indecent liberties
with herself failed to state an offense. Id. at 458-59.

     In two cases very similar to Sutton, the Air Force Court of
Military Review (AFCMR) and this court analyzed whether teenage
girls appreciated the nature of acts solicited from them. United
States v. Harris, No. 9901587, 2003 CCA LEXIS 269 at *3
(N.M.Ct.Crim.App. 26 Nov 2003); United States v. Conway, 40 M.J.
859, 862 (A.F.C.M.R. 1994). Although the CAAF implied it would set
aside the convictions in Conway and Harris for the same flaws it
found in Sutton, it did not directly refute either court’s analysis
of the solicitees’ sense of wrongfulness. Sutton, at 458. In both
cases cited, the appellant stepfathers were convicted of soliciting
their teenage stepdaughters to engage in indecent liberties with a
minor by allowing their stepfathers to see them naked. Conway, 40
M.J. at 861; Harris, 2003 CCA LEXIS 269 at *1. Both courts began

                                  4
their analyses with the Higgins requirement for evidence that “the
person solicited knows the act requested is part of some
contemplated wrongful conduct.” Conway, 40 M.J. at 862; see also
Harris, 2003 CCA LEXIS 269 at *3 (citing Higgins, 40 M.J. at 67).
From the circumstances surrounding the solicitations, both courts
found sufficient evidence to satisfy the knowledge requirement for
the two solicited stepdaughters. 4 Similarly, such evidence would
shed light on whether the stepdaughters in Conway and Harris could
form the necessary intent to commit the solicited sexual offense.

     The case sub judice involves the solicitation of minor girls,
but the solicited offense differs. The appellant befriended minor
girls online, then solicited them to distribute child pornography by
taking and sharing sexually explicit photos of themselves.
Sometimes the appellant impersonated a teenage girl, and other times
he revealed his true identity as a 21-year-old man, but he always
solicited in the context of sexting, a practice widely understood in
American adolescent culture. 5



4
  In Conway, the AFCMR looked at the context of the solicitation in analyzing the
solicited teenager’s awareness. 40 M.J. at 862. Did the circumstances
surrounding the solicitation suggest to the child a proper or an improper purpose
for allowing her stepfather to see her naked? The court pointed to Conway’s offer
to pay his stepdaughter to expose herself to him and his history of sexual abusing
her as evidence belying any proper purpose. Id. In such an environment, the
court believed the stepdaughter could not have attributed her stepfather’s request
to anything innocent or legitimate. Id. The court concluded she had sufficient
knowledge to satisfy the knowledge prong of the solicitation under Higgins. Id.
In Harris, this court cited three facts as sufficient evidence that a solicited
14-year-old, SL, understood her stepfather’s requests of her were wrongful:

      First, SL's practice of covering the key hole to her bedroom door
      and closing her blinds indicates her desire for privacy. Second,
      the appellant's statement to SL that he wanted to observe her
      naked, and the fact that his requests were reiterated through
      secret written notes clearly communicated to SL that the
      appellant viewed his request as wrongful. Finally, SL's decision
      to spurn the appellant's repeated requests, despite his parental
      authority, provides a sufficient basis for concluding that SL
      understood that she had no duty to acquiesce in the appellant's
      request and that, if she did, her conduct would be wrong.

Harris, 2003 CCA LEXIS 269 at *4 (citation omitted).
5
  In 2008 and 2009, survey results revealed that somewhere between 5% and 24% of 14
to 17-years-olds sent “sext” messages. Kimberlianne Podlas, The ‘Legal
Epidemiology’ of the Teen Sexting Epidemic: How the Media Influenced a Legislative
Outbreak, 12 PGH. J. Tech. L. & Pol’y 1 at ¶¶ 28-34. Intense media coverage of
the issue in 2009, fed a popular perception of teen sexting as an “epidemic.” Id.
at ¶ 30.


                                         5
     As the appellant alleges, the record contains no direct
evidence that the Jane Does he solicited understood the criminality
of the acts he requested of them. At the beginning of the
providence inquiry, the military judge defined solicitation as “any
statement or any other act which may be understood to be a serious
request to commit the offense of child pornography. The person
solicited must know that the act requested is part of a criminal
venture[.]” 6 The military judge asked the appellant if he understood
the elements of the offenses and if they correctly described what he
did. The appellant answered both questions in the affirmative.

     In the ensuing colloquy, the military judge asked no questions
about the solicited girls’ awareness of the criminality or
wrongfulness of the appellant’s requests. The stipulation of fact
does not address the solicited girls’ knowledge of criminality or
wrongfulness. Finally, neither the Government nor the appellant
introduced testimony, statements, or other evidence explicitly
addressing the solicited girls’ awareness of the criminality or
wrongfulness of the requested actions.

     The appellant relies almost exclusively on Higgins, arguing
there is insufficient evidence of the solicited parties’ knowledge
of the appellant’s criminal venture. Unlike Higgins, however, this
case does not involve a request to perform facially innocent acts
with no hint as to the solicitor’s nefarious intent. Although the
appellant testified to employing some deception as to his identity,
his impersonation of a teenage girl online did not obscure what it
was he was requesting: sexually explicit photographs of teenage
girls. Whether the solicited girls thought they were sexting with a
fellow teenage girl or a 21-year-old man, they still knew they were
sexting. Ultimately, the appellant’s deception of some but not all
of the solicited girls is not fatal to his plea. He still pled to
sexting with underage girls using a social media account listing his
real name, sex, and age, sending pictures of his naked adult penis,
and otherwise withholding nothing about his identity or intentions.

     We apply the test the CAAF set forth in Sutton and turn our
attention to the elements of the solicited offense. Distribution of
child pornography in violation of 18 U.S.C. § 2252A(1), assimilated
into the UCMJ under clause 3 of Article 134, criminalizes the acts
of those who (1) knowingly (2) mail, transport, or ship, (3) using
means or facility in interstate commerce, including by computer, (4)
child pornography. Section 2256 of title 18 defines child
pornography to include any visual depiction of a person under the

6
    Record at 33.


                                  6
age of 18 years engaging in sexually explicit conduct. Sexually
explicit conduct includes masturbation and the lascivious exhibition
of the genitals or pubic area of any person. 7

     The appellant’s modus operandi, detailed in his stipulation of
fact and his providence inquiry, made his pursuit of sexual
gratification through sexting clear to the girls he solicited. The
appellant first approached the girls on social networking sites,
platforms with no other purpose than to introduce people socially.
If a girl responded to the appellant’s overtures and conversation
progressed, the appellant proposed exchanging phone numbers or
messenger user names so they could text and share pictures. The
appellant would then rather bluntly communicate his desire to shift
from texting to sexting by sending the girl a picture of his
lasciviously exposed genitalia. Some girls responded with texts
that suggested their sexual gratification. Some reciprocated with
sexually explicit photos of themselves. The appellant sometimes
clarified his desires by specifically requesting the girls
photograph themselves “[s]tripping, potentially masturbating,
touching themselves, posing.” 8 On the other hand, some girls
responded by texting, “I don’t want to do this.” 9 These girls
understood the appellant’s proposition and declined the escalation
from texting to sexting. Regardless of whether the girls shared the
appellant’s desires, they could not help but understand them. For
girls growing up in a culture fascinated with sexting, there could
be no confusion as to the nature and purpose of appellant’s
solicitation.

     This evidence allows this court to infer that the solicited
girls did or could knowingly transmit visual depictions that
amounted to child pornography. The appellant did not mislead the
girls he solicited into distributing child pornography unknowingly.
He supplied ample evidence that he clearly communicated the sexual
content and context of his requests to the girls he solicited.
Engaged in the widely understood social practice of sexting, the
girls could meet the elements of the solicited offense of
distributing child pornography. 10 Unlike the solicitation to engage

7
     18 U.S.C. § 2256.
8
     Record at 55.
9
     Id. at 43.
10
  Admittedly, many of the solicited Jane Does probably did not equate sexting with
child pornography. Nevertheless, the elements of sexting overlap with those of
child pornography, and the mens rea of consciously sharing images of a sexually
explicit nature is the same. When first confronted with sexting among teenagers
in 2008, some prosecutors threatened to prosecute, or actually did prosecute,
                                        7
in indecent liberties in Sutton, there is no element of 18 U.S.C. §
2252A that poses a practical impossibility in this case. 68 M.J. at
458-59. Despite the appellant’s contention that the solicited girls
lacked the knowledge of criminality required for a provident plea to
solicitation, the solicited girls did possess the awareness
necessary to accomplish a violation of the federal child pornography
statute and, by assimilation, the UCMJ.

     Without a substantial basis in law or fact to question the
appellant’s guilty plea, we conclude the military judge did not
abuse his discretion in accepting appellant’s guilty plea to
soliciting minor Jane Does to distribute child pornography.

                                   Conclusion

      The findings and the sentence are affirmed.

                                       For the Court



                                       R.H. TROIDL
                                       Clerk of Court




sexting teenagers using child pornography laws. Podlas, 12 PGH. J. Tech. L. &
Pol’y 1 at ¶¶ 45-50; Patel, 13 J. High Tech. L. 574 at 583-85. Concerns about
teenagers being imprisoned and compelled to register as sex offenders for sexting
prompted a wave of state legislation. Podlas, at *P75-*P77, *P82-P83; Patel, at
586. New and amended statutes in more than twenty states insulate teens from
felony convictions for child pornography. Podlas, 12 PGH. J. Tech. L. & Pol’y 1
at ¶¶ 84-90; Patel, 13 J. High Tech. L. 574 at 586-97; Alexandra Kushner, The Need
for Sexting Law Reform: Appropriate Punishments for Teenage Behaviors,” 16 U. Pa.
J.L. & Soc. Change 281, 288 (2013). While some states merely created new defenses
and penalties for child pornography, other states enacted separate misdemeanor
offenses for sexting, applicable only to minors and focused on electronic means of
distributing child pornography. In Vermont, “[n]o minor shall knowingly and
voluntarily and without threat or coercion use a computer or electronic
communication device to transmit an indecent visual depiction of himself or
herself to another person.” 13 V.S.A. § 2802b. In Arizona, “[i]t is unlawful for
a juvenile to intentionally or knowingly use an electronic communication device to
transmit or display a visual depiction of a minor that depicts explicit sexual
material.” A.R.S. § 8-309. In Louisiana, a code provision actually entitled
“Sexting” directs that, “[n]o person under the age of seventeen years shall
knowingly and voluntarily use a computer or telecommunication device to transmit
an indecent visual depiction of himself to another person.” La. R.S. § 14:81.1.1.


                                        8
