              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39043
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                        Brandon J. ALLEN
          Technical Sergeant (E-6), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 11 October 2017
                         ________________________

Military Judge: Vance H. Spath.
Approved sentence: Dishonorable discharge, confinement for 3 years,
and reduction to E-1. Sentence adjudged 18 December 2015 by GCM
convened at Ramstein Air Base, Germany.
For Appellant: Major Annie W. Morgan, USAF.
For Appellee: Major G. Matt Osborn, USAF; Major Mary Ellen Payne,
USAF; Gerald R. Bruce, Esquire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the Court, in which
Judges SPERANZA and HUYGEN joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

HARDING, Senior Judge:
    A general court-martial composed of officer members found Appellant
guilty, contrary to his pleas, of an attempted lewd act upon a child by sexual
contact and an attempted lewd act upon a child by indecent communication,
                      United States v. Allen, No. ACM 39043


both in violation of Article 80 of the Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 880. 1 The court-martial sentenced Appellant to a dishonorable dis-
charge, confinement for three years, and reduction to E-1. The convening au-
thority approved the sentence as adjudged.
    On appeal, Appellant raises five assignments of error (AOEs): (1) whether
the military judge erred in identifying and instructing the court-martial on
possible overt acts raised by the evidence for the specification of an attempted
lewd act upon a child by sexual contact; (2) whether the evidence is legally and
factually sufficient to support the convictions because Appellant did not believe
the person he communicated with was a child; (3) whether the findings of guilty
as to both specifications are incorrect as a matter of law because Appellant was
entrapped; (4) whether the finding of guilty as to attempted lewd act upon a
child by sexual contact is incorrect as a matter of law because Appellant aban-
doned the criminal effort; and (5) whether the convening authority engaged in
unlawful command influence when he selected the panel members for Appel-
lant’s trial. 2 We find no prejudicial error and affirm.

                                  I. BACKGROUND
    On 18 December 2014, agents with the Air Force Office of Special Investi-
gations (AFOSI) apprehended Appellant on a stairwell landing of an apart-
ment building in base housing on Ramstein Air Base (AB), Germany. Appellant
had gone to that particular apartment building intending to engage in sexual
activity with a 14-year-old girl he knew as “Tina.” Appellant originally met
“Tina” by responding to an online personal advertisement. Throughout the
course of correspondence spanning three months ultimately leading up to the
planned in-person meeting, “Tina” repeatedly and consistently presented her-
self to Appellant as a 14-year-old military dependent. In the days leading up
to the rendezvous, Appellant sent “Tina” multiple explicit messages expressing
his desire to engage in sexual activity with her. On the stairwell landing, Ap-
pellant stood steps away from the door of the apartment where he believed
“Tina” awaited his arrival. Instead of a 14-year-old girl waiting inside, AFOSI

1Appellant was acquitted of a separate attempted sexual abuse of a child in violation
of Article 80, UCMJ.
2This issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
Three officers who previously served on a panel deciding a case factually similar to
Appellant’s were excused from this court-martial after court member challenges. Still,
Appellant claims an appearance that the convening authority attempted to “stack” the
panel by detailing those officers. Appellant also raises a concern that the court mem-
bers who remained on his panel were somehow tainted by the excused members. We
have considered Appellant’s arguments but find them without merit. United States v.
Matias, 25 M.J. 356 (C.M.A. 1987).


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                    United States v. Allen, No. ACM 39043


agents came out of the apartment and apprehended Appellant. “Tina” was not
a 14-year-old girl but a fictitious online persona created by AFOSI Special
Agent (SA) TK as part of a larger effort by the Internet Crimes Against Chil-
dren (ICAC) Task Force in northern Virginia.
     The purpose of AFOSI’s involvement in the task force was to identify Air
Force personnel utilizing social media and online resources to engage in the
sexual exploitation of minors. On 22 September 2014, at the request of the
AFOSI detachment at Ramstein, Air Base, SA TK posted a personal advertise-
ment on Craigslist localized to the United States military community at or near
Ramstein AB, Germany. The post was titled “Dependent Looking for Company
– w4m (Landstuhl, Ramstein, Spang, K-Town area).” 3 The post read, in part,
“[l]ooking for a military man with a common interest. If interested hit me up
on Yahoo . . . lets chat, swap pics, share some stories, and take it from there.”
The listing included the screenname “daddyluver3.”
    On 23 September 2014, Appellant responded to SA TK’s post by sending a
message using Yahoo Messenger to “daddyluver3” and referring to the post on
Craigslist. Using the screenname “daddyluver3,” SA TK responded to Appel-
lant the next day. The third message that SA TK sent to Appellant read, “im
[sic] a dependent 14 yr old if your [sic] interested.” Appellant immediately re-
sponded “Nope, sorry.” Appellant then commented that “daddyluver3” was too
young to be looking for guys on Craigslist and asked how much “action” she got
after revealing that she was 14. Appellant asked a couple more questions about
the people that “daddyluver3” interacted with, acknowledged the risk of “talk-
ing [to] and seeing” someone her age, and then wished her “good luck in [her]
adventures.” Although Appellant seemed to be ending his brief correspondence
with 14-year-old “daddyluver3,” Appellant continued the conversation and
twice asked her where she lived. SA TK asked Appellant if Appellant was in-
terested and why he was persisting if he was not. Appellant replied he was
“curious.” The message string ended with Appellant asking “daddyluver3”
whether she was going to bed or “blowing [him] off.” SA TK did not respond to
that message. Appellant reinitiated contact with “daddyluver3” a couple days
later with the question, “[s]o you blew me off?” SA TK responded, “you wish id
blow you off?” Appellant again asked where “daddyluver3” lived and SA TK
answered Ramstein AB.
    A few weeks later, Appellant reinitiated contact by asking “daddyluver3”
for a picture of herself. SA TK did not immediately respond to Appellant’s re-
quest for a picture. Instead, after a few more weeks had passed, SA TK sent



3The term “w4m” means “woman seeking man.” “Spang” is short for Spangdahlem AB.
“K-Town” refers to Kaiserslautern, a town near Ramstein AB.


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                     United States v. Allen, No. ACM 39043


Appellant a message as “daddyluver3” asking “hey, how ya been[?]” Appellant
responded a few days later that he was “good.”
    In an exchange of messages in mid-November 2014, Appellant made his
first specific reference to sexual activities in his online communications with
“daddyluver3.” Appellant asked why “she” did not have a boyfriend and the
conversation then progressed to the topic of “how to treat a lady.” Appellant
opined that it was “not hard to be good to a lady . . . just be nice, sweet, caring,
and good at going down on them and your [sic] set as a guy.” 4 Appellant then
asked about the meaning of the screenname “daddyluver3.” SA TK replied that
the name tended to attract older men looking for young girls. The conversation
then turned to a discussion about revealing their actual names to each other.
Appellant stated his name was “Brannon.” SA TK told Appellant that “dad-
dyluver3” was “Tina.”
    Later in this same exchange of messages, “Tina” asked Appellant if he had
ever been with a young girl. Appellant replied that he had and went on to de-
scribe in graphic detail how he digitally stimulated the clitoris of this other
girl. 5 Appellant subsequently asked “Tina” what sexual activities she had done
and “how [she] work[ed] [her] hook-ups.” This series of messages ended with
Appellant again requesting “Tina” send him a picture.
    A few days later, Appellant sent his first message to “Tina” signaling his
intent to meet her in person and engage in sexual activity. When asked by
Appellant about her weekend, “Tina” replied that it was “not bad [but] didnt
do to [sic] much exciting.” Appellant answered with the following:
       Well if u would have set [sic] me a message u might have been
       able to do something exciting.
Appellant then reminded “Tina” that she still had not sent him a picture of her.
   Appellant and “Tina” next exchanged messages eight days later. “Tina” in-
formed Appellant that her mother was soon to switch shifts and might work
evenings. The implication was that “Tina” would be alone and unsupervised in
the evenings after school. In response, Appellant expressed his hope that her
mother worked the night shift. Appellant once again asked about getting a pic-
ture from “Tina.” SA TK then sent Appellant a picture of a female AFOSI agent




4This language was alleged in the specification of an attempted lewd act with a child
by indecent communication.
5Appellant’s description was alleged in the specification of an attempted lewd act with
a child by indecent communication.


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                    United States v. Allen, No. ACM 39043


whose image had been age-regressed by computer software. Appellant imme-
diately responded, “[w]ow, your [sic] beautiful” and asked whether she had
“hooked up with any married guys? Or guys with kids???”
    Appellant again raised the possibility of meeting “Tina” in person with the
following messages:
       I was on base like 30 mins ago and thought about coming and
       sneaking u away for a little bit.
       I can’t wait to see more of u.
       And of course I want pics of you . . . you are very cute . . . but I
       have a feeling soon enough I will see u in person . . . if anything
       I would say a full body shot . . . you know see u top to bottom.
       So if for some reason I was on base later tonight . . . how late is
       the latest?
    “Tina” responded to the last message that it was a school night and her
mother was cooking dinner. “Tina” then asked Appellant what he had in mind
for them to do if they met. Appellant explained that he “figure[d] [he] wouldn’t
have much time . . . so a little exploring of a body then some kisses and lastly
eyes rolling back by only using two fingers.” Appellant continued this banter
with “Tina” and commented how he could masturbate after their conversation
concluded. In subsequent messaging to “Tina,” Appellant continued to press
the issue of meeting in person. On 8 December 2014, after informing “Tina”
that he was married, he declared: “So it’s up to you if you are still interested in
talking and seeing where things might go.” On 11 December 2014, Appellant
inquired of “Tina,” “So no chance in maybe seeing you tonight?”
    In light of Appellant repeatedly stating his desire and willingness to meet
“Tina” in person, SA TK contacted AFOSI agents at Ramstein AB to inform
them that Appellant wanted to meet “Tina” in person to engage in sexual ac-
tivity. By Monday, 15 December 2014, the agents had arranged for the use of
an on-base apartment to conduct the meeting, surveillance, and apprehension
of Appellant that would take place three days later.
    During Appellant’s correspondence with “Tina” on 15 December 2014, Ap-
pellant again affirmed his desire to meet “Tina” and wrote, “all I wanted was
to see u.” On prior occasions, “Tina” had deflected Appellant’s suggestions to
meet. This time, however, “Tina” told Appellant that she could meet him on
Thursday after school and suggested they meet at an apartment where she
would be house sitting. Appellant expressed apprehension at the possibility of
getting caught and sent the following messages to “Tina”:
       So if I come to your street Thursday the cops are not going to [be]
       sitting around the corner are they?

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                    United States v. Allen, No. ACM 39043


       No offense but it sounds like one of those abc [sic] dateline set
       ups.
       I worry about others seeing me walk into the house.
       The house sitting house is not a bad idea. I just want to go drive
       by it an[d] look at the set-up, see how bad it may look if I go up
       to it and walk in.
       I will take a look on Wed.
   About 40 minutes later, Appellant sent “Tina” a message and initiated a
sexually explicit conversation discussing his penis size, “Tina” performing oral
sex on him, the size of “Tina’s” breasts, placing his penis between her breasts,
and “Tina’s” sexual experience. Appellant then asked “Tina” whether she “ever
had a guy go down on [her].” “Tina” answered that she had not and Appellant
replied as follows:
       Ok good . . . well u are in for a world of amazing
       My wife says I’m like a Greek god down there
       U are going to be a lucky girl
Appellant ended the conversation by telling “Tina” that he hoped he would see
her on Thursday.
    On Wednesday, 17 December 2014, Appellant confirmed with “Tina” that
“yes the plan is to meet up tomorrow.” On Thursday, 18 December 2014, “Tina”
informed Appellant of the building and apartment numbers. At 1645 local
time, “Tina” messaged Appellant that she was at the apartment waiting for
him. At 1706, Appellant messaged “Tina” that he was on his way. “Tina” re-
plied, “sweet so excited and horny.” Appellant replied, “Me too.”
     Once Appellant arrived at Ramstein AB, AFOSI’s surveillance team iden-
tified him and alerted the agents at the apartment. When he arrived at the
apartment building, the agents observed Appellant walking up and down the
street and looking around. Appellant eventually went up the stairs to the
apartment and put his ear to the door. Appellant then went back down the
stairs and messaged “Tina” to come out on the balcony so he could see that she
was there. In response to his request, a female AFOSI agent stepped out onto
the balcony. Appellant testified at his trial that he received a message that
someone had come outside on the balcony but that he did not see the person
because it was dark. He stated that he “could just see the silhouette of some-
body between the curtains and the backlight of the apartment.” After the fe-
male agent went back inside the apartment, Appellant and “Tina” exchanged
the following messages:
       Appellant: Are u back inside now?


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                    United States v. Allen, No. ACM 39043


       Tina: yes, cant take the computer outside lol…are you coming
       up or what
       Appellant: Lol, it was hard to see u with the lights up there…Did
       you see me?
       Tina: yes . . . I think you need to get up here instead of looking
       like the weird guy on the street lol
       Appellant: Ok making the leap
       Tina: ok
       Appellant: coming up the stairs . . . Here
    Appellant re-entered the building, walked up the stairs to a landing be-
tween the first and second floor, and waited. After a few minutes, AFOSI
agents decided to proceed with the apprehension and found Appellant on the
stairwell landing. After his apprehension and release by AFOSI, Appellant,
who was a Security Forces investigator, told his supervisor, “it doesn’t matter
what position you are in, you can still get in trouble.”

                                II. DISCUSSION
A. Overt Act Instruction
    The specification alleging attempted lewd act upon a child by sexual con-
tact did not specifically allege any particular overt act or acts taken by Appel-
lant. Instead, the specification simply alleged that Appellant attempted to com-
mit a lewd act upon “Tina.” Military case law has long accepted the pleading
of attempts under Article 80, UCMJ, 10 U.S.C. § 880, without alleging the overt
act. See, e.g., United States v. Garner, 28 M.J. 634 (A.F.C.M.R. 1989). Nothing
in the Manual for Courts-Martial requires—either implicitly or expressly—
that the overt act must be pleaded as part of the specification. See United
States v. Mobley, 31 M.J. 273, 278 (C.M.A. 1990). In this case, Appellant does
not challenge the specification for failure to state an offense or claim a lack of
notice for want of an alleged overt act. Instead, Appellant argues for the first
time on appeal that it was error for the military judge to identify and instruct
the members on three overt acts raised by the evidence but not alleged in the
specification. Appellant avers that “in so instructing the panel, the military
judge essentially amended the specification in favor of the [G]overnment and
relieved the panel of the need to find a ‘substantial step’ if it determined the
very minimal acts instructed by the judge had occurred.” We disagree.
    Despite being asked on multiple occasions, the Defense at trial never ob-
jected to the military judge’s instruction identifying the overt acts raised by
the evidence. At an Article 39a, UCMJ, session during the presentation of the
Defense’s case, the military judge advised counsel of matters he intended to

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                    United States v. Allen, No. ACM 39043


include in the findings instructions. Referring to draft versions of the instruc-
tions he had previously emailed to the counsel, the military judge initially ad-
dressed the issue of instructing on overt acts as follows:
       And then the other changes I made in the first two specifications
       in the first element, we had to put some acts in there. So take a
       look at that language, because I’ve added in kind of what I be-
       lieve sums up the overt acts that would make that an attempt,
       if the members believe that there’s an attempt there. And I be-
       lieve that to be the biggest changes, so I wanted you to have a
       place to focus on during the break, so that if we have an oppor-
       tunity to get to argument this afternoon, we don’t have to take a
       long break before instructions.
    At a subsequent Article 39a session, the military judge continued the dis-
cussion with counsel on the inclusion of specific overt acts in his instructions
on the elements.
       MJ: I took out all of the mistake of fact as to age language by
       putting in the knowledge of the person’s age. That was defense
       counsel’s request to make it more sensible. And then I took out
       the language about the government not having to prove age
       since, again, knowledge of age is important because of the at-
       tempt nature. So we’ve already made some changes to the ele-
       ments. The only significant change now is the acts that may give
       rise to an attempt in Specifications 1 and 2. So, Trial Counsel,
       do you believe that properly captures the acts? It’s element one
       on page one, and it’s mirrored again when you [get] to Specifica-
       tion 2.
       STC [Senior Trial Counsel]: No objection.
       MJ: Defense Counsel? I tried to take out the preparatory infor-
       mation, the text leading up to it and focus in on that day.
       SDC [Senior Defense Counsel]: No concerns.
       MJ: All right. So that’s what I will instruct on with regard to the
       acts.
    Shortly thereafter, the military judge asked the Defense for any objections
to the proposed findings instructions or requests for additional instructions.
Trial defense counsel replied “No, sir.” The following morning, just prior to the
military judge instructing the members on findings, the Defense again, after
being asked, informed the military judge that they had no objections to the




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                     United States v. Allen, No. ACM 39043


findings instructions. Immediately afterwards, consistent with his prior dis-
cussions with counsel, the military judge instructed the members regarding
three overt acts he deemed raised by the evidence as follows:
       you must be convinced by legal and competent evidence beyond
       a reasonable doubt that the accused did certain acts, that is he
       left work and drove to Ramstein Air Base to a location he be-
       lieved “Tina” would be at, he texted and communicated with
       “Tina” while at the location in an attempt to confirm her iden-
       tity, and approached the door identified as the location where
       “Tina” would be.
    The military judge further instructed the members they must also be con-
vinced beyond a reasonable doubt that (1) the acts were done with the intent
to commit the offense of lewd act with a child; (2) the acts amounted to more
than mere preparation, that is, they were a substantial step and direct move-
ment toward the commission of the intended offense; and (3) the acts appar-
ently would have resulted in the actual commission of the offense of lewd acts
upon a child except for a circumstance unknown to the accused which pre-
vented completion of the offense. The military judge then defined both “prepa-
ration” and “substantial step.”
       Preparation consists of devising or arranging the means or
       measures necessary for the commission of the attempted offense.
       To find the accused guilty of this offense, you must find beyond
       a reasonable doubt that the accused went beyond preparatory
       steps, and his acts amounted to a substantial step and a direct
       movement toward the commission of the intended offense. A sub-
       stantial step is one that is strongly corroborative of the accused’s
       criminal intent and is indicative of his resolve to commit the of-
       fense.
   Just prior to closing the court for the members’ deliberations on findings,
the military judge again inquired whether the Defense had any objections to
the findings instructions and, once again, the Defense did not object.
    Because there was no objection to the instruction at trial, we review for
plain error. United States v. Tunstall, 72 M.J. 191, 193 (C.A.A.F. 2013). Under
a plain error analysis, “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 [Appellant].” United States v. Girouard, 70
M.J. 5, 11 (C.A.A.F. 2011). “While military judges have some discretion in tai-
loring panel instructions, a military judge has a duty to provide appropriate
legal guidelines to assist the jury in its deliberations.” United States v. Killion,
75 M.J. 209, 213 (C.A.A.F. 2016) (internal quotations and citations omitted).


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                     United States v. Allen, No. ACM 39043


“Failure to provide correct and complete instructions to the panel before delib-
erations begin may amount to a denial of due process.” United States v. Wol-
ford, 62 M.J. 418, 419 (C.A.A.F. 2006). R.C.M. 920(e) expressly requires that
instruction on findings include, inter alia, “[a] description of the elements,”
R.C.M. 920(e)(1), and “[s]uch other explanations, descriptions, or directions as
may be necessary and which are properly requested by a party or which the
military judge determines, sua sponte, should be given.” R.C.M. 920(e)(7).
    Contrary to Appellant’s assertion that the military judge “essentially
amended the specification in favor of the [G]overnment,” the military judge
expressly followed the guidance for instructing on the elements of an attempt
as contained in the Military Judges’ Benchbook. 6 Members are to be instructed
that they must be convinced beyond a reasonable doubt that an accused did a
certain act or acts as either alleged or raised by the evidence. As there were no
overt acts alleged in the specification, the military judge properly exercised his
discretion to identify sua sponte overt acts raised by the evidence. This not only
was in step with the Benchbook guidance but also fulfilled the military judge’s
responsibility to provide an adequate description of that element for the mem-
bers. The only question is whether the evidence actually raised the overt acts
the military judge chose to include in the instruction.
    In addition to evidence presented by the Government in its case in chief,
Appellant himself provided testimony that established that he drove to Ram-
stein Air Base to a location he believed “Tina” would be present; that he texted
“Tina” while at that location to confirm she was there; and that he approached
the door of the apartment where “Tina” was. It was not error for the military
judge to identify these acts as possible overt acts related to the alleged attempt
offense. Once instructed, the members were to determine whether any of the
acts were proven beyond a reasonable doubt and whether “they were a sub-
stantial step and a direct movement toward the commission of the intended
offense,” as the military judge further instructed. Given the law and the facts
of this case, we find no error, let alone one that is plain or obvious, in the mili-
tary judge’s instructions on overt acts.
B. Legal and Factual Sufficiency
    Appellant’s second, third, and fourth AOEs articulate separate bases to al-
lege that the evidence is legally or factually insufficient or both as to his two
convictions for attempted lewd acts upon a child. Specifically, Appellant claims
that he did not believe that “Tina” was a child and therefore the evidence for
both specifications is legally and factually insufficient. Appellant makes two


6Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, ¶ 3-4-1 (10 Sep.
2014).


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                    United States v. Allen, No. ACM 39043


additional legal sufficiency claims styled by Appellant as “incorrect as a matter
of law.” First, Appellant asserts that the evidence for both specifications is le-
gally insufficient because he was entrapped by the Government. Second, Ap-
pellant argues that the evidence is legally insufficient for the attempted lewd
act upon a child by sexual contact because he voluntarily abandoned his crim-
inal effort. We disagree.
    We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002). 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 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.” United
States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987); United States v. Humpherys,
57 M.J. 83, 94 (C.A.A.F. 2002). The term “beyond a reasonable doubt” does not
mean that the evidence must be “free from conflict.” United States v. Lips, 22
M.J. 679, 684 (A.F.C.M.R. 1986). “[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).
    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.” Turner, 25 M.J. at 325; 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 presump-
tion 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.
    There are four elements of attempt: (1) that the accused did a certain overt
act; (2) that the act was done with the specific intent to commit a certain of-
fense 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. Manual for Courts-Martial, United States (2012 ed.) (MCM), pt. IV, ¶
4.b. Here the underlying offense is sexual abuse of a child, which is also de-
scribed as lewd act upon a child. “Lewd act” as charged in this case, means any
sexual contact with a child or intentionally communicating indecent language
to a child by any means, including via any communication technology, with an
intent to abuse, humiliate, or degrade any person, or to arouse or gratify the
sexual desires of any person. MCM, pt. IV, ¶ 45b.a.(h)(5).



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                    United States v. Allen, No. ACM 39043


   1. Appellant’s Belief Whether “Tina” Was a Child
    Appellant makes the same claim on appeal that he unsuccessfully made at
trial, namely that he “did not believe he was conversing with someone who was
only 14 years of age.” Appellant further claims his unrefuted testimony that he
believed “Tina” was an adult interested in fantasy roleplay and his observation
of the adult female AFOSI agent on the balcony prior to his going up the stairs
of the apartment building render his convictions factually and legally insuffi-
cient. We disagree.
     The ultimate determination of what Appellant believed about “Tina’s” age
was a matter for the fact-finder to resolve. Appellant’s claimed belief that
“Tina” was an adult was refuted by other evidence in the case. Beginning with
the very first communication with Appellant and consistent to the last, “Tina”
maintained that she was 14 years old. She injected topics, such as her school
activities and interactions with her mother as indicators of her age. Although
Appellant characterizes his communications with “Tina” as fantasy roleplay-
ing, the evidence supports the contention that Appellant responded to Tina’s
messages consistent with a belief that she was in fact 14 years old and an in-
tent to gratify his sexual desires. Further, Appellant’s reliance on his observa-
tion of an adult on the balcony as evidence of his purported belief that “Tina”
was an adult is repudiated by his own testimony at trial. When asked at trial
if the person stepped out on the balcony, Appellant responded, “They said they
came outside. I didn’t see them . . . it was too dark to be able to make anybody
actually was really out there. You could just see the silhouette of somebody
between the curtains and the backlight of the apartment.” Considering the ev-
idence in the light most favorable to the prosecution, a reasonable factfinder
could have found beyond a reasonable doubt that Appellant had the specific
intent to engage in sexual contact with a 14-year-old girl along with the other
essential elements for an attempt. After weighing the evidence in the record of
trial and making allowances for not having personally observed the witnesses,
we are convinced beyond a reasonable doubt that Appellant believed that
“Tina” was a 14-year-old girl and that Appellant is guilty of the two attempt
offenses.
   2. Entrapment
    Appellant claims the findings of guilty as to both specifications are incor-
rect as a matter of law because he was entrapped by the government. We dis-
agree. A successful claim of entrapment requires evidence that the criminal
design or suggestion to commit the offense originated with the government, not
the accused, and the accused was not predisposed to commit the offense. See
Rule for Courts-Martial (R.C.M.) 916(g); United States v. Hall, 56 M.J. 432,
436 (C.A.A.F. 2002); United States v. Howell, 36 M.J. 354, 359 (C.M.A. 1993).



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                    United States v. Allen, No. ACM 39043


    Entrapment requires an improper inducement by government agents to
commit the crime. Howell, 36 M.J. at 359. Inducement means more than
merely providing the appellant the means or opportunity to commit a crime.
Id. at 358. Instead, the government’s conduct must “create[ ] a substantial risk
that an undisposed person or otherwise law-abiding citizen would commit the
offense . . . . Inducement may take different forms, including pressure, assur-
ances that a person is not doing anything wrong, persuasion, fraudulent rep-
resentations, threats, coercive tactics, harassment, promises of reward, or
pleas based on need, sympathy, or friendship.” Id. at 359–60 (citations, empha-
sis, and internal quotation marks omitted).
    The government may use undercover agents and informants to ferret out
crime and afford opportunities or facilities for criminals to act upon. Jacobson
v. United States, 503 U.S. 540, 548 (1992); see also Howell, 36 M.J. at 358;
United States v. Whittle, 34 M.J. 206, 208 (C.M.A. 1992). “Artifice and strata-
gem may be employed to catch those engaged in criminal enterprises.” Sorrells
v. United States, 287 U.S. 435, 441 (1932); see also United States v. Russell,
411 U.S. 423, 435–36 (1973). For example, law enforcement may pretend to be
someone other than a government agent. See Howell, 36 M.J. at 358.
    The question of predisposition relates to a law-abiding citizen. Whittle, 34
M.J. at 208. “A law-abiding person is one who resists the temptations, which
abound in our society today, to commit crimes.” United States v. Lubitz, 40 M.J.
165, 167 (C.M.A. 1994) (citing United States v. Evans, 924 F.2d 714, 717 (7th
Cir. 1991)). One who accepts an invitation to commit a crime without being
offered an extraordinary inducement shows a predisposition to commit the
crime. Whittle, 34 M.J. at 208.
    In litigating the entrapment defense, the accused has the initial burden of
showing that the criminal design or suggestion originated with the govern-
ment. Hall, 56 M.J. at 436. Once that hurdle is met, the burden shifts to the
prosecution to prove beyond a reasonable doubt that the criminal design did
not originate with the government or that the accused was predisposed to com-
mit the offense. Id.; United States v. Wheeler, 76 M.J. 564, 574 (A.F. Ct. Crim.
App. 2017).
    While SA TK posted the original advertisement on Craigslist, the ad was
not directed at Appellant, and Appellant was the one who chose to respond. In
“Tina’s” third message, she indicated she was 14 years old. While Appellant
acknowledged the risk of corresponding with a 14-year-old, he still pursued the
relationship. While SA TK provided opportunities for Appellant to commit the
offenses, SA TK did not initiate any of the discussions quoted in the specifica-
tion for an attempted lewd act upon a child by indecent communication. Appel-
lant made the first explicit reference to sexual activity when he messaged “just
be nice, sweet, caring, and good at going down on them.” Further, Appellant,

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                    United States v. Allen, No. ACM 39043


without any prodding from SA TK, repeatedly raised and pursued the possibil-
ity of meeting “Tina” in person for the purpose of engaging in sexual activity.
SA TK never pressured Appellant to commit either attempt offense. Thus,
there was no inducement by a government agent. Appellant made the decisions
to respond to the ad, continue communications with a purported 14-year-old
girl, send sexually explicit messages, and pursue a meeting with “Tina” with
the intent to engage in sexual activities with her.
    Even though SA TK falsely represented facts such as his gender and age,
there was no overreaching by the government. SA TK did not pressure or co-
erce Appellant to commit the attempt offenses. Thus, we find Appellant has
failed to satisfy his initial burden of showing that the criminal design origi-
nated with the government. However, we also analyze the case as if the burden
shifted to the Prosecution.
    As described above, we first find beyond a reasonable doubt that there was
no improper government inducement. We further find beyond a reasonable
doubt that Appellant was predisposed to commit the offense. Again, Appellant
first suggested meeting in person and initiated the communications regarding
sexual activity. The Government need not present evidence that Appellant
committed or attempted to commit a similar offense on a previous occasion. A
person’s readiness and willingness to commit the offense is evidence of predis-
position. Whittle, 34 M.J. at 208.
   Here, the government’s conduct did not create a substantial risk that an
undisposed person or otherwise law-abiding citizen would commit the offense.
Appellant, by his actions, demonstrated his predisposition to commit the un-
derlying offenses. Considering the evidence in the light most favorable to the
prosecution, a reasonable factfinder could have found beyond a reasonable
doubt that Appellant was not entrapped.
   3. Voluntary Abandonment
    Appellant’s final argument with respect to legal sufficiency is that he vol-
untarily abandoned his plan to have sexual contact with a child and thus is not
guilty of this attempt offense. We disagree.
    Voluntary abandonment is an affirmative defense to a completed attempt
offense. United States v. Schoof, 37 M.J. 96, 103 (C.M.A. 1993); United States
v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987). “It is a defense to an attempt offense
that the person voluntarily and completely abandoned the intended crime,
solely because of the person’s own sense that it was wrong, prior to the com-
pletion of the crime.” MCM, pt. IV, ¶ 4.c.(4). The defense is raised when the
accused abandons his effort to commit a crime “under circumstances manifest-
ing a complete and voluntary renunciation of his criminal purpose.” Schoof, 37
M.J. at 104 (citation omitted). Voluntary abandonment does not exist “if the


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                    United States v. Allen, No. ACM 39043


abandonment results, in whole or in part, from other reasons, for example, the
person feared detection or apprehension, decided to await a better opportunity
for success, was unable to complete the crime, or encountered unanticipated
difficulties or unexpected resistance.” MCM, pt. IV, ¶ 4.c.(4) (emphasis added).
    The existence of abandonment as a defense “necessarily implies that a pun-
ishable attempt precedes it.” United States v. Collier, 36 M.J. 501, 510
(A.F.C.M.R. 1992). “[A] person who has performed an act which is beyond the
stage of preparation and within the zone of attempt may nevertheless avoid
liability for the attempt by voluntarily abandoning the criminal effort.” Byrd,
24 M.J. at 290 (citation omitted). Given that it is an affirmative defense, the
burden rests on the Government, once it is put into controversy, to rebut the
defense beyond a reasonable doubt. R.C.M. 916(b)(1).
   Appellant never abandoned his plan to meet and engage in sexual activity
with “Tina.” Instead, Appellant sent “Tina” a message that he was “making the
leap.” AFOSI agents watched as he stood on the stair landing outside the apart-
ment door. As Appellant made no move to leave, the agents came out of the
apartment and apprehended Appellant. Considering the evidence in the light
most favorable to the prosecution, a reasonable factfinder could have found
beyond a reasonable doubt that Appellant did not voluntarily abandon his at-
tempted lewd act upon a child by sexual contact.

                               III. CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                 FOR THE COURT



                 KURT J. BRUBAKER
                 Clerk of the Court




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