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

                                 Before
               K.J. BRUBAKER, J.A. FISCHER, A.Y. MARKS
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                     STEVEN A. TRUSTY
    AVIATION MACHINIST'S MATE SECOND CLASS (E-5), U.S. NAVY

                           NMCCA 201500079
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 27 October 2014.
Military Judge: CAPT Robert S. Blazewick, JAGC, USN.
Convening Authority: Commander, Navy Region Southeast,
Jacksonville, FL.
Staff Judge Advocate's Recommendation: CDR N.O. Evans,
JAGC, USN.
For Appellant: LT Jessica L. Ford, JAGC, USN; Capt Daniel
Douglass, USMC.
For Appellee: Mr. Brian K. Keller, Esq.

                              28 July 2015

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                     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:

     At a general court-martial, a military judge found the
appellant guilty, pursuant to his pleas, of the following: one
specification of attempted indecent act and three specifications
of attempted abusive sexual contact in violation of Article 80,
Uniform Code of Military Justice, 10 U.S.C. § 880; one
specification of indecent liberty with a child and one
specification of abusive sexual contact with a child in
violation of Article 120 (2007 to 2012 version), UCMJ, 10 U.S.C.
§ 920; one specification of abusive sexual contact in violation
of the current version of Article 120, UCMJ, 10 U.S.C. § 920;
and three specifications of assault consummated by battery of a
child in violation of Article 128, UCMJ, 10 U.S.C. § 928. The
military judge sentenced the appellant to confinement for a
period of 30 months, total forfeiture of pay and allowances,
reduction to pay grade E-1, and a dishonorable discharge.
Pursuant to a pretrial agreement, the convening authority
reduced the dishonorable discharge to a bad-conduct discharge
and otherwise approved the adjudged sentence but suspended all
confinement in excess of 24 months.

     Although this case comes to us without assignment of error,
we find the appellant’s plea to one of the attempted abusive
sexual contact specifications——Specification 4 of Charge I——
improvident. We take corrective action in our decretal
paragraph. Arts. 59(a) and 66(c), UCMJ.

                                  Background

     During three different time periods, the appellant sexually
abused three of his daughter’s friends, two of whom were under
16 years of age at the time and one of whom was 16. These
incidents included, inter alia: requesting a child to send him
photographs of her breasts and vagina; without consent, rubbing
his clothed but erect penis on a 16-year-old’s body and
attempting to kiss her on the mouth and fondle her breasts;
lifting a 13-year-old, wrapping her legs around him, and backing
her against a wall while pressing her groin and chest against
him; and entering a bathroom occupied by a child, exposing his
penis, directing her to “get on all fours and suck my dick,” 1
then grabbing her head and forcing it toward his penis.

     In addition to these offenses, the military judge accepted
the appellant’s plea of guilty to a specification of attempted
abusive sexual contact by attempting to kiss T.S., a 16-year-
old, on the mouth without her consent. The factual predicate
for this plea, both in the stipulation of fact and during the
providence inquiry, succinctly amounted to this: after giving
T.S. a ride to her boyfriend’s house, the appellant asked for
and received a kiss on the cheek. The appellant then asked for
another kiss, this time pointing to his lips. T.S. declined.




1
    Prosecution Exhibit 1 at 5.
                                      2
                                  Analysis

     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). An appellate
court will set aside a decision to accept a guilty plea only
where it finds a substantial basis in law or fact for
questioning the plea. Id. The record must contain a sufficient
factual basis to support a guilty plea. RULE FOR COURTS-MARTIAL
910(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.); United
States v. Care, 40 C.M.R. 247 (C.M.A. 1969).

      The elements of attempted abusive sexual contact are: (1)
the appellant did a certain overt act; (2) the act was done with
the specific intent to commit abusive sexual contact; (3) the
act amounted to more than mere preparation; and (4) the act
apparently tended to effect the commission of the intended
offense. MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part IV, ¶ 4b (2012
ed.).

     The elements of the intended offense, abusive sexual
contact, as charged, are: (1) the appellant engaged in sexual
contact with T.S.; and (2) the appellant did so by causing
bodily harm to T.S. Art. 120(d), UCMJ; Charge Sheet.

     The record fails to establish a sufficient factual basis
that the appellant in this instance specifically intended the
second element of the target offense, that is, to kiss T.S. on
the mouth by causing her bodily harm. While the appellant
intonated that element 2 as well as the others, the record as a
whole only supports that the appellant attempted this by asking
her to do so and then accepted her negative reply. The record
provides no foundation for how the requested kiss would have
violated Article 120 had she agreed.

     We find this to be a substantial basis in fact for
questioning the plea and that the military judge accordingly
abused his discretion in accepting it. The finding of guilty to
Specification 4 of Charge I is set aside.

                          Sentence Reassessment

     We find we can reassess the sentence in accordance with the
principles set forth in United States v. Moffeit, 63 M.J. 40

2
  “I attempted to kiss on the mouth T.S., 16-year-old, without her consent.”
Record at 245.
                                      3
(C.A.A.F. 2006), United States v. Cook, 48 M.J. 434 (C.A.A.F.
1998), and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
Our action has not dramatically changed the sentencing landscape
in this case. See United States v. Buber, 62 M.J. 476, 479
(C.A.A.F. 2006). The set-aside specification was far eclipsed
by the egregious misconduct captured in the remaining
specifications. We therefore conclude with confidence that the
adjudged sentence for the remaining offenses would have been at
least the same as that adjudged by the military judge and
approved by the convening authority.

                           Conclusion

     Accordingly, we affirm the remaining findings and the
sentence as approved by the convening authority.


                                For the Court




                                R.H. TROIDL
                                Clerk of Court




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