                        UNITED STATES, Appellee

                                    v.

                  James W. SUTTON, Technical Sergeant
                       U.S. Air Force, Appellant

                              No. 09-0458

                         Crim. App. No. 37155

       United States Court of Appeals for the Armed Forces

                        Argued January 12, 2010

                         Decided April 6, 2010

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

                                 Counsel


For Appellant: Daniel Conway, Esq. (argued); Major Michael A.
Burnat, Major Lance J. Wood, and Gary Meyers, Esq. (on brief).

For Appellee: Captain Joseph J. Kubler (argued); Colonel
Douglas P. Cordova, Lieutenant Colonel Jeremy S. Weber, Major
Coretta E. Gray, and Gerald R. Bruce, Esq. (on brief).

Military Judge:    Timothy D. Wilson


       This opinion is subject to revision before final publication.
United States v. Sutton, No. 09-0458/AF

       Judge ERDMANN delivered the opinion of the court.

       Technical Sergeant James W. Sutton was convicted at a

contested general court-martial of one specification of

soliciting his step-daughter to engage in indecent liberties, in

violation of Article 134, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 934.    He was sentenced to a reduction to E-

4, three months of hard labor without confinement, and a bad-

conduct discharge.    The convening authority approved the

sentence and the United States Air Force Court of Criminal

Appeals affirmed the findings and sentence.      United States v.

Sutton, No. ACM 37155, 2009 CCA LEXIS 39, 2009 WL 289806 (A.F.

Ct. Crim. App., Jan. 29, 2009) (unpublished).

       “A specification states an offense if it alleges, either

expressly or by implication, every element of the offense, so as

to give the accused notice and protection against double

jeopardy.”    United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.

2006) (citations omitted).    We granted review to determine

whether a specification which alleges that the appellant

solicited his step-daughter to commit the offense of indecent

liberties with a child by asking her to lift her shirt to show

him her breasts states an offense.1    We hold that the


1
    We granted review of the following issues:

       I. Whether the military judge erred in denying the
       defense motion to suppress Appellant’s oral and
       written statements based on a violation of Article 31,
       UCMJ.

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United States v. Sutton, No. 09-0458/AF

specification as drafted in this case fails to state an offense
                                                          2
and therefore dismiss the charge and its specification.

                            BACKGROUND

     In December 2005 Sutton was wrestling on his bed with his

two step-daughters, P.S. and H.S., while his wife, the

children’s mother, was not at home.     After asking H.S. to leave

the room, Sutton asked P.S., then ten years of age, to lift her

shirt.   P.S. shook her head, indicating she would not, and hid

her face in her stuffed animal.   P.S. did not immediately report

the incident.   Several days later while the family was shopping

at Wal-Mart, P.S. became upset and, for the first time, informed

her mother that Sutton had asked her to lift her shirt and also

said that he had offered her $20.00.3    Mrs. Sutton confronted

Sutton about the incident and testified that he admitted asking

P.S. to show him her chest and offered her money to do so.

     Mrs. Sutton later reported her daughter’s statements to an

on-base chaplain.   The chaplain contacted the Air Force Office

of Special Investigations (OSI), which initiated an



     II. Whether the facts charged in the specification are
     sufficient as a matter of law to support a charge for
     solicitation of indecent liberties with a child under
     Article 134, UCMJ, where the person solicited was that
     child.

United States v. Sutton, 68 M.J. 201 (C.A.A.F. 2009) (order
granting review).
2
  Since our decision on Issue II is dispositive of the case, we
do not address Issue I.


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United States v. Sutton, No. 09-0458/AF

investigation the same day.   OSI contacted the Tom Green County

(Texas) District Attorney’s Office for assistance in the

investigation.   Upon completion of the civilian investigation,

Sutton was indicted in Texas state court on one count of

indecency with a child by exposing his genitals to P.S., and one

count of criminal solicitation of a minor by asking P.S. to

expose her breasts.   The criminal solicitation count was

withdrawn by the state on legal grounds after the defense filed

a motion to quash that count,4 and the state proceeded to trial

on the single indecency count.    During the trial on the

indecency count P.S. recanted her earlier statements that Sutton

had exposed his genitals to her and he was subsequently

acquitted of that charge.

     Sutton was then charged by military authorities under

Article 134, UCMJ, as follows:5

     TECHNICAL SERGEANT JAMES W. SUTTON . . . did, at or
     near the State of Texas, between on or about 1
     December 2005 and on or about 1 February 2006,
     wrongfully solicit his dependant step-daughter, [PS],
     a female under 16 years of age, not the wife of the
     accused, to engage in indecent liberties by asking her
     to lift her shirt and show him her breasts for $20.00,


3
  At the court-martial, P.S. testified that Sutton asked her to
lift her shirt, but denied that he offered her money.
4
  Count 2 of the indictment alleged that Sutton solicited P.S. to
expose her breasts. Tex. Penal Code Ann. § 21.11 (indecency
with a child) requires exposure of a child’s anus or genitals
but does not include exposure of the breast.
5
  Sutton was also charged under Article 134, UCMJ, with
possessing visual depictions of minors engaging in sexually
explicit conduct. That specification was dismissed and is not
at issue in this appeal.

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United States v. Sutton, No. 09-0458/AF

     or words to that effect, with intent to gratify the
     lust of the accused.

     Sutton’s defense counsel filed a motion to dismiss the

specification for failure to state an offense.   The defense,

relying at least in part on the prior Texas court ruling in

Sutton’s case, argued that asking a child to expose her breasts

was not a crime.   The Government responded that based on MCM pt.

IV, para. 87.c(2) (2005 ed.), the offense was properly charged

as indecent liberties with a child as it alleged that Sutton

wrongfully solicited his step-daughter to engage in indecent

liberties, and the conduct brought discredit to the Air Force

and was prejudicial to good order and discipline.   The military

judge found that the specification did allege an act and that

act, under the circumstances, was to the prejudice of good order

and discipline in the armed forces or was of a nature to bring

discredit upon the armed forces.

     The issue of the sufficiency of the specification arose

once again when the military judge was preparing his

instructions for the panel.   The military judge stated that the

wording of the specification raised confusion as to the proper

elements of the offense and questioned whether it was a

mistitled solicitation offense.    The military judge specifically

asked trial counsel if the Government intended the charge to be




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United States v. Sutton, No. 09-0458/AF

indecent liberties under Article 134, UCMJ,6 or solicitation to

commit indecent liberties under either Article 82, UCMJ, 10

U.S.C. § 882, or Article 134, UCMJ.   Trial counsel responded

that they had used the word “solicit” in the specification as a

term of art and that they viewed the charge as an indecent

liberties charge under Article 134, UCMJ.   Sutton’s defense

counsel strongly disagreed with the Government’s

characterization of the specification.    The defense attorneys

argued that the defense had always viewed the charge as a

solicitation to commit indecent liberties and had prepared their

defense on that basis.

     The military judge, acknowledging the confusion in the

wording of the specification, stated that Sutton “wasn’t asking

her [P.S.] or soliciting her to commit an offense.   If an

offense was committed, it was committed by him, not by her. So

he wasn’t soliciting her to commit an offense.”    Ultimately the

military judge decided not to give the solicitation instruction:

     because the way I view solicitation as this
     instruction is intended, is it’s intended to show the
     jury that the accused solicited another person to
     commit a crime. That’s not what we have here in the
     charge. We don’t have that charged in this case. He
     did not solicit, arguably, his stepdaughter, [P.S.] to
     commit a crime. He attempted to have indecent
     liberties with a child, allegedly, by soliciting her
     to do certain things. But, those certain things were

6
  As this offense occurred prior to October 1, 2007, the Article
134, UCMJ, offense of “indecent liberties with a child” was
still in force. See MCM, Analysis of Punitive Articles
Applicable to Sexual Assault Offenses Committed Prior to 1
October 2007 app. 27 at A27-3 (2008 ed.).

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United States v. Sutton, No. 09-0458/AF

     not to commit a crime. So consequently, I’m not
     giving the solicitation instruction.

     After a recess the military judge convened an Article

39(a), UCMJ, 10 U.S.C. § 839(a), session and announced that he

had been informed during the break by trial counsel that it was

the convening authority’s intention to refer the case as an

Article 134, UCMJ, solicitation offense.      In view of the

Government’s change of position, and the defense objection to a

proposed instruction on indecent liberties, the military judge

stated that he had changed his mind and would instruct the panel

on “solicitation” under Article 134, UCMJ.      The instructions

given to the members set forth the elements and definitions for

solicitation to commit the offense of indecent liberties as the

offense alleged, and the elements and definitions for the

offense of indecent liberties, as the offense Sutton solicited

P.S. to commit.

                            DISCUSSION

     We turn first to Issue II, which is whether the

specification states an offense.       As noted, the standard for

determining whether a specification states an offense is whether

the specification alleges “every element” of the offense either

expressly or by implication, so as give the accused notice and

protect him against double jeopardy.      Crafter, 64 M.J. at 211;

United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994); Rule for

Courts-Martial 307(c)(3).   “The question of whether a


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United States v. Sutton, No. 09-0458/AF

specification states an offense is a question of law, which this

Court reviews de novo.”   Crafter, 64 M.J. at 211 (citations

omitted).   Sutton argues that a solicitation charge requires

that the person solicited be asked to participate in a crime

punishable under the UCMJ and P.S. was not asked to commit a

crime.   He notes that under the charged specification, the

victim must necessarily be an accomplice in the crime against

her, a concept that is very confusing.    Sutton also notes the

military judge’s statements at trial that “if [the Government]

intended [the charge] to be a solicitation charge, then they

would have a real problem. . . . If an offense was committed, it

was committed by him, not by her. . . . he wasn’t soliciting her

to commit an offense.”

     The Government responds that they need only show that P.S.

knew that the solicitation was an invitation to join in a

criminal venture.   The Government argues that it does not matter

if P.S. was solicited to commit a crime where she was the

potential victim, and the fact that Sutton asked P.S. to

victimize herself should not decriminalize the solicitation.

Relying on two courts of criminal appeals decisions, the

Government argues that when a child is asked to expose herself

for an adult’s lustful purpose, and that child knows what is

being asked is wrongful, then that child has been solicited to

commit indecent liberties with a child.   United States v.

Conway, 40 M.J. 859, 862 (A.F.C.M.R. 1994); United States v.

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United States v. Sutton, No. 09-0458/AF

Harris, No. NMCCA 9901587, 2003 CCA LEXIS 269, *3 (N-M. Ct.

Crim. App. Nov. 26, 2003) (unpublished).7    We disagree.

     In both Conway and Harris, each appellant asked his step-

daughter to allow him to see her naked.     Both were charged with

soliciting their step-daughters to commit indecent liberties

with a child.   In affirming the convictions, both decisions

focused on whether the victims knew the request was wrongful

(finding that they did) and whether the solicited conduct

constituted part of a criminal venture.     Neither decision,

however, specifically addressed whether it was legally possible

for the victims to commit the offense.

     As noted, the specification in question reads as follows:

     Specification 1: TECHNICAL SERGEANT JAMES W. SUTTON
     . . . [d]id, at or near the State of Texas, between on
     or about 1 December 2005 and on or about 1 February
     2006, wrongfully solicit his dependant step-daughter,
     [PS], a female under 16 years of age, not the wife of
     the accused, to engage in indecent liberties by asking
     her to lift her shirt and show him her breasts for
     $20.00, or words to that effect, with intent to
     gratify the lust of the accused.

     The elements of “soliciting another to commit an

offense” under Article 134, UCMJ, are:

     (1)   That the accused solicited or advised a certain
           person or persons to commit a certain offense
           under the code other than one of the four
           offenses named in Article 82;

7
  Both Conway and Harris relied on United States v. Oakley, 7
C.M.A. 733, 23 C.M.R. 197 (C.M.A. 1957), and United States v.
Higgins, 40 M.J. 67 (C.M.A. 1994), however, neither of those
cases dealt with situations in which the individuals solicited
to commit the offense in question were also the victim of that
offense.

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United States v. Sutton, No. 09-0458/AF


     (2)   That the accused did so with the intent that the
           offense actually be committed; and

     (3)   That under the circumstances, the conduct of the
           accused was to the prejudice of good order and
           discipline in the armed forces or was of a nature
           to bring discredit upon the armed forces.

MCM pt. IV, para. 105.b (2005 ed.).   The first element of

solicitation under Article 134, UCMJ, requires the accused to

solicit another person to commit an offense.   Here the

Government alleges that Sutton solicited P.S. to commit the

offense of indecent liberties with a child.    The elements of the

Article 134, UCMJ, offense of indecent acts or liberties with a

child are as follows:

     (2) No physical contact.

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

MCM pt. IV, para. 87.b(2) (2005 ed.).   The elements of indecent

liberties with a child clearly contemplates two actors, as the

Manual refers to “the accused” and refers to the victim as a


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United States v. Sutton, No. 09-0458/AF

“certain person” or “this person.”      See MCM pt. IV, para.

87.b(2)(b)-(e).   In contrast, the specification under which

Sutton was charged presumes P.S. could have committed the act of

indecent liberties with a child on herself.

     While the evidence established that Sutton did ask P.S. to

lift her shirt, the act of P.S. lifting her shirt, in this

context, could not constitute the criminal offense of indecent

liberties with a child by P.S.8    Under the factual circumstances

presented here, a charge of indecent liberties with a child

could have alleged that Sutton asked P.S to lift her shirt to

show him her breasts in order to gratify his lust.      That,

however, was not the charge and instead the Government chose to

charge Sutton with soliciting P.S. to commit the offense of

indecent liberties with a child.       Because P.S. cannot commit the

offense of indecent liberties with a child on herself, the

specification fails to state an offense.

                            CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is reversed.     The finding of guilty to the

charge and its specification and the sentence are set aside.

The charge and specification are dismissed.




8
  Even if we were to assume that P.S. could be considered an
aider or abettor under Article 77, UCMJ, the charge would still
fail as she did not share in any criminal purpose. See MCM pt.
IV, para. 1.b(2)(b)(ii).

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