UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                         Before
                           KRAUSS, HAIGHT, and BORGERDING
                                Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                         Staff Sergeant NORMAN R. STOUT
                            United States Army, Appellant

                                      ARMY 20120592

                             Headquarters, Fort Drum
                        Elizabeth G. Kubala, Military Judge
            Lieutenant Colonel Olga M. Anderson, Staff Judge Advocate


For Appellant: Colonel Kevin Boyle, JA; Lieutenant Colonel Peter Kageleiry, Jr.,
JA; Major Amy E. Nieman, JA; Captain J. Fred Ingram, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Captain Sean Fitzgibbon, JA; Captain Timothy C. Erickson, JA (on brief).


                                         25 July 2014

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

BORGERDING, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of abusive sexual contact with a child, one
specification of indecent liberties with a child, and one specification of possession
of child pornography in violation of Articles 120 and 134, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 920 and 934 (2006 & Supp. I 2008). The
military judge sentenced appellant to a bad-conduct discharge, confinement for eight
years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved only so much of the sentence as provided for a bad-
conduct discharge, confinement for eight years, and reduction to the grade of E-1.
The convening authority deferred adjudged and automatic forfeitures until action and
waived the automatic forfeitures of all pay and allowances for a period of six months
after action to be paid to appellant’s dependant spouse.
STOUT — ARMY 20120592

       This case is before the court for review under Article 66, UCMJ. Appellant
raises three assignments of error, one of which merits discussion and relief. For the
reasons discussed below, we agree with appellant that the military judge abused her
discretion in accepting appellant’s pleas of guilty to abusive sexual contact with a
child, indecent liberties with a child, and possession of child pornography. We will
grant relief in our decretal paragraph. We have also considered those matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) and find them to be without merit.

                                LAW AND ANALYSIS

       We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the plea. Id. (citing
Inabinette, 66 M.J. at 322). The court applies this “substantial basis” test by
determining whether the record raises a substantial question about the factual basis
of appellant’s guilty plea or the law underpinning the plea. Inabinette, 66 M.J. at
322; see also United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012) (“It is an abuse
of discretion for a military judge to accept a guilty plea without an adequate factual
basis to support it . . . [or] if the ruling is based on an erroneous view of the law.”).

       A providence inquiry into a guilty plea must establish that the accused
believes and admits he is guilty of the offense and that the factual circumstances
admitted by the accused objectively support the guilty plea. United States v. Garcia,
44 M.J. 496, 497-98 (C.A.A.F. 1996); United States v. Davenport, 9 M.J. 364, 367
(C.M.A. 1980); UCMJ art. 45(a); Rule for Courts-Martial [hereinafter R.C.M.]
910(e). “If an accused sets up matter inconsistent with the plea at any time during
the proceeding, the military judge must either resolve the apparent inconsistency or
reject the plea.” United States v. Hines, 73 M.J. 119, 124 (C.A.A.F. 2014) (quoting
United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)) (internal quotation
marks omitted); see also UCMJ art. 45(a). “A military judge abuses his discretion if
he neglects or chooses not to resolve an inconsistency or reject the inconsistent or
irregular pleading.” Schell, 72 M.J. at 345 (quoting United States v. Hayes, 70 M.J.
454, 457-58 (C.A.A.F. 2012)).

       “In determining on appeal whether there is a substantial inconsistency, this
[c]ourt considers the ‘full context’ of the plea inquiry, including [a]ppellant’s
stipulation of fact.” Goodman, 70 M.J. at 399 (quoting United States v. Smauley,
42 M.J. 449, 452 (C.A.A.F. 1995)). “This court must find ‘a substantial conflict
between the plea and the accused’s statements or other evidence’ in order to set
aside a guilty plea. The ‘mere possibility’ of a conflict is not sufficient.” Hines,
73 M.J. at 124 (quoting United States v. Watson, 71 M.J. 54, 58 (C.A.A.F. 2012)).




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STOUT — ARMY 20120592

                        Abusive Sexual Contact with a Child

       In Specification 3 of Charge I, appellant pleaded guilty by exceptions and
substitutions to “engag[ing] in sexual contact with NML, a child who had attained
the age of 12 years, but had not attained the age of 16 years, to wit: touching her
breasts with his hands, touching her buttocks with his hands, and inviting and
allowing her to touch his penis and testicles with her hand.” This specification
involved three separate encounters between appellant and NML, his stepdaughter,
who was between 14 and 15 years old at the time of the incidents.

      Abusive sexual contact requires, inter alia, proof that appellant engaged in
“sexual contact,” which is defined as:

             [T]he intentional touching, either directly or through the
             clothing, of the genitalia, anus, groin, breast, inner thigh,
             or buttocks of another person, or intentionally causing
             another person to touch, either directly or through the
             clothing, the genitalia, anus, groin, breast, inner thigh, or
             buttocks of any person, with an intent to abuse, humiliate,
             or degrade any person or to arouse or gratify the sexual
             desire of any person.

Manual for Courts-Martial, United States (2008 ed.) [hereinafter MCM], pt. IV,
¶ 45.a(h), (t)(2). The military judge read the definition of sexual contact to
appellant at the onset of the providence inquiry.

       When the judge asked about the underlying facts to support the first incident,
appellant admitted that NML had “a bad rash . . . like hives” and that appellant
“helped” NML put lotion on part of her breasts because “[h]er mother was busy” at
the time. The following exchange then occurred between appellant and the judge:

             MJ: Now, in order to meet the definition of sexual contact
             that I read you earlier, it’s not sufficient that you simply
             touched her, but that when you touched her you did so
             with an intent to abuse, humiliate, or degrade another
             person or to arouse or gratify your sexual desire.

             ACC: Yes, ma’am. While I was placing the lotion just
             around the sides of her back and also the undersides of her
             breasts to help take care of the rash that was on her.

             MJ: When you did that, did that arouse or gratify your
             sexual desire?




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STOUT — ARMY 20120592

             [Appellant conferred with defense counsel.]

      After allowing appellant to confer with defense counsel, the military judge
read the definition of sexual contact to appellant a second time and continued the
colloquy:

             MJ: Did you engage in sexual contact with [NML]?

             ACC: In that case, yes, ma’am. I did when I was placing
             lotion on her.

             MJ: And as a result of your placing lotion on her, was
             your intent to abuse, humiliate, or degrade her or was your
             intent to arouse or gratify your sexual desire?

             ACC: I was trying to help her, ma’am, with her [sic]
             placing the lotion and it could have made her very
             uncomfortable, yes.

             MJ: So the intent was to abuse, humiliate, or degrade her?

             ACC: Correct, ma’am.

             MJ: And that’s how it meets the definition of sexual
             contact?

             ACC: Correct, ma’am.

(Emphasis added).

       Appellant next described the second incident where he and his then-wife
(NML’s mother) were “having the sex talk” with NML. NML was sitting on
appellant’s lap and the arm of the chair, and appellant “had [his] arm around her
backside, kind of holding her onto the chair with [his] hands on her back---on her
butt.” Appellant admitted this touching was not appropriate and that it met the
definition of sexual contact. There was no further colloquy on this incident.

       Finally, appellant told the military judge that while trying to teach NML
“combatives for self-defense,” he invited her to touch his genitalia with a closed
hand to demonstrate what she should do to a male in a self-defense situation, telling
her she needed to “get past the shyness.” There was no further discussion of any
kind of sexual intent with respect to this specific incident.




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STOUT — ARMY 20120592

       The military judge made one more attempt to understand appellant’s intent
with respect to all three instances:

             MJ: And I just want to understand that--I just want to
             make sure that I understand your intent with these
             touchings. Do you agree that your intent, all three times
             when you touched her, was to abuse, humiliate, or degrade
             [NML]?”

             ACC: It could have been abusive. Yes, ma’am.

(Emphasis added).

       The stipulation of fact recounts these facts, but does not address appellant’s
intent in any way. Appellant’s written statement to law enforcement was attached to
the stipulation of fact and in it, appellant stated “allegations of [a] sexual nature”
were made against him and “there have been things that could have been viewed as
such, but were not intended to be so.” (Emphasis added). The only one of the three
incidents that he addressed in the written statement was the “sex talk” incident. He
stated NML was “straddling” him, but he did not have an erection.

      Finally, in appellant’s unsworn statement, he told the military judge:

             I regret a lot of things that did happen. The things that I
             did with [NML], or any of the kids; it was all to [sic]
             being a parent, in my opinion, at the time. But now that I
             know the law the way it’s been described to me by the
             defense counsel, I know it was wrong and I’m sorry those
             actions took place.

(Emphasis added).

        After thoroughly reviewing the record, we hold that although the military
judge properly and repeatedly read the definition of “sexual contact” to appellant,
and appellant admitted he believed the elements and definitions taken together
correctly described what he did, the military judge failed to reconcile three
substantial inconsistencies raised by appellant during the inquiry and his unsworn
statement. See United States v. Rokey, 62 M.J. 516, 518 (Army Ct. Crim. App.
2005) (“To resolve a matter inconsistent with a guilty plea, the military judge must .
. . identify the particular inconsistency at issue and explain its legal significance to
the accused, who must then either retract, disclaim, or explain the inconsistent
matter.”), petition denied, 63 M.J. 240 (C.A.A.F. 2006).




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STOUT — ARMY 20120592

      First, when appellant was discussing his intent as he placed lotion on NML’s
back and breasts, appellant admitted only that he was “trying to help her” and that it
“could have made her very uncomfortable.” While appellant had earlier agreed that
he engaged in sexual contact with NML, this later response indicated only his
understanding that he was trying to help his stepdaughter and that it might have been
uncomfortable for her. It does not indicate that his intent was to abuse her or
humiliate her. If this were the only potential inconsistency with appellant’s plea, we
might be persuaded that appellant was merely attempting to rationalize his behavior
and was not setting up a matter inconsistent with his plea. However, this is not the
case.

       The military judge apparently recognized that appellant was minimizing his
behavior when she made another attempt, after discussing all of the incidents
contained in this specification, to establish that he had the intent to “abuse,
humiliate, or degrade [NML].” Unfortunately, appellant again set up a matter
inconsistent with his plea by agreeing only that his actions could have been abusive
instead of admitting that he affirmatively intended his actions to be abusive. The
military judge did not seek clarification or inquire further on this matter.

       Finally, appellant’s comments during his unsworn statement, left unresolved
by the military judge, leave us no doubt that appellant’s comments go beyond
minimization. Appellant told the military judge, “in [his] opinion, at the time” he
was just “being a parent” and it was only after his defense counsel explained the law
to him that he understood he had done something wrong. This indicates to us that
appellant was essentially denying that he had any intent to abuse, humiliate, or
degrade NML at the time of his conduct. The military judge failed to reconcile this
comment with appellant’s plea.

       Having examined the “full context” of the plea inquiry, to include appellant’s
responses during the colloquy, the stipulation of fact, and appellant’s unsworn
statement, we hold the military judge failed to reconcile substantial inconsistencies
with regard to appellant’s intent. See Goodman, 70 M.J. at 399; UCMJ art. 45(a).
Accordingly, we find a substantial basis in law and fact to question appellant’s plea
to abusive sexual contact with a child. See Rokey, 62 M.J. at 519.

                           Indecent Liberties with a Child

       The underlying basis for Specification 5 of Charge I was, as pleaded, that
appellant “did . . . take indecent liberties in the physical presence of . . . [NML], a
child under 16 years of age, by watching pornography and allowing [NML] to watch
pornography, with the intent to gratify the sexual desire of the accused.” This
occurred on one occasion when appellant was watching adult pornography on his
computer in the living room at a time when he thought NML was asleep in her




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STOUT — ARMY 20120592

bedroom. Appellant did not know NML was behind him until she “touched the back
of the couch and startled” him.

       Appellant told the military judge he turned off his computer and “invited
[NML] to sit down to discuss what she saw, if she had any issues with it.” In
contrast, the stipulation of fact stated: “[e]ven after [appellant] realized that [NML]
was able to view the pornographic videos and images while he watched them, he
made no attempts to cover up his conduct.” The only way to reconcile these two
apparently contradictory assertions is to read them to mean that while appellant
shielded NML from viewing the actual pornography by turning his laptop off, he
made no attempt to cover up the underlying fact that he had been watching
pornography. Instead, he attempted to discuss with NML what she had seen and “to
explain to her how that particular lifestyle isn’t really a healthy one,” using
“pictures of STDs as well as definitions to show her what that lifestyle could lead
to.” While this reconciliation avoids a potential inconsistency, it still calls into
question the providency of appellant’s plea to committing indecent liberties with a
child.

       As an initial matter, we do not question the fact that the act of watching
pornography in the physical presence of a child with the proper intent could
constitute the crime of taking indecent liberties with a child. See MCM, pt. IV,
¶ 45.a(j), (t)(11) (“If . . . a child is exposed to . . . sexual conduct, it is an indecent
liberty.”); United States v. Ginn, 47 M.J. 236, 237, 248 (C.A.A.F. 1997) (affirming
a finding of guilt to a charge of indecent liberties with a child by “facilitat[ing] the
watching of a pornographic video by two male children.”).

        However, upon review of the entire record, we hold appellant’s admissions
fail to establish a factual basis for a plea of guilty to indecent liberties with a child
for three reasons. See Weeks, 71 M.J. at 46 (“If an accused’s admissions in the plea
inquiry do not establish each of the elements of the charged offense, the guilty plea
must be set aside.”); United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002)
(“The record of trial must . . . ‘make clear the basis for a determination by the
military trial judge . . . whether the acts or the omissions of the accused constitute
the offense or offenses to which he is pleading guilty.’” (quoting United States v.
Care, 18 U.S.C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969))); R.C.M. 910(e).

       First, although appellant pleaded guilty to watching pornography in NML’s
presence and to “allowing” NML to watch pornography, he admitted only to
watching adult pornography by himself in a place where NML might, and ultimately
did, accidently see what he was watching. Specifically, he told the military judge he
was guilty because he “should not have sat in the living room where it was open to
everybody in the family that could have walked out at any time.” Appellant never
admitted to intentionally and wrongfully watching pornography in NML’s presence,
nor did he admit to intentionally exposing NML to pornography. To the contrary,



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STOUT — ARMY 20120592

appellant specifically told the military judge that once he knew NML was present, he
turned the laptop off or “closed the screen down,” and put it into “hibernation
mode.” We find this description does not establish a factual basis to find appellant
intentionally and wrongfully watched pornography in NML’s presence or that he
intentionally “allowed” NML to view the pornographic material.

       Second, although appellant agreed with the military judge that his act of
watching pornography in NML’s presence and allowing NML to watch pornography
was indecent, it is not enough to elicit legal conclusions. See Jordan, 57 M.J. at
238. The military judge must also elicit the necessary facts to support the plea of
guilty. Id. (citing United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996)). In
this case, the military judge elicited no further facts to establish why appellant
thought his behavior was indecent, nor did the stipulation of fact include any facts
supporting why appellant’s conduct was indecent. 

       Finally, appellant pleaded guilty to committing indecent liberties with a child
“with the intent to gratify the sexual desire of [appellant].” Although appellant
agreed with the military judge that he was sexually aroused when he was watching
these videos, this indicates only that the pornographic videos themselves caused him
to be sexually aroused. The stipulation of fact confirms this as it states appellant
“had an erection from the gratifying and sexual nature of the media he was viewing”
and appellant “viewed these images and videos because they gave him sexual
gratification.” Appellant never sufficiently admitted that he committed the act of


  This failure may have resulted because the military judge did not read or in any
way discuss the definition of “indecent conduct” with appellant. See MCM, pt. IV,
¶ 45.a(t)(11) (“The term ‘indecent liberty’ means indecent conduct . . . .”), (t)(12)
(“The term ‘indecent conduct’ means that form of immorality relating to sexual
impurity that is grossly vulgar, obscene, and repugnant to common propriety, and
tends to excite sexual desire or deprave morals with respect to sexual relations.”).
“The providence of a plea is based not only on the accused’s understanding and
recitation of the factual history of the crime, but also on an understanding of how
the law relates to those facts.” United States v. Medina, 66 M.J. 21, 26 (C.A.A.F.
2008) (citing Care, 18 U.S.C.M.A. at 538-39, 40 C.M.R. at 250-51). An accused
must understand “the nature of the charges brought against him . . . .” Id. An
essential aspect of accurately informing an accused of the nature of the offenses “is
a correct definition of legal concepts.” United States v. Negron, 60 M.J. 136, 141
(C.A.A.F. 2004). For these reasons, we also decline to affirm a finding of the
lesser-included offense of indecent acts in violation of Article 120, UCMJ. See
MCM, pt. IV, ¶ 45a.(k); United States v. Burkhart, 72 M.J. 590 (A.F. Ct. Crim. App.
2013) (holding that indecent acts is a lesser-included offense of indecent liberties
with a child), petition denied, 73 M.J. 56 (C.A.A.F. 2013).




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STOUT — ARMY 20120592

watching pornography in NML’s presence or allowed NML to watch pornography
with the intent to gratify his sexual desire. Put another way, appellant never
sufficiently admitted that his watching pornography in NML’s presence or his
exposure of NML to pornography was with the requisite intent. It is the connection
between the act committed with a child and the intent that is the crux of the crime of
indecent liberties. United States v. Brown, 3 U.S.C.M.A. 454, 461, 13 C.M.R. 10,
17 (1953) (“In the crime of taking indecent liberties with a minor, the act must be
done with intent to gratify the lust, passions, or sex desires of either the person
committing the act or of the child. It should be readily apparent that when the act is
committed with that specific intent, the potentiality for harm to the child is
increased.”).

       For these reasons, we conclude the military judge abused her discretion in
accepting appellant’s plea of guilty to indecent liberties with a child.

                          Possession of Child Pornography

       Appellant admitted the following with respect to Specification 1 of
Charge IV, which alleged that appellant “knowingly possess[ed] more than two
videos of child pornography, as defined in 18 U.S.C. Section 2256(8), such conduct
[sic] prejudicial to good order and discipline in the armed forces and of a nature to
bring discredit upon the armed forces”:

             [W]hen I was using the LimeWire account to download
             videos, I would do bulk downloads. If there’s a star that I
             like, I would put in that star’s name and the first 10 or 15
             that popped up is what I download [sic]. I didn’t pay
             attention to the titles or anything until after it was
             downloaded. And going through some of the videos, I
             found some that were questionable. They were deleted.
             Some of them, just by the title alone, they were deleted.

             …

             During the download of the bulk videos I should have paid
             more attention to the titles of said videos rather than just
             doing it blindly. And even after I downloaded and deleted
             some of them, I continued to do the bulk downloads.

        In addition, appellant denied that CID found any files of child pornography on
his computer that had not already been deleted and that “jpeg pictures” of child
pornography were found on the computer. He also indicated the forensic specialist
found the files containing child pornography were “downloaded and deleted shortly
after.”



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       To commit the offense of possession of child pornography, an accused must,
inter alia, knowingly possess the charged image of child pornography. See United
States v. X-Citement Video, Inc., 513 U.S. 64 (1994); New York v. Ferber, 458 U.S.
747, 765 (1982) (“[C]riminal responsibility may not be imposed without some
element of scienter on the part of the defendant.”). Appellant did not admit to
knowing possession of child pornography. He did not admit to intentionally
downloading child pornography, nor did he even admit to intentionally seeking out
child pornography. At most, he admitted to being careless in his downloading of
adult pornography and then immediately deleting things that were “questionable.”

       While the facts known to the government—in particular the fact that appellant
specifically deleted some items of child pornography from his computer—may have
secured a conviction had this been a contested trial, appellant’s admissions during
the providence inquiry did not establish a factual basis that he knowingly possessed
child pornography. Although appellant agreed with the military judge that he was in
knowing possession of more than two videos of child pornography, again, it is not
enough to elicit legal conclusions. See Jordan, 57 M.J. at 238. The military judge
must also elicit the necessary facts to support each element of the charged offense.
Id. (quoting Care, 18 U.S.C.M.A. at 541, 40 C.M.R. at 253); Weeks, 71 M.J. at 46;
R.C.M. 910(e). She failed to do so in this case and thus she abused her discretion in
accepting appellant’s plea of guilty to this specification.

                                   CONCLUSION

      In evaluating a providence inquiry, we must also keep in mind Judge Cox’s
caution that:

             [Courts must not] overlook human nature as we go about
             the business of justice. One aspect of human beings is
             that we rationalize our behavior and, although sometimes
             the rationalization is “inconsistent with the plea,” more
             often than not it is an effort by the accused to justify his
             misbehavior.

Goodman, 70 M.J. at 400 (quoting United States v. Penister, 25 M.J. 148, 153
(C.M.A. 1987) (Cox, J., concurring)). While we recognize appellant was attempting
to rationalize his behavior, we find appellant’s inconsistent statements and failure to
admit facts sufficient to support his pleas went far beyond mere minimization in this
case.

      As we stated in United States v. Le:

             In cases such as appellant’s, we agree with Judge Trant’s
             observation in United States v. Pecard: “The spectacle,



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STOUT — ARMY 20120592

            where both counsel take hold of appellant’s arms while the
            judge grabs the ankles and together they drag appellant
            across the providence finish line, is not only troublesome,
            but, as demonstrated by the result in this appeal, in the
            end, futile.”

59 M.J. 859, 864 (Army Ct. Crim. App. 2004) (quoting United States v. Pecard,
ARMY 9701940, 2000 WL 35801828, at *5 (Army Ct. Crim. App. 7 Dec. 2000)
(mem. op.)).

      The findings of guilty and the sentence are set aside. A rehearing may be
ordered by the same or a different convening authority. See generally R.C.M. 810.

      Judge KRAUSS and Judge HAIGHT concur.
                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:



                                      MALCOLM H.
                                      MALCOLM     H. SQUIRES,
                                                     SQUIRES, JR.
                                                              JR.
                                      Clerk of Court
                                      Clerk of Court




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