 This opinion is subject to administrative correction before final disposition.




                                Before
                 HITESMAN, J. STEPHENS, and GASTON,
                       Appellate Military Judges

                          _________________________

                            UNITED STATES
                                Appellee

                                       v.

                          Mason L. SPENCE
                       Hospitalman (E-3), U.S. Navy
                                Appellant

                               No. 201800241

                          Decided: 27 November 2019

   Appeal from the United States Navy-Marine Corps Trial Judiciary.
   Military Judge: Captain Ann K. Minami, JAGC, USN. Sentence
   adjudged 14 May 2018 by a general court-martial convened at Naval
   Base Kitsap, Bremerton, Washington, consisting of a military judge
   sitting alone. Sentence approved by the convening authority: reduction
   to pay grade E-1, confinement for four years, and a bad-conduct
   discharge. 1

   For Appellant: Major Matthew A. Blackwood, USMCR.

   For Appellee: Captain William J. Mossor, USMC; Lieutenant Kurt W.
   Siegal, JAGC, USN.

   Senior Judge HITESMAN delivered the opinion of the Court, in which
   Judge J. STEPHENS and Judge GASTON joined.



   1 Pursuant to the pretrial agreement, the convening authority suspended the re-
duction in pay grade and all confinement in excess of 28 months.
               United States v. Spence, NMCCA No. 201800241


                          _________________________

         This opinion does not serve as binding precedent, but
          may be cited as persuasive authority under NMCCA
                   Rule of Appellate Procedure 30.2.

                          _________________________

HITESMAN, Senior Judge:
    Appellant was convicted, pursuant to his pleas, of three specifications of
attempted sexual abuse of a child, in violation of Article 80, Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 880 (2012).
   Appellant raises two assignments of error: (1) Specification 3 fails to state
an offense and (2) his plea to Specification 3 was improvident because the
military judge did not elicit a factual basis to satisfy all elements of the of-
fense. We find no prejudicial error and affirm.

                              I. BACKGROUND

    Appellant began corresponding with “Mandy” in October 2017 using social
media applications. Early in their relationship, Mandy told him that she was
only 15 years old. However, Mandy was not a 15-year-old girl but was instead
an online persona used by Naval Criminal Investigative Service (NCIS)
agents. Over the next two months, Appellant engaged in conversations with
Mandy that included discussions of explicit sexual activity and references to
sexual intercourse. He expressed an interest in meeting Mandy in person to
discuss sexual fantasies and in November 2017, he traveled to a hotel in Sil-
verdale, Washington, to meet her. Mandy asked Appellant to bring her gum-
my bears and a Red Bull energy drink. When Appellant arrived at Mandy’s
hotel room with the requested snacks, he expected to discuss their sexual fan-
tasies and possibly engage in sexual activity. He messaged Mandy from out-
side her door and was immediately apprehended by NCIS agents.
   In an interview with NCIS agents, Appellant admitted that he went to
the hotel expecting to engage in oral sex and possibly sexual intercourse with
Mandy.
    Appellant was initially charged with attempted sexual assault of a child
in Specification 3, which alleged, in pertinent part, that he did:
       attempt to commit sexual acts upon a child who had attained
       the age of 12 years but had not attained the age of 16 years, to
       wit: corresponded via social media messaging with an individ-
       ual he believed to be a 15 year old girl . . . about meeting up to


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                 United States v. Spence, NMCCA No. 201800241


         perform oral and vaginal intercourse with him; . . . and, entered
         the hotel room where he understood the 15 year old to be locat-
         ed for the purpose of committing sexual acts with her. 2
   In his pretrial agreement (PTA) with the convening authority, Appellant
agreed to plead guilty, by exceptions and substitutions, to the specification as
an attempted sexual abuse of a child. The new Specification 3, as modified by
the exceptions and substitutions, alleged in pertinent part that Appellant did:
         attempt to commit lewd acts upon a child who had attained the
         age of 12 years but had not attained the age of 16 years, to wit:
         corresponded via social media messaging with an individual he
         believed to be a 15 year old girl . . . about meeting up to discuss
         sexual fantasies; . . . and, entered the hotel room where he un-
         derstood the 15 year old to be located for the purpose of com-
         mitting lewd acts with her. 3
    Additional facts necessary to the resolution of the two assignments of er-
ror are included in the discussion.

                                  II. DISCUSSION

A. Failure to State an Offense
    Appellant avers that the modified Specification 3, alleging an attempted
violation of Article 120b(c), UCMJ, fails to state an offense because it does not
allege the particular lewd act that Appellant attempted. He further argues
that the specification fails to state an offense because it fails to allege the in-
tent to abuse, humiliate, harass, or degrade any person or to arouse or gratify
the sexual desire of any person or to allege vulgarity.
    The Government argues that Appellant has waived his claim that the
specification fails to state an offense because he did not raise the issue at tri-
al and entered an unconditional guilty plea. We review de novo whether an
appellant has waived a particular issue. United States v. Ahern, 76 M.J. 194,
197 (C.A.A.F. 2017).
   A motion to dismiss a specification for failure to state an offense is a wai-
vable motion. RULE FOR COURTS-MARTIAL (RCM) 907(b)(2)(E), MANUAL FOR
COURTS-MARTIAL, UNITED STATES (MCM) (2016 ed.). Failure to raise most




   2   Charge Sheet (emphasis added).
   3   Appellate Exhibit (AE) I at 5 (emphasis added).




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                    United States v. Spence, NMCCA No. 201800241


motions before the court-martial adjourns “shall constitute waiver.” RCM
905(e). However, a motion to dismiss for failure to state an offense is specifi-
cally excluded from such automatic waiver. Id.
    Waiver is the “intentional relinquishment or abandonment of a known
right” and differs from forfeiture. United States v. Gladue, 67 M.J. 311, 313
(C.A.A.F. 2009) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
“[F]orfeiture is the failure to make the timely assertion of a right.” Id. De-
pending on the “right at stake,” the appellant may have to “participate per-
sonally in the waiver”; there may be “certain procedures . . . required for
waiver”; or the appellant’s choice may have to be “particularly informed or
voluntary.” United States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011) (quoting
Olano, 507 U.S. at 733).

    Here, Appellant entered into a PTA with the convening authority agree-
ing to plead guilty to Specification 3 of the Charge as excepted and substitut-
ed. By pleading guilty to the specification as excepted and substituted, the
appellant significantly reduced his punitive exposure. As initially charged, he
faced a mandatory dishonorable discharge and a maximum of 30 years of con-
finement. By pleading instead to attempted sexual abuse of a child not in-
volving sexual contact, he faced a non-mandatory dishonorable discharge
and a maximum confinement of 15 years. As part of his PTA, Appellant also
“specifically agree[d] to waive all motions except those that are otherwise
non-waivable pursuant to R.C.M. 705(c)(1)(B).” 4 Failure to state an offense is
a waivable motion pursuant to RCM 907(b)(2)(E) and Appellant explicitly re-
linquished his right to raise that motion at trial. Appellant waived the issue
leaving this court nothing to review on appeal.

B. Appellant’s Guilty Plea was Provident
   Military judges have broad discretion to accept guilty pleas. See United
States v. Phillips, 74 M.J. 20, 21 (C.A.A.F. 2008). We review the military
judge’s “decision to accept a guilty plea” applying an abuse of discretion
standard. United States v. Weeks, 71 M.J. 44, 46 (C.A.A.F. 2012). Military
judges abuse their discretion when they “accept a guilty plea without an ade-
quate factual basis” or when the acceptance is “based on an erroneous view of
the law.” Id. We review de novo questions of law “arising from the guilty
plea.” Id. We must determine whether the record as a whole shows “a sub-
stantial basis in law and fact for questioning the guilty plea.” United States v.




   4   AE I at 4.




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               United States v. Spence, NMCCA No. 201800241


Finch, 73 M.J. 144, 148 (C.A.A.F. 2014) (quoting United States v. Negron, 60
M.J. 136, 141 (C.A.A.F. 2004)).
    A military judge has a “duty to accurately inform an appellant of the na-
ture of his offense,” to include the correct definition of legal concepts. United
States v. Murphy, 74 M.J. 302, 308 (C.A.A.F. 2015) (quoting Negron, 60 M.J.
at 141). But failing to “explain each and every element of the charged offense
to the accused in a clear and precise manner is not reversible error if it is
clear from the entire record that the accused knew the elements, admitted
them freely, and pleaded guilty because he was guilty.” Id. at 308 (citation
and internal quotation marks omitted). “Rather than focusing on a technical
listing of the elements,” we look at the “entire record to determine whether
an accused is aware of the elements, either explicitly or inferentially.” United
States v. Redlinski, 58 M.J. 117, 119 (C.A.A.F. 2003).
    Appellant contends his plea through exceptions and substitutions to Spec-
ification 3 was not provident for two reasons. First, he argues that he did not
know what elements applied to the modified Specification 3. Second, he con-
tends that the providence inquiry did not establish that the lewd act by con-
duct was sufficiently indecent.
  We first consider Appellant’s argument that the he did not know what el-
ements applied to the modified Specification 3. The text of Article 120b(c),
UCMJ, states:
          Any person subject to this chapter who commits a lewd act
       upon a child is guilty of sexual abuse of a child and shall be
       punished as a court-martial may direct.
10 U.S.C. § 920b(c). Article 120b, UCMJ, defines “lewd act,” in pertinent part,
as:
           (3) intentionally communicating indecent language to a
       child by any means, including via any communication technol-
       ogy, with an intent to abuse, humiliate, or degrade any person,
       or to arouse or gratify the sexual desire of any person; or
           (4) Any indecent conduct, intentionally done with or in the
       presence of a child, including via any communication technolo-
       gy, that amounts to a form of immorality relating to sexual im-
       purity which is grossly vulgar, obscene, and repugnant to
       common propriety, and tends to excite sexual desire or deprave
       morals with respect to sexual relations.
Id. Thus, a lewd act by conduct includes any indecent conduct done in the
presence of a child without regard for the mental state of the accused, where-
as a lewd act by communication of indecent language to a child requires that



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                 United States v. Spence, NMCCA No. 201800241


the communication be accomplished with the intent to abuse, humiliate, de-
grade, or arouse or gratify the sexual desire of any person.
    The specification was poorly drafted to begin with and it became even less
precise after Appellant had negotiated a PTA that allowed him to plead guilty
by exceptions and substitutions. Still, when read in its entirety, the specifica-
tion contains the basic allegation that Appellant attempted to commit the
lewd act of meeting with Mandy to discuss sexual fantasies.
    Likewise, the Stipulation of Fact was poorly drafted. However, it was bro-
ken down into sections by specification. Under the section discussing Specifi-
cation 3, Appellant admits that he arranged to meet Mandy at a hotel to dis-
cuss sexual fantasies. He further admits that his “conduct of discussing sexu-
al fantasies with [Mandy] was indecent . . . vulgar and offensive.” 5
    During the providence inquiry, the military judge defined the elements of
Article 80, UCMJ, Attempt, and the underlying attempted offense of Article
120b(c), UCMJ, Sexual Abuse of a Child. The military judge did not separate-
ly provide the definition of “lewd act” but incorporated the definition into the
elements of the attempted offense. The military judge advised Appellant that
the elements of sexual abuse of a child are:
             First, that you committed a lewd act upon a child by inten-
         tionally engaging in indecent conduct, including via any com-
         munication technology;
             The second element, that at the time, the child had not at-
         tained the age of 16 years; and
             The third element, that the conduct amounted to a form of
         immorality relating to sexual impurity, which is grossly vulgar,
         obscene and repugnant to common propriety, and tends to ex-
         cite sexual desire or depraved morals with respect to sexual re-
         lations. 6
Appellant agreed he understood the elements of the offense and of the at-
tempted offense.
    The military judge’s discussion of the elements makes clear that the spec-
ification alleges a lewd act by indecent conduct. Considering the military
judge’s providence inquiry, Charge Sheet, PTA, Stipulation of Fact, and Ap-
pellant’s voluntary plea by exceptions and substitutions, we find that the rec-


   5   Prosecution Exhibit (PE) 1 at 3.
   6   Record at 24.




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                    United States v. Spence, NMCCA No. 201800241


ord clearly establishes that Appellant “knew the elements, admitted them
freely, and pleaded guilty because he was guilty.” Murphy, 74 M.J. at 308.
    We next consider Appellant’s argument that the military judge did not
conduct a sufficient providence inquiry. During the providence inquiry, the
military judge asked Appellant to tell her in his own words what he did. Ap-
pellant explained that he arranged to meet Mandy to discuss sexual fantasies
and that his actions were indecent because meeting a 15-year-old girl to dis-
cuss sexual fantasies would be viewed by society as “very inappropriate.” 7
The military judge referred him to the Stipulation of Fact to explain what
sexual fantasies he intended to discuss with Mandy. These fantasies included
oral, anal, and vaginal sex as well as ejaculating in Mandy’s mouth and on
her face. Finally, Appellant admitted in the Stipulation of Fact that his “con-
duct of discussing sexual fantasies with [Mandy] was indecent because it was
totally inappropriate to talk about these topics and in this manner with a 15-
year-old girl. It is vulgar and offensive.” 8
   Appellant’s providence inquiry, supported by his Stipulation of Fact,
demonstrates that he admitted that meeting with Mandy to discuss explicit
sexual fantasies would be indecent and vulgar. We find that there is no sub-
stantial basis to question Appellant’s plea and the military judge did not
abuse her discretion in accepting it.

                                 III. CONCLUSION

    The approved findings and sentence are correct in law and fact and no er-
ror materially prejudicial to Appellant’s substantial rights occurred. Arts. 59
and 66, UCMJ. Accordingly, the findings and sentence as approved by the
convening authority are AFFIRMED.
   Judge J. STEPHENS and Judge GASTON concur.


                                   FOR THE COURT:




                                   RODGER A. DREW, JR.
                                   Clerk of Court



   7   Id. at 34.
   8   PE 1 at 3.




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