          U NITED S TATES N AVY –M ARINE C ORPS
              C OURT OF C RIMINAL A PPEALS
                         _________________________

                             No. 201500396
                         _________________________

                  UNITED STATES OF AMERICA
                                  Appellee
                                      v.
              ALEJANDRO A. FLORESGASTELUM
                   Corporal (E-4), U.S. Marine Corps
                               Appellant
                       _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

        Military Judge: Commander D.S. Mayer, JAGC, USN.
          For Appellant: Major Michael D. Berry, USMCR.
        For Appellee: Captain Jacob R. Walker, JAGC, USN;
                 Major Tracey L. Holtshirley, USMC.
                       _________________________

                          Decided 9 August 2016
                         _________________________

Before PALMER, MARKS, and STINSON, Appellate Military Judges
                  _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.

                        OPINION OF THE COURT
                         _________________________

PER CURIAM:
    A military judge sitting as a general court-martial convicted the
appellant, pursuant to his pleas, of attempted sexual abuse of a child in
violation of Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880. The
convening authority approved the adjudged sentence of one year’s
confinement, reduction to pay grade E-1, and a dishonorable discharge.
   In his sole assignment of error (AOE) the appellant asserts his guilty plea
was improvident because he did not take a substantial step toward
commission of the underlying offense of sexual abuse of a child.1 We conclude
that the findings and sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the appellant was
committed. Arts. 59(a) and 66(c), UCMJ.
                               I. BACKGROUND
    As set forth in the stipulation of fact (Prosecution Exhibit 1) and in the
detailed providence inquiry, the appellant engaged in online, sexually explicit
conversations through a messaging application with an individual he
believed to be an 11-year-old child. Unbeknownst to the appellant, he was
actually texting a Naval Criminal Investigative Service agent.
                                 II. ANALYSIS
    We review a military judge’s decision to accept a guilty plea for an abuse
of discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). To
prevent the acceptance of improvident pleas, the military judge is required to
develop, on the record, the factual bases for “the acts or the omissions of the
accused [that] constitute the offense or offenses to which he is pleading
guilty.” United States v. Care, 40 C.M.R. 247, 253 (C.M.A. 1969) (citations
omitted); see also Art. 45, UCMJ. The appellant must admit every element of
the offense to which he pleads guilty. United States v. Aleman, 62 M.J. 281,
283 (C.A.A.F. 2006); see also RULE FOR COURTS-MARTIAL 910(e), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). If the military judge fails
to establish that there is an adequate basis in law or fact to support the
appellant’s plea during the Care inquiry, the plea will be improvident.
Inabinette, 66 M.J. at 322. Once the military judge has accepted the pleas, an
appellate court should not disturb those findings unless there is a substantial
conflict between the pleas and later statements by the appellant or other
evidence of record. United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007).
    Here, we note the military judge properly explained the elements and key
definitions of the charged offense. In particular, he explained that the
appellant’s acts of communicating indecent language with the individual,
whom he believed was an 11-year-old girl, must be done with the intent to
commit the offense and must amount to more than mere preparation. He
further explained the acts must amount to a substantial step and a direct
movement toward the commission of the intended offense [and] and that a
“‘substantial step’ is one that is strongly corroborative of your criminal intent
and indicative of your resolve to commit the offense.”2 The appellant


  1 This issue was raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982).
      2   Record at 18.

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thereafter admitted, in court and via a stipulation of fact, that he requested
the purported child’s phone number in the hopes of initiating a sexual
discussion with her and intending to show her his penis. He further admitted
that he thereafter, via text message, contacted the purported child and asked
her “if she wanted to see my penis.”3 We find that the appellant’s acts
constituted a “substantial step” towards the underlying offense of sexual
abuse of a child, and that “he understood that a substantial step was
necessary to make his conduct criminal.” United States v. Schell, 72 M.J. 339,
346 (C.A.A.F. 2013).
    Taken together, we find the military judge established an adequate basis
in law and fact to support the appellant’s plea. Inabinette, 66 M.J. at 322.
Further, we find no substantial conflict between the appellant’s pleas and
other evidence of record. Shaw, 64 M.J. at 462. Accordingly, we find the
military judge did not abuse his discretion in finding the appellant’s pleas
provident.
                                   III. CONCLUSION
   The findings and sentence as approved are affirmed.


                                       For the Court




                                       R.H. TROIDL
                                       Clerk of Court




   3   Prosecution Exhibit 1 at 3-4.

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