                       UNITED STATES, Appellee

                                    v.

             Michael D. KING Jr., Builder Third Class
                       U.S. Navy, Appellant

                              No. 11-0583

                       Crim. App. No. 201000406

       United States Court of Appeals for the Armed Forces

                       Argued December 12, 2011

                        Decided March 13, 2012

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

                                 Counsel

For Appellant:    Captain Bow Bottomly, USMC (argued).

For Appellee: Major Paul M. Ervasti, USMC (argued); Colonel
Kurt J. Brubaker, USMC, and Brian K. Keller, Esq. (on brief);
Colonel Louis J. Puleo, USMC, and Major William C. Kirby, USMC.

Military Judge:   Mario H. De Oliveira


       This opinion is subject to revision before final publication.
United States v. King, No. 11-0583/NA

       Judge ERDMANN delivered the opinion of the court.

       Builder Third Class Michael D. King Jr. was charged with

numerous offenses involving sexual misconduct with his

stepdaughter.    He entered pleas of not guilty and, at a general

court-martial with members, was convicted of one specification

of indecent conduct and one specification of aggravated sexual

assault in violation of Article 120, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 920 (2006).    The convening authority

approved the adjudged sentence of confinement for three years,

reduction to E-1, and a bad-conduct discharge.    The United

States Navy-Marine Corps Court of Criminal Appeals (CCA)

affirmed the findings and the sentence.    United States v. King,

No. NMCCA 201000406, slip op. at 6 (N-M. Ct. Crim. App. May 5,

2011).

       On King’s petition, we granted review in this case to

determine the legality of the specification alleging a violation

of Article 120(k), UCMJ.1    For the reasons set forth below, we

affirm a finding as to the lesser included offense of attempted


1
    We granted review of the following issue:

       Whether Specification 5 of Charge I alleging an
       indecent act under Article 120(k), UCMJ, failed to
       state an offense where the indecent act alleged was
       Appellant orally requesting during a Skype Internet
       conversation that a child under the age of 16 years
       expose her breasts so that he could view them
       utilizing the web camera.

United States v. King, 70 M.J. 271 (C.A.A.F. 2011).

                                  2
United States v. King, No. 11-0583/NA

indecent acts under Article 80, UCMJ, 10 U.S.C. § 880 (2006).

Article 59(b), UCMJ, 10 U.S.C. § 859(b) (2006); Article 79,

UCMJ, 10 U.S.C. § 879 (2006).

                            Background

     While King was deployed with his unit to southwest Asia he

kept in contact with his family utilizing the Skype Internet

site, which provides two-way audio and video communications.

When his wife looked through the texts of previous Skype

conversations she discovered a sexually explicit conversation

between King and her daughter, who was fourteen at the time.

When King’s wife asked her daughter about the conversation, her

daughter showed her a “sex toy” King had purchased for her and

reported that King had been sexually abusing her.   King’s wife

subsequently reported the matter to the Naval Criminal

Investigative Service (NCIS).

     As part of its investigation, NCIS recorded a Skype

Internet conversation between King and his stepdaughter during

which King discussed the “sex toy” he had given her,

acknowledged his sexual relationship with her, and asked her to

lift her shirt so that he could view her breasts because she

“owe[d] [him].”   This recorded conversation between King and his

stepdaughter formed the basis for the violation of Article

120(k) (Indecent Acts) alleged in Specification 5 of Charge I:

      In that . . . King . . . did, at or near the Al
      Basra Oil Terminal, Iraq, on or about 27 February


                                 3
United States v. King, No. 11-0583/NA

      2009, wrongfully commit indecent conduct, to wit:
      by requesting [GF], a female under 16 years of age,
      to expose her breasts during a SKYPE internet
      conversation so that he could view them utilizing
      the web camera.

     At trial King’s defense counsel moved to have the

specification dismissed arguing that it failed to state an

offense.   Specifically, King’s defense counsel argued that the

request made by King during the Skype session did not fall under

the definition of indecent acts, but was instead a violation of

indecent liberties, which covers communications.    The military

judge denied the motion.     King renewed this issue in his appeal

to the Court of Criminal Appeals, which, after reviewing all the

surrounding circumstances, held that King’s behavior satisfied

the definition of an indecent act and the specification stated

an offense because it alleged every element of the offense.

King, No. NMCCA 201000406, slip op. at 6.

                              Discussion

     Whether a specification states an offense is a question of

law that is reviewed de novo.    United States v. Crafter, 64 M.J.

209, 211 (C.A.A.F. 2006).2    Specification 5 of Charge I alleges



2
  In reviewing the adequacy of the specification, the analysis is
limited to the language as it appears in the specification,
which must expressly allege the elements of the offense, or do
so by necessary implication. See, e.g., United States v.
Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) (focusing only on the
“charging language”); United States v. Fleig, 16 C.M.A. 444,
445, 37 C.M.R. 64, 65 (1966) (looking “within the confines of
the specification”).

                                   4
United States v. King, No. 11-0583/NA

that King engaged in indecent conduct during a Skype Internet

conversation by requesting that his stepdaughter expose her

breasts so that he could view them utilizing a web camera.

     Whether the specification alleges a violation of Article

120(k) depends on the scope of the statutory term “indecent

conduct” as defined by Article 120(t)(12), UCMJ.   Article

120(k), UCMJ, provides that:

     Any person subject to this chapter who engages in
     indecent conduct is guilty of an indecent act and
     shall be punished as a court-martial may direct.

The term “indecent conduct” is defined in Article 120(t)(12), in

part, as follows:

     [T]hat form of immorality relating to   sexual impurity
     which is grossly vulgar, obscene, and   repugnant to
     common propriety, and tends to excite   sexual desire or
     deprave morals with respect to sexual   relations.

The Manual for Courts-Martial, United States (MCM) sets forth

the elements of indecent acts as follows:

     (a)   That the accused engaged in certain conduct; and
     (b)   That the conduct was indecent conduct.

MCM pt. IV, para. 45.b.(11) (2008 ed.).

     As noted above, the crux of King’s argument is that asking

his fourteen-year-old stepdaughter to lift her shirt so that he

could see her breasts constituted “indecent language” and

“indecent language” is not included under the definition of

“indecent conduct.”   However, this court has held that

“language” can be, or be part of, “conduct” in a particular



                                 5
United States v. King, No. 11-0583/NA

case,3 so we begin here with an analysis of the specification and

the facts, which leads us to the conclusion that at a minimum,

the facts support an attempted indecent act.

     To constitute the lesser included offense of attempted

indecent acts, Article 80, UCMJ, requires:

     An act, done with specific intent to commit an
     [indecent act], amounting to more than mere
     preparation and tending, even though failing, to
     effect its commission . . . .

     . . . .

     . . . . To constitute an attempt there must be a
     specific intent to commit the offense accompanied by
     an overt act which directly tends to accomplish the
     unlawful purpose. . . . Preparation consists of
     devising or arranging the means or measures necessary
     for the commission of the offense. The overt act
     required goes beyond preparatory steps and is a
     direct movement toward the commission of the
     offense.4

     King’s request was an “overt act” that constituted “direct

movement toward the commission” of an indecent act.   But for his

stepdaughter’s refusal to lift her shirt, King would have

“view[ed]” his stepdaughter’s breasts using the webcam.   Having



3
  See, e.g., United States v. Brinson, 49 M.J. 360, 364-65
(C.A.A.F. 1998) (concluding that use of coarse language
constituted disorderly conduct); United States v. Littlewood, 53
M.J. 349, 352, 353-54 (C.A.A.F. 2000) (finding a variety of
offenses, including indecent language, to be indecent conduct of
a nature to bring discredit upon the armed forces and
prejudicial to good order and discipline); United States v.
Lofton, 69 M.J. 386, 390 (C.A.A.F. 2011) (holding that sexual
comments made by an officer to a female enlisted airman
constituted conduct unbecoming an officer).
4
  MCM pt. IV, para. 4.a.(a), c.(1)-(2).

                                6
United States v. King, No. 11-0583/NA

determined that King’s request amounted to attempted “conduct,”

we must now decide whether such conduct meets the definition of

“indecent conduct” as required by Article 120(k).   To do this we

apply traditional canons of statutory construction.   Unless

ambiguous, the plain language of a statute will control unless

it leads to an absurd result.   United States v. Lewis, 65 M.J.

85, 88 (C.A.A.F. 2007) (citations omitted).   As noted, indecent

conduct under Article 120 is defined as, inter alia, “that form

of immorality relating to sexual impurity which is grossly

vulgar, obscene, and repugnant to common propriety, and tends to

excite sexual desire or deprave morals with respect to sexual

relations.”   Article 120(t)(12), UCMJ.   Under the circumstances

presented in this case, King’s request to his fourteen-year-old

stepdaughter to lift her shirt so that he could view her breasts

because she “owe[d] [him],” constituted an attempt to commit an

indecent act.

     Although we conclude that the evidence is legally

sufficient to establish an attempted indecent act, neither the

granted issue nor the briefs in this case specifically address

the legal sufficiency of the evidence to support the charged

offense.    Under other circumstances we might request further

briefing.   However, we are dealing with a situation in which we

can affirm a finding of attempt that would not change the




                                  7
United States v. King, No. 11-0583/NA

sentencing landscape,5 in a case that involves the application of

a statutory provision that has been repealed.6   Therefore, we

find it unnecessary to address the granted issue or to request

further briefing.   We approve the modified findings and the

sentence.

                            Conclusion

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals that the evidence was legally sufficient to

sustain the finding of guilt for a violation of Article 120(k),

UCMJ (Specification 5 of Charge I), is reversed.   The lesser

included offense of attempted indecent act under Article 80,

UCMJ, the findings as to Specification 7 of Charge I (aggravated

sexual assault) and Charge I, and the sentence are affirmed.




5
  See MCM pt. IV, para. 4.e.
6
  The National Defense Authorization Act for Fiscal Year 2012
repealed the version of Article 120(k) that is at issue in this
case. As of its effective date, the circumstances presented in
this appeal will not reoccur. The National Defense
Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, §
541, 125 Stat. 1298 (2011).

                                 8
