              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39340
                         ________________________

                            UNITED STATES
                                Appellee
                                     v.
                         Daniel J. POSTELL
             Staff Sergeant (E-5), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                        Decided 28 February 2019
                         ________________________

Military Judge: Christina M. Jimenez.
Approved sentence: Bad-conduct discharge and reduction to E-4. Sen-
tence adjudged 29 June 2017 by GCM convened at Joint Base Pearl Har-
bor-Hickam, Hawaii.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
Zachary T. West, USAF; Mary Ellen Payne, Esquire.
Before HUYGEN, MINK, and POSCH, Appellate Military Judges.
Judge POSCH delivered the opinion of the court, in which Senior Judge
HUYGEN and Judge MINK joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                         ________________________

POSCH, Judge:
    A general court-martial composed of officer and enlisted members found
Appellant guilty of attempted sexual abuse of a child by indecent communica-
tion, in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10
                      United States v. Postell, No. ACM 39340


U.S.C. § 880.1 Appellant was sentenced to a bad-conduct discharge and reduc-
tion to the grade of E-4. The convening authority approved the adjudged sen-
tence.
   Appellant raises one issue on appeal: whether the military judge abused
her discretion by not giving the members an instruction that defined “indecent
language” as requested by the Defense. We find no error and affirm the find-
ings and sentence.

                                   I. BACKGROUND
   In November 2016, Appellant was reassigned to Joint Base Pearl Harbor-
Hickam (JBPHH), Hawaii, and discovered a personal advertisement on the In-
ternet entitled “New to base – w4m2 (JBPHH).” The ad read, in part, “I just
moved here and I am looking for some military guys to show me around the
area. . . . Maybe you could show me a secluded beach somewhere where we
could have some fun.” Appellant replied to the ad and began communicating
with “Emily,” who told Appellant she was a 14-year-old dependent child of a
military family new to JBPHH and living in the on-base lodging facility. Un-
beknownst to Appellant, “Emily” was an agent of the Air Force Office of Special
Investigations (AFOSI) posing as a child as part of an undercover operation to
identify servicemembers seeking to have sex with children.
    For two days Appellant exchanged emails and other written messages with
“Emily.” Appellant asked, “Are you into married men?” “Emily” responded that
she had “no problem with married men” and that she “kn[e]w how to keep
things a secret.” Appellant sent “Emily” a photo of himself standing in front of
a bathroom mirror, shirtless, and wearing low-waist athletic shorts covering
his groin. In response, “Emily” sent Appellant an image of a female adult that
had been digitally manipulated to make her appear younger. “Emily” told Ap-
pellant, “I hope you like what you see. I am about to turn 15 but I have done
this before and I know how to keep a secret.” Appellant replied, “[Y]ou[’]r[e]
super cute[.] [S]end some more pics please.” Appellant sought proof that
“Emily” was not a “cop” and repeatedly asked her to send him a “naked pic-
ture.” The agent responded by sending Appellant a file purporting to be a na-
ked picture of “Emily” but incapable of being viewed.
   In the afternoon of the first full day of their communication, Appellant dis-
cussed meeting “Emily” after her parents left for work the next day. Appellant
asked, “Do you want a quickie at your place?” Appellant said that he liked


1Appellant was acquitted of a separate specification of attempted sexual assault of a
child in violation of Article 80, UCMJ.
2   The abbreviation “w4m” is generally understood to refer to “woman looking for man.”


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                     United States v. Postell, No. ACM 39340


“[g]iving oral or receiving [oral sex]” and asked, “[H]ave you gotten off before[?]”
Appellant told “Emily” he “like[d] to give it rough if you like that,” he “would
love to become a f**k buddy,” and “[i]t’s ok” if she would “still seek other guys.”
Appellant told her he had bought condoms and would be in uniform when they
met.
    The next morning Appellant indicated he was excited about their planned
sexual encounter, telling “Emily” that he “hope[d] this won’t be the only time
we do this.” He elaborated he would “try to be really good for” her, “maybe we
can go more than once,” and he would bring three condoms. “Emily” gave Ap-
pellant directions to her lodging room and confirmed her parents would be gone
when he arrived. After Appellant knocked on the door of her room, he was ap-
prehended by AFOSI agents. A search of Appellant revealed three condoms in
his pants pocket.

                                   II. DISCUSSION
    Appellant asserts that the military judge abused her discretion by not giv-
ing the members an instruction that defined “indecent language” as requested
by the Defense. We conclude the military judge did not abuse her discretion.
A. Additional Background and Defense-Requested Instruction
    Appellant was charged with attempted sexual abuse of a child by indecent
communication in violation of Article 80, UCMJ. Because Appellant was
charged with an offense of attempt, the Government was required to prove be-
yond a reasonable doubt that Appellant intended to commit every element of
the offense of sexual abuse of a child under Article 120b, UCMJ, 10 U.S.C. §
920b, including inter alia that Appellant intended to commit a lewd act upon
a child by communicating sexually explicit language to gratify Appellant’s sex-
ual desire.3 See Article 80(a), UCMJ, 10 U.S.C. § 80(a) (“An act done with spe-
cific intent to commit an offense under this chapter, amounting to more than
mere preparation and tending, even though failing, to effect its commission, is
an attempt to commit that offense.”).




3 The elements of the underlying charged offense of sexual abuse of a child by indecent
communication are: (1) that Appellant committed a lewd act upon “Emily,” by com-
municating sexually explicit language to “Emily” to gratify Appellant’s own sexual de-
sire and (2) that, at the time, “Emily” had not attained the age of 16 years. See Manual
for Courts-Martial, United States (2016 ed.), pt. IV, ¶ 45b.b.(4)(d). The specification
alleged the communication of “sexually explicit” language vice “indecent language” and
did not further describe the language Appellant communicated to “Emily.”




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                   United States v. Postell, No. ACM 39340


    Before the members began deliberations, the military judge instructed
them that “‘[l]ewd act’ means intentionally communicating indecent language
to a child by any means, including via any communication technology, with an
intent to abuse, humiliate or degrade any person, or to arouse or gratify the
sexual desires of any person.” (Emphasis added). This instruction was taken
verbatim from the definition of “lewd act” in Article 120b(h)(5)(C), UCMJ, and
the Military Judges’ Benchbook, Dept. of the Army Pamphlet 27–9 at 624–25
(10 Sep. 2014).
    However, the military judge declined to define “indecent language” and give
a Defense-requested instruction from a selected portion of the definition of “in-
decent language,” as it appears in the explanation to the Article 134, UCMJ,
10 U.S.C. § 934, offense of communicating indecent language. See Manual for
Courts-Martial, United States (2016 ed.) (MCM), pt. IV, ¶ 89.c. The proposed
instruction would have defined “indecent language” as “that which is grossly
offensive to modesty, decency or propriety or shocks the moral sense because
of its vulgar, filthy or disgusting nature or its tendency to incite lustful
thought. The language must violate community standards.” As requested, the
definition left out, “Language is indecent if it tends reasonably to corrupt mor-
als or incite libidinous thoughts.” Id.; see also Benchbook, at 870. The military
judge explained to counsel that she declined to give the Defense-requested in-
struction because the requested definition of “indecent language” was for “a[n
Article] 134 offense, rather than [an offense] under [Article] 120b and the
charge isn’t [communicating] indecent language. The charge is a lewd act.”
B. Law
    Whether a military judge appropriately instructed a court-martial panel is
a question of law we review de novo. United States v. McClour, 76 M.J. 23, 25
(C.A.A.F. 2017) (quoting United States v. Medina, 69 M.J. 462, 465 (C.A.A.F
2011)). “The military judge has an independent duty to determine and deliver
appropriate instructions.” United States v. Ober, 66 M.J. 393, 405 (C.A.A.F.
2008) (citing United States v. Westmoreland, 31 M.J. 160, 163–64 (C.M.A.
1990)). While trial defense counsel may request specific instructions from the
military judge, the judge has substantial discretionary power in deciding on
the instruction to give. United States v. Damatta-Olivera, 37 M.J. 474, 478
(C.M.A. 1993) (citing Rule for Courts-Martial 920(c), Discussion; United States
v. Smith, 34 M.J. 200 (C.M.A. 1992)).
    Denial of a defense-requested instruction is reviewed for abuse of discre-
tion. United States v. Carruthers, 64 M.J. 340, 345–46 (C.A.A.F. 2007) (citing
United States v. Rasnick, 58 M.J. 9, 10 (C.A.A.F. 2003); Damatta-Olivera, 37
M.J. at 478). The United States Court of Appeals for the Armed Forces (CAAF)
applies a three-prong test to evaluate whether the failure to give a requested



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instruction is error: “(1) [the requested instruction] is correct; (2) it is not sub-
stantially covered in the main [instruction]; and (3) it is on such a vital point
in the case that the failure to give it deprived [Appellant] of a defense or seri-
ously impaired its effective presentation.” Carruthers, 64 M.J. at 346 (first and
second alteration in original) (quoting United States v. Gibson, 58 M.J. 1, 7
(C.A.A.F. 2003)). All three prongs of the Carruthers test must be satisfied for
this court to find error. United States v. Barnett, 71 M.J. 248, 253 (C.A.A.F.
2012).
C. Analysis
   We consider if the Defense-requested instruction meets each of the three
prongs of the Carruthers test and find that it meets none of them.
   1. First Carruthers Prong
    We first address whether the proposed instruction was a correct statement
of the law and find that it was not. In all respects but one, trial defense coun-
sel’s requested instruction was identical to the definition of “indecent lan-
guage” contained in the offense of communicating indecent language, Article
134, UCMJ, except for the omission of the sentence, “Language is indecent if it
tends reasonably to corrupt morals or incite libidinous thoughts.” MCM, pt. IV,
¶ 89.c. The CAAF has explained that this sentence operates to “modify and
further explain” the two sentences from the definition of “indecent language”
that the Defense did request. United States v. Green, 68 M.J. 266, 269 (C.A.A.F.
2010). Because of this omission, the Defense-requested instruction was an in-
complete statement of the law and thus incorrect.
   2. Second Carruthers Prong
    On the second Carruthers prong, we find that the Defense-requested in-
struction was substantially covered by the instructions on the elements and
definitions of the charged offense given to the members by the military judge.
Appellant argued at trial and again on appeal that without the requested in-
struction the factfinder could not determine whether the sexually explicit lan-
guage that the Government charged crossed the legal threshold for indecent
language. Put another way, Appellant argues that the requested instruction
was necessary because the elements and definitions of Article 120b, UCMJ,
were inadequate to separate wrongful conduct from innocent speech. We disa-
gree.
    Appellant’s proposed instruction was substantially covered by the military
judge’s instruction on the elements of the offense because, as the judge in-
structed, the Government had to prove beyond a reasonable doubt that Appel-
lant intended to commit a lewd act by communicating indecent language to a
child with the intent to gratify his sexual desire. See MCM, pt. IV, ¶



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45b.b.(4)(d). The Government had to prove not only that Appellant uttered in-
decent speech but also that Appellant communicated language to a child with
the specific intent to gratify Appellant’s sexual desire. The Defense-requested
instruction was unnecessary because the elements of the offense of sexual
abuse of a child by indecent communication and the definition of “lewd act”
were adequate for the members to separate wrongful conduct from innocent
speech. Thus, we find that the Defense-requested instruction was substantially
covered by the instruction on the elements and definitions of the offense Ap-
pellant was charged with attempting to commit.
   3. Third Carruthers Prong
    On the third Carruthers prong, we find the requested instruction did not
cover such a vital point in the case that the failure to give it either deprived
Appellant of a defense or seriously impaired the effective presentation of a de-
fense. The Government was required to prove that Appellant intended to com-
mit every element of the offense of sexual abuse of a child, including inter alia
that Appellant intended to commit a lewd act upon a child by communicating
indecent language to that child by any means. See MCM, pt. IV, ¶ 45b.b.(4)(d).
Although the Defense at trial focused on entrapment and mistake of fact as to
age, the Defense also challenged whether the Government met its burden of
proof and in argument asked rhetorically, “What’s the definition of ‘indecent
language?’ What’s indecent?” The Defense answered these questions by calling
on the members to consider Appellant’s language in the context of “the com-
munity that we have” and arguing “[t]here’s worse language on the radio” than
in the messages Appellant sent to “Emily.”
   We find the Defense, even without the requested instruction, was not de-
nied the ability to challenge the Government’s proof that the language Appel-
lant communicated to “Emily” was indecent. Consequently, the military judge’s
decision not to give the Defense-requested instruction neither deprived Appel-
lant of a defense nor seriously impaired the effective presentation of a defense.
Thus, we conclude that the military judge did not abuse her discretion when
she declined to give the Defense-requested instruction defining the term “inde-
cent language.”

                               III. CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c) (2016).




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             United States v. Postell, No. ACM 39340


Accordingly, the findings and sentence are AFFIRMED.


               FOR THE COURT



               CAROL K. JOYCE
               Clerk of the Court




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