United States v. Schmidt

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Julian D. SCHMIDT, Sergeant
United States Marine Corps, Appellant
No. 21-0004
Crim. App. No. 201900043
Argued October 5, 2021—Decided February 11, 2022
Military Judge: Matthew J. Kent
For Appellant: Tami L. Mitchell, Esq. (argued); Lieutenant
Megan E. Horst, JAGC, USN (on brief); David P. Sheldon,
Esq.
For Appellee: Lieutenant John L. Flynn IV, JAGC, USN
(argued); Lieutenant Colonel Christopher G. Blosser, USMC,
Major Kerry E. Friedewald, USMC, and Brian K. Keller,
Esq. (on brief); Lieutenant Colonel Nicholas L. Gannon,
USMC, and Lieutenant Gregory A. Rustico, JAGC, USN.
Judge SPARKS announced the judgment of the Court.
Chief Judge OHLSON filed a separate opinion concurring
in the judgment, in which Senior Judge ERDMANN
joined. Judge MAGGS filed a separate opinion concurring
in the judgment, in which Judge HARDY joined.
_______________

Judge SPARKS announced the judgment of the Court.
I. Background
In relevant part, Appellant was charged with committing
a lewd act on Jared,1 a child under sixteen years old, by
engaging in indecent conduct by intentionally masturbating
in his presence, in violation of Article 120b(c), Uniform Code
of Military Justice (UCMJ), 10 U.S.C. § 920b(c) (2012 & Supp.
IV 2013–2017). At trial, Jared testified that, on the night in
question, he fell asleep on an air mattress and, later, Jared
awoke feeling sick. When he awoke, Jared felt Appellant’s

1 The United States Navy-Marine Corps Court of Criminal
Appeals opinion referred to the victim as Jared. We adopt the same
pseudonym throughout this opinion.
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Judgment of the Court

arm on his back. Jared became frightened and pretended to
be asleep while sliding away from Appellant onto the floor.
Appellant proceeded to hold Jared’s right hand and began
licking and kissing Jared’s fingers. Appellant then made
sounds and movements indicative of masturbation. After a
few minutes, Appellant made a grunting sound and left the
room. Appellant proceeded to take a shower and then, before
leaving the house, while Jared was still pretending to be
asleep, came over to the foot of the air mattress and prayed
aloud for Jared’s protection.
During an interrogation by the Naval Criminal
Investigative Service (NCIS), Appellant admitted
masturbating under a blanket to help him fall asleep.
Appellant nodded when the NCIS agent said to him, “I mean,
you were laying there, you're like, this kid's sleeping, I'm just
going to masturbate to try to go to sleep, you know, take my
sleeping pills, whatever, man, everybody does their own
thing.”
After the close of evidence on findings, the military judge
held an Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2012),
session to discuss his proposed findings instructions. The
military judge asked, “Do counsel for either side have any
objections to the findings instructions in their current form?”
Appellant’s trial defense counsel responded, “No, sir.” The
military judge then asked, “Any requests for instructions that
do not appear in the findings instructions?” Appellant’s trial
defense counsel responded, “No, Your Honor.”
In delivering his instructions to the members, the military
judge provided the elements of the offense of sexual abuse of
a child as follows:
That on or about 29 August 2016, at or near
Carlsbad, California, the accused committed a lewd
act upon [Jared] by engaging in indecent conduct, to
wit: Masturbating, intentionally done in the
presence of [Jared];
That at the time, [Jared] had not attained the age of
16 years; and,
That the conduct amount [sic] to a form of
immorality relating to a sexual impurity which is
grossly vulgar, obscene, and repugnant to common

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Judgment of the Court

propriety, intends [sic] to excite sexual desires, or
deprave morals with respect to sexual relations.
The military judge did not instruct on the defense of mistake
of fact as to whether Jared was asleep.
During closing arguments, trial defense counsel argued,
in part, that a key issue was whether Appellant masturbated
“while he knew there was a kid there that was observing or
aware, and he did it with some criminal intent.” Later, trial
defense counsel argued:
Masturbating isn’t a crime. Masturbating in a room
where you think everybody is asleep and no one is
watching you and no one is aware, doesn’t meet the
elements of what they’re saying. That is not a crime.
Any more than two parents having sexual relations
and the kid on the other side of the apartment
waking up and walking in. It is not the same thing.
Someone in a bunk underneath a blanket while
everyone is asleep pitching, touching themselves,
and someone just happens to be two bunks down and
overhears it, that doesn't mean that you are a child
molester.
Finally, trial defense counsel argued, “The kid was in the
room. That is not enough. It must be a lewd act. . . . If you are
underneath a blanket, masturbating, you cover yourself up,
and you think everyone is sleeping, it’s dark, it’s not a lewd
act upon him.”
During the panel’s deliberations, the members submitted
a question to the military judge asking with respect to the
offense of sexual abuse of a child, “[W]hat does ‘upon’ mean
and what does ‘in the presence of’ mean?’ ” During an Article
39(a), UCMJ, session the military judge informed the parties
he intended to answer the question by providing the statutory
definition of “lewd act” and then advising that “absent specific
legal technical definition, the members are to apply their own
common sense understanding [of] the definition of words.”
When asked whether he had any objection to that instruction,
Appellant’s trial defense counsel stated, “I do not, sir. There
is no definition . . . in the benchbook.”
The military judge then instructed the members as
follows:

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Judgment of the Court

“Lewd act” is defined as any indecent conduct
intentionally done with or in the presence of a child
including, via any communication technology, that
amounts to a form of immorality relating to sexual
impurity which is grossly vulgar, obscene, and
repugnant to common propriety, and tends to excite
sexual desire or to deprave morals with respect to
sexual relations.
....
So when the offense alleges that the accused
committed a lewd act upon [Jared], that is,
essentially—that is statutory language as
articulated in the specification is what he has to had
done upon him. So beyond that, you, the members,
are in the absence of a more specific legal definition.
Members are to apply their common sense and
understanding of the term of words and that applies
to the terms in the presence of as well.
Contrary to his plea, a panel of members with enlisted
representation sitting as a general court-martial convicted
Appellant of sexual abuse of a child, in violation of Article
120b(c), UCMJ, 10 U.S.C. § 920b(c). The panel sentenced
Appellant to a bad-conduct discharge, confinement for fifteen
months, and a reduction to E-1. The convening authority
approved the sentence as adjudged.
At the lower court, Appellant contended that the phrase
“in the presence of” a victim required the victim’s awareness.
United States v. Schmidt, 80 M.J. 586, 595 (N-M. Ct. Crim.
App. 2020). The lower court agreed, finding that the offense
of sexual abuse of a child by indecent conduct required that
the child be aware of the conduct in order for the conduct to
be done “in the presence of” the child. Id. at 598. Further, the
lower court found that for “indecent conduct to be
‘intentionally done . . . in the presence of a child,’ the accused
must intend that the child be aware of the conduct.” Id.
(alteration in original) (footnote omitted). As such, where
raised by the evidence, an honest mistake of fact as to the
child’s awareness of the conduct is a defense which must be
disproven beyond a reasonable doubt. Id. The lower court
concluded that the evidence supported that Appellant did not
honestly believe Jared was asleep when he masturbated. Id.
at 598–99.

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Judgment of the Court

Next, the lower court found that Appellant waived any
objection to the military judge’s instructions when trial
defense counsel “expressly and unequivocally acquiesce[d] to
the military judge’s instructions,” including both the way he
handled the definitions of “upon” and “in the presence of” for
the elements of the offense and the lack of an instruction on
honest mistake of fact as a defense. Id. at 601 (internal
quotation marks omitted) (citation omitted).
Finally, Appellant argued that he received ineffective
assistance when his counsel failed to object to the military
judge’s instruction on the definition of “in the presence of.” Id.
at 603 (internal quotation marks omitted). The lower court
sua sponte considered trial counsel’s additional failure to
request the related mistake of fact instruction. Id. The lower
court assumed, without deciding, that Appellant’s counsel
was deficient by failing to pursue these instructions, but
concluded there was no prejudice because the evidence
strongly supported a guilty finding, as Jared clearly was
aware of the conduct and the defense of honest mistake of fact
rested on thin evidence. Id. at 603–04.
We then granted review of three issues:
I. Whether the phrase “in the presence of” used
to define the term ‘lewd act’ in Article
120b(h)(5)(D) requires the child to be aware of
the lewd act or merely that the accused be
aware of the child's presence.
II. Whether Appellant affirmatively waived any
objection to the military judge’s instructions and
the failure to instruct on the affirmative defense
of mistake of fact.
III. Whether, having assumed deficient
performance by counsel, the lower court erred
in finding no prejudice.

II. Waiver
Sexual abuse of a child under Article 120b(c), UCMJ, is
defined as “commit[ting] a lewd act upon a child.” The
definition of “lewd act” includes:
any indecent conduct, intentionally done with or in
the presence of a child, including via any
communication technology, that amounts to a form

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Judgment of the Court

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 120b(h)(5)(D), 10 U.S.C. § 920b(h)(5)(D).
The threshold question is whether Appellant affirmatively
waived the opportunity to now object to the military judge’s
instruction to the members on what “in the presence of”
means. Whether an appellant has waived an issue is a legal
question we review de novo. United States v. Davis, 79 M.J.
329, 331 (C.A.A.F. 2020) (citing United States v. Haynes, 79
M.J. 17, 19 (C.A.A.F. 2019)). “[W]aiver is the intentional
relinquishment or abandonment of a known right.” Id.
(internal quotation marks omitted) (quoting United States v.
Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). “[W]hile we review
forfeited issues for plain error, ‘we cannot review waived
issues at all because a valid waiver leaves no error for us to
correct on appeal.’ ” Id. (quoting United States v. Campos, 67
M.J. 330, 332 (C.A.A.F. 2009)).
In Davis, we acknowledged our prior precedent holding
that, pursuant to Rule for Courts-Martial 920(f), objections to
instructions not raised at trial were forfeited, and were
subject to plain error review on appeal. 79 M.J. at 332.
However, we clarified that where trial defense counsel not
only failed to raise an objection to findings instructions, but
twice told the military judge that the defense had no
objections, the appellant had “affirmatively waived any
objection” to the instructions. Id. (citations omitted).
In the instant case, the first opportunity for Appellant to
object or offer instructions or definitions arose when the
parties and the military judge met to discuss the military
judge’s final instructions on the merits. At this point, it was
reasonable to assume that the issue regarding the victim’s
awareness, or Appellant’s mistake as to that fact, had yet to
arise. However, during deliberations the members sent a
question to the military judge wanting to know what “in the
presence of” meant. This was the opportunity trial defense
counsel had to either object to what the military judge was
going to tell the members, or to offer his own view of what the
phrase meant, particularly since he had just argued during
closing argument that his client might not have known that

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Judgment of the Court

the victim was feigning sleep during Appellant’s actions in
the room. Because there was no definition set forth in the
Benchbook, the military judge indicated to trial defense
counsel that he was going to ask the members to rely on their
common sense to define the phrase for themselves. Trial
defense counsel assented to the military judge’s proposal.
Thus, the instruction given to the members did not indicate
whether the phrase at issue had an awareness requirement
on the part of the victim.
In light of Davis, this affirmative declination to object to
the military judge’s definition regarding “in the presence of,”
would appear to waive Appellant’s right to challenge that
definition on appeal. However, in Davis, we noted that we
review a matter for plain error “ ‘when there is a new rule of
law, when the law was previously unsettled, and when the
[trial court] reached a decision contrary to a subsequent
rule.’ ” 79 M.J. at 331 (first alteration in original removed)
(second alteration in original) (quoting United States v.
Oliver, 76 M.J. 271, 274 (C.A.A.F. 2017)). At the time of
Appellant’s trial, it was unsettled whether the phrase “in the
presence of” used to define the term “lewd act” in Article
120b(h)(5)(D), UCMJ, required the child to be aware of the
lewd act. The statute did not define “in the presence of” and
there was no case law interpreting this phrase in Article
120b(h)(5)(D), UCMJ. Thus, there was no binding precedent
demonstrating that “in the presence of” required victim
awareness. Accordingly, trial defense counsel’s failure to
object was not waiver given the unsettled nature of the law at
the time of Appellant’s court-martial.
III. Plain Error Review
When “an appellant has forfeited a right by failing to raise
it at trial, we review for plain error.” Oliver, 76 M.J. at 274–
75 (internal quotation marks omitted) (quoting Gladue, 67
M.J. at 313). When claiming that a military judge committed
plain error, an appellant has the burden of establishing “(1)
error that is (2) clear or obvious and (3) results in material
prejudice to his substantial rights.” Id. at 275 (internal
quotation marks omitted) (citation omitted). “Failure to
establish any one of the prongs is fatal to a plain error claim.”
Id. (alteration in original removed) (internal quotation marks
omitted) (citation omitted).

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Judgment of the Court

The first step in plain error analysis is to determine
whether an error occurred at all. Here, did the military judge
err by not defining “in the presence of” to mean that the victim
had to be aware of the indecent conduct? It is a general rule
of statutory construction that if a statute is clear and
unambiguous—that is, susceptible to only one
interpretation—we use its plain meaning and apply it as
written. United States v. Kohlbek, 78 M.J. 326, 331 (C.A.A.F.
2019). We may also resort to case law to resolve any
ambiguity, although fundamentally “case law must comport
with [the statute], not vice versa.” United States v. Warner,
62 M.J. 114, 120 n.30 (C.A.A.F. 2005). “We assume that
Congress is aware of existing law when it passes legislation.”
United States v. McDonald, 78 M.J. 376, 380 (C.A.A.F. 2019)
(internal quotation marks omitted) (quoting Miles v. Apex
Marine Corp., 498 U.S. 19, 32 (1990)).
The definition of “in the presence of” required under
Article 120b(c), UCMJ, is an issue of first impression for this
Court. As noted by the lower court, the use of “ ‘in the presence
of’ was adopted and developed in the context of the offense of
indecent liberties with a child under Article 134, UCMJ—the
predecessor to the sexual abuse of a child by indecent conduct
under Article 120b(c)[, UCMJ].” Schmidt, 80 M.J. at 596. In
United States v. Brown, 3 C.M.A. 454, 457, 13 C.M.R. 10, 13
(1953), we determined that the “purpose of this type of
legislation [indecent liberties with a child] is to protect
children under a certain age from those acts which have a
tendency to corrupt their morals.” In United States v.
Knowles, 15 C.M.A 404, 405-06, 35 C.M.R. 376, 377–78
(1965), in the context of obscene language conveyed over the
telephone, we found that for an allegation of indecent liberty
to stand, the phrase “in the presence of” a minor “requires
greater conjunction of the several senses of the victim with
those of the accused than that of hearing a voice over a
telephone wire.” In United States v. Miller, 67 M.J. 87, 90
(C.A.A.F. 2008), we held that conduct done in the child’s
constructive presence via internet-based, audiovisual
communication was also not “in the presence of” the child. In
Miller, we noted that “[t]he definition and common
understanding of ‘presence’ is: ‘[t]he state or fact of being in a
particular place and time’ and ‘[c]lose physical proximity

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Judgment of the Court

coupled with awareness.’ ” Id. (second and third alterations in
original) (quoting Black’s Law Dictionary 1221 (8th ed.
2004)).
The current version of this offense is now codified as a
sexual abuse of a child by indecent conduct. The definitional
language under which Appellant was convicted is much the
same as that used in the former indecent liberties offense,
with one key difference: in the current statute, Congress filled
the gap created by Knowles and Miller by more broadly
defining “in the presence of” a child as “including via any
communication technology.” Article 120b(h)(5)(D), UCMJ.
Thus, sexual abuse of a child by indecent conduct now does
not require physical presence and may be accomplished by
purely constructive presence, such as through the sort of
internet-based, video-communication technology at issue in
Miller, or over a telephone line as in Knowles.
Therefore, as to the offense of sexual abuse of a child, I
conclude that for the conduct at issue to be done “in the
presence of” a child, the child must be aware of it. This
interpretation comports with our long-standing view that the
“purpose of this type of legislation is to protect children under
a certain age from those acts which have a tendency to corrupt
their morals.” Brown, 3 C.M.A. at 457, 13 C.M.R. at 13. The
focus of the revised statute thus remains on prohibiting
indecent and immoral conduct that causes the sort of
corrupting harm to children—shame, embarrassment,
humiliation, juvenile delinquency—which can occur by the
conduct merely being done in their presence (including via
communication technology). In order for conduct to cause that
type of harm to a child, there must be a sufficient “conjunction
of [at least one] sense[] of the victim with those of the
accused,” that makes the child aware of the conduct. Knowles,
15 C.M.A. at 406, 35 C.M.R. at 378. Accordingly, I find the
military judge erred by not defining “in the presence of” a
child to include awareness.
Although I conclude there was error in this case, I would
hold that the error was not plain or obvious. An “error cannot
be plain or obvious if the law is unsettled on the issue at the
time of trial and remains so on appeal.” United States v. Nieto,
66 M.J. 146, 151 (C.A.A.F. 2008) (Stucky, J., concurring)
(citing United States v. Garcia-Rodriguez, 415 F.3d 452, 455–

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Judgment of the Court

56 (5th Cir. 2005); United States v. Diaz, 285 F.3d 92, 96 (1st
Cir. 2002)). As noted above, this Court has never held one way
or the other whether the phrase “in the presence of” used to
define the term “lewd act” in Article 120b(h)(5)(D), UCMJ,
requires the child to be aware of the lewd act. Since the law
was and remains unsettled, I cannot say that the error was
plain or obvious. Appellant is therefore unable to meet the
plain error standard.2 For this reason, I concur in affirming
the decision of the United States Navy-Marine Corps Court of
Criminal Appeals.
IV. Conclusion
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.

2 Appellant’s failure to show plain error is fatal to his ineffective
assistance of counsel claims. To establish ineffective assistance of
counsel, an “appellant must demonstrate both (1) that his counsel’s
performance was deficient, and (2) that this deficiency resulted in
prejudice.” United States v. Green, 68 M.J. 360, 361–62 (C.A.A.F.
2010) (citations omitted). Appellant cannot demonstrate that his
counsel’s failure to object to the military judge’s instruction on “in
the presence of” was deficient when there is no plain or obvious
error.

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Chief Judge OHLSON, with whom Senior Judge
ERDMANN joins, concurring in the judgment.
I agree with Judge Sparks that this is not a waiver case.
However, I part ways with him in terms of the proper inter-
pretation of Article 120b(h)(5)(D), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920b(h)(5)(D) (2018). In relevant
part, this provision prohibits servicemembers from intention-
ally engaging in indecent conduct—such as masturbating—
“in the presence of a child.” (Emphasis added.) In my view, the
plain language of the statute only requires an accused who is
intentionally engaging in a lewd act to be aware of the child’s
presence; it does not require the child victim to be aware of the
accused’s lewd act. Therefore, I believe the military judge
properly instructed the court-martial panel and I would af-
firm Appellant’s conviction.
I. Applicable Statute
Article 120b(c), UCMJ, makes it a crime to “commit[] a
lewd act upon a child.” That statute defines a “lewd act” as,
among other acts:
[A]ny indecent conduct, intentionally done with
or in the presence of a child, including via any com-
munication technology, that amounts to a form of
immorality relating to sexual impurity which is
grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or de-
prave morals with respect to sexual relations.
Article 120b(h)(5)(D), UCMJ (emphasis added).
II. Analysis
Appellant does not contest the notion that masturbating
can constitute “indecent conduct.” Therefore, the initial
question we must answer is whether the phrase
“intentionally done . . . in the presence of a child” requires the
child victim to be aware of the lewd act, or only requires the
accused to be aware of the child’s presence. Article
120b(h)(5)(D), UCMJ. “The construction of a statute is a
question of law we review de novo.” United States v. Kelly, 77
M.J. 404, 406 (C.A.A.F. 2018).
The United States Navy-Marine Corps Court of Criminal
Appeals (NMCCA) concluded that in order for an accused to
 United States v. Schmidt, No. 21-0004/MC
Chief Judge OHLSON, concurring in the judgment

be convicted under Article 120b(c): first, the child victim had
to be aware of the accused’s conduct; and, second, the accused
had to intend for the child to be aware of the accused’s con-
duct. United States v. Schmidt, 80 M.J. 586, 598 (N-M. Ct.
Crim. App. 2020). Appellant similarly argues that “[t]he his-
tory of case law defining ‘in the presence of a child’ establishes
that ‘victim awareness’ of the indecent conduct through a sen-
sory connection has always been required.” Brief for Appel-
lant at 9, United States v. Schmidt, No. 21-0004 (C.A.A.F.
June 23, 2021).
Both the holding of the NMCCA and the argument by Ap-
pellant pivot on one of the definitions of “presence” that ap-
pears in Black’s Law Dictionary.1 This definition is also cited
in multiple previous decisions of the service Courts of Crimi-
nal Appeals (CCAs), as well as in this Court’s decision in
United States v. Miller, 67 M.J. 87, 90 (C.A.A.F. 2008).2 In
turn, both the NMCCA and Appellant in the instant case rely
heavily upon these prior cases. Schmidt, 80 M.J. at 596–97.
Thus, it is instructive to examine in depth the definition of
the word “presence.”
The entry for “presence” in Black’s Law Dictionary reads
as follows:
1. The quality, state, or condition of being in a
particular time and place, particularly with refer-
ence to some act that was done then and there . 2. Close

1 The NMCCA’s reliance on cases such as United States v.
Brown, 3 C.M.A. 454, 13 C.M.R. 10 (1953), which involved the of-
fense of “indecent acts,” is misplaced. The statute at issue in the
Brown case required an accused to commit a wrongful act “with”
another person. Id. at 456, 13 C.M.R. at 12. “With” another person
and “in the presence of” another person are clearly distinguishable
modes of liability in this statute.
2 See, e.g., United States v. Burkhart, 72 M.J. 590, 594–95 (A.F.
Ct. Crim. App. 2013); United States v. Gould, No. ARMY 20120727,
2014 CCA LEXIS 694, at *2, 2014 WL 7242761, at *1 (A. Ct. Crim.
App. Sept. 16, 2014) (unpublished), rev’d in part on other
grounds, 75 M.J. 22 (C.A.A.F. 2015); United States v. Anderson, No.
NMCCA 201200499, 2013 CCA LEXIS 517, at *15–16, 2013 WL
3242397, at *5 (N-M. Ct. Crim. App. June 27, 2013) (unpublished).

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Chief Judge OHLSON, concurring in the judgment

physical proximity coupled with awareness .
Black’s Law Dictionary 1432 (11th ed. 2019). Appellant
points to the second portion of this entry that refers to prox-
imity “coupled with awareness.” Id. (emphasis added). Specif-
ically, he argues that: (1) as applied to the facts in the instant
case, this particular definition from Black’s Law Dictionary
required the child victim to be aware that Appellant was mas-
turbating next to him in order for Appellant to be guilty of the
offense of sexual abuse of a child; (2) because Appellant hon-
estly believed that the child victim was asleep when Appel-
lant was masturbating, “the military judge was obligated to
instruct the panel members that an honest mistaken belief
[that the victim] was sleeping constituted a defense that ab-
solved [Appellant] of criminal liability,” Brief for Appellant at
19, United States v. Schmidt, No. 21-0004 (C.A.A.F. June 23,
2021); and (3) because the military judge failed to give such
an instruction, “this Court should set aside and dismiss [Ap-
pellant’s] conviction.” Id. at 28.
Appellant is mistaken on a number of fronts. Although
Black’s Law Dictionary may be the preeminent source for def-
initions of legal terms and phrases, when a word has an easily
graspable definition outside of a legal context, authoritative
lay dictionaries may also be consulted.3 See Brackett v. Focus

3 Notably, even other legal dictionaries do not define the word
“presence” in such a manner as to require awareness. See Ballen-
tine’s Law Dictionary 981 (3d ed. 1969) (defining “presence,” in rel-
evant part, as “[t]he fact of being at a place at a particular time”); 3
Bouvier’s Law Dictionary and Concise Encyclopedia 2673 (8th ed.
1914) (defining “presence” as “[t]he being in a particular place”).
The explanation accompanying the definition in Bouvier’s Law Dic-
tionary and Concise Encyclopedia acknowledges the usage relied on
by the NMCCA and Appellant, but notes that it is a legal term of
art. See id. (“In many contracts and judicial proceedings it is neces-
sary that the parties should be present in order to render them valid
. . . .”). Ballentine’s Law Dictionary cites case law to similar effect:
“Anything done within the four walls of a room . . . is usually done
in the presence of all who are in the room whether it is seen or not.
But proximity and consciousness may create presence.” Ballentine’s
Law Dictionary 981 (3d ed. 1969) (citing Nock v. Nock’s Ex’rs, 51
Va. (10 Gratt.) 106, 117 (1853)).

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Chief Judge OHLSON, concurring in the judgment

Hope, Inc., 753 N.W.2d 207, 211 (Mich. 2008) (“A lay diction-
ary may be consulted to define a common word or phrase that
lacks a unique legal meaning.”). Here, a number of authorita-
tive lay dictionaries do not require awareness in order for one
person to be in the presence of another person.4
Further, while both legal and lay dictionaries can be emi-
nently helpful and instructive in the course of interpreting
statutes, a definition contained in a dictionary—standing
alone—is not dispositive of the legal issue of what a provision
in a statute actually means. “Whether a statutory term is un-
ambiguous . . . does not turn solely on dictionary definitions
of its component words.” Yates v. United States, 574 U.S. 528,
537 (2015) (plurality opinion). Rather, whether a statute is
plain or ambiguous “is determined by reference to the lan-
guage itself, the specific context in which that language is
used, and the broader context of the statute as a whole.” Rob-
inson v. Shell Oil Co., 519 U.S. 337, 341 (1997).
As noted above, the definition of “presence” contained in
Black’s Law Dictionary has two separate entries. The primary
definition of the word is: “The quality, state, or condition of
being in a particular time and place, particularly with refer-
ence to some act that was done then and there . . . .” Black’s
Law Dictionary 1432 (11th ed. 2019). The secondary defini-
tion is: “Close physical proximity coupled with awareness
. . . .” Id. Appellant fails to explain why both entries should
apply to the disposition of this case. “[W]e interpret words and
phrases used in the UCMJ by examining the ordinary mean-
ing of the language, the context in which the language is used,

4 See Merriam-Webster’s Unabridged Online Dictionary,
https://unabridged.merriam-webster.com/unabridged/presence
(last visited Jan. 27, 2022) (defining “presence,” in relevant part,
as “the state of being in one place and not elsewhere[,] the condition
of being within sight or call, at hand, or in a place being thought of[,
or] the state of being in front of or in the same place as someone or
something”); The American Heritage Dictionary of the English Lan-
guage 1393 (5th ed. 2018) (defining “presence,” as “[t]he state or fact
of being present” and “present,” in relevant part, as “[b]eing at hand
or in attendance”); Merriam-Webster’s Collegiate Dictionary 982
(11th ed. 2020) (defining “presence,” in relevant part, as “the part
of space within one’s immediate vicinity”).

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Chief Judge OHLSON, concurring in the judgment

and the broader statutory context.” United States v. Pease, 75
M.J. 180, 184 (C.A.A.F. 2016) (emphasis added).5 In making
a choice between two competing definitions, if only one of the
definitions gives effect to the clear statutory purpose, then
that definition must be the one intended by Congress.6
In relying on the second definition of “presence” that ap-
pears in Black’s Law Dictionary, Appellant, the lower court
here, and CCAs in prior cases have failed to take note of the
material contained in the adjoining angle brackets. The pref-
atory material in Black’s Law Dictionary explains that infor-
mation contained within angle brackets provides “[c]ontex-
tual illustration of a headword.”7 Black’s Law Dictionary xxix
(11th ed. 2019) (emphasis added). Here, the material con-
tained in the angle brackets accompanying the second defini-
tion of “presence” informs us that the awareness requirement
arises in the context of the following example: “[T]he agent
was in the presence of the principal.” Id. at 1432. This illus-
tration makes clear that the type of presence connoted by the
second definition is that which is required for certain events

5 For example, the verb form of the word “sanction” can mean
to give official approval of an action or to impose a penalty for an
unapproved action. See Merriam-Webster’s Unabridged Online Dic-
tionary, https://unabridged.merriam-webster.com/unabridged/
sanction (last visited Jan. 27, 2022) (defining “sanction” as both “to
establish, maintain, encourage, or permit usually by some authori-
tative approval or consent” and “to attach a sanction or penalty to
[a] violation”). These two definitions are highly dissimilar, and
without examining the use of the word “sanction” in context, it
would be difficult indeed for a court to reconcile both of them in a
statutory provision. As can be seen then, in the course of analyzing
a statutory provision, a court must sometimes choose between com-
peting definitions of the same word.
6 To be sure, an accused gets the benefit of ambiguity in a crim-
inal statute. However, “[w]here Congress has manifested its inten-
tion, we may not manufacture ambiguity in order to defeat that in-
tent.” Albernaz v. United States, 450 U.S. 333, 342 (1981) (internal
quotation marks omitted) (citation omitted).
7 Another entry in Black’s Law Dictionary underscores this
point; the “presence-of-the-testator rule” is defined as “[t]he princi-
ple that a testator must be aware . . . that the witnesses are signing
the will.” Black’s Law Dictionary 1432 (11th ed. 2019).

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Chief Judge OHLSON, concurring in the judgment

of particular legal significance, such as the binding of a prin-
cipal or the attestation of a will. See N. Owsley & Sons v.
Woolhopter, 14 Ga. 124, 128 (1853) (“[I]f one, in the presence
of the principal, sell[s] a parcel of goods of the latter, as his
agent, without objection, the tacit consent of the principal will
be presumed; and it will bind him.”); In re Estate of Meyer,
2016 WY 6, ¶ 28, 367 P.3d 629, 638 (Wyo. 2016) (“[T]he will
must be signed by the testator in the presence of both wit-
nesses, and the signatures of both witnesses must be made in
the presence of the testator and in the presence of each other
. . . .”). Of course, a scenario where an adult male is mastur-
bating—knowing that a child is within arm’s reach—is in no
way similar to a principal-agent relationship. Therefore, it is
the first definition of “presence” in Black’s Law Dictionary—
and all of the similar definitions in lay dictionaries—that
should guide us in the instant case. And in that definition,
there is no implication that “awareness” is required for one
person to be “in the presence of” another.
Appellant is correct that this Court’s opinion in Miller re-
fers not only to the first definition of “presence” in Black’s Law
Dictionary but also to the second definition. 67 M.J. at 90.
However, in that case the Court was interpreting whether
“constructive presence” constituted “physical presence”; it
was not deciding any issue involving whether “presence” re-
quires awareness. Id. Thus, the most that can be said about
the Miller case is that the Court cited the second definition
from Black’s Law Dictionary, not that it relied upon that sec-
ond definition or that the second definition played a central
role in the disposition of the case. In fact, the Miller Court
held that “physical presence” merely “requires that an ac-
cused be in the same physical space as the victim.” Id. There-
fore, Miller actually serves to undermine Appellant’s position.
In their analyses of similar federal statutes, other courts
have recognized that Congress did not intend to offer safe ha-
ven to sexual predators simply because their victims have
been caught unawares. In United States v. Finley, 726 F.3d
483, 495 (3d Cir. 2013), the United States Court of Appeals
for the Third Circuit interpreted a federal statute that, among
other things, criminalizes “us[ing] . . . any minor to engage in
. . . sexually explicit conduct.” 18 U.S.C. § 2251(a) (2018).
That court recognized that “a perpetrator can ‘use’ a minor to

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Chief Judge OHLSON, concurring in the judgment

engage in sexually explicit conduct without the minor’s con-
scious or active participation.” Finley, 726 F.3d at 495. The
court therefore believed that “[i]t would be absurd to suppose
that Congress intended the statute to protect children ac-
tively involved in sexually explicit conduct, but not protect
children who are passively involved in sexually explicit con-
duct while sleeping, when they are considerably more vulner-
able.” Id. Similarly, in United States v. O’Neal, the United
States Court of Appeals for the Sixth Circuit stated: “Even if
the minor is unaware of the masturbation (perhaps because
the child is asleep), such conduct creates serious risks anyway
because the child could wake up or find out about it after the
fact.” 835 F. App’x 70, 72 (6th Cir. 2020).
Finally, interpreting the word “presence” to have its ordi-
nary meaning for purposes of Article 120b(h)(5)(D), UCMJ,
would not present a particular danger of prosecutorial over-
reach. Conduct is “indecent” for purposes of this article only
when it “amounts to a form of immorality relating to sexual
impurity which is grossly vulgar, obscene, and repugnant to
common propriety.” Article 120b(h)(5)(D), UCMJ; see also
United States v. Rollins, 61 M.J. 338, 344 (C.A.A.F. 2005)
(“The determination of whether an act is indecent requires
examination of all the circumstances . . . .”).
For all these reasons, it is clear to me that Congress did
not intend the meaning of the phrase “in the presence of” in
Article 120b(h)(5)(D) to include any element of “awareness.”
For purposes of this article, the phrase simply means that one
person is in the immediate vicinity of another person. Because
“the language at issue has a plain and unambiguous
meaning” and “the statutory scheme is coherent and
consistent,” our role of judicial interpretation is at an end.
Robinson, 519 U.S. at 340 (internal quotation marks omitted)
(citation omitted).
III. Conclusion
The military judge adequately and accurately summa-
rized the law when he instructed the members to apply the
common definitions of the statute’s words and phrases—to in-
clude “in the presence of”—and when he declined to provide a
mistake of fact instruction. Because the military judge did not

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Chief Judge OHLSON, concurring in the judgment

err, we do not need to address the third granted issue pertain-
ing to whether there was ineffective assistance by trial de-
fense counsel. In regard to the second granted issue, as I
noted at the outset, I agree with Judge Sparks that there was
no waiver here.8
Accordingly, as to Issue I, I would hold that the phrase “in
the presence of” does not require that the child be aware of
the lewd act, only that the accused be aware of the child’s
presence. Additionally, I would answer Issue II in the nega-
tive, and hold that Issue III is moot.

8 Appellant expressly argued at trial that his actions did not
amount to a crime. In closing, Appellant’s counsel argued to the
members that “[m]asturbating in a room where you think every-
body is asleep and no one is watching you and no one is aware,
doesn’t meet the elements of what they’re saying. That is not a
crime.” (Emphasis added.) Appellant renewed this argument before
the lower court. Schmidt, 80 M.J. at 595 (“Appellant asserts the
evidence is insufficient as to the first element[:] that he committed
a lewd act upon Jared by masturbating, intentionally done in the
presence of Jared.”). Appellant now argues this point before this
Court, asking us to consider: “Whether the phrase ‘in the presence
of’ used to define the term ‘lewd act’ in Article 120b(h)(5)(d) requires
the child to be aware of the lewd act or merely that the accused be
aware of the child’s presence.” United States v. Schmidt, 81 M.J.
240 (C.A.A.F. 2021) (order granting review). Therefore, regardless
of whether Appellant acquiesced to the military judge’s instruction,
I do not believe he has waived or forfeited his core argument that
“presence” connotes “awareness” for purposes of Article
120b(h)(5)(D).

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Judge MAGGS, with whom Judge HARDY joins,
concurring in the judgment.
A general court-martial found Appellant guilty of one
specification of sexual abuse of a child in violation of Article
120b(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b(c). The specification alleged, in relevant part, that
Appellant had committed a “lewd act” upon a child “by
engaging in indecent conduct, to wit: masturbating,
intentionally done in the presence of” that child. (Emphasis
added.) Appellant contends before this Court that the
military judge incorrectly instructed the members about this
specification and that his civilian defense counsel was
ineffective for failing to object.
We have granted review of three assigned issues:
I. Whether the phrase “in the presence of” used to
define the term “lewd act” in Article 120b(h)(5)(D)
requires the child to be aware of the lewd act or
merely that the accused be aware of the child’s
presence.
II. Whether Appellant affirmatively waived any
objection to the military judge’s instructions and the
failure to instruct on the affirmative defense of
mistake of fact.
III. Whether, having assumed deficient performance
by counsel, the lower court erred in finding no
prejudice.
United States v. Schmidt, 81 M.J. 240 (C.A.A.F. 2021) (order
granting review).
My views on the first two of these assigned issues differ
from those expressed by the authors of the other opinions in
this case. Unlike Judge Sparks and Chief Judge Ohlson, I
answer Assigned Issue II in the affirmative, concluding that
Appellant waived any objection to the military judge’s
instructions. Because I find waiver, I do not answer Assigned
Issue I. But in accordance with the other Judges, I answer
Assigned Issue III in the negative. I therefore concur in the
judgment of the Court and would affirm the judgment of the
United States Navy-Marine Corps Court of Criminal Appeals
(NMCCA), which affirmed the findings and sentence in this
case. United States v. Schmidt, 80 M.J. 586, 603–04 (N-M. Ct.
Crim. App. 2020).
 United States v. Schmidt, No. 21-0004/MC
Judge MAGGS, concurring in the judgment

I. Waiver
Under Article 120b(c), UCMJ, an accused may commit the
offense of sexual abuse of a child by performing “a lewd act
upon a child.” (Emphasis added.) As defined in Article
120b(h)(5)(D), UCMJ, the term “lewd act” means:
any indecent conduct, intentionally done with or in
the presence of a child . . . that amounts to a 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.
(Emphasis added.) Although this definition requires the
Government to prove that the accused committed indecent
conduct “in the presence of” a child, the UCMJ provides no
definition of “in the presence of.” Appellant contends that the
phrase “in the presence of” implicitly requires the
Government to prove that the child was aware that Appellant
was masturbating and that the military judge erred by not so
instructing the members. The Government responds, in part,
by arguing that Appellant waived any objection to the
findings instructions.
To support its waiver argument, the Government argues
that this case is indistinguishable from United States v.
Davis, 79 M.J. 329 (C.A.A.F. 2020). In Davis, the appellant
was charged with violating Article 120c(a)(2), UCMJ, 10
U.S.C. § 920c(a)(2) (2012). Davis, 79 M.J. at 330. This article
makes it an offense to record “knowingly . . . the private area
of another person, without that other person’s consent and
under circumstances in which that other person has a
reasonable expectation of privacy.” Article 120c(a)(2), UCMJ.
At trial, the military judge presented proposed findings
instructions to counsel before giving the instructions to the
members. Davis, 79 M.J. at 331. The military judge twice
asked whether counsel desired any changes. Id. Trial defense
counsel responded by saying “ ‘No changes, sir’ ” and “ ‘No,
Your Honor.’ ” Id.
On appeal, the appellant in Davis argued Article
120c(a)(2), UCMJ, requires the prosecution to prove beyond a
reasonable doubt that he subjectively knew the alleged victim
was not consenting and that the military judge had erred by
not so instructing the panel. Davis, 79 M.J. at 331. This Court

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Judge MAGGS, concurring in the judgment

did not decide the merits of the appellant’s argument because
it concluded that the appellant had waived the issue. Id. at
332–33. The Court ruled: “By ‘expressly and unequivocally
acquiescing’ to the military judge’s instructions, Appellant
waived all objections to the instructions, including in regards
to the elements of the offense.” Id. at 332 (quoting United
States v. Smith, 2 C.M.A. 440, 442, 9 C.M.R. 70, 72 (1953)).
In the present case, Appellant was charged with sexual
abuse of a child in violation of Article 120b(c), UCMJ. As in
Davis, the military judge presented proposed findings
instructions to counsel before reading the instructions to the
members. The military judge asked counsel whether they had
any objections to the proposed findings instructions. Civilian
defense counsel responded, “No, sir.” The military judge also
asked counsel whether they wished to request additional
instructions. Civilian defense counsel responded, “No, Your
Honor.” The military judge then gave the findings
instructions to the members. During deliberations, the
members asked the military judge to define the words “upon”
and “in the presence of.” The military judge proposed to
counsel that he would reread the definition of “lewd act” and
instruct the members to apply their commonsense
understanding of the words. The military judge then asked
counsel if they had any objections. Civilian defense counsel
said: “I do not, sir.” On appeal, however, Appellant now
contends that the military judge should have instructed the
members that the term “in the presence of” required the
Government to prove that the child was aware of the fact that
Appellant was masturbating.
As these descriptions show, the present case is
indistinguishable from Davis. In both cases, when provided
the opportunity to object to proposed findings instructions
and to suggest additional instructions, defense counsel
expressly told the military judge that the defense had no
objection and the defense did not request additional
instructions. On appeal, both appellants then faulted the
military judge for not defining an element of an offense in a
particular way. Because the Court found waiver in Davis, I
would reach the same conclusion in this case. “By ‘expressly
and unequivocally acquiescing’ to the military judge’s
instructions, Appellant waived all objections to the

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Judge MAGGS, concurring in the judgment

instructions, including in regards to the elements of the
offense.” Davis, 79 M.J. at 332 (quoting Smith, 2 C.M.A. at
442, 9 C.M.R. at 72).
Two counterarguments to this conclusion deserve
attention. The first is that this Court in Davis incorrectly
construed the trial defense counsel’s statement of “no
objection” as a waiver rather than a forfeiture and that the
Court should not repeat the error in this case. Appellant
contends: “In this context, ‘no objection’ means a failure to
object, because an attorney cannot stand mute when called
upon to answer the military judge’s question.” So construed,
Appellant contends, a mere failure to object would only be a
forfeiture, which would allow for plain error review.
I disagree for three reasons. First, as the Court explained
in Davis, “Appellant did not just fail to object and thereby
merely forfeited his claim. He affirmatively declined to object
to the military judge’s instructions and offered no additional
instructions.” Davis, 79 M.J. at 332. In contrast, if the
military judge had not asked whether counsel wanted
additional instructions, and counsel simply had remained
silent, then that would have been a forfeiture. See, e.g.,
United States v. Easterly, 79 M.J. 325, 327 (C.A.A.F. 2020)
(construing defense counsel’s failure to ask for a sentencing
instruction on the impact of a punitive discharge as a
forfeiture rather than a waiver where “[n]either party
requested an instruction” and the “military judge did not ask
the parties if they wanted such an instruction”).
Second, although Appellant is correct in asserting that
trial defense counsel generally cannot “stand mute” when a
military judge asks a question, nothing in the Rules for
Courts-Martial (R.C.M.) prevents the military judge from
requiring the parties to take a position on a legal issue arising
in the court-martial. On the contrary, the R.C.M. contemplate
that the military judge will require answers from counsel. For
example, R.C.M. 920(f) provides: “The military judge may
require the party objecting [to instructions] to specify of what
respect the instructions given were improper.”
Third, allowing trial defense counsel to tell the military
judge one thing (i.e., “I have no objection to the instructions”)
and then allowing appellate defense counsel to assert

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Judge MAGGS, concurring in the judgment

something else on appeal (i.e., “the instructions were
incorrect”) would go against the general prohibition against
taking inconsistent litigation positions. See 18B Charles Alan
Wright et al., Federal Practice and Procedure § 4477 (2d ed.
1992 & Supp. 2021) (“Absent any good explanation, a party
should not be allowed to gain an advantage by litigating on
one theory, and then seek an inconsistent advantage by
pursuing an incompatible theory.”). Here, Appellant has not
offered a convincing justification for allowing his inconsistent
positions.
The other counterargument is that Appellant could not
intentionally relinquish the right that he now claims—
namely, the right to have the members instructed that the
Government must prove that the child was aware of the lewd
act—because precedent has not yet established whether this
right exists. Although Appellant does not specifically make
this argument in his briefs, Judge Sparks explains and
accepts the argument. United States v. Schmidt, __ M.J. __–
__ (6)–(7) (C.A.A.F. 2022) (Sparks, J., opinion announcing the
judgment of the Court).
A lack of applicable precedent, however, does not negate
the waiver in this case because a similar lack of applicable
precedent did not negate the waiver in Davis. The issue in
Davis—namely, whether Article 120c(a)(2), UCMJ, requires
the prosecution to prove beyond a reasonable doubt that the
accused subjectively knew the alleged victim was not
consenting—was also unresolved at the time of the trial and
the appeal. Davis, 79 M.J. at 331. This Court, however, did
not see the lack of precedent as a ground for treating the
objection as a forfeiture subject to plain error review rather
than as a waiver. Instead, the Court specifically explained:
“We generally only review the matter for plain error when a
new rule of law exists, as ‘[a]n appellant gets the benefit of
changes to the law between the time of trial and the time of
his appeal.’ ” Id. at 332 (alteration in original) (quoting United
States v. Tovarchavez, 78 M.J. 458, 462 (C.A.A.F. 2019)). The
Court in Davis ruled that the appellant could not take
advantage of that principle because he “was tried after the
applicable precedents were decided.” Id. (footnote omitted).
The same analysis applies in this case. All the authorities
that Appellant cites in support of his argument predate his

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Judge MAGGS, concurring in the judgment

trial. Indeed, Appellant’s principal argument is that military
courts “historically” have defined the term “in the presence
of” to require a victim’s awareness. Appellant is thus not
asking for the benefit of a new rule announced during the
pendency of his appeal, and is therefore not entitled to plain
error review.
For these reasons, I would answer Assigned Issue II in the
affirmative, concluding that Appellant waived his argument
that victim awareness was required. Because of this waiver,
I express no opinion on the merits of Appellant’s argument
about the meaning of the phrase “in the presence of” in Article
120b(h)(5), UCMJ. See United States v. Campos, 67 M.J. 330,
332 (C.A.A.F. 2009) (“ ‘[W]e cannot review waived issues at
all because a valid waiver leaves no error for us to correct on
appeal.’ ” (quoting United States v. Pappas, 409 F.3d 828, 830
(7th Cir. 2005))). I therefore do not answer Assigned Issue I.
II. Ineffective Assistance of Counsel
Assigned Issue III raises the question whether civilian
defense counsel provided ineffective assistance in violation of
the Sixth Amendment. Under the familiar test in Strickland
v. Washington, 466 U.S. 668 (1984), to prevail on an
ineffective assistance of counsel claim, an appellant must
prove both that trial defense counsel’s performance was
deficient and that the deficiency caused prejudice. United
States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016) (citing
Strickland, 466 U.S. at 698). Our role in reviewing such a
claim is constrained. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Strickland, 466 U.S.
at 689. We “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id.
In this case, the NMCCA held that even assuming that
counsel’s performance was deficient, Appellant could not
establish prejudice. Schmidt, 80 M.J. at 603–04. I agree with
the NMCCA’s analysis and conclusion. I therefore would
answer Assigned Issue III in the negative.
I would add only that it is by no means certain that
civilian defense counsel’s performance was deficient. The text
of Article 120b(h)(5)(D), UCMJ, does not clearly require such
awareness. To be sure, in some cases, when one person does

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Judge MAGGS, concurring in the judgment

something “in the presence of” another person, the latter
person is aware of the former person’s action. See, e.g., United
States v. Miller, 67 M.J. 87, 90 (C.A.A.F. 2008) (defining
“presence” as “close physical proximity coupled with
awareness” (internal quotation marks omitted) (quoting
Black’s Law Dictionary 1221 (8th ed. 2004))). But this is not
always so. For example, Article 99, UCMJ, provides that
“[a]ny member of the armed forces who before or in the
presence of the enemy” does certain improper acts commits the
offense of misbehavior before the enemy. 10 U.S.C. § 899(1)–
(9). These improper acts include running away, casting away
arms or ammunition, quitting a place of duty to plunder or
pillage, and so forth. Id. In cases charging the accused with
violating Article 99, UCMJ, this Court has not required the
government to prove that the enemy was aware that the
accused committed these acts. See, e.g., United States v.
Sperland, 1 C.MA. 661, 663, 5 C.M.R. 89, 91 (1952)
(construing “in the presence of the enemy” to mean
“situated . . . within effective range of the enemy weapons”).
Because no court had held that Article 120b(h)(5)(D), UCMJ,
requires victim awareness at the time of Appellant’s court-
martial—a question that remains unresolved today—there is
a very substantial argument that counsel was not deficient
for failing to raise the issue.
III. Conclusion
For these reasons, I concur in the judgment to affirm the
NMCCA.

7