(dissenting):
Appellant, a noncommissioned officer (NCO), told Private First Class (PFC) R, who was on her first assignment, “I really wanted to take both of you, like, on a long weekend. Both of you [referring to PFC R and Private (PVT) M] would kill me.”
One must consider this statement in context. Appellant was not referring to a computer training course or a visit to a restaurant. He was expressing his desire to have sexual intercourse with both women. Even if one does not believe this statement was meant to suggest a ménage a trois, it was, at a minimum, conduct prejudicial to good order and discipline under Article 134, Uniform Code of Military Justice, 10 USC § 934, and this Court should affirm appellant’s conviction as a closely-related offense. United States v. Brown, 45 MJ 389 (1996) (four judges affirmed appellant’s conviction under Article 134 and agreed that appellant’s conduct was prejudicial to good order and discipline, although only two judges agreed appellant engaged in union activity); United States v. Epps, 25 MJ 319 (CMA 1987).
Appellant was using “first termers,” soldiers on their first assignment after boot camp, and fellow employees at the Pizza Hut as his own private harem. Appellant was charged with 14 specifications involving sexual activities with 7 different women. Twelve of the specifications involved “first termers.”
The evidence relating to appellant’s activities with these women is relevant to the specification at issue. As this Court and the Supreme Court have indicated, surrounding circumstances should be considered when determining the connotation of language. Cf. Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); United States v. Cuellar, 27 MJ 50 (CMA 1988).
The surrounding circumstances here reveal that appellant’s victims were targets of opportunity, his co-workers. He systematically took advantage of their inexperience and lower rank.
PVT H, an 18-year-old supply clerk, testified that appellant called her and asked her for paper, highlighters, and paper clips. He then appeared at the supply office where she worked. As they went to check on the supplies, appellant picked her up, pinned her against a bookcase, and forcibly kissed her. PVT H had never met appellant before this incident.
Appellant was PFC W’s first supervisor at her first duty station. She testified that they were in the office working when she turned around and saw appellant with his pants open, flashing his penis.
One must also consider appellant’s actions toward 16-year-old Miss G. Miss G testified that, against her wishes, appellant lifted her over his shoulder and then patted her on the buttocks. Further, in front of Sergeant G and Staff Sergeant K, appellant made sexual motions, opened up his pants, and grabbed his crotch while saying, “It’s not underwear that matters; it is this that counts.”
Appellant mistreated PFC R, the victim of the specification in issue, over a long period of time. When she first met appellant, she admitted that she kissed him a couple of times. However, when she found out he was married, she ended the relationship. Appellant was apparently not pleased with her decision. He called her at work and at home repeatedly, showed up at her office, exposed himself to her, and engaged in inappropriate language and other inappropriate conduct. For example, appellant pointed at PFC R’s vaginal area and said, “I want that. I want that.” He touched her buttocks. He kissed her. He fondled her vaginal area. And then, appellant told PFC R that he wanted to take a trip with her and PVT M, and that the two of them “would kill” him.
*425When this language is considered in context, along with appellant’s other statements and conduct, there is no innocent connotation that may be drawn from it.
Paragraph 89(b), Manual for Courts-Martial, United States (1995 ed.), sets forth the following elements for the indecent-language offense:
(1) That the accused orally or in writing communicated to another person certain language;
(2) That such language was indecent; and
(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
In this case, we are only concerned with the second element of the offense: whether appellant’s communicated language was indecent.
The Explanation section defines 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.” Para. 89(c), Part IV.
The standard for determining the legal sufficiency of evidence supporting findings of guilty at courts-martial is well established. Judge Cox, writing in United States v. Harper, 22 MJ 157, 161 (CMA 1986), stated, “[I]n this context, sufficient evidence generally means some legal and competent evidence from which a court-martial may find or infer beyond a reasonable doubt those facts required by law for conviction.”
United States v. Pritchett, 31 MJ 213, 216 (CMA 1990) (footnote omitted). The test for legal sufficiency of the evidence “is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Turner, 25 MJ 324 (CMA 1987).
I agree with the Court of Criminal Appeals that appellant “engaged in systematic sexual harassment of female soldiers subordinate in rank to him [including PFC R] by making sexual comments to them and by fondling them.” Unpub. op. at 2. Considering the totality of the circumstances and viewing the evidence in the light most favorable to the Government, I believe the evidence supports the members’ finding that appellant’s language was indecent.
In the alternative, this Court should affirm appellant’s conviction of an Article 134 offense because appellant’s conduct was prejudicial to good order and discipline. Appellant was a married NCO who made an extremely inappropriate sexual remark to a subordinate. This is not acceptable workplace behavior, either in the military or in a civilian setting. Thus, appellant’s actions were to the prejudice of good order and discipline.