United States v. Baker

IN THE CASE OF

UNITED STATES, Appellee

v.

Bobby D. BAKER II, Airman Basic
U.S. Air Force, Appellant

No. 01-0064

Crim. App. No. 34069

United States Court of Appeals for the Armed Forces

Argued May 1, 2002

Decided September 30, 2002

SULLIVAN, S.J., delivered the opinion of the Court, in which
GIERKE and EFFRON, JJ. joined. CRAWFORD, C.J. and BAKER, J.,
each filed a dissenting opinion.

Counsel

For Appellant: Captain Patrick J. Dolan (argued); Lieutenant Colonel Beverly
B. Knott, Lieutenant Colonel Timothy W. Murphy (on brief); Colonel James
R. Wise.

For Appellee: Linette I. Romer (argued); Colonel Anthony P. Datillo, Major
Lance B. Sigmon (on brief).

Military Judge: Mary M. Boone

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Baker, No. 01-0064/AF

SULLIVAN, Senior Judge, delivered the opinion of the Court.

Bobby Baker II, an Airman Basic (E-1) in the United States

Air Force, was tried by a general court-martial composed of

officer and enlisted members in January 2000, at the Royal Air

Force Base (RAF), Mildenhall, United Kingdom. After entering

mixed pleas and a trial on the merits, he was found guilty of

two specifications of failing to obey the order of a superior

officer, larceny from the base exchange, sodomy, and committing

indecent acts with a female under the age of 16, in violation of

Articles 92, 121, 125, and 134, Uniform Code of Military Justice

(UCMJ), 10 USC §§ 892, 921, 925 and 934. The members sentenced

appellant to a bad-conduct discharge, confinement for 105 days,

and forfeiture of all pay and allowances. On April 19, 2000,

the convening authority approved the sentence and, on August 28,

2000, the Air Force Court of Criminal Appeals summarily affirmed

the findings of guilty and sentence in an unpublished opinion.

We initially granted appellant's petition for review to

determine whether the evidence was legally sufficient to sustain

one of the findings of guilty (i.e., committing indecent acts

with a female under the age of 16). After hearing argument on

this issue, this Court specified and heard additional oral

argument on the following issue:

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United States v. Baker, No. 01-0064/AF

WHETHER PLAIN ERROR OCCURRED WHERE THE
MILITARY JUDGE FAILED TO GIVE TAILORED
INSTRUCTIONS TO THE MEMBERS ON HOW TO
DETERMINE CONDUCT WAS INDECENT WHEN
REQUESTED BY THOSE MEMBERS.

We now hold that the military judge committed plain error

when she failed to provide adequately tailored instructions on

the issue of indecency after a court-martial member asked for

such instructions. Accordingly, we set aside appellant’s

conviction for committing indecent acts with a female under the

age of 16. See United States v. Strode, 43 MJ 29 (1995); and

Pierson v. State, 956 P.2d 1119 (Wyo. 1998); see generally

United States v. Eckoff, 27 MJ 142, 145 (1988).

Specifically, in a session pursuant to Article 39(a), UCMJ,

10 USC § 839(a), and after deliberations began, a member asked a

specific question about indecent acts: “. . . Should we or

should we not consider ‘. . . [appellant’s] age, education,

experience, prior contact with . . .’ or proximity of age to 17

years 364 days when determining whether the acts with [KAS] were

indecent per requirement (3)- ‘that the acts of [appellant] were

indecent.” The judge answered this question with the general

instruction that “when you’re dealing with the other offense

[the indecent acts charge at issue], we don’t specifically talk

about that. But my instruction to you is [that] you should

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United States v. Baker, No. 01-0064/AF

consider all the evidence you have, and you’ve heard on the

issue of what’s indecent.” (R. 482-83)

In our view, this general instruction was clearly

inadequate guidance for the members to decide the issue of the

indecency of appellant’s conduct. See Strode, supra, and

Pierson, supra.

FACTS

Evidence in the record shows that Bobby Baker was born in

the United Kingdom in January 1981. An American citizen, he

enlisted in the Air Force in December 1998. After recruit

training and service schools, he arrived at RAF Mildenhall,

United Kingdom, and was assigned duties in Military Personnel

Flight (MPF) in April 1999. (R. 343) He became friendly with a

number of the younger dependents on the base. Among those

dependents was “KAS,” a 15-year-old girl who worked as a summer

hire in MPF. (R. 248-249)

Appellant, then 18 years old, and KAS, began dating during

the summer of 1999. (R. 249, 252) Appellant was aware that

she was only 15 years old because her brother so informed him.

(R. 264-265). The relationship between them quickly became

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physical (R. 250). KAS testified that while they were dating,

appellant touched her breasts and kissed them. (R. 250-251) He

also gave her hickies on her stomach, upper chest, and back.

(R. 250)

There was no evidence that any activity, beyond mere

hugging and kissing, took place in public. Furthermore, KAS

testified that appellant did not force this activity upon her,

and that she did not find the activity offensive because it

comported with her ideas of normal activities within a

boyfriend/girlfriend dating relationship. (R. 254, 256)

During his argument on findings, the assistant trial

counsel made several references to the difference between

appellant’s and KAS’ age. For instance, in his closing argument

on findings, the assistant trial counsel made the following

assertion:

Now the final element is with [KAS]. Now,
there are a lot of definitions here, but a lot
of them are the same as one of the previous
charges.1 However, one thing you have to
notice, is the definition of "a child." It's
someone under the age of 16. Now you heard
[KAS] testify that [appellant] kissed her
breasts. And a couple of times, when they were
dating, he touched her breasts with his hands.
Now, this involved him touching them under her
shirt and bra. Now, what does [appellant] say?
1
Appellant was also charged with committing an indecent assault on a second
female. He was found not guilty of this offense.

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United States v. Baker, No. 01-0064/AF

He says the same thing again. He says, "I did
put several hickies on [KAS's] upper chest, not
her breasts," -- again Agent Kieffer's addition
there -- "and I put them on her stomach and her
back." And you heard testimony that hickies
were all over her back. So he touched her
breasts and he kissed and sucked her skin with
his mouth.

Now, one potential warning here. These two
are, as the elements show, close in age. He was
18 and she was 15. Now, first of all, do you
see anything in the elements that would show
that it matters that these two are close in age?
No, because there isn't anything like that. All
the crime requires is that the recipient of the
indecent act be under the age of 16, and in this
case [KAS] was 15.

Now, when a person is under 16, it means that
they can't consent for themselves. So don't be
deceived by the fact that [KAS] let him do these
things in some kind of a boyfriend-girlfriend
relationship. Consent is not an element. It's
irrelevant. He groped her naked breasts with
his hands. He kissed her naked body. She's
under 16, that's indecent acts with a child, no
matter how you look at it. (R. 434-435)

Later, in rebuttal, the assistant trial counsel
contended:

Now, if you look at the elements and you see
[that] they're all clearly met. Now, how can
you say not groping someone's breasts under
their bra is an indecent act with the intent to
gratify his lust. That's laughable to think he
would do this and touch her breasts without
attempting to gratify his lust. And let's take
a look at this definition that [defense] counsel
harped on. "Indecent acts" signify [sic] that
form of immorality relating to sexual impurity
which is not only grossly vulgar, obscene, and
repugnant to common propriety - and here's the
rest of the definition - but tends to excite
lust and deprave morals with respect to sexual
relations. Can an-18 year old [sic] on a 15-

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United States v. Baker, No. 01-0064/AF

year old [sic] - that 15-year old is considered
a child. That 15-year old [sic] is an Air Force
dependent. It's obvious - an inference from the
facts, is that he did it to excite his lust and
that, no matter how you look at it, is indecent
acts with a child. You're obligated to follow
the law and the facts, as the judge has
instructed you, and that's what the facts show.
(R. 453-454).

Responding to this argument, the defense counsel urged the

members to consider the relative ages of appellant and KAS and

not find the sexual contact between them to be indecent per se.

(See R. 440, 441, 442)

In her instruction on this offense, the military judge

provided the members with the elements as set forth in the

Military Judges’ Benchbook. Dept. of the Army Pamphlet 27-9

(Sept. 30, 1996)(“Benchbook”). (R.421) She then defined

conduct prejudicial to good order and discipline and service

discrediting, also using the definitions from the Benchbook.

Finally, she defined indecency in the following language from

the Benchbook:

Indecent acts signify that form of immorality
relating to sexual impurity which is not only
grossly vulgar, obscene, and repugnant to common
propriety, but tends to excite lust and deprave
the morals with respect to sexual relations.
(R. 421)

See id. at 3-87-1d.

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United States v. Baker, No. 01-0064/AF

During their deliberations, a member sent the military

judge a question with regard to the definition of "indecent."

In particular, the member asked the following question with

regard to the specification alleging an indecent act with KAS:

For charge UCMJ 125 Specification 1 - In the
instructions, bottom of page 4 it says “You
should consider the accused's . . ..

However in Charge UCMJ 134 Specification 2 it never says
to (or not to!) consider “[appellant’s] age, education,
. . ." as in Charge 125, Specification 1. Should we or
should we not consider " . . . accused's age, education
experience, prior contact with . . . " or proximity of
age to 17 years 364 days when determining whether the
acts with [KAS] were indecent per requirement (3) -
"that the acts of [appellant] were indecent.["]

However, the military judge gave a rambling and confusing

view of the member’s question and then gave a one sentence

instruction:

The first [member question] has to do with the
UCMJ 125 -- that's the forcible sodomy. It ties
to that in terms of the question had to do with
the instruction on the bottom of page 4, which
basically reads: "You should also consider the
accused's age, education, experience, prior
contact with [CAB],2 the nature of any
conversations between [appellant] and [CAB],
along with the other evidence on this issue.”
Then the question goes on about in the Charge
under the UCMJ 134, Specification 2, which is
the indecent acts with a child, which has to do
with [KAS], whether you consider [appellant’s]
age education, experience, prior contact with
her, or proximity of age in determining whether
the acts were indecent, as required by the third
element [of the offense].

2
The alleged victim of the charged forcible sodomy offense.

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Specifically why we outline this on page 4 is,
that is specifically addressed and applies to
the issue of mistake of fact, that whether the
accused was mistakenly, honestly, and reasonable
-- his belief that there was consent to the
sodomy -- forcible sodomy. So we outline --
these are the circumstances you ought to
consider in weighing that -- the prior contact
and all those things.

Now when you're dealing with [indecent acts],
we don't specifically talk about that. But my
instruction to you is you should consider all
the evidence you have, and you've heard on the
issue of what's indecent.

(R. 482-483)

The members then departed once more to deliberate. Less

than 30 minutes later they returned a guilty finding to, inter

alia, committing indecent acts on KAS, a female under the age of

16.

The Adequacy of the Judge’s Instruction

Our concern in this case is whether the military judge

appropriately instructed the members of appellant’s court-

martial on the charge of indecent acts with a person under the

age of 16. See Article 51(c), UCMJ, 10 USC § 851(c) and R.C.M.

920(a), Manual for Courts-Martial, United States (2000 ed.).3

Appropriate instructions means those instructions necessary for

3
All Manual provisions cited are identical to those in effect at the time of
appellant’s court-martial.

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the members to arrive at an intelligent decision concerning

appellant’s guilt. See United States v. McGee, 1 MJ 193, 194

(CMA 1975); United States v. Gaiter, 1 MJ 54, 56 (CMA 1975);

United States v. Graves, 1 MJ 50, 53 (CMA 1975). An intelligent

or rational decision on a person’s guilt requires consideration

of the elements of a charged offense, the evidence pertaining to

those elements, and applicable principles of law necessary to

decide the case. See United States v. Smith, 50 MJ 451, 455

(1999); United States v. Rowe, 11 MJ 11, 14 (CMA 1981). In the

military justice system, it is the military judge who is

required to tailor the instructions to the particular facts and

issues in a case. See United States v. Jackson, 6 MJ 261, 263

n.5 (CMA 1979); United States v. Groce, 3 MJ 369, 370-71 (CMA

1977).

In this light, we initially note that indecent acts with a

person under the age of 16 is not specifically proscribed as one

of the enumerated offenses in Articles 77 through 133, UCMJ, 10

USC §§ 877-993. The Code expressly prohibits sexual intercourse

between a military person and a person under the age of 16. See

Article 120(b), UCMJ, 10 USC § 920(b). Consent is not an

element of this offense, and only the act of intercourse need be

proven in addition to the age of the victim and her marital

status. See para. 45b(2), Part IV, Manual, supra. The Uniform

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Code also prohibits sodomy regardless of the age and marital

status of the participants. Article 125, UCMJ, 10 USC § 925.

Again, consent is not an element of the offense, although the

President has made it a sentence enhancement factor. See para.

51e, Part IV, Manual, supra. Otherwise, the Uniform Code of

Military Justice does not expressly address sexual activity

between a service person and a person under 16 years old.

Military law, however, has recognized that the offense of

“indecent acts or liberties with a child” may be prosecuted at

court-martial as a service discredit, or disorder, under Article

134, UCMJ, 10 USC § 934. See para. 87, Part IV, Manual, supra.

This Court long ago in United States v. Brown, 3 USCMA 454, 13

CMR 10 (1953) recognized this offense as being modeled on

District of Columbia Code Ann. 22 § 3501 (1948).4 We said:

The evident 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, and if the
many variations in which it is possible to
take indecent liberties with a child are
restricted to those founded on an assault or
battery, then many debasing acts which are
detrimental to the morals of a minor are not
proscribed.

....

4
To understand the evolution of D.C. Code Ann. 22 §3501 (1948), see In Re
E.F., 740 A.2d 547, 550 (D.C. 1999) and Allison v. United States, 409 F.2d
445, 451 (D.C. Cir. 1969).

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United States v. Baker, No. 01-0064/AF

The necessity for the law was to throw a
cloak of protection around minors and to
discourage sexual deviates from performing
with, or before them. Assuredly, our
interpretation is not inconsistent with that
need. The remedy for the evil, if any, is
to provide substantial punishment for those
who perform indecent and immoral acts which
cause shame, embarrassment, and humiliation
to children, or lead them further down the
road to delinquency.

Brown, 3 USCMA at 457, 461, 13 CMR at 13, 17. Cf. United States

v. Knowles, 15 USCMA 404, 405, 35 CMR 376, 377 (1965) (holding

military offense of indecent acts with a child must be done in

presence of victim).

Paragraph 87b(1), Part IV, Manual, supra, delineates the

elements of this offense with respect to physical contact

between a service person and a person under 16 years old. These

elements are

b. Elements.
(1) Physical contact.
(a) That the accused committed a
cetain act upon or with the body
of a certain person;
(b) That the person was under 16 years
of age and not the spouse of the
accused;
(c) That the act of the accused was
indecent;
(d) That the accused committed the act
with intent to arouse, appeal to,
or gratify the lust, passions, or
sexual desires of the accused, the
victim, or both; and

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United States v. Baker, No. 01-0064/AF

(e) 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.

Id. (emphasis added).

The President has further explained that “[l]ack of consent by

the child to the act or conduct is not essential to this

offense; consent is not a defense.” Paragraph 87c(1), Part IV,

Manual, supra.

The specified issue in this case asks whether the military

judge plainly erred by failing to give tailored instructions to

the members regarding how to determine whether appellant’s

conduct was indecent for purposes of the charged offense. We

note in this case that, before the members started deliberating,

the military judge gave the standard Benchbook instruction on

the elements of the offense of indecent acts with a child.

Benchbook, supra at 3-87-2. (R.420) Moreover, at this time,

she also gave the standard Benchbook instruction on the meaning

of indecency for the purposes of this offense. However, after a

member had requested particular instructions on the impact of

age and related matters on the issue of indecency, she merely

stated “you should consider all the evidence you have, and

you’ve heard on the issue of what’s indecent.” (R.482-483) As

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United States v. Baker, No. 01-0064/AF

noted below, this instruction was clearly insufficient to permit

the members to intelligently decide this unusual case. Cf.

United States v. Tindoll, 16 USCMA 194, 195-96, 36 CMR 350, 351-

52 (1966)(holding indecency instructions sufficient to determine

indecent acts with a child). This is especially true in light

of this Court’s recent case law addressing the impact of age on

the charged crime of indecent acts with a child. See Strode,

supra.

The evidence in the record of trial, coupled with the

assistant trial counsel’s arguments, raised several critical

questions of law concerning appellant’s guilt of the military

offense of indecent acts with a child. First, must his sexual

conduct with KAS be considered per se indecent because she was a

person under the age of 16? Second, must his sexual conduct

with KAS be considered per se indecent because she purportedly

had not reached the legal age of consent for such conduct?

Third, assuming appellant’s sexual conduct with 15 year old KAS

was not per se indecent on either of the above grounds, can

evidence of factual consent on the part of the KAS be considered

in determining the indecency of appellant’s conduct?

This Court has never held that all sexual conduct between a

service person and a person under the age of 16 is per se

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United States v. Baker, No. 01-0064/AF

indecent and therefore a crime.5 Federal civilian criminal law

does not prohibit all sexual acts with a person under the age of

16. See 18 USC §§ 2241-2248 (2002). Moreover, in Strode, 43 MJ

at 32-33, this Court held that a 22-year-old airman’s guilty

plea to indecent acts with a 13-year-old girl was improvident

because he asserted that he thought she was at least 16 years

old. Id. In so holding, this Court observed that “age is

relevant to prove the elements that the act was indecent and

service-discrediting.” Id. at 32. However, this Court made it

clear that there is no per se rule. This Court held, “there is

no magic line of demarcation between decent acts and indecent

acts based precisely on the age of the sex partner.” Id. Here,

assistant trial counsel suggested to the members a per se rule

contrary to the Strode case, and the military judge failed to

expressly repudiate it. Cf. United States v. Vasquez, 48 MJ

426, 430 (1998).

This Court also has never held that all sexual conduct

between a service person and a person under the age of 16 is

indecent because the alleged victim is legally incapable of

consenting to sexual acts. See also 18 USC §§ 2242 (2002); cf.

Article 120(b), UCMJ. The law of consent varies depending on

5
We have held that the solicitation of illicit sexual activity between a
stepfather and his 15 year old stepdaughter was indecent language. See
United States v. French, 31 MJ 57, 60 (CMA 1990).

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United States v. Baker, No. 01-0064/AF

the nature of the sexual act and the jurisdiction in which it

was committed. See generally Richard A. Posner and Katharine B.

Silbaugh, A Guide to American Sex Laws 44-64 (1996). Moreover,

the consensual sexual acts alleged in this case (touching the

breasts and kissing the body of KAS), would not be criminal

under federal civilian law because the alleged victim was over

the age of 12 and was less than four years younger than

appellant. See 18 USC §§ 2244, 2243(a), 2246(3)(2002). See

generally United States v. Pullen 41 MJ 886, 888 (A.F. Ct. Crim.

App. 1995). Again, we note that in appellant’s case, the

military judge did not correct either the assistant trial

counsel’s misstatement of the law of consent which was

unsupported by any evidence in the record. See Vasquez, supra.

Finally, this Court has never held that the factual consent

of the alleged victim was irrelevant to determining whether a

service person is guilty of indecent acts with a child. No

legal support whatsoever was provided by assistant trial counsel

for such a broad assertion. On appeal, government appellate

counsel summarily relies on paragraph 87(c), Part IV, Manual,

supra, for this principle of law. However, this Manual

provision states only that the Government is not required to

prove the lack of consent of the child to secure a conviction of

this offense and the defense cannot rely on the consent of the

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United States v. Baker, No. 01-0064/AF

alleged victim as a defense. It is silent as to whether the

factual consent of the victim may be considered on the issue of

indecency. Our case law, however, unequivocally holds that all

the facts and circumstances of a case including the alleged

victim’s consent, must be considered on the indecency question.

See Strode, supra; see also United States v. Graham, 56 MJ 266,

267 (2002)(delineating certain circumstances including the

alleged victim’s consent as showing that sexual conduct with

person under the age of 16 might not be indecent). In addition,

persuasive state court authority holds that factual consent is

relevant to the issue of indecency. See Pierson, 956 P.2d at

1125-26.

In sum, the military judge in this case should have fully

instructed the members in accordance with Strode, supra. First,

she should have corrected the assistant trial counsel’s

misstatement of the law, and clearly instructed them that the

charged sexual acts could not be found indecent solely on the

basis that the alleged victim was under the age of 16. Second,

she should have directed the members to disregard the assistant

trial counsel’s unsupported statements on the law of consent.

Finally, the trial judge should have answered the member’s

question with a tailored instruction. She should have expressly

instructed the members that appellant’s youthful age, the

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United States v. Baker, No. 01-0064/AF

proximity in age between appellant and KAS, their prior

relationship, and the alleged victim’s factual consent were

circumstances that could be considered in deciding whether the

charged acts were indecent. Absent the specifics noted above,

the broad, unfocused, instruction to the members to consider

“all the evidence you have, and you’ve heard on the issue of

what’s indecent” simply did not comply with our case law. See

Strode, supra.

Furthermore, we are not convinced that the misstatements of

law by the assistant trial counsel were corrected by the

standard instructions given by the trial judge. See generally

Tindoll, supra. Standard instructions were approved in Tindoll,

but that was a case where the age of the service person, who was

found guilty of indecent acts with a child for kissing a female

under the age of 16, was not discussed. In addition, Tindoll,

relied heavily on United States v. Annal, 13 USCMA 427, 32 CMR

427 (1963), a case addressing indecent acts by a 34-year-old

officer. In any event, Tindoll did not hold that the standard

instructions were sufficient in a case where the Government

effectively asserted that the appellant’s conduct was indecent

as a matter of law.

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Finally, turning to the question of prejudice, we are

convinced that the military judge’s failure to completely

instruct the members materially prejudiced appellant. See

United States v. Eckoff, 27 MJ 142, 145 (CMA 1988). The

evidence in this case supporting the defense argument against

indecency was undisputed; all parties agreed that the alleged

acts of touching KAS’s breasts and kissing her naked back done

in private, were consensual in nature, and done in the context

of a boyfriend/girlfriend relationship between a 15-year-old

girl an 18-year-old boy. Second, the assistant trial counsel’s

repeated “no matter how you look at it” arguments, directly and

unfairly undermined appellant’s core defense that the

circumstances of his case did not make his acts indecent.

Third, the member’s question after the panel had departed for

deliberations clearly signaled some confusion within the panel

as to how precisely to decide the indecency question. Finally,

the military judge’s additional instruction failed to

particularly provide the members the tailored, definitive

guidance needed to decide this critical element of the charged

offense in this case. See Pierson, 956 P.2d at 1128.6

6
We do not hold that consensual petting between a service person of 18 years
and his girlfriend of 15 years is conduct outside the scope of the military
offense of indecent acts with a child. See People v. Plewka, 327 N.E.2d 457,
460-61 (Ill. App. Ct. 1975); cf. People v. Mullen, 399 N.E.2d 639, 646-47
(Ill. App. Ct. 1980); Matter of Pima County Juvenile Appeal No. 74802-2, 790
P.2d 723, 731-32 (Ariz. 1990); Sorenson v. State, 604 P.2d 1031, 1033-35
(Wyo. 1979). We hold only that, as a matter of military law, it is a

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The decision of the United States Air Force Court of

Criminal Appeals is reversed as to Specification 2 of Charge I

and the sentence. The findings of guilty to that charge and

specification and the sentence are set aside. In all other

respects the decision below is affirmed. The record of trial is

returned to the Judge Advocate General of the Air Force for

remand to the Court of Criminal Appeals, which may order a

rehearing or it may dismiss the affected specification and

reassess the sentence based on the remaining findings of guilty.

question for the members under proper instructions. See Pierson v. State,
956 P.2d 1119 (Wyo. 1998).

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CRAWFORD, Chief Judge (dissenting):

If there was error in this case, it was not plain error.

The test for plain error is set forth in United States v. Olano,

507 U.S. 725 (1993), as modified and clarified in Johnson v.

United States, 520 U.S. 461 (1997):

[B]efore an appellate court can correct an error
not raised at trial, there must be (1) error, (2)
that is plain, and (3) that affects substantial
rights. If all three conditions are met, an
appellate court may then exercise its discretion
to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity,
or public perception of judicial proceedings.

Johnson, 520 U.S. at 466-67 (internal quotations and citation

omitted). See United States v. Kho, 54 MJ 63, 65 (2000)

(Crawford, C.J., concurring in the result). Inextricably

intertwined with this four-prong test is the Supreme Court’s

admonition in United States v. Young, 470 U.S. 1, 16 (1985),

that “when addressing plain error, a reviewing court cannot

properly evaluate a case except by viewing such a claim against

the entire record."

“Error” is best defined as a “‘deviation from a legal rule

... unless the rule has been waived,’ and waiver is defined as

the ‘intentional relinquishment or abandonment of a known

right.’” United States v. Carter, 236 F.3d 777, 783 (6th Cir.

2001)(quoting Olano, 507 U.S. at 733; Johnson v. Zerbst, 304

U.S. 458, 464 (1938)).
United States v. Baker, No. 01-0064/AF

An error is “plain” when it is “obvious” or “clear under

current law.” Olano, 507 U.S. at 734. An error may be said to

be “plain” when the settled law of the Supreme Court or this

Court manifests that an error has taken place. See United

States v. Promise, 255 F.3d 150, 160 (4th Cir. 2001)(en banc).

“Put another way, an error is ‘plain’ if it is ‘so egregious and

obvious’ that a trial judge and prosecutor would be ‘derelict’

in permitting it in a trial held today.” United States v.

Thomas, 274 F.3d 655, 667 (2d Cir. 2001)(citing United States v.

Gore, 154 F.3d 34, 43 (2d Cir. 1998)). Although the error may

not have been “plain” at the time of the court-martial

proceeding, it is sufficient if the error becomes “plain” at the

time of appellate consideration. See Johnson, 520 U.S. at 468.

The third prong of the Olano test asks whether any obvious

error affected appellant’s substantial rights. An error that

affects substantial rights is one that is materially

prejudicial. See United States v. Chapa, 57 MJ 140 (2002); see

also Olano, 507 U.S. at 734; Promise, 255 F.3d at 160; United

States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998). In

short, a materially prejudicial error is one that affected the

outcome or judgment of the court-martial proceeding. See

Johnson, 520 U.S. at 467; United States v. Jackson, 236 F.3d 886

(7th Cir. 2001); United States v. Perez-Montanez, 202 F.3d 434,

442 (1st Cir. 2000). We test an error for material prejudice

2
United States v. Baker, No. 01-0064/AF

similar to the way we and other courts employ a harmless error

analysis: would a rational fact-finder have rendered a finding

of guilty absent the error? See United States v. Candelario,

240 F.3d 1300, 1307 (11th Cir. 2001). Appellant has the burden

of demonstrating that the first three prongs exist. See Kho,

supra; see also Perez-Montanez, 202 F.3d at 442.

When, and only when, appellant demonstrates that the first

three elements of the plain error analysis exist, an appellate

court has the discretion to remedy the plain error, “but only in

cases where the error ‘seriously affects the fairness, integrity

or public perception of judicial proceedings.’” United States

v. Castillo-Casiano, 198 F.3d 787, 790 (9th Cir. 1999)(quoting

Johnson, 520 U.S. at 469-70). A finding of plain error permits

reversal; “even the clearest of blunders never requires

reversal.” United States v. Patterson, 241 F.3d 912, 913 (7th

Cir. 2001); United States v. Cotton, 261 F.3d 397, 414 (4th Cir.

2001)(Wilkinson, C.J., concurring in part and dissenting in

part). In short, an appellate court does not notice or remedy

plain error unless and until that error results in a miscarriage

of justice that seriously affects the fairness, integrity, and

public perception of the proceedings. See United States v.

Rios-Quintero, 204 F.3d 214, 215 (5th Cir. 2000); see also

United States v. Johnson, 219 F.3d 349, 353 (4th Cir. 2000).

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United States v. Baker, No. 01-0064/AF

In weighing this fourth prong, we are required to look at

both the quality and quantity of evidence as well as to

determine whether appellant was “sandbagging” the Government by

forgoing a timely objection that, if unsuccessful, might result

in a different standard of review. “[T]he Supreme Court has

time and again emphasized that preventing sandbagging is

critically important in determining whether to notice plain

error.” Promise, 255 F.3d at 194 (citing Johnson, 520 U.S. at

466; United States v. Young, 470 U.S. 1, 15, 16 n.13 (1985);

United States v. Frady, 456 U.S. 152, 163 (1982); United States

v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-39 (1940))(Motz, J.,

concurring in part and dissenting in part and dissenting in the

judgment).

During the course of deliberations, the court members

returned to the courtroom with several questions. One of these

questions, comprised of two parts, related to an instruction

which the members had received concerning the charge and

specification alleging forcible sodomy with CB. Initially, the

military judge had instructed the members that if appellant had

an honest and mistaken belief that CB consented to the act of

sodomy, he was not guilty of forcible sodomy, provided

appellant’s belief was reasonable. In determining whether or

not appellant was reasonably mistaken about CB’s consent, the

military judge instructed: “You should also consider the

4
United States v. Baker, No. 01-0064/AF

accused’s age, education, experience, prior contact with [CB],

the nature of any conversations between the accused and [CB]

along with the other evidence on this issue.” This instruction

was not only given without objection,1 but also was proper in

light of the contest over whether or not CB consented to

appellant’s sexual conduct.

The second part of the members’ question was whether or not

the members, as fact-finders, were also to consider appellant’s

age, education, experience, and prior conduct with KAS (to

include the nature of any conversations between appellant and

KAS), along with the other evidence (e.g., the proximity of

their ages) in determining whether or not appellant’s conduct

with KAS was “indecent.”

After discussing a proposed answer with counsel in a

session pursuant to Article 39(a), Uniform Code of Military

Justice (UCMJ), 10 USC § 839(a), receiving no objection, and

reconvening the court with the members present, the military

judge responded to the members’ questions:

The first one has to do with UCMJ 125 --
that’s the forcible sodomy. It ties to that in
terms of the question had to do with the
instruction at the bottom of page 4, which
basically reads: “You should also consider the
accused’s age, education, experience, prior
contact with [CB], the nature of any conversation
between the accused and [CB], along with the other
1
See R.C.M. 920(f), Manual for Courts-Martial, United States (2000 ed.)
(failure of counsel to object to instructions constitutes waiver absent plain
error).

5
United States v. Baker, No. 01-0064/AF

evidence on this issue.” Then the question goes
on about in the Charge under the UCMJ 134,
Specification 2, which is the indecent acts with a
child, which has to do with [KAS], whether you
consider the accused’s age, education, experience,
prior contact with her, or proximity of age in
determining whether the acts were indecent, as
required by the third element.

Specifically why we outline this on page 4 [of
the written instructions furnished to the members] is,
that is specifically addressed and applies to the
issue of mistake of fact, that whether the accused was
mistakenly, honestly, and reasonable -- his belief was
that there was consent as to the sodomy -- forcible
sodomy. So we outline -- these are the circumstances
you ought to consider in weighing that -- the prior
contact and all those things.

Now, when you’re dealing with the other offense,
we don’t specifically talk about that. But my
instruction to you is you should consider all the
evidence you have, and you’ve heard on the issue of
what’s indecent.

And then I think that ties into the second
question, which is Appellate Exhibit XIII, which says:
“What definition, whether there is this gross vulgar,
obscene with respect to sexual relations, do we use?”
And it sort of lists some. Well, when you’re looking
at indecency, you should apply the larger Air Force
community. What does this Air Force community -- and
you reflect the Air Force community and so it’s your
analysis of what you, as a community and what the Air
Force community considers to be obscene, grossly
vulgar. So, that’s the standard you should apply.
Okay?

The military judge properly instructed that when

determining the indecency of a particular act, the members were

to apply it to the larger Air Force community standard. See

United States v. Hullett, 40 MJ 189, 191 (CMA 1994). She also

informed the members that when determining whether appellant’s

6
United States v. Baker, No. 01-0064/AF

conduct with KAS was “indecent,” they were to “consider all the

evidence you have.” Accordingly, the members, who are presumed

to follow the judge’s instructions, took into account

appellant’s age, his background, and his relationship with KAS

when determining whether or not the conduct was indecent.

If the military judge erred, she erred to the benefit of

appellant. In effect, the military judge told the members that

they were not only to apply the Manual for Courts-Martial

definition of indecent in the context of an Air Force worldwide

community, but that they also had to give appellant the benefit

of the honest and reasonable mistake of fact instruction (which

was not applicable to the offense of indecent acts). Not

surprisingly, defense counsel had no objection to the windfall.

Accordingly, if there was any error in the military judge’s

instruction, that error inured to appellant’s benefit. The

majority appears to implicitly agree with this assessment by now

“discovering” error in the assistant trial counsel’s closing

argument (given without objection) in order to bootstrap an

apparently result-oriented conclusion, while not straying too

far afield from the plain error issue specified and argued.

The standard of review for argument by counsel is whether

the argument, or statements contained therein, are erroneous,

and if so, whether they materially prejudice the substantial

rights of appellant. See Art. 59(a), UCMJ, 10 USC § 859(a);

7
United States v. Baker, No. 01-0064/AF

United States v. Baer, 53 MJ 235 (2000). Failure to make a

timely objection to matters contained in counsel’s argument

constitutes waiver in the absence of plain error. See United

States v. Ramos, 42 MJ 392, 397 (1995). There can be no plain

error arising from assistant trial counsel’s argument, if the

term “plain error” is properly defined. In this regard, the

sagacious words of Senior Judge Cox in Baer, supra at 238,

remain instructive:

However, as a threshold matter, the argument
by a trial counsel must be viewed within the
context of the entire court-martial. The focus
of our inquiry should not be on words in
isolation, but on the argument as “viewed in
context.” United States v. Young, 470 U.S. 1,
16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); see
also Dunlop v. United States, 165 U.S. 486, 498,
17 S.Ct. 375, 41 L.Ed. 799 (1897)(“If every
remark made by counsel outside of the testimony
were ground for a reversal, comparatively few
verdicts would stand, since in the ardor of
advocacy, and in the excitement of trial, even
the most experienced counsel are occasionally
carried away by this temptation.”). In this
regard, we agree with the Government’s position
that it is improper to “surgically carve” out a
portion of the argument with no regard to its
context. As Justice Frankfurter once commented,
“In reviewing criminal cases, it is particularly
important for appellate courts to re-live the
whole trial imaginatively and not to extract from
episodes in isolation abstract questions of
evidence and procedure. To turn a criminal
appeal into a quest for error no more promotes
the ends of justice than to acquiesce in low
standards of criminal prosecution.” Johnson v.
United States, 318 U.S. 189, 202, 63 S.Ct. 549,
87 L.Ed. 704 (1943)(Frankfurter, J., concurring).

8
United States v. Baker, No. 01-0064/AF

I also find that the evidence is legally sufficient to

support appellant’s conviction for indecent acts. Case law from

this Court is abundantly clear -- indecency (be it an act or

language) is case and fact specific. The majority agrees. ___

MJ at (14). “Under some circumstances a particular act may be

entirely innocent; under other conditions, the same act

constitutes a violation of the [UCMJ].” United States v.

Holland, 12 USCMA 444, 445, 31 CMR 30, 31 (1961). See United

States v. Sever, 39 MJ 1 (CMA 1994)(whether kissing a child

constitutes indecent assault depends upon surrounding

circumstances); United States v. Cottrill, 45 MJ 485

(1997)(penetrating three-and-a-half-year-old daughter’s vagina

while giving her a bath constituted an indecent act); United

States v. French, 31 MJ 57 (CMA 1990)(asking step-daughter under

the age of 16 for permission to climb into bed with her

communicated indecent language). It is the fact-finders who

heard the evidence and placed appellant’s actions with KAS in

context.

Furthermore, age of the “child” is important and certainly

element dispositive2 when judging the legal sufficiency of an

2
The elements for indecent acts with a child where physical contact is
involved are: (a) that the accused committed a certain act upon or with the
body of a certain person; (b) that the person was under 16 years of age and
not the spouse of the accused; (c) that the act of the accused was indecent;
(d) that the accused committed the act with intent to arouse, appeal to, or
gratify the lust, passions, or sexual desires of the accused, the victim, or
both; and (e) 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

9
United States v. Baker, No. 01-0064/AF

offense involving indecent acts with a child. See United States

v. Tindoll, 16 USCMA 194, 36 CMR 350 (1966); French, supra.

Potential maximum confinement increases with a conviction for

indecent acts when committed on a person under 16 years of age.

Accordingly, it is necessary to focus on the (1) character of

the conduct; (2) the age of the participants; and (3) the

surrounding circumstances. See United States v. Strode, 43 MJ

29 (1995); United States v. Stocks, 35 MJ 366 (CMA 1992).

The facts clearly show appellant, albeit young and

immature, got caught when three females with whom he was having

relations short of sexual intercourse reported his conduct to

proper authorities. Secondly, as Charge II and its

specifications reveal, appellant was ordered by a lieutenant

colonel on August 3, 1999, to have no contact with KAS, as well

as to stay out of the Bob Hope Community Center (where he met

high school girls). He disobeyed both orders. The evidence

shows that most of the intimate contact between KAS and

appellant took place in August. Consequently, we can infer that

when the indecent acts occurred, appellant had already been

ordered to stay away from KAS. Clearly, the fact-finders could

nature to bring discredit upon the armed forces. Para. 87, Part IV, Manual,
supra. Accordingly, once KAS’s age was established as 15, her consent or
lack thereof to appellant’s sexual activity during dating was no longer at
issue. A 15-year-old cannot legally consent to conduct which otherwise meets
the definition of indecent.

10
United States v. Baker, No. 01-0064/AF

consider this in determining whether or not appellant’s conduct

with KAS was service discrediting.

As Strode, supra, and Stocks, supra, teach: “sexual acts

may be made the basis for an indecent-acts offense if the

resulting conduct is service-discrediting or if the acts

constitute foreplay to the ultimate criminal sexual acts of

sodomy or carnal knowledge.” Strode, 43 MJ at 32. Had

appellant’s foreplay with KAS, whom appellant knew to be 15

years of age, led to actual sexual intercourse, he would have

been guilty of carnal knowledge. The evidence also reflects

that KAS and appellant discussed sexual intercourse, but KAS

told him “no.” Accordingly, a rational fact-finder could

determine that appellant's conduct with KAS was indecent,

accomplished to satisfy his sexual desires, and was service

discrediting under the facts of this case.

Even if one were able to agree with the majority’s analysis

that the judge’s instructions were “not sufficient to permit the

members to intelligently decide this unusual case,” ___ MJ at

(12), there could not possibly be “plain error” as the Supreme

Court, this Court, and other federal circuit courts have defined

that term. Accordingly, I would affirm the United States Air

Force Court of Criminal Appeals.

11
United States v. Baker II, No. 01-0064/AF

BAKER, Judge (dissenting):

Military service is a line of departure to adulthood.

After taking the service oath, a young man or woman is no longer

judged by the standards of an adolescent teenager, but rather as

an adult by, among other things, the standards contained in the

Uniform Code of Military Justice (UCMJ). Changes in maturity,

discipline, and values may be less immediate.

At the time of his consensual sexual conduct with KAS,

appellant was an adult. KAS was a fifteen-year-old child.

Whether appellant’s conduct was indecent was, on these facts, a

contextual judgment for the trier of fact to make based on all

the facts. See United States v. Wilson, 13 MJ 247, 250 (CMA

1982); United States v. Arviso, 32 MJ 616, 619 (ACMR 1991).

There is no indication the members did otherwise, or that the

military judge instructed them to do otherwise. A member asked:

"Should we or should we not consider ‘... [apppellant’s] age,

education, experience, prior contact with ...‘ or proximity in

age to 17 years 364 days when determining whether the acts with

[KAS] were indecent ...[?]" The military judge responded in the

affirmative, with a succinct and accurate response: “[M]y

instruction to you is that you should consider all the evidence

you have, and you’ve heard on the issue of what’s indecent.”

She neither over-instructed, nor under-instructed, properly

leaving evaluation of the facts to the trier of fact. Too much
United States v. Baker, No. 01-0064/AF

emphasis on any particular fact might have prejudiced appellant.

Too much emphasis on an unasked legal question, may have steered

members down the wrong channel, or onto the rocks and shoals of

the case law identified in the lead opinion. See United States

v. Bellamy, 15 USCMA 617, 620, 36 CMR 115, 118 (1966); United

States v. Harris, 6 USCMA 736, 744, 21 CMR 58, 66 (1956); United

States v. Speer, 2 MJ 1244, 1249 (AFCMR 1976)("[T]hough an

accused is entitled to have instructions presented relating to

any defense theory for which there is evidentiary support,

neither he, nor for that matter the Government, is entitled to

have particular favorable facts singled out and given undue

emphasis. ... If trial judges were required to give

instructions designed to highlight each individual evidentiary

factor presented in favor of the parties, 'instructions would

become a mixture of magnifications.'" (quoting Harris, 6 USCMA

at 744, 21 CMR at 66)(citations omitted)).

The majority now concludes that a better instruction was

required. That appellate judges, with time and consideration on

their side, can identify issues that might have arisen and might

have been discussed in an instruction does not equal error,

unless, as a matter of law, the military judge in fact erred.

See United States v. Ward, 914 F.2d 1340, 1344 (9th Cir.

1990)("The availability of a better instruction is not a ground

2
United States v. Baker, No. 01-0064/AF

for reversal"). The majority has not persuaded me otherwise.

Therefore, I respectfully dissent.

*****

At trial, appellant did not object to the instructions

given by the military judge. "Failure to object to an

instruction or to omission of an instruction before the members

close to deliberate constitutes waiver of the objection in the

absence of plain error." R.C.M. 920(f), Manual for Courts-

Martial, United States (2000 ed.). To prevail on a theory of

plain error, appellant has the threshold burden of persuading

this court that (1) there was an error, (2) that it was clear or

obvious under current law, and (3) that it materially prejudiced

a substantial right. United States v. Finster, 51 MJ 185, 187

(1999); United States v. Powell, 49 MJ 460, 463-64 (1998). "It

is the rare case in which an improper instruction will justify

reversal of a criminal conviction when no objection has been

made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154

(1977)(emphasis added).

The majority manufactures plain error in this case by

coupling trial counsel’s argument with the military judge’s

answer to a member’s question regarding indecency. As noted

above, but worthy of repetition, the member’s question referred

the military judge to her written instructions addressing those

circumstances that should be considered on the offense of

3
United States v. Baker, No. 01-0064/AF

forcible sodomy. Then, regarding the offense of indecent acts,

the member asked “... [s]hould we or should we not consider ‘. .

. accused's age, education, experience, prior contact with . .

.‘ or proximity in age to 17 years 364 days when determining

whether the acts with [KAS] were indecent ... [?]” The military

judge responded by explaining that the wording, to which the

member had referred, went to the issue of mistake of fact, which

might pertain to the charge of forcible sodomy. The military

judge then moved to the charge of indecent acts and informed the

members that the issue of mistake of fact did not apply.

Specifically, she stated,

[n]ow, when you’re dealing with the other offense [the
indecent acts], we don’t specifically talk about that
[mistake of fact]. But my instruction to you is that
you should consider all the evidence you have, and
you’ve heard on the issue of what’s indecent.

(Emphasis added.)

In essence, she told the members, “Yes, you should consider the

accused’s age, education, experience, prior contact with KAS,

and proximity of age. Consider all the evidence you have.”

The majority holds that the military judge "failed to

provide adequately tailored instructions on the question of

indecency after a court member asked for an instruction on this

matter." __ MJ at (2) . I disagree.

The majority’s argument appears to hinge on an incongruous

conclusion that the military judge omitted instructional

4
United States v. Baker, No. 01-0064/AF

information that might have been responsive to the member’s

question. Specifically, the majority argues the military

judge’s instruction failed to address:

(1) whether appellant’s sexual conduct with KAS was per se

indecent because she was a child, i.e., a person under

16;

(2) whether his sexual conduct with KAS was per se

indecent because she had not reached the legal age of

consent for such conduct; and

(3) assuming appellant’s sexual conduct with KAS was not

per se indecent on either of the above grounds,

whether evidence of factual consent on the part of KAS

can be considered in determining the indecency of

appellant’s conduct.

The majority’s analysis concludes that (1) and (2) are not

the law, and that as to (3), this Court has never held that

consent is irrelevant. In short, “[o]ur case law ...

unequivocally holds that all the facts and circumstances of a

case including the alleged victim's consent be considered on the

indecency question.” __ MJ at (15) . If so, I do not see the

error in the military judge’s instruction to “consider all the

evidence you have,” which evidence included evidence of factual

consent. Moreover, having answered the member’s question, the

military judge was not obliged to go further by telling the

5
United States v. Baker, No. 01-0064/AF

members what the law was not. Indeed, had the military judge

done so, we would be reviewing this case for plain error because

her instruction gratuitously confused the members with

unsolicited information on legal concepts that challenge even

appellate courts.

The majority also finds fault in the military judge’s

response to trial counsel’s argument. However, the military

judge instructed the members, that argument of counsel are not

evidence and that it is the military judge’s responsibility to

instruct the members on the law. This instruction expressly

admonished the members that they were to accept no other

exposition of the law than that coming from the military judge.

Heretofore, this Court has found that such instructions

adequately protect members from legal argumentation in closing

argument. See, e.g., United States v. Jenkins, 54 MJ 12, 19

(2000). Absent extraordinary circumstances, a contrary

conclusion would seem to require military judges to go out of

their way to comment on the substance of closing arguments.

Members are presumed to have followed the instructions of the

military judge until demonstrated otherwise. United States v.

Holt, 33 MJ 400, 408 (CMA 1991). In addition, appellant failed

to object to the argument or request a curative instruction,

thereby supporting an inference that if any error was committed

it was of small consequence. See United States v. Grandy, 11 MJ

6
United States v. Baker, No. 01-0064/AF

270, 275 (CMA 1981); see also R.C.M. 919(c) Manual, supra

("Failure to object to improper argument before the military

judge begins to instruct the members on findings shall

constitute waiver of the objection").

This is a plain error case, yet the majority never defines

that term. As a result, it is not clear how the majority

arrives at its plain error conclusion. No matter how one

defines plain error, a necessary prerequisite is that the

underlying error must be clear or obvious under existing law.

However, the law cited by the majority does not support its

contention that the military judge's guidance was "clearly

inadequate" and "clearly was insufficient." __ MJ at (3, 12).

None of the three cited cases rejects the propriety of a

military judge instructing the members to consider all the facts

and circumstances on the question of indecency. The first cited

case, United States v. Strode, 43 MJ 29 (1995), is neither a

plain error case nor a case about instructions. Rather, it is a

case about the providence of a guilty plea to indecent acts and

holds merely that an accused's mistake of fact as to the age of

the victim rendered his plea improvident. The second cited

case, Pierson v. State, 956 P.2d 1119 (Wyo. 1998),* is neither a

*
The majority cites to Pierson v. State on five different occasions in its
opinion for a variety of propositions. See, e.g., __ MJ at (19_ n.6)("We
hold only that, as a matter of military law, it is a question for the members
under proper instructions. See Pierson, supra."). This is a state case
interpreting state statutes that has little, if any, applicability or

7
United States v. Baker, No. 01-0064/AF

military case nor a case involving Article 134, UCMJ, 10 USC §

934 and concerns a judicial interpretation of the interplay of

state criminal sexual statutes, which may have little, if any,

applicability or precedential value with respect to military

law. The third cited case, United States v. Tindoll, 16 USCMA

194, 36 CMR 350 (1966), again is not a plain error case. In

addition, that case upheld instructions wherein the military

judge provided the members with tailored elements and

definitions of the terms indecent and intent, instructions

remarkably similar to the ones given in this case. "To have

amplified thereon," this Court concluded, "would have been

redundant – in essence, a restatement of the elements and the

definition of intent." Tindoll, 16 USCMA at 196, 36 CMR at 352.

In any event, the opinion of the majority readily concedes that

our case law "unequivocally holds that all the facts and

circumstances of a case including the alleged victim's consent

be considered on the indecency question." __ MJ at (16). That

is precisely what the military judge told the members to

consider. Thus, clear or obvious error is illogical.

Appellate courts examine instructions "as a whole to

determine if the judge balanced the instructions, correctly

informed the jurors of the governing law, imbued the jurors with

precedential value with respect to military law, especially in the area of
the general article.

8
United States v. Baker, No. 01-0064/AF

an appropriate sense of responsibility, and avoided undue

prejudice." United States v. Arcadipane, 41 F.3d 1, 9 (1st Cir.

1994). In this case, the military judge struck the proper

balance, leaving for the trier of fact and not this court the

question of whether appellant’s conduct was indecent.

9