Technical Sergeant Sutton was charged with and convicted of one specification of soliciting his step-daughter to engage in indecent liberties. But he is guilty no more due to the government’s faulty charging of the case.
The 134 spec alleged that Sutton “wrongfully solicit[ed] his dependent step-daughter, [PS], a female under 16 years of age, not the wife of the accused, to engage in indecent liberties by asking her to lift her shirt and show him her breasts for $20.00, or words to that effect, with intent to gratify the lust of the accused.”
The defense unsuccessfully moved at trial to dismiss the spec for failure to state an offense. When preparing instructions, the military judge asked the TC if the government was alleging indecent liberties under Article 134 or solicitation under either Article 82 or Article 134. The former, said the TC. Fine, ruled the military judge, he wouldn’t instruct the members regarding solicitation because it didn’t apply anyway. But during an 802, the TC reversed course and told the military judge that the government was proceeding under a solicitation theory after all. Fine, ruled the military judge, he would instruct the members regarding solicitation. And over defense objection, the military judge did just that.
Right the first time , CAAF ruled in this unanimous opinion written by Judge Erdmann. The court noted that the first element of Article 134 solicitation “requires the accused to solicit another person to commit an offense.” But that didn’t happen when Sutton asked his 10-year-old daughter to show him her breasts since that wouldn’t constitute an offense by her. CAAF explained:
Under the factual circumstances presented here, a charge of indecent liberties with a child could have alleged that Sutton asked P.S. to lift her shirt to show him her breasts in order to gratify his lust. That, however, was not the charge and instead the Government chose to charge Sutton with soliciting P.S. to commit the offense of indecent liberties with a child. Because P.S. cannot commit the offense of indecent liberties with a child on herself, the specification fails to state an offense.
CAAF also noted that “[e]ven if we were to assume that P.S. could be considered an aider and abettor under Article 77, UCMJ, the charge would still fail as she did not share in any criminal purpose.”
The solicitation to commit indecent liberties soec was the only offense Sutton faced at his court-martial, so the remedy was to set aside the finding and the sentence and dismiss the charge and spec.