CAAF issues opinion in Miller

CAAF released its opinion in Miller today, reversing the Air Force Court's decision. United States v. Miller, __ M.J. ___, No. 08-0307/AF (C.A.A.F. Dec. 3, 2008). The link to the opinion on CAAF's web site is broken, so I've posted a copy here. Judge Ryan wrote for a unanimous court. The case was heard as a Project Outreach argument at Fort Riley, Kansas, on 22 October, just 42 days ago.

SSgt Miller thought he was communicating over the Internet with a 14-year-old girl when, in fact, he was communicating with a sheriff's deputy. SSgt Miller web cast to the believed-to-be-14-year-old images of SSgt Miller masturbating and ejaculating. While doing so, he sent sexually suggestive IMs to the believed-to-be-14-year-old. SSgt Miller then proposed that they meet for sex. For his web cast, SSgt Miller was convicted contrary to his pleas of a specification of attempting to take indecent liberties with a child. He was also found guilty of two specs of attempting to communicate indecent language to a child.

CAAF held that the web cast was insufficient to meet the requirement that the indecent liberty be "in the presence" of the child. Relying on both the nonbinding discussion in the 2005 MCM and its own case law, CAAF held that "the offense of taking indecent liberties with a child requires the act be committed in the physical presence of the child." Id., slip op. at 7-8. CAAF also rejected the notion that appearing to the victim via video was sufficient to constitute physical presence. Id., slip op. at 8-9. Rather, CAAF concluded, to commit this offense, the accused must "be in the same physical space as the victim." Id., slip op. at 9. Applying Jackson v. Virginia's legal sufficiency standard, 443 U.S. 307 (1979), CAAF held that "no reasonable factfinder could conclude that Appellant committed an act that tended to effect the element of being in the detective's physical presence." Miller, No. 08-0207/AF, slip op. at 11. So SSgt Miller's "act did not tend to effect the commission of the completed offense, and no reasonable factfinder could find him guilty of the charged offense." Id.

CAAF remanded the case to AFCCA to resolve the government's argument that a finding of guilty to the lesser-included-offense of attempted indecent acts with another should be affirmed.