United States v. Harjung
Appellant was convicted of one specification of attempted sexual abuse of a child by communicating indecent language, one specification of attempted sexual abuse of a child by touching her breasts and licking her vulva, and one specification of attempted sexual assault of a child by penetrating her mouth with his penis. Appellant was sentenced to a dishonorable discharge, confinement for 18 months, and reduction to the grade of E-1.
On appeal, Appellant asks the Court to consider whether the evidence is legally and factually sufficient to support a guilty verdict for Specifications 2 and 3. The Court Affirmed the decision.
Appellant, an enlisted airman in the Air Force, using a Craigslist advertisement was under the impression he was speaking with “Ellie Smith”, a fourteen-year-old girl who lived on the base. In fact, “Ellie Smith” was the internet persona created by the local AFOSI detachment. After some communication, Appellant shared lewd photographs of himself to the agent. During a series of conversation, Appellant sent several explicit and lascivious messages. After finalizing plans to meet with “Ellie”, Appellant was apprehended by the authorities.
Legal and Factual Sufficiency
The test, the Court explained, 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.” After reviewing the elements of specifications 2 and 3, the Court rejected Appellants attempts to negate his intent. What is more, Appellant concedes that he showed up at the agreed upon location, with condoms, and a necklace.
Further still, the Courts analysis of the intent element is noteworthy. As per the law, the Court explained that “[t]o constitute an attempt there must be a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.” Pressing on, the Court further noted that the overt act need not be the final act of the offense, but the conduct of the parties “within a reasonable time before and after [an act] are circumstances which a [factfinder] may consider in determining such intent, motive or purpose.” While it is generally accepted that a break in the chain of events may be considered an abandonment of the offense, the Court quickly dismissed Appellant’s contention to the same in this case.
At this, the Court noted that [t]here [was] no evidence within the record that Appellant ever abandoned this intent prior to his arrest” further justifying the rejection of Appellant’s attempt to negate his alleged intent. The Court noted that Appellant conversations with “Ellie” just three days prior to their meeting was sexual in nature and Appellant had arrived at the prearranged meeting place with condoms in a reclined Jeep. Here, the law does not require the overt act Appellant to engage in the discussed sexual acts to justify attempt. In fact, for policy reasons such a rule would frustrate the legal basis of attempt and potentially and needlessly harm the innocent. Surely, the law would not want the man holding the gun with his finger on the trigger to actually shoot his victim before the law steps in.
The Court found that “a reasonable factfinder could find beyond a reasonable doubt that Appellant had the specific intent to touch "Ellie's" breasts, lick her vulva, and penetrate her mouth with his penis when he showed up to meet her in his jeep.”
 The opinion was written by Judge Ramirez in which Chief Judge J. Johnson and Senior Judge Posch joined.
 United States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)
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