Air Force Court of Criminal Appeals

United States v. Cabuhut,
__ M.J. ___ (A.F. Ct. Crim. App. 2023) (en banc)

As an introduction to a guest post, here is a statement of the case.

​The MJA convicted Appellant of four specifications of sexual abuse of a child under the age of 16 years on divers occasions; one specification of making an indecent recording on divers occasions; one specification of obstruction of justice; and five specifications of viewing or possessing child pornography on divers occasions.

The MJ sentenced the Appellant to ​a DD, 30 years, RiR to E-1. Appellant raised three issues on appeal: (1) the MJ abused his discretion by accepting Appellant’s guilty plea to sexual abuse of a child by indecent conduct done in the “presence” of that child without defining “presence” to mean the child had to be aware of the indecent conduct; (2) legal and factual insufficiency to one specification; and (3) sentence inappropriateness.

AFCCA ordered oral argument on three additional issues relating to Appellant’s assignments of error and an additional issue, not raised by Appellant, that was identified during this court’s Article 66(d), UCMJ, 10 U.S.C. § 866(d), review of facially unreasonable appellate delay.

AFCCA found Appellant’s convictions both legally and factually sufficient, and no error materially prejudicial to the substantial rights of Appellant occurred. And overruled United States v. Burkhart, 72 M.J. 590 (A.F. Ct. Crim. App. 2013).

Findings and sentence affirmed.

AFCCA revisited the question of whether the offense of sexual abuse of a child by committing indecent conduct “in the presence of a child” requires the child be aware of the indecent conduct.  In a rare en banc opinion, AFCCA overruled a 2013 opinion and held that the child does not have to be aware of the indecent conduct to constitute a violation of Article 120b by committing indecent conduct in the presence of a child.  Two of the ten judges dissented.

In early 2022, CAAF reviewed this same issue in United States v. Schmidt, 82 M.J. 68 (C.A.A.F. 2022) but a majority of the judges could not agree on whether the awareness of the child was required. The AFCCA decision in Cabuhat now leaves a 2-1 circuit split, with the Army CCA being the only service to still require awareness of the child to be required as part of the definition of “in the presence of a child.”  United States v. Gould, 2014 CCA LEXIS 694, at *2 (A. Ct. Crim. App. 16 Sep. 2014) (unpub. op.), rev’d in part on other grounds, 75 M.J. 22 (C.A.A.F. 2015) (mem.); United States v. Tabor, 82 M.J. 637 (N.M. Ct. Crim. App.  2022) (en banc), rev. denied, 82 M.J. 64 (C.A.A.F. 2022) (holding that a “lewd act” defined by Article 120b, UCMJ, does not require the child be aware of the indecent act).  It will be interesting to see if CAAF agrees to review the Cabuhat case and settle the service court split

In analyzing the question of whether the awareness of the child is required to prove “in the presence of a child” AFCCA found the plain meaning was clear and unambiguous: “presence” simply means physical proximity to the offender.  The Air Force Court then turned its prior holding in Burkhart and found that opinion was “poorly reasoned.” AFCCA noted Chief Judge Ohlson’s concurring opinion in Schmidt and the fact that the military judge’s benchbook did not incorporate the holding from Burkhart that the child awareness was a requirement to find the lewd act was committed in the presence of a child.  Eight judges of the en banc panel were persuaded by the reasoning of Chief Judge Ohlson’s concurring opinion in Schmidt and the more recent NMCCA opinion in Tabor and overruled Burkhart. 
AFCCA also reviewed some of the findings for factual sufficiency and affirmed the findings.  The Court also reviewed the sentence and found it was appropriate.

By A. Guessed.

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