​A general court-martial comprised of officer members convicted Appellant, contrary to his pleas, of one specification of indecent conduct—engaging in sexual acts with a sex doll with the physical characteristics of a female child—in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1 Appellant was found not guilty of an unrelated specification of receiving child pornography between May 2018 and May 2019 in violation of Article 134, UCMJ, 10 U.S.C. § 934 (Manual for Courts-Martial, United States (2016 ed.)). 2 The military judge sentenced Appellant to a bad-conduct discharge, 90 days of confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority denied Appellant’s request for waiver of forfeitures, and approved the sentence in its entirety. 

Officer and enlisted members sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual assault in violation of Article 120, Uniform Code of Military Justice [UCMJ]. Appellant was also convicted, pursuant to his pleas, of desertion, absence without leave, escape from custody, false official statement, wrongful possession of a controlled substance, and wrongful appropriation in violation of Articles 85, 86, 87a, 107, 112a, and 121 UCMJ, respectively. Appellant asserts three assignments of error [AOE]: (1) the admission of his statement, “I’m going to tap that” implicated Appellant’s substantial right to be presumed innocent under the Due Process Clause of the Fifth Amendment, and but for that error, the outcome of the proceeding would have been different[.]

Prior to trial the Government provided notice under Mil. R. Evid. 404(b) that it intended to offer certain non-hearsay statements of Appellant. Among this evidence was a statement Appellant made earlier in the evening to Machinist’s Mate Third Class [MM3] Charlie (one of the other Sailors present at the hotel), in which Appellant stated that “he was going to have sex ‘regardless’ that night, or that he was ‘going to get some tonight,’ or words to that effect.”8 The Government made clear in its notice that it was not conceding that the statements were covered by 404(b) however, “out of an abundance of caution” it was providing notice.9 The Government’s notice did not specifically contain Appellant’s alleged statements including the words “tap that,” “hit that,” or words that conveyed the same meaning. Appellant subsequently filed a motion to exclude evidence listed in the Government’s motion; however, Appellant’s motion was limited to other unrelated evidence in the Government’s notice pertaining to an alleged violation of a protective order. The Government ultimately elected not to introduce that evidence. Appellant’s motion to exclude did not include Appellant’s alleged statements “he was going to have sex ‘regardless’ that night” or, that he was “going to get some tonight.” 

At trial, the Government questioned MM3 Charlie about Appellant’s statements to him on the evening of the incident.

     TC: Did [Appellant] say anything about what his intentions were that night? MM3: Yeah, somewhat.
     TC: What did he say? MM3: That he was trying to get with them.
    TC: Okay. Do you remember him saying that he was going to get some that night? MM3: Yeah.

At no point did trial defense counsel object. Additionally, the Government questioned AR Delta about her interactions with Appellant on the evening of the incident. AR Delta testified that on meeting Appellant at the hotel for the first time, Appellant stated, “[O]h, damn, I’m going to hit that tonight,” referring to AR Delta’s body.11 AR Delta testified that Appellant told her “he was going to tap that” (or words to that effect) later  in the evening, again referencing AR Delta. Trial defense counsel did not object to the line of questioning regarding these statements.

The sole assigned issue in this appeal is “[w]hether attempted conspiracy . . . is a viable offense under the UCMJ.” Consistent with our holding in United States v. Riddle, 44 M.J. 282, 285 (C.A.A.F. 1996), we answer this question in the affirmative. We therefore affirm the judgment of the United States Air Force Court of Criminal Appeals (AFCCA).

​ In short, Appellant informed JM that she wanted to kill her husband to obtain the benefits of a life insurance policy. Appellant and JM agreed to meet in a Walmart parking lot so that JM could supply Appellant with a substance for poisoning her husband. When they met, Appellant paid JM $100, and JM provided Appellant with a clear plastic bag containing a white substance that JM said was fentanyl. Appellant did not know that JM was working as an informant for Air Force investigators and that the substance JM provided was not actually fentanyl.

To be “clearly erroneous” a finding of fact “must be more than just maybe or probably wrong; it must strike us with the force of a five-week-old unrefrigerated dead fish.”