Bobby D. Baker II Airman E-1 United States Air Force Convicted Sex Offender Committing Indecent Acts With A Child Under 16

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Name:Bobby D Baker II

U.S. V. Bobby D Baker Crim. App. No. 34069

Date Of Appeal: May 1, 2002

Plea:

Charges: Committing indecent acts with a child under 16

Military Branch: U.S. Air Force

Listed In National Sex Offenders Registry? No

SULLIVAN, Senior Judge, delivered the opinion of the Court.

Bobby Baker II, an Airman Basic (E-1) in the United States Air Force, was tried by a general court-martial composed of officer and enlisted members in January 2000, at the Royal Air Force Base (RAF), Mildenhall, United Kingdom. After entering mixed pleas and a trial on the merits, he was found guilty of two specifications of failing to obey the order of a superior officer, larceny from the base exchange, sodomy, and committing indecent acts with a female under the age of 16, in violation of Articles 92, 121, 125, and 134, Uniform Code of Military Justice (UCMJ), 10 USC §§ 892, 921, 925 and 934. The members sentenced appellant to a bad-conduct discharge, confinement for 105 days, and forfeiture of all pay and allowances. On April 19, 2000, the convening authority approved the sentence and, on August 28, 2000, the Air Force Court of Criminal Appeals summarily affirmed the findings of guilty and sentence in an unpublished opinion.

Evidence in the record shows that Bobby Baker was born in the United Kingdom in January 1981. An American citizen, he enlisted in the Air Force in December 1998. After recruit training and service schools, he arrived at RAF Mildenhall, United Kingdom, and was assigned duties in Military Personnel Flight (MPF) in April 1999. (R. 343). He became friendly with a number of the younger dependents on the base. Among those dependents was "KAS," a 15-year-old girl who worked as a summer hire in MPF. (R. 248-249)

Appellant, then 18 years old, and KAS, began dating during the summer of 1999. (R. 249, 252) Appellant was aware that she was only 15 years old because her brother so informed him. (R. 264-265) The relationship between them quickly became physical. (R. 250) KAS testified that while they were dating, appellant touched her breasts and kissed them. (R. 250-251) He also gave her hickies on her stomach, upper chest, and back. (R. 250)

There was no evidence that any activity, beyond mere hugging and kissing, took place in public. Furthermore, KAS testified that appellant did not force this activity upon her, and that she did not find the activity offensive because it comported with her ideas of normal activities within a boyfriend/girlfriend dating relationship.

Appellate courts examine instructions "as a whole to determine if the judge balanced the instructions, correctly informed the jurors of the governing law, imbued the jurors with an appropriate sense of responsibility, and avoided undue prejudice." United States v. Arcadipane, 41 F.3d 1, 9 (1st Cir. 1994). In this case, the military judge struck the proper balance, leaving for the trier of fact and not this court the question of whether appellant’s conduct was indecent.