Marlon G. Lewis
Technical Sergeant U.S. Air Force
Indecent Acts With A Child
Name: Marlon G. Lewis
Case: United States v. Lewis No. ACM 35595
Date Of Appeal: August 29, 2005
Plea: Not Guilty
Charges: Indecent Acts With A Child
Military Branch: U.S. Air Force
Listed In National Sex Offenders Registry? NO
Sentence adjudged 16 May 2003 by GCM convened at McChord Air Force Base, Washington. Military Judge: Anne L. Burman (sitting alone). Approved sentence: Bad-conduct discharge, confinement for 14 months,
forfeiture of all pay and allowances, and reduction to E-1.
We have considered the record of trial, the assignment of errors, and the government’s reply thereto. The appellant was convicted, in accordance with his pleas, of one specification of indecent acts with a child, one specification of communicating indecent language to a child, and one specification of indecent acts with another in violation of Article 134, UCMJ, 10 U.S.C. § 934.
The appellant was convicted, contrary to his pleas, of one specification of taking indecent liberties with a child by showing her pornographic images in violation of Article 134, UCMJ. The appellant alleges that his plea of guilty to committing an indecent act with another is improvident and that the action of the convening authority is ambiguous.
Although convicted of indecent acts with another, the appellant was originally charged with taking “indecent liberties with [AMH], a female under 16 years of age, not the wife of the said [appellant], by exposing his penis in the presence of the said [AMH].” The military judge originally accepted the appellant’s plea to the charge as drafted, but she subsequently conducted a proceeding in revision because the charge, as drafted, failed to allege that the appellant acted with the specific intent to gratify his sexual desires, etc. As a result, the military judge concluded that the specification failed to state an offense.
Consequently the military judge entered a plea of guilty only as to the lesser- included offense of indecent acts with another. The appellant now alleges that the facts adduced during the providence inquiry do not provide a factual basis to conclude that the appellant’s act of exposing his genitals was accomplished with the active participation of another person. See United States v. Thomas, 25 M.J. 75 (C.M.A. 1987).
In reviewing the case at hand we conclude that we can perform sentence reassessment. When affirming the lesser-included offense of indecent exposure we are not required to discount any facts adduced during the providence inquiry or during the sentencing phase of the trial. Furthermore, we conclude that the gravaman of the case lay with the other specifications, which included the appellant touching the breasts, thighs,
and buttocks of AMH, showing her pornography, and communicating sexually indecent language to her. Therefore, we reassess the sentence as follows: Bad-conduct discharge, confinement for 13 months, forfeiture of all pay and allowances, and reduction to E-1.
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