U.S. v. Sims, 57 M.J. 419

Core Criminal Law Subjects: Crimes: Article 134 -- Indecent Acts with Another Pre-2019 offenses

1. "indecent" signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations; an otherwise lawful sexual act may violate Article 134, UCMJ, if it is committed "openly and notoriously"; an act is "open and notorious" when the participants know that a third person is present
2. where a sexual touching was committed in a private bedroom, with the door closed but unlocked, and where neither party had disrobed, appellant’s conclusory stipulation was inadequate to establish a factual predicate for "open and notorious" sexual conduct; there was a substantial basis for rejecting the plea as improvident, because appellant’s responses and the stipulation of fact state only the conclusion that it was reasonably likely under these circumstances that appellant’s act of touching would have been seen by others, but they do not provide the factual basis for that conclusion

Trial Stages: Merits: Guilty Pleas

1. a military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea; in order to establish an adequate factual predicate for a guilty plea, the military judge must elicit factual circumstances as revealed by the accused himself that objectively support that plea
2. where a sexual touching was committed in a private bedroom, with the door closed but unlocked, and where neither party had disrobed, appellant’s conclusory stipulation was inadequate to establish a factual predicate for “open and notorious” sexual conduct; there was a substantial basis for rejecting the plea as improvident, because appellant’s responses and the stipulation of fact state only the conclusion that it was reasonably likely under these circumstances that appellant’s act of touching would have been seen by others, but they do not provide the factual basis for that conclusion