U.S. v. Miller, 67 M.J. 87

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Pre-2019 offenses

1. an attempt requires an act tending to effect the commission of the intended offense

Core Criminal Law Subjects: Crimes: Article 134 - Indecent Acts or Liberties with a Child Pre-2019 offenses

1. the offense of taking indecent liberties with a child requires that the act be committed in the physical presence of the child; and a constructive presence created through the use of an audio-visual system will not suffice; physical presence requires that an accused be in the same physical space as the victim
2. appellant’s online act of masturbation sent over the internet using a web camera to an undercover detective posing as a 14-year-old girl was not sufficient to satisfy the physical presence element of the charge of attempting to take indecent liberties with a child; appellant was not in the same physical location as the detective while he was masturbating, and the appellant’s constructive presence via the web camera was insufficient to satisfy the physical presence requirement without completely disregarding the plain meaning of “physical presence” as used in the MCM explanation of the offense

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

1. indecent acts with another is a lesser included offense to indecent liberties with a child, and contains neither a “physical presence” nor a “presence” requirement; the offense does require that the acts be done in conjunction or participating with another person; there must be some affirmative interaction between the accused and the victim to satisfy the “with another person” element; this interaction need not take place between two individuals who are located in the same physical space; but the victim must be more than an inadvertent or passive observer

Miscellaneous Matters: Manual for Courts-Martial: Force and Effect

1. although MCM explanations of offenses are not binding on the CAAF, they are generally treated as persuasive authority, to be evaluated in light of the CAAF’s precedent