OPINION OF THE COURT
Thе appellant stands convicted of one specification of absence without leave, terminated by apprehension, in violation of Article 86, UCMJ, 10 U.S.C. § 886; one specification of dereliction of duty, in violation of Article 92, UCMJ, 10 U.S.C. § 892; and seven specifications of indecent assault, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The appellant pled guilty to the Article 86 and 92, UCMJ, Charges and Specifications, аnd does not challenge them on appeal. He pled not guilty to the Article 134, UCMJ, Charge and Specifications, but guilty to the lesser-included offense (LIO) of assault consummated by a battery, in violation of Article 128, UCMJ, 10 U.S.C. § 928. The prosecution successfully opted to prove the offenses as charged.
The military judge sitting alone as a general court-martial sentenced the appellant to а dishonorable discharge, confinement for 7 years, and reduction to the grade of E-l. The convening authority approved the findings and sentence as adjudged. On appeal, the appellant presents three issues for our consideration: (1) Whether the evidence is legally and factually sufficient to sustain the appellant’s conviction for committing an indecent assault on seven different women; (2) Whether the evidence is legally and factually sufficient to sustain the appellant’s conviction for the words “and inserting his fingers into the vagina of’ in Specification 2 of the Second Additional Charge; and (3) Whether the appellant received ineffective assistance of counsel.
After careful consideration of the entire record, and thе excellent briefs by appellate counsel for both sides, we conclude that the evidence was both legally and factually sufficient to establish the appellant’s guilt beyond a reasonable doubt as to indecent assault, and that the appellant’s pleas to assault consummated by battery were provident. Finding no error, we affirm.
Background
The appellant was assigned to the 5th Logistics Rеadiness Squadron at Minot Air Force Base (AFB), North Dakota. According to the record, the appellant frequently pulled duty in the motor pool, but in his spare time devoted his energies and attention to passing himself off as a doctor. He obtained a number of medical textbooks and paraphernalia associated with the medical profession, including syringes, swabs, hospital gowns, and a speculum. He outfitted himself with a pager and cell phone and told women he met that he was an on-call doctor at a local obstetrics and gynecology clinic. He became sufficiently conversant with terms and concepts associated with the field of gynecology to convince a number of women that he actually was a doctor studying to become a speciаlist in that field.
The appellant told these women that his training regimen required him to practice conducting pelvic examinations and collecting swabs for Pap tests. During the course of his “examinations,” the appellant routinely inserted his fingers and sometimes a speculum into the women’s vaginas. He offered them various inducements, including cash (which he claimed would be paid either by his school or the Air Force to reimburse them for their time) and prescription contracep-fives. In exchange, they would essentially be, as one woman put it, “guinea pig[s].”
In fact, however, the appellant was lying. He was not a doctor, nor was he in training to become a gynecologist. He never helped any of the women obtain contraceptives, and for the most part did not keep his promises to pay.
For the most part, the women described the appellant as seemingly knowledgeable in the field of gynecology and professional in his bedside manner. There were, however, a number of oddities they noted about his behavior. For example, none of the exams were conducted at a doctor’s office, hospital, or clinic. Instead, most were in hotel rooms, and оne was done in the back of a U-Haul truck. The appellant seemed very persistent in his quest to secure “patients” for his exams. One recalled, “like every time I talked to him, it was like, can I do a test on you? Can I do a test on you?” Another described the appellant as eventually “convincing” her to submit to an exam, and two more described how the appellant insisted on conducting additional or follow-up exams, claiming that he did not get “enough information” the first time.
During some of the examinations, the appellant rubbed or fondled the legs of his “patients” or made sexual comments about them. He told the two minors that they “had nice butts” and that if they were older, he would want to have sex with them. He subsequently admitted to an acquaintance (who was not one of his patients) that he “had gottеn turned on” by some of the women he examined; and in fact, he eventually was able to persuade four of the women to engage in intercourse with him.
On appeal, the appellant seeks reversal of his convictions for indecent assault. His initial brief to this Court echoes his unsuccessful contention at trial: That he harbored no sexual intent when examining his “patients,” and, as a consequenсe, his acts were not indecent. In briefing the specified issue, the appellant for the first time argues his plea to assault consummated by a battery was improvident, because the consent of his victims—while admittedly obtained by fraud— was secured by fraud in the inducement, rather than fraud in the factum. Because the appellant’s claims address different elements of the offense of indecent assault,
Legal and Factual Sufficiency of Evidence
Demonstrating Indecent Intent
The appellant contends before us, as he did at trial, that he cannot be convicted of indecent assault because the evidence is legally and factually insufficient to establish that he acted with the specific intent to gratify his lust or sexual desires. We review the findings of the trial court using the standards articulated in United States v. Turner,
It is reasonable to conclude that the appellant harbored the requisite intent simply from the nature of the acts themselves. There is also ample ancillary evidence supporting that conclusion. The appellant aрparently devoted considerable time and effort to creating a persona that would allow him access to the sex organs of virtual strangers, and the circumstances surrounding his “exams” further establish his intentions. In particular, the appellant’s persistent entreaties to be permitted to conduct the exams, his promises of money or prescription medications to secure permission, his insistencе on unnecessary “follow-up” exams, and his use of sites where he could neither assure the sterility of the environment nor avail himself of specialized medical equipment in the event of an adverse reaction to the medication he injected, all demonstrate the appellant’s obsessive interest. His contemporaneous statements and actions— telling the underage femalеs they had “nice butts;” rubbing the legs of one of the adult “patients” while making sexual comments to her; and his admission that he was “turned on” during his exams—clearly show his acts to be sexually motivated. Finally, there is the inescapable fact that the appellant eventually engaged in sexual relations with several of his “patients,” and told two more that he would want to have sex with them, if only they were of age.
The appellant claims that this evidence merely points to his desire “to ‘perpetuate a lie, a myth’ and a ‘false self-image’ ” of being a doctor. The military judge was not persuaded by this explanation, and neither are we. As appellate government counsel observed, the examinations were not needed to establish the appellant’s medical credentials; rather, he had to establish his credentials to secure the participation of his “patients” in the exams. Furthermore, we cannot help but note that the practice of medicine encompasses many dozens, if not hundreds, of specialties. If the appellant merely wanted to pretend to be a doctor for the sake of false prestige, he had a wide variety of fields to
We find the evidence was sufficient for a reasonable trier of fact to conclude that the appellant acted with intent to gratify his lust or sexual desires, and we are convinced that was his intent. We resolve this assignment of error against the appellant.
Providency of the Appellant’s Plea
The appellant further argues, in response to the specified issue, that he cannot be convicted of indecent assault because he had the consent of his victims. This claim necessarily amounts to an attack on the providen-cy of his guilty pleas to the LIO of assault consummated by battery.
We evaluate the military judge’s decision to accept a guilty plea using an abuse of discretion standard. United States v. Eberle,
An assertion that the victim consented to an assault-type offense may be inconsistent with a plea of guilty, because consent can “convert what would otherwise be a battery into a noneriminal activity.” United States v. Arab,
These concepts have migrated into criminal law to address situations where a person consents to some act, but does so only as a result of fraud. As in contract law, consent obtained by fraud in the factum is invalid. Booker, 25 M.J. at 116. See also State v. Bolsinger,
Recognizing that some degree оf acquiescence or cooperation from his victims was required for the appellant to examine them, the military judge advised the appellant as follows:
MJ: Let me give you a definition here and it might help you a little bit. Consent obtained by fraud in the inducement, a promise to pay money, misrepresentation as to your marital status, or to respect somebody in the morning, is valid consent. If you had said any of those things and she consented, then that would be consent and there would be no crime. Do you understand that?
ACC: Yes, Ma’am.
MJ: Consent obtained by fraud in the factum, misrepresentation as to the nature of the acts performed is not valid consent and is not a defense. Do you understand that?
ACC: Yes, Ma’am.
The military judge’s definitions were narrowly drawn but substantially correct. See Booker,
The line between fraud in the inducement and fraud in the factum is not always easy to discern. Our superior appellate court has held that when a person secures the consent of another to an act of sexual intercourse by impersonating a third person—the spouse of the victim, for example-that deception amounts to fraud in the factum, even though the victim fully understood the nature of the act itself. Booker,
Here, the appellant’s victims knew his identity and, for the most part, knew what to expect during their exams.
MJ: Did you obtain her consent by fraud in the factum?
ACC: Yes, Ma’am.
MJ: How did you do that?
ACC: Ma’am, I lied and told her that I was studying to be a gynecologist.
MJ: And that you were qualified to do this exam?
ACC: Yes, Ma’am.
MJ: And was that true?
ACC: No, Ma’am.
MJ: Would she have consented if she knew that you weren’t qualified to do that? Do you think?
ACC: I do not believe so, Ma’am.
(Emphasis added).
We are unaware of any military case in which an accused’s false claims as to his qualifications to do an otherwise eonsented-to act has been held to be fraud in the factum. Howevеr, we are convinced here that it was. In professional settings, the qualifications of
This approach has the support of our superior appellate court. Although not couched in the language of fraud in the fac-tum, the Court of Appeals fоr the Armed Forces has noted that cooperation obtained by a “material and essential” misrepresentation as to one’s qualifications may, under certain circumstances, be treated as no consent. Outhier,
Deceit was a prerequisite to the appellant’s deviant schemes, and whether his false claims are classified as fraud in the factum or merely labeled “material and essential” misrepresentations, we conclude that he had no lawful consent from his victims. The appellant cannot mount a challenge to his pleas from a platform built of his own lies. The military judge did not err in accepting the appellant’s pleas, nor in finding him guilty of the offenses as charged.
Conclusion
We have carefully considered the appellant’s remaining assignments of error аnd resolve them adversely to him. United States v. Polk,
AFFIRMED.
Notes
. The appellant was also charged with an eighth specification of indecent assault, but the government's witness on that specification did not appeаr the morning of the appellant's trial. The military judge denied the prosecution’s request for a continuance until the afternoon, and granted a defense motion for a finding of not guilty under Rule for Courts-Martial (R.C.M.) 917.
. This issue is raised pursuant to United States v. Grostefon,
. One woman testified that the appellant gave her a check, but she never cashed it.
. The elements of indecent assault are: (1) That the accused assaulted a certain persоn not the spouse of the accused in a certain manner; (2) That the acts were done with the intent to gratify the lust or sexual desires of the accused; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. Manual for Courts-Martial, United States (MCM), Part IV, ¶ 63b (2005 ed.). (This provision is the samе as contained in the 2002 edition, which was in effect at the time of the appellant’s trial.)
. Not all consent is created equal: In some instances, the consent of the immediate victim of a crime under the UCMJ is irrelevant, because of the broader military and societal interests in prohibiting the criminal activity. United States v. Bygrave,
. The youngest of the appellant’s seven victims, however, testified that she had never undеrgone a pelvic exam before and did not know what to expect.
. The military judge concluded—as do we—that the appellant acted with intent to gratify his sexual desires. As noted above, however, the appellant vigorously disputed this conclusion. In considering the providency of the appellant’s pleas, we look to what the appellant admitted, not contested facts that were proven at trial. United States v. Jordan,