There were two issues before the court in United States v. Parker, No. 20080579 (A. Ct. Crim. App. Aug. 31, 2009) (unpublished). (a) Is the evidence legally and factually sufficient to support the conviction for indecent liberties with a child? (b) If not, are any lesser included offenses available for indecent liberties with a child? The ACCA determined that the evidence was insufficient for indecent liberties with a child under Art. 134. Citing Miller, the Court held that the requirement for physical presence under indecent liberties cannot be satisfied by electronic means. But, the ACCA affirmed the lesser included offense of indecent acts with another under Art. 134. The Court determined that indecent acts with another is “necessarily included” in indecent acts or liberties with a child. Applying Schmuck and Teters, the ACCA used “a pure elements test” to find that the elements of indecent acts with another are “subsumed within” the elements of indecent acts with a child. As a final factual matter, indecent acts with another requires “affirmative interaction between the [accused] and the victim” (internal quotations and citation omitted). That is, “the victim must be more than an inadvertent passive observer.” Reviewing the record of trial, the court concluded that the victim in this case was indeed an “active participant.” The ACCA affirmed the lesser included offense of indecent acts with another for all four specifications involving indecent liberties with a child.
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