UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before

COOK, GALLAGHER, and HAIGHT

Appellate Military Judges

UNITED STATES, Appellee

v.

Sergeant JEFFREY M. HUGHES

United States Army, Appellant

ARMY 20120075

Headquarters, United States Army Aberdeen Proving Ground

Denise Lind, Military Judge

Lieutenant Colonel Joseph M. Masterson, Staff Judge Advocate

For Appellant: Major Jacob D. Bashore, JA; Captain Kristin McGrory, JA (on 

brief); Colonel Patricia A. Ham, JA; Major Jacob D. Bashore, JA; Captain Kristin 

McGrory, JA (on brief in response to specified issue). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA (on brief); Lieutenant 

Colonel Amber J. Roach, JA; Major Robert A. Rodrigues, JA; Captain Daniel H. 

Karna, JA (on brief in response to specified issue).

14 August 2013

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SUMMARY DISPOSITION

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GALLAGHER, Judge:

A military judge sitting as a general court-martial convicted appellant, in 

accordance with his pleas, of violation of a lawful general regulation, false official 

statement, and indecent exposure, in violation of Articles 92, 107, and 120, Uniform 

Code of Military Justice, 10 U.S.C. §§ 892, 907, and 920 (2006) [hereinafter 

UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, 

confinement for three months, and reduction to the grade of Private E1. The 

convening authority approved the adjudged sentence, deferred automatic forfeitures 

until action, and waived automatic forfeitures from the date of action until 

appellant’s release from confinement. 

 



Judge GALLAGHER took final action on this case prior to her permanent change 

of station.
HUGHES — ARMY 20120075

2

This case is before the court for review under Article 66, UCMJ. After the 

parties filed their initial briefs, this court specifi ed the following issue pertaining to 

appellant’s conviction for indecent exposure:

DOES APPELLANT’S CONDUCT OF 

PHOTOGRAPHING HIS PENIS WHILE PHYSICALLY 

LOCATED IN HIS HOUSE AND SENDING THE 

DIGITAL IMAGE TO THE CELL PHONE OF A 

TRAINEE LIVING IN THE TRAINEE BARRACKS 

CONSTITUTE A VIOLATION OF ARTICLE 120, UCMJ, 

INDECENT EXPOSURE, UNDER THE FACTS AND 

CIRCUMSTANCES OF THIS CASE? CF. UNITED 

STATES V. FERGUSON, 68 M.J. 431 (C.A.A.F 2010).

For the reasons set forth below, we find that there is not a substantial basis in 

law or fact to question appellant’s plea of guilty to indecent exposure.

BACKGROUND

Appellant, who was an Advanced Individual Training (AIT) instructor at 

Aberdeen Proving Grounds, Maryland, initiated an unofficial and prohibited 

personal relationship with Private (PV2) JW. During this time, PV2 JW was a 

trainee living in the barracks. After appellant gave his phone number to PV2 JW, 

the two began to communicate via personal text messages. The very next day, and 

without invitation, appellant sent a digital image of his penis via text message to 

PV2 JW’s cellular telephone. Appellant took the digital picture of his penis while 

he was located inside his home. This unrequested transmission, the basis for the 

indecent exposure charge, depicts appellant’s naked erect penis placed alongside a 

television remote control.

The government charged appellant with indecent exposure in violation of 

Article 120, UCMJ. Appellant stipulated that he “sent a picture of his penis to PV2 

[JW] via text message.” During the providence inquiry, appellant explained that he 

sent the picture of his penis in an effort to try to “take [their] friendship to a sexual 

nature.” 

The military judge explained that the exposure must have occurred “at a place 

where the conduct involved could reasonably be expected to be viewed by people 

other than members of your family or household, to wit: [PV2 JW], by a digital 

image sent to her cellular telephone.” Appellant admitted that he intended and 

wanted PV2 JW to see his exposed penis. In addition, appellant admitted that by 

sending the picture of his penis directly to PV2 JW’s mobile phone, it was 

reasonable to expect that PV2 JW would see the image. Furthermore, the appellant 

even admitted it was reasonably foreseeable others would view his exposure.
HUGHES — ARMY 20120075

3

LAW AND DISCUSSION

We review a military judge’s acceptance of a guilty plea for an abuse of 

discretion. United States v. Caldwell, 72 M.J. 137, 140 (C.A.A.F. 2013). Questions 

of law arising from a guilty plea are reviewed de novo. United States v. Ferguson,

68 M.J. 431, 433–34 (C.A.A.F. 2010). A military judge’s acceptance of a guilty 

plea will not be overturned unless the record of trial shows a substantial basis in law 

and fact for questioning the plea. United States v. Inabinette, 66 M.J. 320, 322 

(C.A.A.F. 2008). In a guilty plea case, “The factual predicate is sufficiently 

established if ‘the factual circumstances as revealed by the accused himself 

objectively support that plea.’” Ferguson, 68 M.J. at 434 (quoting United States v. 

Davenport, 9 M.J. 364, 367 (C.M.A. 1980)). We will not overturn a military judge’s 

acceptance of a guilty plea based on a mere possibility of a defense. Id. (quotations 

and citations omitted). Nor will we “speculate post-trial as to the existence of facts 

which might invalidate an appellant’s guilty pleas.” Id. (quoting United States v. 

Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995) (internal quotations omitted). 

An indecent exposure can occur when the exposure is accomplished 

electronically and not by physical presence. Ferguson, 68 M.J. at 434-35 (affirming 

appellant’s Article 134 conviction for indecent exposure based on his transmission 

of live internet webcam images). See also State v. Bouse, 150 S.W.3d 326, 329-35

(Mo.App.2004) (applying the broad dictionary definition of “expose”, the court held

that exposure can occur in various manners, including photographs sent via the 

internet, and noted that the legislature could have qualified the definition by 

requiring the exposure to be in the victim’s physical presence or be by a particular 

means or mode, but chose not to do so). See also Brooker v. Commonwealth, 41 

Va.App. 609, 616-17, 587 S.E.2d 732, 736 (2003) (affirming an indecent exposure 

conviction based on genital exposure via web camera during an instant message 

internet conversation).

At the time of appellant’s conduct, the elements of indecent exposure were:

(1) That the accused exposed his or her genitalia, anus, 

buttocks, or female areola or nipple;

(2) That the accused’s exposure was in an indecent 

manner;

(3) That the exposure occurred in a place where the 

conduct involved could reasonably be expected to be 

viewed by people other than the accused’s family or 

household; and

(4) That the exposure was intentional. 
HUGHES — ARMY 20120075

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Manual for Courts-Martial, United States (2008 ed.), pt. IV, ¶ 45.b.(14).

The military judge adequately listed and explained the se elements of indecent 

exposure to appellant. Subsequently, appellant admitted facts sufficient to support 

each element of the offense. 

Appellant freely and voluntarily admitted that PV2 JW was not a member of 

appellant’s family or household and that he intentionally sent a digital image of his 

naked erect penis to her cell phone in order to “excite lust” and “take [their] 

friendship to a sexual nature.” Additionally, he admitted that PV2 JW’s cell phone 

was a place where PV2 JW could reasonably be expected to view the image of his 

naked penis and that the exposure of his penis over the cell phone was intentional 

and indecent. 

Appellant chose to plead guilty to the offense of indecent exposure, and he 

did so providently, admitting that his conduct constituted an exposure that was 

indecent in violation of the charged statute. The record does not disclose any matter 

inconsistent with appellant’s plea of guilt. We therefore find the military judge did 

not abuse her discretion in accepting appellant’s guilty plea.

CONCLUSION

On consideration of the entire record, including thos e matters raised by 

appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) and the 

parties’ briefs, the findings of guilty and the sentence are AFFIRMED.

 

Senior Judge COOK and Judge HAIGHT concur.

FOR THE COURT:

ANTHONY O. POTTINGER

Chief Deputy Clerk of Court

ANTHONY O. POTTINGER

Chief Deputy Clerk of Court