## UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Before COOK, GALLAGHER,  and HAIGHT Appellate Military Judges

UNITED STATES, Appellee

v. S ergeant JEFFREY M. HUGHES United States Army, Appellant

ARMY 201 20075

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: Lieute nant 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 respon se to specified issue ).

14 August 20 13

-- ------------------------------- SUMMARY DISPOSITION

---------------------------------

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

s tatement, and indecent exposure, in violation of Article s 92, 107 , and 120 , Uniform Code of Military Justice, 10 U.S.C. § § 892, 907

, and 920 (200 6 ) [hereinafter UCMJ]

. The military judge sentenced appellant to a bad

- conduct discharge,
confinement for t hree months, and reduction to the grade of Private E 1. 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

T his 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 convict ion for in decent 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 g uilty to indecent exposure.

BACKGROUND

Appellant, who was an Advanced Individual Training (AIT) instructor at Aberdeen Proving Grounds, Maryland, initiated a n unofficial and prohibited personal relation ship with Private ( PV2 ) JW

. During this time, PV2 JW was a trainee living in the barracks. A fter a ppellant gave his phone number to PV2 JW,
the two began to communicate via personal text message s

. The very next day , and
without invitation , a ppellant sent a digital image of his pen is 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 plac ed 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 peni s to PV2 [JW] via text message.” During the providence inquiry, appellant explained that he sent the picture of his penis in a n effort to try to “take [their] friendship to a sexual
nature.”

The military judge explaine d that the exposure must have occurred “at a place where the conduct involved could reasonably be ex pected 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 th at 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 AN D 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. 36 4, 367 (C.M.A. 1980) )

. We will not overturn a military judge’s
acceptan ce of a guilty plea based on a mere possibility of a defense. Id

. (quotations
and cit ations omitted). Nor will we “ speculate post

- trial as to the existence of facts which might inval idate 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
electronicall y 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 d ictionary definit ion of “expose”, the court held that exposure can occur in various manners

, including photographs sent via the
internet

, and noted t hat 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 instan t 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

man ner;

(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

4

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, a ppellant 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 t he military judge did not abuse her discretion in accepting appellant’s guilty plea.

CONCLUSION

O n 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, t he findings of guil ty 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