UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA1

, SALUSSOLIA, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E2 NICHOLAS E. DAVIS 

United States Army, Appellant 

ARMY 20160069 

Headquarters, U.S. Army Medical Department Center and School 

Wade Faulkner, Military Judge 

Lieutenant Colonel Toshene C. Fletcher, Staff Judge Advocate 

For Appellant: Captain Bryan A. Osterhage, JA (argued); Lieutenant Colonel 

Tiffany M. Chapman, JA; Lieutenant Colonel Christopher D. Carrier, JA; Captain 

Bryan A. Osterhage, JA (on brief); Lieutenant Colonel Christopher D. Carrier, JA; 

Captain Bryan A. Osterhage, JA (on reply brief); Major Todd W. Simpson, JA; 

Captain Bryan A. Osterhage (on supplemental brief). 

For Appellee: Captain Jeremy Watford, JA (argued); Lieutenant Colonel Eric K. 

Stafford, JA; Major Cormac M. Smith, JA (on brief). 

16 August 2018 

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

MEMORANDUM OPINION 

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

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. 

FLEMING, Judge: 

In this appeal, we find the military judge properly denied the defense motion 

to suppress some of appellant’s statements to Criminal Investigation Command 

(CID) agents and the search of his cell phone. We affirm appellant’s conviction of 

making an indecent visual recording of another soldier’s private area when that 

soldier possessed a reasonable expectation of privacy at the time of its recording. 

We find appellant’s conviction of broadcasting an indecent recording is factually 

and legally insufficient. 

                                                            

1

 Senior Judge Campanella decided this case prior to her departure from the Court. 
DAVIS—ARMY 20160069 

2 

An officer panel sitting as a general court-martial convicted appellant, 

contrary to his pleas, of one specification of false official statement, one 

specification of indecent recording, and one specification of broadcasting an 

indecent recording in violation of Articles 107 and 120c, Uniform Code of Military 

Justice, 10 U.S.C. §§ 907, 920c (2012) [UCMJ]. The military judge convicted 

appellant, pursuant to his pleas, of two specifications of violating a lawful general 

order in violation of Article 92, UCMJ. The convening authority approved the 

adjudged sentence of a bad conduct discharge and a reduction to the grade of E-1. 

Appellant was credited with fifteen days of confinement against the sentence to 

confinement. 

This case is before us for review pursuant to Article 66, UCMJ. We address 

two assignments of error, with multiple subparts, one of which merits relief. 

Appellant personally raised seven matters pursuant to United States v. Grostefon, 12 

M.J. 431 (C.M.A. 1982), one of which is also an assigned error. The remaining 

Grostefon matters, after due consideration, do not warrant discussion or relief. 

BACKGROUND 

Events Regarding Appellant’s Crimes 

Appellant’s offenses occurred the day after Thanksgiving when mostly 

underage soldiers consumed alcohol and engaged in sexual activity in a cheap offpost motel room. Appellant, Private (PV2) JE, and several other soldiers rented the 

motel room to surreptitiously consume alcohol. Appellant purchased alcohol for all 

the soldiers. After consuming various amounts of alcohol, most of the soldiers left 

the motel room except for appellant, PV2 JE, PV2 JH, and PV2 JS. 

The location of these four remaining soldiers within the room and the room’s 

location and layout is key to understanding this case. The room was located on the 

first floor with a window facing towards, and a door opening to, the motel’s parking 

lot. Upon opening the door, there was a bedroom containing two beds and a separate 

bathroom beyond. Private JS, due to immense alcohol consumption, passed out on 

the bed closest to the window. Appellant, PV2 JE, and PV2 JH engaged in a variety 

of sexual activities with one another on the other bed closest to the bathroom. 

Private JE asserted the sexual activities were nonconsensual and appellant asserted 

the activities were consensual. While on the bed and without PV2 JE’s knowledge 

or consent, appellant used his cell phone to record PV2 JE’s buttocks as she was 

bent over and faced forward while engaging in sexual intercourse with him. 

A few minutes after appellant made the recording, several soldiers from the 

group returned to the motel room and knocked on the door. When no one answered 

the locked door, one of the soldiers walked over to the window, looked in, and saw 
DAVIS—ARMY 20160069 

3 

PV2 JE jump off the far bed and run into the bathroom. Appellant then opened the 

door to let the group into the room. Before leaving the room, appellant showed a 

fellow soldier the cell phone recording he made of PV2 JE’s buttocks. 

Appellant’s CID Interview 

A few days later, appellant was interviewed by CID agents for the alleged 

rape, among other offenses, of PV2 JE. Appellant made several incriminating 

statements. At the end of the interview, appellant consented to the seizure and 

search of his cell phone which contained his video recording of PV2 JE. Appellant 

deleted the video recording he made of PV2 JE, but the CID digital forensic 

examiner was able to extract the deleted video from appellant’s cell phone. 

At trial, defense counsel filed a motion to suppress appellant’s statements to 

CID and challenged the validity of his consent to seize and search his cellphone 

because: (1) appellant invoked his right to counsel; and (2) his entire statement was 

involuntary. The military judge granted the motion, in part, and denied the motion, 

in part, as discussed in-depth below. 

In order to review the military judge’s ruling, we divide the CID interview 

into four key areas: (1) initial waiver; (2) invocation of rights; (3) re-initiation of 

communication; and (4) re-waiver of rights. 

Initial Waiver 

At the time of the interview, appellant was twenty-five years old, had a 

General Technical (GT) score of 124, and was receiving training to be a combat 

medic specialist. The military judge found “[appellant] maintained eye contact; 

could recollect facts, had no difficulty speaking, had no slurred speech, had no 

difficulty walking, and had no difficulty sitting. The [appellant] did not appear to 

be under the influence of any substance that would impair his ability to knowingly 

waive his rights.” 

Prior to any questioning by CID agents, appellant was advised orally and in 

writing of his Article 31(b), UCMJ, and Miranda rights. Miranda v. Arizona, 384 

U.S. 436 (1966). Appellant verbally affirmed he understood his rights and waived 

his rights. Appellant placed his initials by each right and signed Department of 

Army Form 3881-E (DA Form 3881), the rights’ waiver procedure/waiver certificate, 

purportedly indicating he understood and waived his rights. 

 The CID agent verbally advised appellant he was suspected of “having 

knowledge,” as opposed to “having committed,” a rape. Appellant’s DA Form 3881, 

however, stated appellant was suspected of committing the offense of rape. This 
DAVIS—ARMY 20160069 

4 

initial discrepancy between the CID agent’s oral advisement and the written form 

was later clarified by appellant during the interview and is discussed below. 

After obtaining appellant’s waiver of rights, a CID agent commenced 

questioning appellant. After a few minutes of questions, appellant asked the agent 

whether an attorney could be made available that night. The agent replied it would 

not be possible that night but it could be scheduled at a later time. Appellant did not 

ask to reschedule the interview but instead stated he wanted to get the interview 

done that night. 

Invocation of Rights 

Shortly after expressing his desire to continue the interview, appellant sought 

to clarify the discrepancy between whether he was suspected of “having knowledge” 

or “having committed” a rape. Appellant stated if an accusation existed that he 

committed a rape, the situation was “pretty serious.” After noting the severity of the 

situation, appellant stated “I would like to have a lawyer present ... if I’m under 

investigation for [committing] rape.” The military judge ruled this statement was an 

unambiguous invocation of appellant’s right to counsel. 

Re-Initiation of Communication 

Immediately after appellant’s request for counsel, he sua sponte continued 

talking to the CID agent, providing an approximate nine-minute monologue on his 

exculpatory version of the events regarding the alleged offenses. During this 

monologue, the agent did not ask appellant any questions or re-advise appellant of 

his rights. The agent testified he did not stop the interview because appellant 

continued to discuss the incident and “continued for an extensive period of time.” 

The military judge denied the defense motion to suppress any statements during 

appellant’s monologue, concluding they were voluntarily, spontaneously initiated by 

appellant, and not in response to any questions from the CID agent. 

After appellant’s lengthy monologue, the agent began re-questioning appellant 

without re-advising him of his rights. This re-questioning period continued for 

approximately fifty minutes. The military judge held appellant’s statements within 

this fifty-minute window were not admissible because they were taken in violation 

of his right to counsel as a valid re-waiver of his rights had not occurred. 

Re-Waiver of Rights 

Approximately fifty minutes into the re-questioning period, appellant asked 

the agent about taking a polygraph examination. The agent told appellant that a 

polygraph examination could not occur that night, but it could be scheduled for later. 

Appellant then immediately stated “I would like to request a lawyer after this point.” 
DAVIS—ARMY 20160069 

5 

The agent then asked appellant if he was requesting a lawyer right at that moment. 

Appellant responded he was not requesting a lawyer at this time. 

The military judge held appellant’s statement was an affirmative re-waiver of 

his right to counsel and denied the defense motion to suppress any of appellant’s 

statements after this re-waiver. While this re-waiver occurred almost an hour after 

appellant’s spontaneous re-initiation of communication and fifty minutes after the 

agent began re-questioning appellant, the military judge reasoned appellant’s 

immediate re-initiation of the interview (the nine-minute monologue) authorized the 

agent to obtain a subsequent re-waiver of appellant’ rights. 

After this re-waiver, the interview continued with appellant stating “nothing I 

did is incriminating and I want my part of the story heard.” Despite this assertion, 

appellant eventually made some incriminating statements in response to CID 

questioning, including an admission that he recorded PV2 JE’s buttocks without her 

consent. 

Appellant also consented to the seizure and search of his cell phone which he 

used to video PV2 JE. The military judge denied the defense motion to suppress the 

seizure and search of the cell phone on the grounds that appellant’s consent occurred 

after his re-initiation and re-waiver of rights. 

LAW AND DISCUSSION 

Suppression of Statements 

On appeal, appellant asserts the military judge abused his discretion by not 

suppressing all of appellant’s statements to CID. Appellant essentially offers the 

same reasons supporting suppression as he did at trial. First, appellant 

unambiguously invoked his right to counsel and the CID agent failed to immediately 

terminate the interview. Second, appellant’s statements were involuntary. 

We review a military judge’s ruling on a motion to suppress for an abuse of 

discretion. United States v. Baker, 70 M.J. 283, at 287 (C.A.A.F. 2011). An abuse 

of discretion occurs “when: (1) the findings of fact upon which [the military judge] 

predicates his ruling are not supported by the evidence of record; (2) if incorrect 

legal principles were used; or (3) if his application of the correct legal principles to 

the facts is clearly unreasonable.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 

2010); Military Rule of Evidence [Mil. R. Evid.] 304; 305. We review the military 

judge’s conclusions of law de novo, including his conclusion as to the voluntariness 

of the statement. United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2009). 

We find the military judge did not abuse his discretion by concluding 

appellant made an unambiguous invocation of his right to counsel after initially 

waiving his rights. An attorney was not made available to appellant after his 
DAVIS—ARMY 20160069 

6 

invocation of his right to counsel. Under these facts, two issues must be considered 

to determine if the military judge abused his discretion by not suppressing all of 

appellant’s statements: (1) whether appellant re-initiated communication with the 

CID agent; and (2) whether appellant subsequently re-waived his right to counsel. 

Appellant’s Statements Made After Re-Initiation 

As to re-initiation, the Supreme Court in Edwards v. Arizona, 451 U.S. 477, 

485 (1981), created a bright-line rule barring police from interrogating an accused in 

custody once he clearly asserts his right to counsel, unless an attorney is provided, 

or “the accused himself initiates further communication, exchanges, or conversations 

with the police.” Military Rule of Evidence 305(e)(3)(A) prohibits re-questioning 

an accused, who is subject to “custodial interrogation,” after he invokes his right to 

counsel unless the accused re-initiates communication and provides a subsequent 

waiver.2

 

The military judge did not determine whether appellant was subject to 

“custodial interrogation,” but the distinction between custodial and non-custodial 

interrogation in the military context appears irrelevant. Our superior court extends 

counsel rights and the Edwards re-initiation and re-waiver requirements to accused 

who are only subjected to mere non-custodial interrogation. 

The Court of Criminal Appeals (CAAF) has stated “[c]onsistent with our 

precedents, we note that in the military system the accused’s right to counsel - - and 

the requirement of knowing and voluntary waiver - - are not limited to custodial 

interrogations.” United States v. Mott, 72 M.J. 319, 330 n. 10 (C.A.A.F. 2013) 

(citing United States v. Delarosa, 67 M.J. 318, 320 (C.A.A.F. 2009)) (“Military 

officials and civilians acting on their behalf are required to provide rights warnings 

prior to interrogating a member of the armed forces if that servicemember is a 

suspect irrespective of custody.”). Even with the explicit words in Mil. R. Evid. 

305(e)(3)(A) requiring “custodial interrogation,” and the absence of the military 

judge’s finding of fact on this issue, we nevertheless apply CAAF’s precedent and 

first review, under Edwards, whether “[appellant] himself initiate[d] further 

communication, exchanges, or conversations” with the agents. Edwards, 451 U.S. at 

484-85. 

We find the military judge did not err in finding appellant sua sponte reinitiated communication with a CID agent immediately after he invoked his right to 

counsel with no coaxing from the agent. Appellant engaged in a nine-minute 

                                                            

2

 “‘Custodial interrogation’ means questioning that takes place while the accused . . . 

is in custody, could reasonably believe himself or herself to be in custody, or is 

otherwise deprived of his or her freedom of action in any significant way.” See Mil. 

R. Evid. 305(b)(3). 
DAVIS—ARMY 20160069 

7 

monologue asserting his exculpatory version of events. The agent did not ask 

questions during this time period. The agent also testified he did not stop the 

interview because appellant continued to discuss the incident and “continued for an 

extensive period of time.” Accordingly, we hold the military judge did not abuse his 

discretion by denying defense’s motion to suppress appellant’s statement made 

during his lengthy monologue. 

Appellant’s Statement Made after Re-Waiver 

After determining appellant re-initiated communication, the question next 

turns to whether appellant subsequently provided a knowing, intelligent, and 

voluntarily re-waiver of his rights under a “totality of the circumstances.” Oregon v. 

Bradshaw, 462 U.S. 1039, 1045-46 (1983) (stating that once it has been determined 

that an accused re-initiated dialogue with law enforcement there is also a separate 

inquiry into the voluntariness of the re-waiver). 

Appellant asserts his re-waiver was not knowing, intelligent, and voluntary 

because the agent failed to re-advise him of his rights, and therefore, any statement 

elicited by CID after his alleged re-waiver must be suppressed. Although a rights 

re-advisement is a very important factor to consider under a “totality of the 

circumstances,” we decline to adopt a per se rule, as suggested by appellant, that a 

failure to re-advise an accused of his rights automatically equates to an unknowing, 

unintelligent, and involuntary re-waiver. See United States v. LeMasters, 39 M.J. 

490, 491 (C.M.A. 1994) (holding an accused’s acknowledgement that he could 

consult with counsel, without a re-advisement of rights, sufficed to establish a 

knowing waiver). We also decline to per se invalidate the legality of appellant’s rewaiver because it occurred fifty minutes after appellant’s re-initiation of 

communication and lengthy monologue when, we repeat, this is one of many factors 

which must be weighed in reviewing the totality of the circumstances. Any per se 

and pro forma rule would eviscerate a totality of the circumstances review. 

After thoroughly reviewing the totality of appellant’s circumstances, we hold 

the military judge did not abuse his discretion finding appellant knowingly, 

intelligently, and voluntarily re-waived his rights when appellant stated that he was 

not requesting a lawyer at this time. Appellant was twenty-five years old and 

possessed a GT score of 124. Nothing in the military judge’s findings of fact, or our 

separate review, indicate any type of coercion during the re-waiver process or the 

entire interview. 

After closely reviewing the entire video recording of appellant’s interview, 

this court finds appellant was extremely articulate and clearly understood his rights. 

The overall theme of the entire interview was appellant’s desire to immediately 

speak with CID because, as stated by appellant, “I want my part of the story heard.” 

See Michigan v. Mosley, 423 U.S. 96, 104 (1975) (stating “the admissibility of 
DAVIS—ARMY 20160069 

8 

statements obtained after the person in custody has decided to remain silent depends 

under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously 

honored.’”). Appellant did not want to “cut off questioning” from CID agents but 

instead wanted to fully and immediately discuss the alleged offenses to clear his 

name. 

 Appellant re-initiated communication on his own volition and was not 

badgered by CID agents into re-waiving his rights. Appellant understood he had the 

right to counsel, he elected not to wait to consult with counsel, and he continuously 

exhibited a strong desire to talk to the CID agents. The military judge did not abuse 

his discretion by denying the motion to suppress appellant’s statements that occurred 

after his re-initiation of communication and his affirmative re-waiver of counsel 

rights.3 

Appellant’s affirmative re-waiver, when combined with the other factors 

discussed above, served to establish a knowing, intelligent, and voluntary re-waiver 

of his rights. We find our holding consistent with the overall purpose of the 

Edwards rule which seeks to “prevent police from badgering a defendant into 

waiving his previously asserted” request for counsel. See Minick v. Mississippi, 498 

U.S. 146, 150 (1990).4 Once appellant’s re-initiation merged with a valid noncoerced re-waiver, the judicially created prophylactic reasons, derived from 

Edwards, to suppress appellant’s statements no longer existed. 

We pause now, however, to reinforce the general principle that CID agents 

should re-advise an accused of his rights before re-questioning an accused who: (1) 

invokes his right to counsel after initially waiving such right; and (2) re-initiates 

communication after that invocation. This opinion should not be read to embolden 

CID agents, or anyone else, to do otherwise. Our affirmance of the military judge’s 

ruling in this case is limited to the very narrow set of presented facts. 

Voluntariness of Appellant’s Entire Statement 

At trial, defense counsel asserted appellant’s statements were involuntary 

because he was: (1) initially handcuffed enroute to the CID office; (2) prescribed 

certain medications; and (3) sleepy due to his medication usage and having been 

                                                            

3

 Likewise, we find the military judge did not abuse his discretion in suppressing 

appellant’s statements within the approximate fifty minute window occurring 

between the end of his monologue and his affirmative re-waiver of counsel. 

 

4

 The Edwards rule “should be counterbalanced against the ‘unmitigated good’ on 

the part of law enforcement to secure ‘uncoerced confessions.’” See United States v. 

Maza, 73 M.J. 507, 525 (N. M. Ct. Crim. App. 2014) (citing McNeil v. Wisconsin, 

501 U.S. 171, 181 (1991)). 
DAVIS—ARMY 20160069 

9 

awake for the previous sixteen hours. An inquiry into voluntariness assesses “the 

totality of all the surrounding circumstances – both the characteristics of the accused 

and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 

(1973); United States v. Bubonics, 45 M.J. 93 (C.A.A.F. 1996). We review the 

military judge’s conclusions of law de novo, including his conclusion as to the 

voluntariness of the statement. United States v. Chatfield, 67 M.J. 432, 437 

(C.A.A.F. 2009). We find appellant’s statements were voluntary based on the 

totality of the circumstances. 

Appellant was not handcuffed during any part of the interview. Appellant’s 

freedom of movement was not constrained in any manner. Appellant even did 

calisthenics during one break in the interview. 

As to appellant’s prescription for trazodone and tramadol, the record does not 

establish he took either medication prior to or during his interview or that these 

medications had any bearing on his physical or cognitive functioning during his 

interview. Appellant was wide-awake and extremely articulate. 

As to appellant being sleepy due to his alleged medication usage or having 

been awake for the previous sixteen hours, we adopt the military judge’s detailed 

findings of fact. The military judge found “[appellant] maintained eye contact; 

could recollect facts, had no difficulty speaking, had no slurred speech, had no 

difficulty walking, and had no difficulty sitting. The [appellant] did not appear to 

be under the influence of any substance that would impair his ability to knowingly 

waive his rights.” 

We highlight the following additional facts supporting the voluntariness of 

appellant’s statements. Again, at the time of the interview, appellant was twentyfive years old, had a GT score of 124, and was receiving training to be a combat 

medic specialist. Appellant felt sufficiently comfortable to sua sponte ask the CID 

agent if he could take off his Army Combat Uniform shirt because he was hot. 

Appellant’s request was immediately granted. Appellant was so assertive he 

corrected the CID agent throughout the interview by adamantly denying he engaged 

in a “double penetration” of PV2 JE’s body with another solider despite the agent’s 

assertion to the contrary. The agents made no promises to or threats against 

appellant. 

Suppression of Cell Phone 

Appellant asserts the military judge abused his discretion by not suppressing 

the contents of appellant’s cell phone because: (1) his consent to its seizure and 

search was involuntary; and (2) he consented to the search during an unlawful 

interrogation. We disagree. 
DAVIS—ARMY 20160069 

10 

Having already determined appellant’s acts were voluntary during the entire 

interview, we further note that appellant failed to raise the issue of voluntariness at 

trial as it relates to his consent to seize and search his cell phone. Appellant’s trial 

defense counsel also did not object to the contents of the cell phone being admitted 

into evidence. 

Whether an appellant has waived an issue is a question of law we review de 

novo. See United States v. Rosenthal, 62 M.J. 261, 262 (C.A.A.F. 2005). Military 

Rules of Evidence 311(d)(1) and (2) require the trial defense counsel to make a 

motion to suppress evidence seized from the accused prior to submission of plea, or 

at a later time as permitted by the military judge for good cause. R.C.M. 905(e). 

Appellant’s failure to raise the issue of voluntariness in his motion to the military 

judge and at trial constitutes waiver of his right to object to this Court regarding the 

admission of the contents of his cell phone. Accordingly, appellant’s claim that his 

consent to search his cell phone was involuntary is waived, leaving no error to 

correct on appeal. See United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017). 

As to appellant’s second argument, even if we agreed with appellant that his 

consent occurred during an unlawful interrogation, which we do not, a request for a 

consent to seize and search does not impinge upon Article 31(b) or Fifth Amendment 

rights because such requests are not interrogations and the consent given is 

ordinarily not a statement. See United States v. Robinson, 77 M.J. 303 (C.A.A.F. 

2018). “Requesting consent to search property in which a suspect has an interest is 

not prohibited by his prior request for counsel, because Edwards provides protection 

only as to interrogation.” United States v. Burns, 33 M.J. 316, 320 (C.M.A. 1991). 

Factual and Legal Sufficiency of the Cell Phone Offenses 

Appellant argues his conviction for the offenses of making and broadcasting a 

visual recording is factually and legally insufficient because PV2 JE did not have a 

reasonable expectation of privacy when the recording was made and the manner in 

which appellant displayed the video to another soldier does not meet the definition 

of “broadcasting” in Article 120c, UCMJ. 

We review claims of legal and factual insufficiency de novo, examining all of 

the evidence properly admitted at trial. Art. 66(c), UCMJ; United States v. Beatty, 

64 M.J. 456, 459 (C.A.A.F. 2007). The test for legal sufficiency is whether, 

considering the evidence in the light most favorable to the government, any rational 

trier of fact could have found the elements of the contested crimes beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The test for 

factual sufficiency is whether after weighing the evidence in the record of trial and 

making allowances for not having personally observed the witnesses, we ourselves 

are convinced of the appellant’s guilt beyond a reasonable doubt. United States v. 

Turner, 25 M.J. 324, 325 (C.M.A. 1987). 
DAVIS—ARMY 20160069 

11 

Within the context of this case, the government was required to prove beyond 

a reasonable doubt that appellant knew or reasonably should have known the 

recording was made without PV2 JE’s consent, under circumstances in which PV2 

JE had a reasonable expectation of privacy, and that he knowingly broadcasted the 

recording to another. Article 120c, Uniform Code of Military Justice, 10 U.S.C. § 

920c (2012). 

Reasonable Expectation of Privacy 

“Reasonable expectation of privacy,” for the purposes of the charged offense, 

is defined as “[c]ircumstances in which a reasonable person would believe that he or 

she could disrobe in privacy, without being concerned that an image of a private area 

of the person was being captured.” 10 U.S.C. § 920c(d)(3). “Private area” includes 

a person’s buttocks. 10 U.S.C. § 920c(d)(2). “By enacting this provision of the 

UCMJ, Congress recognized an expectation of privacy in a person’s body consistent 

with what has historically been recognized through widely accepted social norms.” 

United States v. Raines, 2014 CCA LEXIS 600, *12-13 (N.M. Ct. Crim. App. 2014). 

Here, appellant recorded PV2 JE, who was bent over and facing forward, 

while he was directly behind her attempting to penetrate her vagina. Appellant 

asserts PV2 JE, who had neither knowledge of the cell phone’s presence nor 

consented to the making of the recording, did not have a reasonable expectation of 

privacy because it was daylight, two other people were in the room, and the room 

was located on the first floor with a window looking out into the parking lot. 

Appellant further argues a passerby in the parking lot could have seen PV2 JE 

engaging in sexual activities with appellant, rendering the sexual act “open and 

notorious,” and thus no reasonable expectation of privacy could exist. 

In Raines, our sister service court explored the boundaries of a person’s 

“reasonable expectation of privacy.” Raines, 2014 CCA LEXIS at *3. In Raines,

appellant video recorded his sexual encounters with four different women. Id. 

Although the sexual encounters were consensual, the women did not consent or 

know about the recording. Id. Raines argued the women should have noticed the 

camera and, that by agreeing to have sex with him, they implicitly agreed to the 

recording. Id. at *13. The Navy-Marine Corps Court of Criminal Appeals held such 

arguments were “[. . .] patently ridiculous; agreeing to have sex with another does 

not remove all reasonable expectations of privacy.” Id.; see also United States v. 

Vega, 2014 CCA LEXIS 929, *9-10 (N.M. Ct. Crim. App. 2014). 

Likewise, PV2 JE did not consent to the surreptitious recording and did not 

lose her reasonable expectation of privacy when she engaged in sexual activity with 
DAVIS—ARMY 20160069 

12 

two individuals in the presence of a third unaware person.5 As to a possible 

passerby scenario, the door to the motel room was closed and locked and the scene 

of the sexual activity was across the room and away from the window. Private JE’s 

buttocks were recorded by appellant, who was in direct physical contact with her 

from behind while trying to engage in sexual intercourse, from a very short distance. 

It was not the same image that could have been captured from a distance, across the 

motel room, and through a window. 

The facts of this case fit squarely within the statute’s definition of 

“reasonable expectation of privacy.” 10 U.S.C. § 920c(d)(3). Private JE had a 

reasonable belief that her “private area,” her buttocks, would not be captured 

because appellant never mentioned recording their sexual act. She did not consent 

to such recording and no cameras were visible to her while engaging in sex with 

appellant. 10 U.S.C. § 920c(d)(3). We conclude PV2 JE had a reasonable 

expectation of privacy that her buttocks would not be recorded by appellant, her 

sexual partner, while engaging in sexual intercourse behind a locked door in a motel 

room. 

“Broadcasting” the Recording 

The term “broadcast” is defined as “to electronically transmit a visual image 

with the intent that it be viewed by a person or persons.” 10 U.S.C. § 920c(d)(4). 

The phrase “electronically transmit” is not further defined in the statute. Appellant 

asserts the mere act of playing the video recording of PV2 JE on his cell phone in 

front of one other physically present soldier does not constitute “broadcasting” 

under 10 U.S.C. § 920c(a)(3). We agree. 

In deciding whether appellant’s conduct constituted a “broadcast,” we first 

must attempt to discern if a plain meaning of “electronically transmit” exists. See

King v. Burwell, 135 S. Ct. 2480, 2489 (2015). If no plain meaning exists and the 

language is ambiguous, we next consider the ambiguous word in the context of the 

entire statute. Id. We also may review the legislative history and attempt to discern 

the intent of lawmakers in enacting the statute. 

In the absence of explicit language showing a contrary congressional intent, 

we must give words in statutes their usual meaning. See Barber v. Gonzales, 347 

U.S. 637, 643 (1954). In the absence of a statutory definition, we look to whether 

the language has a plain and unambiguous meaning. United States v. Williams, 75 

M.J. 663 (Army Ct. Crim. App. 2016). The plain language of a statute will control 

                                                            

5

   Private JE asserted the sexual intercourse with appellant was non-consensual. 

Appellant asserted the sexual intercourse was consensual. We need not determine, 

however, whether the sexual intercourse was consensual or nonconsensual because, 

even if we were to determine the sexual activity was consensual, PV2 JE did not lose 

her reasonable expectation as to being video recorded. 
DAVIS—ARMY 20160069 

13 

unless it is ambiguous or leads to an absurd result. United States v. Lewis, 65 M.J. 

85, 88 (C.A.A.F. 2007). 

The pertinent definition of “electronic” is “utilizing devices constructed or 

working by the methods or principles of electronics.” Webster’s Third New 

International Dictionary 280 (1981). See also Trump v. Hawaii, 138 S.Ct. 2392, 

2410-11 (June 26, 2018) (approving the use of the Webster’s Third International 

Dictionary to discern a statute’s textual plain meaning). The most relevant 

definition of “transmit” is “to send out a signal either by radio waves or over a wire 

line.” Webster’s Third New International Dictionary 280 (1981). The combination 

of these two definitions appears to require an electronic device to send the 

transmission and an electronic device to receive the transmission.6 In this case, 

there is only one electronic device – appellant’s cell phone. 

We also further considered the words, “electronically transmit” within the 

context of the entire statute. “The plainness or ambiguity of statutory language is 

determined by reference to the language itself, the specific context in which that 

language is used, and the broader context of the statute as a whole.” Robinson v. 

Shell Oil Co., 519 U.S. 337, 341 (1997). Article 120c(a)(3), UCMJ prohibits two 

acts: “broadcasting” or “distributing.” 

“Distribute” is defined as “delivering to the actual or constructive possession 

of another, including transmission by electronic means.” 10 U.S.C. § 920c(d)(5). 

The definition of distribution allows for a physical or an electronic transference 

whereas the definition of broadcast is limited to only an electronic transference. We 

find it persuasive that Congress intentionally included two modes of transference for 

a distribution and only delineated one mode of transference for a broadcast. Based 

on our analysis of “broadcast” within the context of the statute, we conclude there is 

no basis for finding that Congress intended the definition of “broadcast” to include 

the mere physical act of displaying a video to one other physically present soldier. 

Although 10 U.S.C. section 920c was not enacted until 2012, we note that 

Congress enacted a similar statute, 18 U.S.C. section 1801, in 2004 which was given 

the short title, “Video Voyeurism Prevention Act of 2004.” Notably, 18 U.S.C. 

section 1801 defines the term “broadcast” to mean “electronically transmit[ing] a 

visual image with the intent that it be viewed by a person or persons.” 18 U.S.C. § 

1801(b)(2). We now turn to the legislative intent of this similar statute for 

additional guidance to discern Congress’ intent in enacting 10 U.S.C. section 920c. 

                                                            

6 Although “broadcast” is defined by the statute, we note that “broadcast” generally 

means “the act of sending out sound or images by radio or television transmission, 

especially for general transmission.” Webster’s Third New International Dictionary 

280 (1981). This general meaning of broadcast appears to also require an electronic 

device to send the transmission and an electronic device to receive the transmission. 
DAVIS—ARMY 20160069 

14 

In the House Report for 18 U.S.C. section 1801, Congress stated the 

background and need for this legislation was the “development of small, concealed 

cameras and cell phones, along with the instantaneous distribution capabilities of the 

Internet, have combined to create a threat to the privacy [...].” H.R. Rep. No, 108-

504, at 3 (2004). Congress expressed a concern for a compounded violation of 

privacy when an image of an individual’s private area is captured without his or her 

consent and then “[...] pictures or photographs find their way to the internet.” Id. 

Congress’ legislative intent in enacting 18 U.S.C. section 1801 appears to be aimed 

at combating the spread and showing of non-consensual photos of an individual’s 

private area on the internet. The House Report does not mention a concern for a 

scenario, like in this case, where an indecent video is displayed, but never actually 

electronically or physically transferred to the possession of the other physically 

present person. 

Appellant did not send the video to another person by any means. Appellant 

displayed the video recording on his cell phone to another soldier who was 

physically present. Under the facts of this case, we find appellant’s act is not 

encompassed within the definition of “electronically transmit;” he did not 

“broadcast” the recording to the other soldier. As such, we take corrective action in 

our decretal paragraph below.7

 

CONCLUSION 

On consideration of the entire record, the finding of guilty of Specification 2 

of Charge IV, broadcasting an indecent recording in violation of Article 120c(a)(3), 

UCMJ, is SET ASIDE and that Specification is DISMISSED. The remaining 

findings of guilty are AFFIRMED. 

We reassess the sentence in accordance with the principles of United States v. 

Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 

307-08 (C.M.A. 1986). We are confident the panel would have adjudged a sentence 

at least as severe as the approved sentence absent the error. While the conviction of 

Specification 2 of Charge IV increased appellant’s maximum punishment that may 

be imposed by seven years of confinement, appellant was not sentenced to any 

confinement. Appellant was sentenced to a bad-conduct discharge and reduction to 

the grade of E-1. In light of the sentence received and the gravamen of the 

remaining offenses of which appellant was convicted, we AFFIRM the approved 

                                                            

7 We note the rule of lenity would require a reversal of the conviction if an otherwise 

ambiguous criminal statute still existed. See Bifulco v. United States, 447 U.S. 381 

(1980); Huddleston v. United States, 415 U.S. 814, 831-32 (1974) (holding the rule 

of lenity provides that a criminal statute should be read in favor of a defendant when 

the statute is sufficiently ambiguous and it cannot be said exactly what conduct is 

prohibited). 
DAVIS—ARMY 20160069 

15 

sentence. All rights, privileges, and property of which appellant has been deprived 

by virtue of that portion of the findings set aside by this decision, are ordered to be 

restored. See UCMJ art. 58b(c) and 75(a). 

Senior Judge CAMPANELLA and Judge SALUSSOLIA concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES, JR. 

Clerk of Court