## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before

CAMPANELLA 1 , 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, M ilitary Judge

Lieutenant Colonel Toshene C. F letcher, Staff Judge Advocate

For Appellant: Captain Bryan A. Osterhage, JA (argued); Lieute nant Colonel Tiffany M. Chapman, JA; Lieutenan t Colonel Christopher D. Carri er, JA; Captain Bryan A. Osterhage, JA (on brief); Lieutenant Colonel Christoph er 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 Watf ord, 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This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

FLEMING, Judge:

In this appeal, we fin d the military judge p roperly de nied the defense motion to suppress some of appellant’s statements to Cri minal Investig ation Command (CID) agents and the search of h is cell phone. We affirm appel lant’s conviction of making an indecent visual recordi ng of another sol dier’s privat e area when that soldier possessed a reasonable e xpectation of privacy at the ti me of its recording. We find appellant’s c onviction of broadcasti ng an indecent reco rding is factually and legally insufficient.

1 Senior Judge Cam panella decided this cas e prior to her departu re from the Court.DAVIS—ARMY 20160069

2 An officer panel sittin g as a general court- martial convicted a ppellant, contrary to his pleas, of one sp ecification of false official s tatement, one specification of indecen t recording, and on e specification of b roadcasting an indecent recording in violation of Article s 107 and 120c, Unifo rm Code of Military Justice, 10 U.S.C. § § 907, 920c (2012) [UC MJ]. The military ju dge convicted appellant, pursuant to his pleas, of two specifications of viol ating a lawfu l general

order in violation of Article 92, UCMJ. The con vening authorit y approved the adjudged sentence of a bad conduct discharge and a reduction to the grade of E-1. Appellant was credited with fifte en days of confinement against the sentence to

confinement.

This case is before us for rev iew pursuant to A rticle 66, UCMJ. We address two assignments of error, with multiple subparts , one of which merits relief. Appellant personally raised seven matters p ursuant 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 consideratio n, do not warrant discussion or relief.

BACKGROUND

Events Regarding Appellant’s Crimes

Appellant’s offenses o ccurred the day after Thanksgiving when m ostly underage soldiers cons umed alcohol and enga ged in sexual activi ty in a cheap offpost motel room. Appellant, Priv ate (PV2) JE, and several othe r soldiers rented the motel room to surrep titiously consume alc ohol. Appellant purch ased alcohol for all

the soldiers. After consuming vari ous amounts of a lcohol, most of the soldiers left the motel room except for appellant, PV2 JE , PV2 JH, and PV2 JS

.

The location of these four remaini ng soldiers with in the room a nd the room’s location and lay out is key to understanding this case. The roo m 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. Priva te JS, due to immens e alcohol c onsumptio n, passed out on

the bed closest to the window. A ppellant, PV2 JE, and PV2 JH e ngaged in a variety

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

Private JE asserted the sexual a ctivities were nonconsensual an d appellant asserted

the activities were consensual. While on the bed and without P V2 JE’s knowledge or consent, appellant used his c ell phone to rec ord PV2 JE’s bu ttocks as she was

bent over and faced forward whi le engaging in sexual intercours e with him.

A few minutes after a ppellant made the reco rding, several soldi ers from the group returned t o the motel room and knoc ked on the door. When no one answered the locked door, one o f the soldiers walke d over to the window, looked in, and sawDAVIS—ARMY 20160069

3 PV2 JE jump off the far bed an d run into the bathroom. Appella nt then opened the door to let the group into the room. Befor e leaving the room, appellant showed a

fellow soldi er the cell phone recordi ng he made of PV2 JE’s but tocks.

Appellant’s CID Interview

A few days later, appe llant was interviewe d by CID agents for t he alleged rape, among other offenses, of PV2 JE. Appellant made several incriminating

statements. At the en d of the interview, ap pellant consented t o the seizure and search of his cell phone which c ontained his video recording of PV2 JE. Appellant

deleted the vide o recording h e made of PV2 JE, but the CID digi tal forensic examiner was able to extract the deleted video from appellant’s cell phone.

At trial, defense couns el filed a motion to suppress appellant’ s statements to CID and challenged the validity of his con sent to seize and sea rch his cellphone because: (1) appellan t invoked his right to counsel; and (2) h is entire statement was involuntary. The milit ary judge granted th e motion, in part, a nd denied t he motion, in part, as discussed in-depth below.

In order to review the military judge’s ruling, w e divide the C ID interview into four key areas: (1) initial waiver; (2) invocation of rig hts; (3) re-initiation of communication; and (4) re -waiver of rights.

Initial Waiver

At the time of the interview, appellant was twenty-five years o ld, had a General Technical (GT) score of 124, and was recei ving training to be a combat medic specialist. T he military judge foun d “[appellant] mainta ined eye contact; could recollect facts, had no d ifficulty speak ing, had no slurr ed speech, had no difficulty walking, a nd had no difficulty si tting. The [appell ant] did not appear to

be under the influence of any substance tha t would im pair his a bility to knowingly waive his rights.”

Prior to any question ing by CID agents, app ellant was advised o rally and in writing of his Artic le 31(b), UCMJ, and Miranda rights. Miranda v. Arizona , 384 U.S. 436 (1966). Appellant verba lly affirmed he understood his rights and waived his rights. Appellant placed hi s initials by each right and si gned Department of Army Form 3881-E (DA Form 3881), the rights’ waiver procedure/w aiver certificate, purportedly indicating he unders tood and waived his rights.

The CID agent verbally advised appellant he was suspected of “ having knowledge,” as oppo sed to “having committe d,” a rape. Appellan t’s DA Form 3881, however, stated appellant was s uspected of committing the offen se of rape. ThisDAVIS—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 di scussed below. After obtaining appellant’s waiver of rights, a CID agent comme nced questioning appellant. After a f ew minutes of questions, appel lant asked the agent whether an attorney c ould be made available that night. The ag ent replied it would not be possible that night but it could be schedu led at a later time. Appel lant did not

ask to reschedule the interview but instead stated he wanted to get the interview done that night.

Invocation of Rights

Shortly after expres sing his desire to con tinue the interview, appellant sought to clarify the discrepancy betwe en whether he was suspected of “having knowledge” or “having committed” a rape. Appellant stated if an accusatio n existed that he committed a rape, the situation was “pretty serious.” After no ting the sever ity of the situation, appellant st ated “I would like to have a lawyer pres ent ... if I’m under investigation for [committing] r ape.” The military judge ruled this statement was an unambiguous invocation of appel lant’s right t o counsel.

Re-Initiation of Communication

Immediately after appellant’s re quest for counse l, he sua spont e continued talking to the CID age nt, providing an approximate nine-minute monologue on his exculpatory version of the events regarding the alleged offense s. During this monologue, the agent d id not ask appellant any questi ons or re- advise appellant of his rights. The agent testified h e did not stop the interview because appellant

continued to discuss the incid ent and “continued for an extensi ve period of time.” The military judge denied the def ense motion to suppress any st atements during appellant’s monologue, concluding they were volunt arily, sponta neously initiated by appellant, and not in r esponse to any questi ons from the CID ag ent.

After appellant’s lengthy monolo gue, the agent began re-questio ning appellant without re-advising him of his rights. Thi s re-questioning per iod continued for approximately fifty minutes. T he military judge held appellant ’s statements within this fifty-minute win dow were not admissibl e because they were taken in violation of his right to counse l as a valid re-waiver of his rights had not occurred.

Re-Waiver of Rights

Approximately fifty minutes int o the re-question ing period, app ellant asked the agent about takin g a polygraph examinat ion. The agent told appellant that a polygraph examinat ion could not occur that night, but it could be scheduled for later. Appellant then immediately state d “I would like to request a la wyer after this point.”DAVIS—ARMY 20160069

5 The agent then asked appellant if he was requesting a lawyer ri ght at that moment. Appellant responded he was not re questing a lawyer at this time

. The military judge held appellant ’s statement was an affirmativ e re-waiver of his right to co unsel and denied the defe nse 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-initi ation of communication and fift y minutes after the agent began re-questi oning appellant, the m ilitary judge reason ed appellant’s

immediate re-initiation of the int erview (the nine -minute monol ogue) authorized the agent to obtain a subsequent re- waiver of appellant’ rights.

After this re-waiver, the interview continued with appellant st ating “nothing I did is incriminating and I want my part of the st ory heard.” D espite this assertion, appellant eventually made some incriminating statements in resp onse to CID questioning, includin g an admission th at he recorded PV2 JE’s b uttocks without her

consent.

Appellant also consented to the s eizure and searc h of his cell phone which he

used to video PV2 JE. The military judge d enied the defense mo tion to suppress the

seizure and searc h of the cell phone on t he grounds that appell ant’s consen t occurred after his re-initiation and re-waiver of rights.

LAW AND DISCUSSION

Suppression of Statements

On appeal, appellant asserts the military judge a bused his disc retion by not suppressing all of app ellant’s statements to CID. Appellant es sentially offers the same reasons supporting suppress ion as he did at trial. First, appellant unambiguously invoked his right t o counsel and the CID agent fa iled to immediately

terminate the interv iew. Second, appellant’s statements were i nvoluntary.

We review a military j udge’s ruling on a mot ion 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) th e findings of fact upon whic h [the military judge] predicates his ruling are not s upported by the ev idence of reco rd; (2) if incorrect legal principles were used; or (3) if his application of the co rrect legal principles to the facts is clearly unreasonable.” United States v. Ellis , 68 M.J. 341, 3 44 (C.A.A.F. 2010); Military Rule of Evidence [Mil. R. Ev id.] 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 no t abuse his disc retion by conc luding appellant made an un ambiguous invocation of his right to counse l after initially waiving his rights. A n attorney was not ma de available to appe llant after hisDAVIS—ARMY 20160069

6 invocation of his right to coun sel. Under these facts, two iss ues must be considered

to determine if the military judge abuse d his discr etion by not suppressing all of appellant’s statements: (1) whe ther appellant r e-initiated com munication with the CID agent; and (2) whether appe llant 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 b right-line rule barr ing police from inte rrogating an accused in custody once he clearly asserts his right to counsel, unless an attorney is provided,

or “the accused himse lf initiates further communication, exchan ges, or conversations with the police.” M ilitary Rule of Evide nce 305(e)(3)(A) prohi bits re-questioning an accused, who is subj ect to “custodial interrogation,” after he invokes his right to

counsel unless the accused re- initiates communi cation and provi des a subsequent

waiver. 2

The military judge di d not determine whethe r appellant was subj ect to “custodial interrogation,” but the distinction between custodia l 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 subjecte d to mere non-custodial interrogation.

The Court of Criminal Appeals (C AAF) has stated “[c]onsistent w ith our precedents, we no te that in the military system the accused’s r ight to counsel - - and the requirement of knowing and voluntary waiver - - are not lim ited 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 ar e required to provide righ ts warnings prior to interrogating a member of the arme d forces if that ser vicemember is a suspect irrespective of custody.”). Even w ith the explicit wor ds in Mil. R. Evid. 305(e)(3)(A) requ iring “custodial interrogation,” and the absen ce of the military judge’s finding of fact on this is sue, we nevertheless apply CA AF’s precedent and first review, under Edwards , whether “[appellant] him self initiate[d] further communication, exchan ges, or conversation s” with the agents. Edwards , 451 U.S. at

484-85.

We find the military judge did no t err in finding appellant sua sponte reinitiated communi cation with a CID agent i mmediately after he i nvoked his r ight to counsel with no coaxing from th e agent. Appellant engaged in a nine-minute

2 “‘Custodial interrogation’ means questioning tha t takes place while the accused . . . is in custody, co uld reasonably b elieve himself o r herself to b e in custody, or is otherwise deprived of his or her freedom of action in any signi ficant way.” See Mil. R. Evid. 305(b)(3).DAVIS—ARMY 20160069

7 monologue asserting h is exculpatory versi on of events. The age nt did not ask questions during this time period. The ag ent also testified he did not stop the interview because appellant cont inued to discuss the incident a nd “continued for an extensive pe riod of time.” Accordingly, we hold the military j udge did not abuse his discretion by denying defense’s motion to s uppress appellant’s statement made during his length y monologue.

Appellant’s Statement Made after Re-Waiver

After determining appellant re- initiated communi cation, the que stion next

turns to wheth er appellant subsequentl y provided a knowing, int elligent, and voluntarily re-waiver o f his rights under a “totality of the ci rcumstances.” Oregon v.

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

that an accused re-in itiated dialogue with l aw enforcement ther e is also a separate inquiry into the voluntariness of the re-waiver).

Appellant asserts his re-waiver was not knowing, intelligent, a nd voluntary because the agent fail ed to re-advise him of his rights, and th erefore, 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 “t otality 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 equ ates to an unknowing, unintelligent, and involuntary re-waiver. See United States v. LeMasters, 39 M.J. 490, 491 (C.M.A. 1994) (holding a n accused’s acknowledgement th at he could consult with counsel, without a re -advisement of rights, suffic ed to establish a knowing waiver). We also decline to per se invali date the lega lity of appellant’s rewaiver because it occurred fift y minutes after appellant’s re-i nitiation of communication and lengthy monologu e when, we repeat, this is on e of many factors which must be weighed in reviewing the totality of the circumst ances. Any per se and pro forma rule would eviscerate a totality of the circumsta nces review.

After thoroughly rev iewing the totality of appellant’s circumst ances, we hold the military judge did no t abuse his discreti on finding appella nt knowingly, intelligently, and vo luntarily re-waived his rights when appell ant stated that he was not requesting a lawyer at this time. Appel lant was twenty-fiv e years old and possessed a GT score of 124. Nothing in the military judge’s f indings of fact, or our separate review, indicate any type of coe rcion during the re-wa iver process or the

entire interview.

After closely reviewing the enti re 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 desir e to immediately speak with CID because, as sta ted by appellant , “I want my part of the story heard.” See Michigan v. Mosley , 423 U.S. 96, 104 (1975) (stat ing “the admissibility ofDAVIS—ARMY 20160069

8 statements obtained af ter the person in custody has decided to remain silent depends

under Miranda on whether his ‘righ t to cut off questioni ng’ was ‘scrupulousl y honored.’”). Appellant did not want to “cut off questioning” f rom CID agents but

instead wanted to ful ly and immediately dis cuss the alleged off enses to clear his

name.

Appellant re-initiated comm unication on his own volition and w as not badgered by CID agent s into re-waiving hi s rights. Appellant u nderstood he had the right to counsel , he elected not to wai t to consult with counse l, and he continuously exhibited a strong des ire to talk to the CID agents. The milit ary judge did not abuse his discretion by denying the mot ion to suppress appellant’s st atements that occurred

after his re-ini tiation of communication and his affirmative re -waiver of counsel rights. 3

Appellant’s affirmativ e re-waiver, when comb ined with the other factors discussed above, served to establish a knowing, intelligent, an d voluntary re-waiver of his rights. We find our hol ding consistent w ith the overall purpose of the

Edwards rule which seeks to “prevent police from badgeri ng a defendant into waiving his previously asser ted” request f or counsel. See Minick v. Mississippi , 498 U.S. 146, 150 (1990). 4 Once appellant’s re-initiat ion merged with a valid noncoerced re-waiver, the judicially created prophylactic reasons, derived from
Edwards, to suppress appellant’s sta tements no longer existed.

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

should re-advise an accused of h is rights before re-questioning an accused who: (1) invokes his right to counsel afte r initially waiv ing such right ; and (2) re-initiates

communication after t hat invocation. This opinion should not b e read to embolden CID agents, or anyone else, to do otherwis e. Our affirmance of the military judge’s ruling in this case is limited to the very narrow set of presen ted facts.

Voluntariness of Appellant’s Entire Statement

At trial, defense counsel asser ted appellant’s sta tements were involuntary because he was: (1) initially h andcuffed enroute to the CID of fice; (2) prescribed certain medications; and (3) sle epy due to his m edication usage and having been

3 Likewise, we find the military judge did not abuse his discre tion in suppressing appellant’s statements within the approximate fifty minute wind ow occurring

between the end of h is monologue and his a ffirmative 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 pr evious sixteen hours. An inquiry into voluntar iness assesses “the totality of all the s urrounding circumstan ces – both the charac teristics 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 c onclusions of law de novo , including h is conclusion as to the

voluntariness of t he statement. United States v. Chatfield , 67 M.J. 432, 437 (C.A.A.F. 2009). We fi nd appellant’s state ments were voluntary based on the totality of the circumstances.

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

freedom of movement was not constrained in an y manner. Appella nt even did calisthenics during one bre ak in the interview.

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

establish he took either medica tion prior to or du ring his inte rview or that these medications had any bearing on hi s physical or cog nitive functi oning during his interview. Appellant was wide-aw ake and extremely articulate.

As to appellant being sleepy due to his alleged medication usag e or having been awake for the previous sixteen hours, we adopt the militar y judge’s detailed findings of fact. The military j udge found “[appe llant] mainta ined eye contact; could recollect facts, had no d ifficulty speak ing, had no slurr ed speech, had no difficulty walking, a nd had no difficulty si tting. The [appell ant] did not appear to

be under the influence of any substance tha t would im pair his a bility to knowingly waive his rights.”

We highlight the following addi tional facts supporting the volu ntariness of appellant’s statements. Again, at the time of the interview, a ppellant was twentyfive years old, h ad a GT score of 124, and was receiving traini ng to be a combat medic specialist. A ppellant felt sufficien tly comfortable to s ua sponte ask the CID agent if he coul d take off his Army Comba t Uniform shirt becaus e he was hot. Appellant’s request was immediat ely granted. Appellant was so assertive he corrected the CID agent throughout the interview by adamantly d enying he engaged in a “double penetrati on” of PV2 JE’s body w ith another solider despite the agent’s

assertion to the con trary. The agents ma de no promises to or t hreats against appellant.

Suppression of Cell Phone

Appellant asserts the military judge abuse d his discretion by n ot suppressing the contents of appellant’s cell phone because: (1) his consen t to its seizure and search was involuntary; and (2) he consented to the search duri ng an unlawful interrogation. W e disagree.DAVIS—ARMY 20160069

10 Having already determined appella nt’s acts were voluntary durin g the entire interview, we further note that a ppellant failed t o raise the i ssue of voluntariness at

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

defense counsel a lso did not object to th e contents of the cell phone being admitted

into evidence.

Whether an appellant has waive d an issue is a question of law w e 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 c ounsel to make a motion to suppress evidence seized from the accused prior to su bmission of plea, or at a later time as per mitted by the milita ry judge for good cau se. R.C.M. 905(e). Appellant’s failure to raise t he issue of volunt ariness in his motion to the military judge and at trial constitutes w aiver of his right to object to this Court regarding the

admission of the contents of his cell phone. Accordingly, appe llant’s claim that his consent to search his cell phone was involuntary is waived, lea ving no error to correct on appeal. See United States v. Ahern , 76 M.J. 194, 1 97 (C.A.A.F. 2017).

As to appellant’s sec ond argument, even if w e agreed with appel lant that his consent occurred during an unlaw ful interrogation , which we do not, a request for a

consent to seize and search doe s not impinge upo n Article 31(b) or Fifth Amendment rights because such requests are not inter rogations and the con sent given is ordinarily not a statement. See United States v. Robinson , 77 M.J. 303 (C.A.A.F. 2018). “Requesting cons ent to search property in wh ich a suspe ct has an interest is not prohibited by his prior r equest for coun sel, 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 expectatio n of privacy when the recording was made a nd the manner in which appellant displayed the video to another soldier does not meet the definition of “broadcasting” in A rticle 120c, UCMJ.

We review claims of legal a nd 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 sufficien cy is whether, considering the evidence in the l ight most favorable to the gov ernment, any rational

trier of fact could ha ve found the elements of the contested cr imes beyond a

reasonab le doubt. Jackson v. Virginia , 443 U.S. 307, 318-19 ( 1979). The test for factual sufficiency i s whether after weighing the evidence in t he record of trial and making allowances for not havin g personally observ ed the witnes ses, we ourselves are convinced of the appellant’s guilt beyond a reasonable doub t. 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 appella nt knew or reasonably should hav e known the recording was made wit hout PV2 JE’s consent, under circumstance s in which PV2

JE had a reasonable e xpectation of privacy, and that he knowing ly broadcasted the recording t o another. Artic le 120c, Uniform Code of Military J ustice, 10 U.S.C. § 920c (2012).

Reasonable Expect ation of Privacy

“Reasonable expectation of privacy,” for the purposes of the ch arged offense, is defined as “[c]ircumstances in which a reasonable person wou ld believe that he or she could disrobe in privacy, w ithout being con cerned that an i mage of a private area of the person was being capture d.” 10 U.S.C. § 92 0c(d)(3). “P rivate area” includes a person’s buttocks. 10 U.S.C. § 920c(d)(2). “B y enacting thi s provision of the UCMJ, Congress recogn ized an expectation of privacy in a person ’s body consistent with what has historically been recognized through widely accep ted social norms.”

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

Here, appellant recorded PV2 J E, who was bent over and facing f orward, while he was directly behind her attempting to penetrate her va gina. Appellant asserts PV2 JE, who had neither knowledge of the cell phone’s p resence nor consented to the making of the recording, did not have a reason able expectation of privacy because it was daylight, two other people were in the r oom, and the room

was located on the fir st floor with a windo w looking out into t he parking lot. Appellant further argues a passe rby in the parking lot could ha ve seen PV2 JE engaging in sexual activities w ith appellant, rendering the sex ual act “open and notorious,” and thus no reasonabl e 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 sex ual encounters with four differ ent women. Id. Although the sexu al encounters were conse nsual, the women did n ot consent or
know about the r ecording. Id . Raines argued the wome n should have noticed the camera and, that by agr eeing to have sex wit h him, they implici tly agreed to the recording. Id . at *13. The Navy-Marine Corps Court of Criminal Appeals held such arguments were “[. . . ] patently ridiculou s; agreeing to have s ex with another does

not remove all reasonable ex pectations 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 no t consent to t he surreptitiou s recording and did not lose her reasonable expectation o f privacy when she engaged in sexual activity withDAVIS—ARMY 20160069

12 two individuals in the presen ce of a third unaware person. 5 As to a possible passerby scenario, the door to the motel room w as closed and lo cked and the scene of the sexual activity was acro ss the room and a way from the wi ndow. Private JE’s

buttocks were record ed by appellant, who w as 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 defini tion of “reasonable expectation of pri vacy.” 10 U.S.C. § 920c(d)(3). Private JE had a

reasonable belief that her “priva te area,” her bu ttocks, would not be captured because appellant never mentione d recording thei r sexual act. She did not consent to such recording and no cameras w ere visible to her while enga ging in sex with appellant. 10 U.S.C. § 920c(d)(3). We conclude PV2 JE had a r easonable expectation of privac y that her buttocks w ould not be recorded by appellant, her sexual partner, while e ngaging in sex ual intercourse behind a l ocked 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 th e video re cording of PV2 JE o n his cell phone in front of one other phy sically present soldi er does not constitu te “broadcasting”

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

In deciding whether appellant’s conduct constitu ted a “broadcas t,” we first must attempt to discern if a pla in meaning of “electronically t ransmit” exists. See King v. Burwell , 135 S. Ct. 2480, 2489 ( 2015). If no p lain meaning exists and the language is ambiguous, we next consider the ambiguous word in t he context of the

entire statute. Id . We also may review the legisl ative history an d attempt to di scern the intent of lawmakers in enacting the statute.

In the absence of explicit lang uage showing a contrary congress ional intent, we must give words in statu tes their usual meaning. See Barber v. Gonzales , 347 U.S. 637, 643 (1954). In the absence of a s tatutory definition , we look to whether the language has a plain and unambiguo us meaning. United States v. Williams , 75 M.J. 663 (Army Ct. Cri m. App. 2016). The pl ain language of a s tatute will control

5 Private JE asserted the sexual i ntercourse with appellant was n on-consensual. Appellant asserted the sexual intercourse wa s consensual. We n eed not determine, however, whether the sexual inter course was consensual or nonco nsensual because,

even if we were to determine th e sexual activit y was consensual , PV2 JE did not lose her reasonable exp ectation as to being v ideo recorded.DAVIS—ARMY 20160069

13 unless it is ambiguous or l eads to an abs urd result. United States v. Lewis , 65 M.J. 85, 88 (C.A.A.F. 2007).

The pertinent defini tion of “electronic” is “utilizin g devices constructed or working by the met hods or principles of e lectronics.” Webster’ s Third New

International Dict ionary 280 (1981). See also Trump v. Hawaii , 138 S.Ct. 2392, 2410-11 (June 26, 20 18) (approving the use of the Webster’s Thi rd International Dictionary to discern a statute’ s textual plain m eaning). The most relevant

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

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

of these two definition s appears to require an electronic devic e to send the

transmission and an electronic de vice to receive the transmissi on. 6 In this case, there is only one electronic device – appellant’s cell phone.

We also further conside red the words, “elec tronically transmit” within the

context of the entire statute. “The plain ness or ambiguity of statutory language is determined by referen ce to the language it self, the specific co ntext in which that language is used, and the broader context of the statute as a w hole.” Robinson v.

Shell Oil Co ., 519 U.S. 337, 341 (1997). Artic le 120c(a)(3), UCMJ prohibit s two acts: “broadcasting” or “distributing.”

“Distribute” is define d as “deliverin g to the actual or constru ctive possession of another, including transmis sion by electronic means.” 10 U. S.C. § 920c(d)(5).

The definition of distr ibution allows for a physical or an elec tronic transference

whereas the defi nition of broadca st is limited to only an elect ronic transference. We find it persuasive that Congress intentionally included two mod es of transference for

a distribution and on ly delineated one mode of transference for a broadcast. Based on our analysis of “broa dcast” within the co ntext of the statut e, we conclude there is no basis for finding t hat Congress in tended the definition of “ broadcast” to include the mere physical act of displaying a vide o to one other physic ally present soldier.

Although 10 U.S.C. section 920c w as not enacted until 2012, we note that Congress enacted a similar stat ute, 18 U.S.C. sec tion 1801, in 2004 which was given the short title, “Video Voyeur ism Prevention Act of 2004.” Not ably, 18 U.S.C.

section 1801 defines t he term “broadcast” to mean “electronical ly transmit[ing] a visual image with the intent tha t it be viewed by a person or p ersons.” 18 U.S.C. § 1801(b)(2). We now turn to the legisla tive intent of this simi lar statute for additional guidance t o discern Congre ss’ intent in enacting 10 U.S.C. section 920c.

6 Although “broadcast” i s defined by the statu te, we note that “b roadcast” generally

means “the act of sendi ng out sound or image s by radi o or telev ision transmission, especially for general transmissi on.” Webster’s Third New Inte rnational Dictionary 280 (1981). This genera l meaning of broadcast appears to also require an electronic

device to send the transmission and an electronic device to rec eive 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 o f small, concealed cameras and cell phones, along with the instantaneous distribut ion capabilities of the Internet, have combined to creat e a threat to the privacy [...].” H.R. Rep. No, 108- 504, at 3 (2004). Congress expressed a concern for a compounde d violation of privacy when an image of an individual’s private area is captur ed without his or her consent and then “[...] pictures o r 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 in ternet. The House Rep ort does not mentio n a concern for a scenario, like in this case, where an indece nt video is display ed, but never actually electronically or physically t ransferred to th e possession of t he other physically

present person.

Appellant did not sen d the video to anothe r person by any means . Appellant displayed the vi deo recording on his cell phone t o another sold ier who was physically present. U nder the facts of thi s case, we find appe llant’s act is not encompassed within the definiti on of “electronically transmit;” he did not “broadcast” the recording to the other soldier. As such, we ta ke corrective action in our decretal pa ragraph below. 7

CONCLUSION

On consideration of the entire record, the find ing of guilty of Specification 2 of Charge IV, br oadcasting an indecent r ecording in violation o f Article 120c(a)(3), UCMJ, is SET ASIDE and that Specification is DISMISSED. The re maining findings of guil ty 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 c onfident the pane l would have ad judged a sentence at least as severe as the approved sentence absent the error. While the conviction of Specification 2 of Charge IV inc reased appellant’s maximum puni shment that may be imposed by seven y ears of confinement, a ppellant was not sen tenced to any confinement. Appellant was sente nced to a bad-conduct discharg e and reduction to the grade of E-1. In light of the sentence received and the gr avamen of the remaining offenses of w hich appellant was c onvicted, we AFFIRM the approved

7 We note the rule of len ity would require a r eversal of the conv iction if an otherwise ambiguous criminal stat ute still existed. See Bifulco v. United States , 447 U.S. 381 (1980); Huddleston v. United States , 415 U.S. 814, 831-32 ( 1974) (holdin g the rule of lenity provides tha t a criminal statute should be read in fa vor of a defendant when

the statute is suffici ently ambiguous and i t cannot be said exa ctly what conduct is prohibited).DAVIS—ARMY 20160069

15 sentence. All ri ghts, privileges, and p roperty of which appell ant has been deprived by virtue of that portion of the f indings set aside by this dec ision, are ordered to be

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

Senior Judge CAMPANELLA and Judge SALUSSO LIA concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court