This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Hector NICOLA, Staff Sergeant

United States Army, Appellant

No. 18-0247

Crim. App. No. 20150781

Argued November 7, 2018—January 9, 2019

Military Judge: Tiernan P. Dolan

For Appellant: Captain Patrick G. Hoffman (argued);

Colonel Elizabeth G. Marotta, Lieutenant Colonel Tiffany 

D. Pond, and Major Jack D. Einhorn (on brief); Captain 

Cody Cheek.

For Appellee: Captain Allison L. Rowley (argued); Colonel 

Steven P. Haight, Lieutenant Colonel Eric K. Stafford, Major Wayne H. Williams, and Captain Joshua B. Banister

(on brief).

Judge MAGGS delivered the opinion of the Court, in 

which Chief Judge STUCKY, and Judges RYAN, 

OHLSON, and SPARKS, joined. 

_______________

Judge MAGGS delivered the opinion of the Court.

Contrary to his pleas, a general court-martial consisting 

of officer members found Appellant guilty of one specification of violating a lawful general regulation, one specification of abusive sexual contact, and one specification of indecent viewing, in violation of Articles 92, 120, and 120c, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 

920, 920c (2012). The court-martial found Appellant not 

guilty of one specification of sexual assault. The courtmartial sentenced Appellant to be reduced to the grade of E1 and to be discharged from the service with a bad-conduct 

discharge. The convening authority approved the sentence 

as adjudged. The United States Army Court of Criminal Appeals (ACCA) set aside and dismissed with prejudice the 

specification of violating a lawful general regulation but af-
United States v. Nicola, No. 18-0247/AR

Opinion of the Court

2

firmed the remaining findings and affirmed the sentence.

United States v. Nicola, No. ARMY 20150781, 2018 CCA 

LEXIS 159, 2018 WL 4309712 (A. Ct. Crim. App. Mar. 28, 

2018). 

Appellant now contends that the evidence was legally insufficient for the court-martial to find him guilty of indecent 

viewing. We disagree.

I. Background

The events in this case took place on October 10, 2014, at 

or near Camp Hovey in the Republic of Korea. Following an 

evening of excessive drinking, Appellant escorted Corporal 

AA out of a bar, helped her walk through an alleyway, and 

took her in a taxi back to her barracks. Corporal AA was 

very intoxicated at the time. She had previously drunk at 

least four beers and three shots of tequila. She could not 

speak clearly, she could not walk without Appellant’s assistance, she vomited in the alleyway and in the taxicab, she 

urinated in her jeans, and she fell over when moving from 

the taxi toward the barracks.

Appellant and Corporal AA entered Corporal AA’s barracks room with Specialist Jessica Long. After Corporal AA 

lay down on her bed, Specialist Long repeatedly told Appellant that they both should leave. Specialist Long then departed, but Appellant remained in the barracks room with 

Corporal AA. Less than an hour later, Specialist Long returned with Specialist Megan Scott. When they knocked on 

the barracks room door, there was no answer. Some minutes 

later, they returned with their platoon sergeant, Staff Sergeant Daniel Everett. When they again knocked on the door, 

Appellant answered. He informed Specialist Long that Corporal AA was taking a shower in the bathroom connected to 

her barracks room. Appellant left at this point. Specialist 

Long and Specialist Scott then helped Corporal AA out of 

the shower. Corporal AA was still heavily intoxicated.

Corporal AA subsequently testified that Appellant had 

placed his hand on her underwear and rubbed her genital 

area while they were in the alleyway outside of the bar.

When asked what happened next, she responded that the 

next thing she could remember was sitting naked in her 

bathroom shower. She testified that Appellant was in the 
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Opinion of the Court

3

shower with her, that he pulled back her hair, and that he 

put his penis in her mouth without her consent. She further 

testified that her private areas were exposed.

Appellant provided a different account of what 

transpired while he was in Corporal AA’s barracks room. He

testified:

We get inside the room and [Corporal AA] tries to 

head to the bed and I say negative, take a shower. 

A cold shower usually works for me, I guess a mental thing. So immediately she turns around and 

takes off her top, I turn my back and hear the belt 

and everything come off, takes off her clothes and 

then all of a sudden, past my head goes pants flying 

and I hear her running to the bathroom and the 

door slam closed.

Appellant admitted that, when this happened, he briefly saw 

CPL AA in her bra.

Appellant testified that he subsequently checked on Corporal AA twice while she was in the bathroom taking a 

shower. In his words, “the first time I yelled, hey are you 

okay, I get up, knock on the door, you alright. She says, yes, 

I’m good, I want to stay in here a little longer, and I’m like 

alright cool.” With respect to the second time, Appellant testified:

[I] yelled at her again, this time I didn’t get a response, so once I went to the door, knocked on the 

door, still no response, so I actually open up the 

door. I pulled the curtain back, kind of like hiding 

my body behind the curtain and I push her on the 

shoulder and I’m like are you alright, but before 

that I actually tapped the curtain and then I did 

that. Pushed her shoulder, top left shoulder, like 

you alright and she was like yes, I’m good, the water feels good.

Appellant testified that he did not see Corporal AA’s frontal 

area while she was in the shower.

The Government charged Appellant with four offenses.

The first offense was violating a lawful general regulation in 

violation of Article 92, UCMJ, by “wrongfully engaging in a 

prohibited relationship” with Corporal AA. Although the 

court-martial found Appellant guilty of this offense, the 
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4

ACCA set the finding aside and dismissed it with prejudice. 

Nicola, 2018 CCA LEXIS 159, at *8, 2018 WL 4309712, at 

*3. The second offense was abusive sexual contact of Corporal AA in violation of Article 120, UCMJ, by “stick[ing] his 

hand down her pants and touch[ing] her vulva” when she 

was incapable of consenting. The court-martial found Appellant guilty of this offense, the ACCA affirmed, and Appellant 

does not challenge this finding on appeal. The third offense 

was sexual assault of Corporal AA in violation of Article 120, 

UCMJ, by “penetrat[ing] her mouth with his penis” when 

she was in capable of consenting. The court-martial found 

Appellant not guilty of this offense. The fourth offense was 

indecent viewing in violation of Article 120c, UCMJ, by 

“knowingly and wrongfully view[ing] the private area of 

[Corporal AA] without her consent, and under circumstances 

in which she had a reasonable expectation of privacy.” The 

court-martial found Appellant guilty of this offense, and the 

ACCA affirmed. Appellant challenges this ruling on appeal, 

arguing that the evidence was legally insufficient.

II. Discussion

A. Elements of the Offense and Standard of Review

Article 120c(a)(1), UCMJ, establishes the offense of 

“[i]ndecent viewing” by providing:

Any person subject to this chapter who, without legal justification or lawful authorization—

 (1) knowingly and wrongfully views the private 

area of another person, without that other person’s 

consent and under circumstances in which that 

other person has a reasonable expectation of 

privacy; 

 . . . . 

 is guilty of an offense under this section and 

shall be punished as a court-martial may direct.

10 U.S.C. § 920c(a)(1). The term “[p]rivate area” means “the 

naked or underwear-clad genitalia, anus, buttocks, or female 

areola or nipple.” Id. § 920c(d)(2). The term “circumstances 

in which that other person has a reasonable expectation of 

privacy,” under the relevant definition, means “circumstances in which a reasonable person would believe that a private 

area of the person would not be visible to the public.” Id.
United States v. Nicola, No. 18-0247/AR

Opinion of the Court

5

§ 920c(d)(3)(B). Interpreting this statutory language, the 

Manual for Courts-Martial, United States (2016 ed.) (MCM),

now indicates that offense of “[i]ndecent viewing” has three 

elements:

(a) That the accused knowingly and wrongfully 

viewed the private area of another person;

(b) That said viewing was without the other person’s consent; and

(c) That said viewing took place under circumstances in which the other person had a reasonable expectation of privacy.

MCM pt. IV, para. 45c.b.(1)(a)−(c). Although this listing of 

the elements of Article 120c(a)(1), UCMJ, was not included 

in the MCM at the time of trial, we conclude—and Appellant 

does not contest—that it accurately states the elements of 

Article 120c(a)(1), UCMJ, at the time of Appellant’s 

conduct.1

A finding of guilt is legally sufficient if any rational factfinder, when viewing the evidence in the light most favorable to the government, could have found all essential elements of the offense beyond a reasonable doubt. United 

States v. Webb, 38 M.J. 62, 69 (C.A.A.F. 1993) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When applying 

this test for legal sufficiency, “ ‘this Court is bound to draw 

every reasonable inference from the evidence of record in favor of the prosecution.’ ” United States v. McGinty, 38 M.J. 

131, 132 (C.M.A. 1993) (quoting United States v. Blocker, 32 

M.J. 281, 284 (C.M.A. 1991)).

B. Legal Sufficiency of the Evidence

The Government argues that the evidence was legally 

sufficient to support the court-martial’s general finding of 

guilt as to the indecent viewing charge under two theories.2

 1 The current version of Article 120c(a)(1), UCMJ, applies to 

conduct occurring after June 28, 2012. MCM pt. IV, para. 45c., 

Note (2016 ed.). The events at issue in this case took place in 

2014. A listing of elements of the offense of indecent viewing in 

violation of Article 120c(a)(1), UCMJ, did not appear in pt. IV of 

the MCM until 2016. 

2 Under Rule for Court-Martial (R.C.M.) 918(a), a general finding of guilt does not indicate the facts upon which the finding 
United States v. Nicola, No. 18-0247/AR

Opinion of the Court

6

One theory is that Appellant indecently viewed Corporal AA

when she was in her barracks room. The other theory is that 

Appellant indecently viewed Corporal AA when she was in 

the shower. We can affirm the finding of guilt if either theory is legally sufficient. As we explained in United States v. 

Brown, “[a] factfinder may enter a general verdict of guilt 

even when the charge could have been committed by two or 

more means, as long as the evidence supports at least one of 

the means beyond a reasonable doubt.” 65 M.J. 356, 359 

(C.A.A.F. 2007) (citing Griffin v. United States, 502 U.S. 46, 

49–51 (1991); Schad v. Arizona, 501 U.S. 624, 631 (1991) 

(plurality opinion)). In this case, we find the evidence legally 

sufficient to support each of the Government’s theories.

1. Indecent Viewing in the Barracks Room

The Government makes a three-step argument in support of the theory that Appellant indecently viewed Corporal 

AA in her barracks room. First, the court-martial could have 

concluded that Appellant was not telling the truth when he 

testified that Corporal AA voluntarily disrobed herself in the 

barracks room. Second, the court-martial could have concluded that it was Appellant who removed Corporal AA’s 

clothes. Third, with this understanding of the facts, the

court-martial could have found that Appellant then viewed a 

private area of Corporal AA, without her consent, when she 

had a reasonable expectation of privacy.

Appellant contests the Government’s argument on two 

grounds. First, Appellant contends that the Government’s 

argument improperly relies on a theory of liability that the 

Government did not present at trial. Appellant asserts that 

the Government argued at trial that an indecent viewing occurred in the barracks simply because Appellant admitted to 

seeing Corporal AA in her bra. Appellant argues that this 

theory is obviously incorrect because a person who voluntarily disrobes in front of another person lacks a reasonable 

 

rests. Appellant could not have requested special findings as to 

matters of fact because special findings are authorized only in 

courts-martial composed of a military judge alone. R.C.M. 918(b). 

Appellant could have requested a bill of particulars to obtain more 

precise information about the Government’s theory or theories of 

liability, R.C.M. 906(b)(6) & Discussion, but did not do so.
United States v. Nicola, No. 18-0247/AR

Opinion of the Court

7

expectation of privacy. Appellant further argues that the 

Government may not now change its theory on appeal.

We agree that “[a]n appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact.” United States v. Ober, 66 M.J. 

393, 405 (C.A.A.F. 2008) (citing Chiarella v. United States, 

445 U.S. 222, 236–37 (1980)). But in this case, the Government is not presenting a new theory. Trial counsel asserted

throughout the Government’s findings argument that the 

court-martial should not believe Appellant’s account of what 

happened in the barracks room. Trial counsel specifically 

addressed Appellant’s testimony that Corporal AA disrobed 

herself. “In reality,” trial counsel argued, “when Corporal 

[AA] got up from the bed it is unlikely she was sober enough 

to get up on her own. It is unlikely she was sober enough to 

take off all of her clothes by herself.” Trial counsel further 

argued: “So we know in reality, even though he says all he 

saw was her wearing her bra, we really know that he facilitated all of her clothes coming off.” The record also makes

clear that defense counsel was aware of this theory. Defense 

counsel argued on findings that there was no DNA evidence 

to support the Government’s theory that Appellant took 

Corporal AA’s clothes off. Defense counsel asked, rhetorically, “if there’s an accuser who says she was drunk and doesn’t 

remember everything why not swab that bra and see who 

took that off?” Accordingly, we conclude that the theory that 

the Government relies on now “was one of the alternative 

theories of liability presented by the Government at trial, 

not a different theory.” Ober, 66 M.J. at 405.

Second, Appellant contends that the evidence does not

support the Government’s theory. Appellant emphasizes

that the only testimony about what happened in the bedroom came from Appellant. Appellant’s testimony, as described above, was that Corporal AA removed her own top in 

front of Appellant. There was no testimony from Corporal 

AA or anyone else that Appellant disrobed Corporal AA. The 

Government responds that the court-martial could have disbelieved Appellant’s testimony and reached the opposite 

conclusion.

We agree with the Government. In a criminal trial, the 

accused has a right to testify. See Rock v. Arkansas, 483 U.S. 
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8

44, 52 (1987). But one risk of testifying, recognized long ago,

is that the trier of fact may disbelieve the accused’s testimony and then use the accused’s statements as substantive evidence of guilt “in connection with all the other circumstances of the case.” Wilson v. United States, 162 U.S. 613, 

620−21 (1896). As the Supreme Court has said, “false testimony, knowingly and purposely invoked by [the] defendant, 

[may] be used against him.” Allen v. United States, 164 U.S. 

492, 500 (1896). Under this principle, the court-martial 

could have believed that Appellant was lying when he testified that Corporal AA disrobed herself, and then used his 

statements to find that the opposite was true.3

Some courts have recognized a limitation on the principle that the trier of fact may disbelieve the accused’s testimony and use it against the accused. The United States

Court of Appeals for the Eleventh Circuit, for instance, appears to require “some corroborative evidence of guilt” before 

concluding that “the defendant’s testimony, denying guilt, 

may establish, by itself, elements of the offense.” Brown, 53 

F.3d at 314−15. Such a requirement of additional evidence 

may reflect a concern, expressed by some other courts, that 

in an extreme case “ ‘[i]f negative inferences, based on demeanor evidence, were adequate in themselves to satisfy a 

rational juror of guilt beyond a reasonable doubt, appellate 

courts might not be able to provide meaningful review of the 

sufficiency of evidence.’ ” United States v. Zafiro, 945 F.2d 

881, 888 (7th Cir. 1991) (Posner, J.) (quoting United States 

v. Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991)), affirmed

on other grounds, 506 U.S. 534 (1993). Accord Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952) (Hand, L., J.). The 

 3 An instructive example of this principle of criminal law appears in United States v. Brown, 53 F.3d 312 (11th Cir. 1995). The 

defendant in that case challenged the legal sufficiency of his conviction for money laundering. Id. at 313. The government was required to prove that the defendant “took part in a financial transaction with money he knew was obtained illegally.” Id. The 

defendant testified that he did not know that the person with 

whom he transacted was in the drug business. Id. Upholding the 

defendant’s conviction in connection with this transaction, the 

court ruled that “the jury, hearing [the defendant’s] words and 

seeing his demeanor, was entitled to disbelieve [his] testimony 

and, in fact, to believe the opposite of what [he] said.” Id. at 314.
United States v. Nicola, No. 18-0247/AR

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9

Supreme Court does not appear to have addressed this specific issue, but it has cited these cases with approval. In 

Wright v. West, 505 U.S. 277, 296 (1992), the Supreme Court 

concluded that a jury was “entitled to discount [the defendant’s] credibility on account of his prior felony conviction” 

and was “further entitled to consider whatever it concluded 

to be perjured testimony as affirmative evidence of guilt.” In 

reaching this conclusion, the Supreme Court relied on Dyer, 

201 F.2d at 269, and Zafiro, 945 F.2d at 888, in addition to 

its 1896 decision in Wilson, 162 U.S. at 620–21. 505 U.S. at 

296. Consistent with this possible limitation, at oral argument in this case, the Government acknowledged that in the 

absence of any other evidence, the panel’s mere disbelief of 

Appellant’s testimony would be insufficient to convict him. 

Recording of Oral Argument at 13:05−13:36, United States v. 

Nicola, No. 18-0247 (C.A.A.F. Nov. 7, 2018).

Assuming without deciding that some additional evidence is required, beyond the members disbelieving the accused, the requirement is easily met in this case.4 It is undisputed that Corporal AA was clothed when she entered the 

barracks room with Appellant and Specialist Long, that Appellant and Corporal AA were the only two persons in the 

room after Specialist Long departed, and that Corporal AA

was later found naked in the shower. Testimony further established that Corporal AA was very intoxicated and had 

difficulty with simple actions such as walking and talking. If 

Appellant was untruthful in saying that Corporal AA disrobed herself, the court-martial rationally could have inferred that Appellant disrobed her. We note further that

 4 Military Rule of Evidence (M.R.E.) 304(c)(3) provides that 

“[c]orroboration is not required for a statement made by the accused before the court by which the accused is being tried.” This 

rule addresses only the admissibility of the accused’s statement 

into evidence. M.R.E. 304(c)(3) does not address the question of 

when the trier of fact may disbelieve the accused and then use his 

statements to find that the opposite was true. (We note that the 

version of M.R.E. 304 applicable to this case is found in Exec. Order No. 13,643 of May 13, 2013, 78 Fed. Reg. 29,559 (May 21, 

2013), and printed in the Supplement to Manual for CourtsMartial, United States, Military Rules of Evidence (2012 ed.). In 

2016, the President amended M.R.E. 304 in Exec. Order No. 

13,730 of May 20, 2016, 81 Fed. Reg. 33,331 (May 26, 2016)).
United States v. Nicola, No. 18-0247/AR

Opinion of the Court

10

various apparent inconsistencies in Appellant’s testimony 

regarding Corporal AA’s clothing may have caused the 

court-martial to question Appellant’s truthfulness. Accordingly, the evidence was legally sufficient for the courtmartial to have found Appellant guilty of indecently viewing

Corporal AA on the theory that Appellant saw her in the 

bedroom after Appellant removed her clothes.

2. Evidence of Indecent Viewing in the Shower

The Government also argues that the court-martial could 

have found that Appellant indecently viewed Corporal AA 

when she was in the shower. As described above, Corporal 

AA testified that Appellant had entered the shower when 

she was sitting naked with her private areas exposed. She 

also testified that she was still heavily intoxicated and felt 

nauseous. Appellant himself testified that the bathroom 

door was closed, that Corporal AA was behind a shower curtain, and that Corporal AA did not invite him to enter. Accordingly, the Government asserts, the evidence was legally 

sufficient for the court-martial to find that Appellant viewed 

her private areas without her consent and when she had a 

reasonable expectation of privacy.

Appellant contests the Government’s theory on four 

grounds. First, Appellant again argues that the Government 

has changed its theory of liability on appeal. Appellant asserts that at trial the Government’s theory was only that 

Appellant indecently viewed Corporal AA in the shower 

when he checked on her well-being. That theory, he contends, was incorrect because he testified that he did not see 

her private area and because he had a lawful justification 

for entering the bathroom when she became unresponsive.

Appellant contends again that the Government may not 

change its theory of liability on appeal.

We do not agree that the Government has changed its 

theory of liability. At trial, the Government called into question Appellant’s testimony that he merely reached into the

shower to check on Corporal AA. The Government contended 

that the reality was that Appellant took off his clothes and 

entered the shower. Appellant thus knew that one possible 

theory of liability was that he viewed Corporal AA when she 

was naked in the shower. Appellant took steps to defend 
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Opinion of the Court

11

against this theory. After Appellant testified about entering 

the bathroom to check on Corporal AA, defense counsel 

asked Appellant: “Did you see her front—frontal area?” Appellant responded, “No, I did not see her frontal area, sir.”

And in argument on findings, defense counsel argued that 

“[g]overnment counsel’s rendition of an indecent viewing is 

incorrect.” Defense counsel emphasized that he did not see 

any private area and that he was helping Corporal AA while 

she was in the shower. Again, we conclude the Government’s 

theory on appeal was one of the theories that the Government presented at trial.

Second, Appellant argues that the Government cannot 

rely on the theory that he indecently viewed Corporal AA in 

the shower because the Government also charged him with 

sexually assaulting Corporal AA in the shower. He asserts 

that in any case alleging a sexual assault on an unclothed 

person, a finding of indecent viewing from the same incident 

would constitute an unreasonable multiplication of charges.

We agree that charging an accused with both sexual assault 

and another sexual offense arising out of a single incident 

might be an unreasonable multiplication of charges depending on analysis in the particular case of the factors identified

in United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001). 

Compare, e.g., United States v. Gatewood, No. NMCCA 

201000142, 2011 CCA LEXIS 60, at *19, 2011 WL 1127054, 

at *6 (N-M. Ct. Crim. App. Mar. 29, 2011) (holding there was

an unreasonable multiplication of charges where the accused was charged with aggravated sexual assault and indecent conduct), with United States v. Feldkamp, No. ACM 

38493, 2015 CCA LEXIS 172, at *35−40, 2015 WL 3536193, 

at *11−12 (A.F. Ct. Crim. App. May 1, 2015) (holding there 

was no unreasonable multiplication of charges for findings 

when the accused was charged with sexual assault and indecent conduct). But even if there was an unreasonable multiplication in this case, Appellant has not explained—and we 

fail to see—how Appellant has suffered any prejudice because Appellant was found guilty of only indecent viewing. 

Cf. United States v. Roderick, 62 M.J. 425, 433 (C.A.A.F. 

2006) (finding prejudice when the accused was found guilty 

of more than one unreasonably multiplied charge).
United States v. Nicola, No. 18-0247/AR

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12

Third, Appellant argues that the panel could not have 

found that he indecently viewed Corporal AA’s private area 

because he testified that he only entered the shower after 

she became nonresponsive. In such circumstances, he contends, his viewing was not wrongful because he was properly 

checking on her safety. We agree that a viewing done for the 

purpose of checking on someone’s health and well-being 

would not necessarily be wrongful. But as explained above, 

the court-martial could have disbelieved Appellant when he 

testified that his motivation for entering the shower was 

merely to check on Corporal AA’s condition. Given the circumstances, the panel could have inferred instead that Appellant had a wrongful motive.

Finally, Appellant repeatedly stresses that the courtmartial found him not guilty of sexually assaulting Corporal 

AA in the shower. He appears to suggest that the courtmartial panel must have rejected Corporal AA’s testimony 

about what happened in the shower as untruthful. But the 

panel rationally could have believed that Appellant indecently viewed Corporal AA in the shower even if it concluded 

that Corporal AA’s testimony did not establish all of the elements of sexual assault beyond a reasonable doubt. See

United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) 

(“Defendants are generally acquitted of offenses, not of specific facts, and thus to the extent facts form the basis for 

other offenses, they remain permissible for appellate review.”). And even if there were some inconsistency in finding 

Appellant guilty of indecent viewing but not guilty of sexual 

assault, the inconsistency would not make the finding of indecent viewing legally insufficient. “We follow the Supreme 

Court’s admonition that it is ‘imprudent and unworkable’ to 

allow an accused ‘to challenge inconsistent verdicts on the 

ground that in their case the verdict was not the product of 

lenity, but of some error that worked against them.’ ” United 

States v. Emmons, 31 M.J. 108, 112 (C.M.A. 1990) (quoting 

United States v. Powell, 469 U.S. 57, 66 (1984)).

Therefore, the evidence was also legally sufficient for the 

court-martial to have found Appellant guilty of indecently

viewing Corporal AA when she was in the shower.
United States v. Nicola, No. 18-0247/AR

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13

III. Judgment

The decision of the United States Army Court of Criminal Appeals is affirmed.