This opinion is subject to revision before publication



## U NITED 

## S TATES 

## C OURT OF 

## A PPEALS
FOR THE 

### A RMED 

### F ORCES

_______________ UNITED STATES Appellee

v.
Hector NICOLA , S taff Sergeant

United States Army , Appellant

No. 18

- 0247 Crim. App. No. 20150 781 Argued November 7 , 2018

— January 9 , 2019 Military Judge: T iernan 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 A l lison 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, OHLSO N , 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 specific ation of violating a lawful general regulation, one specific ation of abusive sexual contact, and one specification of ind ecent 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 court

martial sentenced Appellant to be reduced to the grade of E

1 and to be discharged from the service with a bad

- conduct discharge. The convening authority approved the sentence as adjudged. T he United States Army Court of Criminal A ppeals (ACCA) set aside and dismissed with prejudice the specification of violating a lawful g eneral regulation but a f-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 i nsufficient 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, 201 4
, at or near Camp Hovey in the Republic of Korea

. Following an evening of excessive drinking, Appellan t 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

spea k clearly, she could not walk without Appellant’s assi stance, she vomited in the alleyway and in the taxi cab, 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 ba rra cks room with S pecial ist Jessica Long. After Corporal AA lay down on her bed, Specialist Long repeatedly told Appe llant that they both should leave. Specialist Long then d eparted
, but Appellant remained in the barracks room with Corporal AA

. Less than an h our later, Specialist Long r eturned 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 Se rgeant Daniel Ever e t t

. When the y again knocked on the door, Appellant answered. He informed Specialist Long that Co rporal 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. Corpora l 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 th e next thing sh e could remember was sitting naked in her bath room shower. She testified that Appellant was in theUnited States v. Nicola , No. 18

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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 priv ate area s w ere 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 me ntal 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 ru nning to the bathroom and the door slam closed. Appellant admitted that, w hen this happened, he briefly saw CPL AA in her bra.
Appellant testified that he subsequently checked on Co rporal AA twice while she was in the bathroom taking a shower. In his word s, “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 te stified:
[ I ] yelled at her again, this time I didn ’ t get a r esponse, 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 l ike 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 w ater feels good. Appellant testified that he did not see Corporal AA’s fro ntal

area while she was in the shower

. The G overnment charged A ppellant 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 A A. Although the
court

- martial found Appellant guilty of this offense, theUnited States v. Nicola , No. 18

- 0247/AR Opinion of the Court

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 Co rporal 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 Appe llant guilty of this offense, the ACCA affirmed, and Appellant does not challenge this find i ng 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 lega l l y 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 l egal justification or lawful authorization

— ( 1) knowingly and wrongfully views the private area of another pe rson, without that othe r 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). T he term “ [ p ] rivate area” mean s “ 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 “ circumstan ces 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

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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 pe rson’s consent; an d (c) That said viewing took place under circumstan ces in which the other person had a reasonable e xpectation of privacy.

MCM pt. IV, para. 45c.b. (1) (a)−(c)

. Although this listing of the elements of A rticle 120 c(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 a ny rational fact

finder, when viewing th e evidence in the light most favor able to the government, could have found all essential el ements of the offense beyond a reasonable doubt. United States v. Webb , 38 M.J. 62, 69 (C.A.A.F. 1993) (citing Jac kson v. Virginia , 443 U.S. 307 , 319 (1979)). When a pplying th is 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 G overnment argues that the evidence w as 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 fin ding of guilt does not indicate the facts upon which the findingUnited 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 Co r poral AA when she was in the shower. We can affirm the finding of guilt if either the ory is legally suffic ient. 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 G overnment’s theories.
1. Indecent Viewing in the Barracks Room

The G overnment makes a three

- step argument i n su pport 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 disrobe d herself in the barracks room. Second, the court

- martial could have co ncluded that it was Appellant who removed Corporal AA’s clothes

. Third, wi th 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 th e G overnment’s argument on two grounds. First, Appellant contends that the G overnment’s argument improperly relies on a theory of liability that the G overnment did not present at trial. Appellant asserts that the G overnment argued at trial that an indecent viewing o ccurred in the barracks simply because Appellant admitt ed to seeing Corporal AA in her bra. Appellant argues that this theory is obviously incorrect because a person who volu ntar i ly 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 com posed 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

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7 expectation of privacy. Appellant further argues that the G overnment may n ot now change its theory on appeal.

We agree that “[a]n appellate court cannot affirm a cri minal conviction on the basis of a theory of liability not pr esented 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 G over nment is not presenting a new theory. T rial 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 ow n. 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 facil itated all of her clothes coming of f.” The record also make s clear that defense counsel was aware of this theory. Defense counsel argued on findings that there was no DNA evidence to support the G overnment’s theory that Appellant took Corporal AA ’s clothes off. Defense counsel asked, rhetor ica lly, “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 G overnment relies on now “ was one of the alternative theories of liabi lity 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 G overnment’s theory

. Appellant emphasizes that t he only testimony about what happened in the be droom came from Appellant. Appellant’s testimony , as d escribed 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

. T he G overnment responds that the court

- martial could have di sbelieved Appellant’s testimony and reached the opposite conclusion.
We agree with the G overnment

. In a criminal trial , the accused has a right to testify. See Rock v. Arkansas , 483 U.S.United States v. Nicola , No. 18

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8 44, 52 (1987). But o ne risk of testify ing
, recognized long ago, is that the trier of fact may disbelieve the accused’s testim ony and then us e the accused’s statements as substantive e vidence of guilt “in connection with all the other circumstan ces of the case

. ” Wilson v. United States , 162 U.S. 61 3, 62 0 −2 1 (1896). As the Sup r eme Court has said, “ false test imony, knowingly and purposely invoked by [the] defe ndant, [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 test ified that Corporal AA disrobed her self, and then used his statements to find that the opposite was true. 3
Some courts have recognized a limitation on the princ iple that the trier of fact may disbelieve the accused’s test imony and use it against the accused. The U nited States Court of Appeals for the Eleventh Circuit, for instance, a ppears 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 d emeanor evidence, were adequate i n 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. Ma cDougall , 201 F.2d 265, 269 (2d Cir. 1952) (Hand, L., J.). The

3 An instructi ve example of this principle of criminal law a ppears in U nited States v. Brown , 53 F.3d 312 (11th Cir. 1995). T he defendant in that case challenged the legal sufficiency of his co nviction for money laundering. Id. at 313. The government was r equired to pro ve that the defendant “ took part in a financial tran saction with money he knew was obtained illegally. ” Id. The defendant testified that he did not know that the person with whom he trans acted was in the drug business. Id. Upholding the defendant’s convict ion in connection with this transaction , the court ruled that “ the jury, hear ing [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

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9 Supreme Court does not appear to have addressed this sp ecific 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 defen dant’s] credibility on account of his prior felony conviction ” and was “ further enti tled 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 arg ument 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 co nvict 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 ev idence is required, beyond the members disbelieving the a ccused, the requirement is easily met in this case

. 4 I t is u ndisputed that Corporal AA was clothed when she enter ed the barracks room with Appellant and Specialist Long

, that A ppellant 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 e stablished that Corporal AA was very intoxicated and had difficulty with simpl e action s such as walking and talking. If A ppellant was untruthful in saying that Corporal AA di srobed herself, the cou rt

- martial rationally could have i nfer red that Appellant disrobed her. We note further that

4 Military Ru le of Evidence (M.R.E.) 304(c)(3) provides that “[c]orroboration is not required for a statement made by the a ccused 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. O rder No. 13,643 of May 13, 2013, 78 F ed. R eg. 29
, 559 (May 21, 2013), and printed in the Supplement to Manual for Courts

Martial

, United States, Military Rules of Evidence (2012 e d

. ). 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 va r ious apparent inconsistencies in Appellant’s testimony regarding Corporal AA’s clothing may have caused the
court

- martial to question Appellant ’s truthfulness

. A ccor dingly, t he evidence was legally sufficient for the court

martial to have found Appellant guilty of indecently view ing Corporal AA on the theory that Appellant saw her in the bedroom after Appellant remov ed her clothes

. 2. Evidence of Indecent Viewing in the Shower

The G overnment also argues that the court

- martial could have found that A ppellant indecently viewed Corporal AA when she was in th e shower. A s described above, Corporal AA testified that Appellant had entered the shower when she was sitting n aked with her private areas exposed. She also testified that she was still heavily intoxicated and felt

nau seou s. Appellant himself testified that the bathroom door was closed, that Corporal AA was behind a shower cu rtain, and th at Corporal AA did not invi te him to enter. A ccordingly, t he G overnment assert s, 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 G overnment’s theory on four grounds. First, Appellant again argues that the G overnment has changed its theory of liability on appeal. Appellant a sserts that at trial the G overnment’s theory was only that Appellant indecently viewed Corporal AA in the shower wh en he checked on her well

- being. That theory, he co ntend s , 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 un responsive. Appellant c ontends again that the G overnment may not change its theory of liability on appeal.

We do not agree that the G overnment has chang ed its theory of liability

. At trial

, the G overnment called into que stion Appellant’s testimony that he merely reached into the

s hower to check on Corporal AA. T he G overnment contended that the reality was that Appellant took of f 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 sh ower. Appellant took steps to defendUnited States v. Nicola , No. 18

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11 against this theory. After Appellant testified about entering the bathroom to check on Corporal AA, defense counsel asked A ppellant: “Did you see her front

— frontal area?” A ppellant responded, “No

, I did not see her frontal area, sir.” And in argument on finding s , 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 th at he was helping Corporal AA while she was in the shower

. Again, we conclude the G overnment’s theory on appeal was one of the theories that the G over nment presented at trial.
Second, Appellant argues that the G overnment cannot rely on the theory that he indecently viewed C orporal AA in the shower because the G overnment also charged him with sexual ly 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 co nstitute 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 depen ding on analysis in the parti cular 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. Gatew ood
, 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 a ccused was charged with aggravated sexual assault and ind ecent 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 ind ecent conduct). But even if there was an unreasonable mult iplication in this case, Appellant has not expla ined

— and we fail to see

— how Appellant has suffered any prejudice b ecause 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

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12 Third
, A ppellant argues that the panel could not have f ound that he indecent ly viewed Corporal AA’s private area because he testified that he only entered the shower after she became no nresponsive. In such circumstances, he co ntends, 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 ci rcumstances, the panel could have inferred instead that A ppellant had a wro ngful motive.
Finally , Appellant repeatedly stres s es that the court

martial found him not guilty of sexually assaulting Corporal AA in the shower. H e appears to suggest that the court

martial panel must have rejected Corporal AA’s testimony about what happ ened in the shower as untruthful. But t he panel rationally could have believed that A ppellant ind ecently viewed Corporal AA in the shower even if it concluded that Corporal AA’s testimony did not establish all of the e lements of sexual assault beyond a rea sonable doubt. See United States v. Rosario , 76 M.J. 114 , 117 (C.A.A.F. 2017) ( “ D efendants are generally acquitted of offenses, not of sp ecific facts, and thus to the extent facts form the basis for other offenses, they remain permissible for appellate r eview

. ”). And even if there were some inconsistency in finding Appellant guilty of indecent viewing but not guilty of sexual

as sault, the inconsistency would not make the finding of i ndecent viewing legally insufficient. “We follow the Supreme Court’s admon ition 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 A ppellant guilty of indecent ly viewing Corporal AA when she was in the shower.United States v. Nicola , No. 18

- 0247/AR Opinion of the Court

13 III . J udgment

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