UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, HERRING, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Specialist DAKOTA A. BRAGAN 

United States Army, Appellant 

ARMY 20160124 

Headquarters, 82nd Airborne Division 

Richard J. Henry, Military Judge 

Lieutenant Colonel Susan K. McConnell, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres 

Vazquez, Jr., JA; Lieutenant Colonel Christopher Daniel Carrier, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie, III, 

JA; Captain Tara O’Brien Goble, JA; Captain Jonathan S. Reiner, JA (on brief). 

15 March 2017 

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MEMORANDUM OPINION 

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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

CAMPANELLA, Senior Judge: 

A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of indecent exposure, possessing child pornography, receiving 

child pornography, viewing child pornography, and communicating indecent 

language, in violation of Articles 120c and 134, Uniform Code of Military Justice, 

10 U.S.C. §§ 920c, 934 (2012) [hereinafter UCMJ]. The convening authority 

approved the adjudged sentence of a bad-conduct discharge, confinement for ninety 

days, and reduction to the grade of E-1. 

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

raises two assignments of error. Both warrant discussion and one merits relief. We 

also find the matters raised by appellant pursuant to United States v. Grostefon, 12 

M.J. 431 (C.M.A. 1982) to be meritless. 
BRAGAN—ARMY 20160124 

2

BACKGROUND 

Appellant pleaded guilty to indecent exposure by taking photographs of his 

erect penis and sending them to a pair of sixteen-year-old high school cheerleaders. 

During the plea inquiry, the military judge went through each element of the 

offense of indecent exposure and reviewed the basis for the charge–namely, that 

appellant had intentionally exposed his genitalia in an indecent manner between 1 

January 2014 and 30 November 2014. 

Appellant admitted he took photographs of his penis and sent them to others, 

knowing the pictures were indecent. He further expounded upon the indecency 

element of the charge in that he photographed his penis next to a water bottle to 

illustrate its size–and then sent the photographs via social media to persons under 

the age of 18. 

Although appellant did not mention it during the providence inquiry, appellant 

also sent videos of himself unclothed, masturbating, and ejaculating to the same two 

underage girls on different occasions during the same timeframe as the charged 

indecent exposure. The two girls reciprocated by sending appellant similar videos of 

themselves unclothed and masturbating. Appellant admits this information to be 

true through the stipulation of fact. 

LAW AND DISCUSSION 

Appellant now argues the military judge abused his discretion by accepting 

appellant’s guilty plea for indecent exposure in light of United States v. Williams, 75 

M.J. 663 (Army Ct. Crim. App. 2016). 

The government urges this court to distinguish this case from Williams and 

affirm the indecent exposure charge arguing that because appellant sent videos, not 

just still photographs, this case falls outside the holding in Williams. 

Standard of Review

We review a military judge’s decision to accept a guilty plea for an abuse of 

discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United 

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). Although the standard for 

this case is “abuse of discretion,” when the law changes due to a case decided while 

an appellant’s case is on direct appeal, appellant is entitled to avail himself of the 

new rule, even though the military judge did not err at the time. United States v. 

Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008) (Ryan, J. concurring). A guilty plea 

will only be set aside if we find a substantial basis in law or fact to question the 

plea. Id. (citing Inabinette, 66 M.J. at 322). The court applies this “substantial 
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3

basis” test by determining whether the record raises a substantial question about the 

factual basis of appellant’s guilty plea or the law underpinning the plea. Inabinette, 

66 M.J. at 322. 

Whether Article 120c(c), UCMJ, proscribes the appellant’s electronic 

transmission of a photograph of his penis is a de novo question of statutory 

interpretation. United States v. Entzminger, __ M.J. __, 2017 CCA LEXIS 20, at *4 

(Army Ct. Crim. App. 11 Jan. 2017); Williams, 75 M.J. at 665. 

Acceptance of Plea to Indecent Exposure 

After appellant’s court-martial, but before the convening authority took 

action, this court decided United States v. Williams, 75 M.J. 663 (Army Ct. Crim. 

App. 2016) and considered whether Article 120c(c), UCMJ, applied to an appellant 

sending a still “digital image” of his penis via text message to a victim. We 

determined it did not. We held the term “exposed” under Article 120c(c), UCMJ, 

did not encompass showing a person a photograph or digital image of one’s genitalia 

because there was no live display of actual genitalia. Id. at 667. Finally, we 

concluded Congress did not intend to criminalize an “exposure” through 

communication technology under Article 120c(c), UCMJ. Id. at 669. 

In other words, after appellant’s trial, this court definitively determined 

appellant’s actions of digitally sending a photograph of his exposed erect penis to 

another person did not constitute the offense of indecent exposure. We find 

appellant’s plea and the providence inquiry to be on all fours with this conclusion. 

The government argues that “although appellant did not mention it during the 

providence inquiry, he also sent videos of himself unclothed, masturbating, and 

ejaculating to both of those young girls on different occasions during the same time 

frame.” Accordingly, the government asserts that appellant’s actions went beyond 

the appellant’s actions in Williams, citing United States v. Ferguson, 68 M.J. 431 

(C.A.A.F. 2013), a pre-Williams case. 

This argument falls flat. There was no indication during the plea inquiry that 

the basis for the indecent exposure charge was connected to appellant transmitting 

videos of himself masturbating and ejaculating. The government invites this court to 

flout the providence inquiry and inappropriately incorporate by reference the videorelated information from the stipulation of fact. The law does not permit us to do 

so. 

Even if we were to ignore the providence inquiry and assume incorporation by 

reference of the information in the stipulation of fact, the government’s argument 

still comes to naught. The upshot of Williams was that there was no live display of 

actual genitalia in the electronic transmission. Also see, United States v. 
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Uriostegui, 75 M.J. 857, 864-65 (N.M. Ct. Crim. App. 2016) (“We agree with the 

holding in Williams that this conduct is not indecent exposure under Article 120c(c), 

UCMJ, because indecent exposure has ‘a temporal and physical presence aspect . . . 

[and] violations occur when a victim [may be] present to view the actual body parts 

listed in the statutes, not images or likenesses of the listed parts.’”). While 

transmitting a previously recorded video is factually different, as the government 

asserts, it is without legal distinction under these facts. 

As in Williams, here the record establishes no legally sufficient theory of how 

appellant committed indecent exposure under Article 120c(c), UCMJ. As such, we 

hold there is a substantial basis in law to question the providence of appellant’s plea 

and will take appropriate action in our decretal paragraph and set aside and dismiss 

Charge I. 

Post-Trial Delay 

 It took 106 days after action for the government to get appellant’s record of 

trial to our court. The government explains this delay as a mailroom issue related to 

the record being “returned to sender without notice to the local office.” We do not 

find this explanation reasonable. It is incumbent upon the government to track and 

account for mailed records of trial. That said, here, appellant has not demonstrated 

prejudice or a due process violation. See United States v. Moreno, 63 M.J. 129 

(C.A.A.F. 2006). Additionally, considering the facts and circumstances of this case, 

the approved sentence, and post-trial delay, we find the approved sentence not 

inappropriately severe. As such, we award no relief. UCMJ, art. 66(c). While we 

grant appellant no relief on this issue, we, nonetheless, invite the government’s 

attention to Army Reg. 27-26, Legal Services: Rule for Professional Conduct for 

Lawyers, Appx. B, R.1.1 (Competence), R.1.3 (Diligence) (1 May 1992) (“A lawyer 

shall act with reasonable diligence and promptness in representing a client and in 

every case.”). 

Reassessment 

 In determining whether we can reassess the sentence, we apply several nonexhaustive factors from United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 

2013). First, appellant faced a maximum punishment of a dishonorable discharge, 

thirty-one years and six months confinement, total forfeiture of pay and allowances, 

and reduction to E-1 prior to the reversal of his conviction for indecent exposure. 

Appellant still faces a maximum punishment of a dishonorable discharge, thirty 

years and six months confinement, total forfeiture of pay and allowances, and 

reduction to E-1. This does not constitute a dramatic change in the penalty 

landscape. Second, appellant was sentenced by a military judge and we are more 

likely to be certain of what a military judge would have done. Third, appellant’s 

criminal conduct remains significant: he is convicted of three child pornography 
BRAGAN—ARMY 20160124 

5

offenses and one specification of indecent language. Fourth, we have familiarity 

and experience with the remaining offenses to reliably determine what sentence 

would have been imposed at trial. After weighing these factors, we are confident we 

can reassess the sentence in this case. 

CONCLUSION 

On consideration of the entire record, the findings of guilty of the 

Specification of Charge I and Charge I are set aside and dismissed. The remaining 

findings of guilty are AFFIRMED. 

Reassessing the sentence on the basis of the errors noted, the entire record, 

and in accordance with the principles of Winckelmann, 73 M.J. at 15-16, we affirm 

the sentence as adjudged. All rights, privileges, and property, of which appellant 

has been deprived by virtue of that portion of his sentence set aside by this decision, 

are ordered restored. See UCMJ arts. 58b(c) and 75(a). 

Judge HERRING and Judge PENLAND concur. 

FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: