This opinion is subject to administrative correction before final disposition.

11 February 2020:

Administrative correction to indicate author and concurring judges.

Before 

HOLIFIELD, LAWRENCE, and DEERWESTER

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Thomas A. PAGE III

Corporal (E-4), U.S. Marine Corps

Appellant

No. 202000069

Decided: 11 February 2021

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge: 

Stephen F. Keane

Sentence adjudged 9 January 2020 by a general court-martial convened at Marine Corps Air Station Yuma, Arizona, consisting of a 

military judge sitting alone. Sentence in the Entry of Judgment: 

reduction to E-1, forfeiture of all pay, confinement for six months, and 

a bad-conduct discharge.

For Appellant: 

Major Brian L. Farrell, USMCR

For Appellee:

Lieutenant Gregory A. Rustico, JAGC, USN

Lieutenant Joshua C. Fiveson, JAGC, USN

_________________________
United States v. Page, NMCCA No. 202000069

Opinion of the Court

2

Senior Judge HOLIFIELD delivered the opinion of the Court, in which 

Judges LAWRENCE and DEERWESTER joined. 

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

HOLIFIELD, Senior Judge:

Appellant was convicted, pursuant to his pleas, of one specification of 

wrongful broadcast of intimate visual images and one specification of abusive 

sexual contact in violation of Articles 117a and 120, Uniform Code of Military 

Justice [UCMJ], 10 U.S.C. §§ 917a, 920.1 In two assignments of error [AOEs], 

Appellant avers that his guilty plea to wrongfully broadcasting intimate 

images was improvident in that (1) information independent of the broadcasting of a photo does not satisfy the element that the victim be identifiable from 

“information displayed in connection with the intimate visual image”; and (2) 

the term “broadcasting” does not include text messaging a photo to one’s own 

phone. We find merit in the first AOE and take action in our decretal 

paragraph that moots the second.

I. BACKGROUND

From March to May 2018, Appellant and Corporal Charlie2 served together in Okinawa, Japan, and became friends. While participating in an 

exercise in South Korea in May 2018, they shared a twelve-man tent. One 

night, while Corporal Charlie slept, Appellant took the sleeping man’s 

unlocked phone and found on it multiple nude images within a text discussion between Corporal Charlie and Corporal Charlie’s wife. Appellant texted 

to himself from Corporal Charlie’s phone one image of what he believed to be 

his friend’s genitalia. Appellant deleted the image within days and did not 

forward it to anyone.

 

1 Three specifications of sexual assault were withdrawn and dismissed pursuant 

to a plea agreement. A second specification of abusive sexual contact was dismissed 

by the military judge as an unreasonable multiplication of charges. R. at 75.

2 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms.
United States v. Page, NMCCA No. 202000069

Opinion of the Court

3

Additional facts necessary to resolve the AOEs are addressed below.

II. DISCUSSION

A. Standard of Review

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

of discretion and questions of law arising from the guilty plea de novo.”

United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). In challenging 

the acceptance of a guilty plea, an appellant must show that the military 

judge abused his discretion in accepting the plea despite “a substantial basis 

in law or fact to question the plea.” United States v. Phillips, 74 M.J. 20, 22 

(C.A.A.F. 2015). “[A]ny ruling based on an erroneous view of the law . . .

constitutes an abuse of discretion.” Inabinette at 322. And “a court shall not 

accept a plea of guilty where ‘an accused . . . sets up matter inconsistent with 

the plea, or if it appears that he has entered the plea of guilty improvidently 

. . . .’ ” United States v. Hardeman, 59 M.J. 389, 391 (C.A.A.F. 2004)

(alteration in original) (quoting UCMJ art. 45(a)).

B. Whether there is a Substantial Basis in Law or Fact to Question 

the Providence of Appellant’s Guilty Plea

During the court’s Care3 inquiry, the military judge properly advised 

Appellant of the elements4 of the offense charged under Article 117a:

One, that between on or about1 March 2018 and 31 May 2018, 

at or near South Korea, you . . . knowingly and wrongfully 

broadcast intimate visual images of Corporal [Charlie], United 

States Marine Corps;

Two, that Corporal [Charlie] was at least 18 years of age 

when the visual images were created;

Three, that Corporal [Charlie] is identifiable from the visual images or from information displayed in connection with the 

visual images;

 

3 See United States v. Care, 40 C.M.R. 247 (C.M.A. 1969).

4 See Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, 

para. 3-42A-1 (Feb. 29, 2020) [Benchbook]. For consistency’s sake, we will refer to 

these elements by the numbers used by the military judge.
United States v. Page, NMCCA No. 202000069

Opinion of the Court

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Four, that Corporal [Charlie] did not explicitly consent to 

the broadcast of the visual images; 

Five, that you knew, or reasonably should have known, that 

the visual images were made under circumstances [in] which 

Corporal [Charlie] retained a reasonable expectation of privacy

regarding a broadcast of the visual images;

Six, that you knew or reasonably should have known that 

the broadcast of the visual images were [sic] likely to cause 

harassment and emotional distress for Corporal [Charlie] and 

to harm substantially Corporal [Charlie’s] reputation and personal relationships;

And, seven, that under the circumstances, your conduct had 

a reasonably direct and palpable connection to a military mission or military environment.5

The military judge also correctly explained to Appellant the definitions 

applicable to Article 117a. Notably, the Benchbook does not define or explain 

“information displayed in connection with the intimate visual image.”

During the colloquy, Appellant’s responses substantively tracked with the 

statements contained in the stipulation of fact, in which he admitted, without 

explanation or detail, that each of these elements was met.6 Regarding the 

third element, the stipulation of fact reads simply as follows: “Cpl [Charlie] is 

identifiable from the visual images and from information displayed in 

connection with the visual images.”7 When the military judge sought to build 

a factual basis to support this conclusory statement, the following discussion 

occurred:

MJ: What was contained in the pictures?

ACC: There were nude photographs. sir.

MJ: Nude photographs of him and nude photographs of 

her?

ACC: Yes, sir.

 

5 R. at 26-27.

6 Pros. Ex. 1 at 2-3.

7 Pros. Ex. 1 at 3.
United States v. Page, NMCCA No. 202000069

Opinion of the Court

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MJ: Okay. And then what did you do?

ACC: I saw the photograph of him, and I sent it to myself, 

sir.

MJ: Describe—how many photographs did you send to 

yourself?

ACC: Just one, sir.

MJ: Describe the photograph you sent to yourself.

ACC: It was a picture of his genitals.

MJ: Was he in the picture as well?

ACC: No, sir.

MJ: It was just a picture of genitals?

ACC: Yes, sir.

MJ: You couldn’t tell who it was?

ACC: No sir. But after the incident I came up—confessed to 

him. He made it clear that it was him.8

At this point, the military judge rightly recognized that there was a 

potential inconsistency between the stipulation of fact, Appellant’s statements, and his pleas regarding whether the person in the picture was 

identifiable either from the image itself or from information displayed in 

connection with it. So he asked the trial counsel what his theory was on the 

issue. The trial counsel responded that the fact the image was part of a text 

conversation between the victim and his wife in which the couple was 

exchanging nude photos was “information in connection with the message”

that would lead Appellant to believe it was Corporal Charlie’s genitalia in the

picture.9 The military judge returned to questioning Appellant:

MJ: Okay. So it is just a photograph of Corporal [Charlie’s] 

penis and genitalia?

ACC: Yes, sir.

MJ: But there was no picture of him?

 

8 R. at 33-34.

9 Id.
United States v. Page, NMCCA No. 202000069

Opinion of the Court

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ACC: No, sir.

MJ: But it was taken from his phone?

ACC: Yes, sir.

MJ: And it was sent to his wife?

ACC: Yes, sir.

MJ: And then you actually discussed it with him later?

ACC: Yes, sir.

MJ: And he confirmed that that was a picture of his penis?

ACC: I knew it was his—a picture of—by the way he reacted 

to it and that—the fact that it was between him and 

his wife.10

Without indicating how he interpreted the relevant language in Article

117a, the military judge moved on to question Appellant about other 

elements of the offense.

1. Statutory Analysis

“Statutory construction begins with a look at the plain language of a 

rule.” United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 2007). In doing so, 

“sections of a statute should be construed in connection with one another as ‘a 

harmonious whole’ manifesting ‘one general purpose and intent.’ ” United 

States v. Quick, 74 M.J. 517, 520 (N-M Ct. Crim. App. 2014) (quoting Norman 

J. Singer, Statutes and Statutory Construction § 46:05 (6th ed. 2014)). The 

canon against surplusage requires that, “if possible, every word and every 

provision is to be given effect and that no word should be ignored or 

needlessly be given an interpretation that causes it to duplicate another 

provision or to have no consequence.” United States v. Sager, 76 M.J. 158, 161 

(C.A.A.F. 2017). Accordingly, in interpreting provisions of the UCMJ, we 

“should . . . give meaning to each word of the statute.” Id. (alteration in 

original) (internal quotation marks and citation omitted). “[T]he canon 

against surplusage is strongest when an interpretation would render 

superfluous another part of the same statutory scheme.” Id. (alteration in 

original) (quoting Yates v. United States, 574 U.S. 528, 543 (2015)).

 

10 R. at 34-35.
United States v. Page, NMCCA No. 202000069

Opinion of the Court

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First, reading the UCMJ as a cohesive whole, we assume Congress does

not create new articles that achieve the same end or prohibit the same 

conduct as do existing articles. Article 117a (“Wrongful broadcast or 

distribution of intimate visual images”) criminalizes conduct different from 

the only slightly older Article 120c(a) (“Indecent viewing, visual recording, or 

broadcasting”).11 While paragraph (a)(3) of Article 120c refers to broadcast or 

distribution, it is only in regard to images created without consent. From its 

plain language, Article 117a differs in that its focus is on the harm (physical, 

emotional, financial, professional) that the nonconsensual broadcast or 

distribution of an intimate image may cause a victim. It does not proscribe

the viewing of said image, and consent regarding the creation of the image is 

irrelevant. Rather, the gravamen of Article 117a is transmitting the image in 

a way that allows others to identify the person in the picture, either from 

information contained in the image itself or displayed in connection with the 

image as broadcast.

Second, the sixth element, that the broadcaster or distributor of the image 

“knows / should have known” that the distribution will cause such harm to a 

victim, implicitly assumes the sender knows who is in the picture—how else 

would the sender know whether sending the intimate image will cause the 

victim harm? The same is true for the fourth and fifth elements; knowledge of 

whether a victim consents to the broadcast or retains a reasonable expectation of privacy regarding any broadcast requires that the broadcaster know 

who is in the picture. If the sender’s ability to identify the victim (implicit in 

the fourth, fifth, and sixth elements) is alone sufficient to meet element 3, 

element 3 becomes surplusage—as it is a given that the sender knows who is 

in the image before sending it.

Similarly, allowing the third element to be satisfied here solely by information known by the sender before—and independent of—the actual

broadcast or distribution of the image would render the sixth element a 

factual impossibility. If the victim cannot be identified in connection with the 

image as broadcast or distributed, the broadcast ipso facto is not “likely to 

cause harm” to the victim.

 

11 Article 117a was enacted by the National Defense Authorization Act [NDAA] 

for Fiscal Year 2018, Pub. L. No. 115-91, § 553(a), 131 Stat. 1283 (2017); Article 120c 

was enacted by the NDAA for Fiscal Year 2012, Pub. L. No. 112-81, § 541(c), 125 

Stat. 1298 (2011).
United States v. Page, NMCCA No. 202000069

Opinion of the Court

8

Accordingly, we find that “information displayed in connection with the 

intimate image” is limited to information that accompanies the picture when 

it is broadcast or distributed and is displayed after the broadcast or 

distribution occurs. We now examine whether the facts as developed below 

support a conviction in light of this limited definition.

2. Factual Analysis

Appellant avers in part that the military judge applied an overly expansive definition of “identifiable . . . from information displayed in connection 

with the intimate visual image.” While the military judge recognized a 

potential issue regarding the third element, he did not rule on the issue or 

make any comments indicating what definition he applied. But, even 

assuming he applied the correct definition, the military judge abused his 

discretion in accepting the plea despite a substantial basis in fact to question 

the plea.

“If an accused ‘sets up matter inconsistent with the plea’ at any time 

during the proceeding, the military judge must either resolve the apparent 

inconsistency or reject the plea.” United States v. Garcia, 44 M.J. 496, 498 

(C.A.A.F. 1996) (quoting UCMJ art. 45(a)) (citing Rule for Courts-Martial

910(h)(2)). In this case, the military judge did neither, despite the fact that 

Appellant’s and trial counsel’s responses, rather than resolve the inconsistency, actually underscored it. 

It is clear from both Appellant’s responses and trial counsel’s stated 

theory of criminality that the only evidence identifying the genitalia in the 

image as belonging to Corporal Charlie is: (1) Appellant found the picture on 

Corporal Charlie’s phone; (2) Appellant saw that the image was originally 

part of a text discussion between Corporal Charlie and his wife; and (3) 

Corporal Charlie later stated to Appellant that it was his genitalia in the 

image and reacted angrily when informed that Appellant had sent the picture 

to himself. There is nothing in the visual image itself that identifies Corporal 

Charlie; Appellant specifically stated that he couldn’t tell who it was in the 

photo. Had the text message in which the photograph was embedded, along 

with its associated words, names, etc., accompanied the image as broadcast, 

there may have been sufficient context to specifically identify the genitalia as 

that of Corporal Charlie. However, Appellant sent only the image of a male’s 

genitalia from one phone to his own. Likewise, there is no evidence in the 

record indicating that there was on Appellant’s phone information displayed 
United States v. Page, NMCCA No. 202000069

Opinion of the Court

9

in connection with the visual image that identified the genitalia as Corporal 

Charlie’s.12 Thus, any third party viewing the image on Appellant’s phone, 

post-broadcast, would be unable to identify whose genitalia are in the picture. 

The Government concedes, and we agree, that the conversation Appellant 

had with Corporal Charlie after forwarding the image is not information 

displayed in connection with the intimate image.13 Instead, it claims that the 

displayed information was “the text message conversation in which it was 

found, which identified the Victim as the sender and his wife as the 

recipient.”14 The issue, then, is whether this sole piece of evidence, independent of the broadcast, tying the image to Corporal Charlie is sufficient to meet 

Article 117a’s third element.

Applying the definition explained above, we find it is not. Information 

known to the broadcaster but not accompanying the image as broadcast is not 

“information displayed in connection with the intimate visual image.” The 

facts here simply do not match the elements of Article 117a. Thus, at trial, 

there was a substantial basis in fact to question Appellant’s plea—and that

question remains. Accordingly, we will set aside the findings of guilty as to 

Charge I and its Specification. 

C. Sentence Reassessment

We must next determine whether our “broad discretion” allows us to 

reassess Appellant’s sentence instead of ordering a rehearing on sentence. 

United States v. Wincklemann, 73 M.J. 11, 12 (C.A.A.F. 2013). In Wincklemann, our superior court provided four “illustrative, but not dispositive,”

factors to consider. The factors are: 

 

12 The Government invites us to infer that, “because a text message conversation 

identifies the sender,” there was information displayed on Appellant’s phone that 

identifies the image as having come from Corporal Charlie’s phone, and that this 

information would allow a third party viewer to identify the genitalia in the image as 

belonging to Corporal Charlie. Gov’t Br. at 9. We decline to assume away an element 

where there is nothing in the record to support this two-step inference. The record 

contained no screen shots of the image on Appellant’s phone, nor was there any 

discussion on the record describing how the image appeared once on Appellant’s 

phone.

13 Id. at 10.

14 Id.
United States v. Page, NMCCA No. 202000069

Opinion of the Court

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(1) [Whether there are] [d]ramatic changes in the penalty 

landscape and exposure.

(2) Whether an appellant chose sentencing by members or a 

military judge alone. . . .

(3) Whether the nature of the remaining offenses capture 

the gravamen of criminal conduct included within the original 

offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain 

admissible and relevant to the remaining offenses. [and]

(4) Whether the remaining offenses are of the type that 

judges of the courts of criminal appeals should have the experience and familiarity with to reliably determine what sentence

would have been imposed at trial.

Id. at 15-16 (citations omitted).

While the potential confinement for violating Article 117a was, at seven 

years, half the maximum confinement Appellant faced for the two offenses for 

which he was sentenced, Appellant’s actual total exposure under the plea 

agreement was six months. The military judge awarded the minimum 

confinement allowed by the plea agreement: six months for each offense, to be 

served concurrently. Accordingly, we do not find there to be a dramatic 

change in Appellant’s punitive exposure.

Of the two offenses, the Article 120 was by far the more serious. Appellant 

pleaded guilty to fellating a fellow Marine while the latter was incapable of 

consenting due to impairment by alcohol. The aggravating circumstances—to 

include victimizing and abusing the trust and friendship of a fellow Marine

who is asleep or unconscious—apply to both offenses. And this Court has 

experience and is familiar with the range of sentences awarded for such 

violations of Article 120. Based on the evidence in the record, we are 

confident that, for the Article 120 offense alone, Appellant would have 

received a sentence no less than that awarded by the military judge and 

reflected in the Entry of Judgment.

Additionally, Rule for Court-Martial 1007 now requires that, except when 

sentencing is done by members, the military judge shall specify the term of 

confinement, if any, awarded for each offense, and whether the terms of 

confinement shall run consecutively or concurrently. As the military judge 

sentenced Appellant under the new rule, we know with certainty what 

sentence he would have imposed at trial for the remaining offense. And we 

find that sentence appropriate.
United States v. Page, NMCCA No. 202000069

Opinion of the Court

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III. CONCLUSION

The finding of guilty to Article 117a is SET ASIDE and DISMISSED 

WITH PREJUDICE. After careful consideration of the record and briefs of 

the appellate counsel, we have determined that, following our corrective 

action, the remaining approved finding and the sentence are correct in law 

and fact and that no error materially prejudicial to Appellant’s substantial 

rights remains. UCMJ arts 59, 66. Accordingly, the remaining finding and 

sentence in the Entry of Judgment are AFFIRMED.

Judges LAWRENCE and DEERWESTER concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court