## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before AYRES, YOB, and KRAUSS

Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class GREGORY A. RICE United States Army, Appellant

ARMY 20100678

Headquarters, III Co rps and Fort Hood Gregory A. Gross, Military Judge Colonel Stuart W. Risch, Staff Judge Advocate

For Appellant: Colone l Patricia A. Ham, JA; Lieutenant Colonel Imogene M. Jamison, JA; Major Richard E. Gorini, JA; Lieutenant Colonel Ch arles C. Choi, JA (on brief).

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA; Captain Daniel H. Ka rna, JA (on brief).

18 December 2012

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OPINION OF THE COURT

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KRAUSS, Judge:

Pursuant to his pleas, a military judg e, sitting as a gene ral court-martial, convicted appellant of wrongful sexual cont act, two specifications of indecent acts, indecent exposure, and two specifications of housebreak ing in violatio n of Articles 120 and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 930 (2006 & Supp. I 2007) [hereinafter UCMJ]. The mi litary judge sentence d appellant to a badconduct discharge, confinement for forty- two months, forfeitu re of all pay and allowances, and reduction to the grade of E- 1. In accordance with the terms of a pretrial agreement, the convening author ity approved confinement for thirty-six months, but otherwis e approved the adju dged sentence.

Appellant’s case is now be fore this court for review under Article 66, UCMJ. Appellant asserts that dilato ry post-trial processing of his case warrants relief but otherwise offers no complaint. After examining the record of trial, and consideringRICE—ARMY 20100678

2 the parties’ briefs, we find a substantial basis in law and fact to reject appellant’s pleas of guilty to the charge s of indecent acts and housebreaking with the intent to
commit indecent acts.

Here we have a case wh ere the military judge, defense and government
counsel all endorsed an erroneous view of the law and a reco rd that fails to satisfactorily establish a know ing plea of guilty on the part of the accused. Charged with criminal voyeurism as an indece nt act under Article 120, UCMJ, and housebreaking under Article 130, UCMJ, with the intent to commit an indecent act under Article 120, UCMJ, the judge never properly define d the offense and appellant
never offered sufficient admissi on to that particular offense necessary to approve the findings of guilty a ssociated with that crime. Ther efore relief shall be addressed below and granted in our decretal paragraph.

Preface to our opin ion is the statute under which appellant was charged that
was in effect at the time of his alleged offenses:

Article 120, UCMJ, Indecent Act (2007 version)

Article 120(k) Indecent act . Any person su bject to this chapter who enga ges in indecent conduct is guilty of an
indecent act and shal l be punished as a court-martial may
direct.

Article 120(t)(12) Indecent conduct . The term ‘indecent
conduct’ means that form of immorality relating to sexual impurity that is gros sly vulgar, obscene, and rep ugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent
conduct includes observing, or ma king a videotape, photograph, motion pict ure, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without anot her person’s consent, and contrary to that other person’s reasonable expectation of privacy, of—

(A) that other person’s genitalia, anus, or buttocks, or (if that other person is female) th at person’s areola or nipple;

or

(B) that other person while that other person is engaged in a sexual act, sodomy (under s ection 925 (article 125) of this chapter), or sexual contact.RICE—ARMY 20100678

3 FACTS

While deployed in Iraq, appellant surreptitiously observed, phot ographed and made video recordings of female soldiers and contractor s in various stat es of undress
in a female shower tr ailer. In addition, both in Iraq and at Fort Hood, appellant unlawfully entered fac ilities intended for the use of female personnel only, where one might find women in va rious states of undress. 1

In light of this conduct, appellant faced two specifications of a violation of Article 120, UCMJ, alle ging the offense of indecent act and two specifications of a violation of Article 130, UC MJ, alleging the offense of housebreaking as follows:

In Specification 2 of Ch arge I, Article 120, UCMJ:

In that [appellant], . . . did, at or near Forward Operating Base Rustamiyah, Baghdad, Iraq, on divers occasions
between on or about 1 Janu ary 2009 and 31 January 2009, wrongfully commit indecent c onduct, to wit: observing and making digital recordings of naked and partially clothed women while they co nducted hygien e tasks and
dressed in a female shower trailer.

In Specification 3 of Charge I:

In that [appellant], . . . did, at or near Forward Operating Base Rustamiyah, Baghdad, Ira q, on or about 15 April 2008, wrongfully commit indece nt conduct, to wit: wrongfully observin g SPC [TM’s] par tially naked body while she was dressing in a female shower trailer.

In Specification 1 of Ch arge II, Article 130, UCMJ:

In that [appellant], . . . did, on or about 29 March 2008, unlawfully enter a female shower trailer . . . wi th intent to commit a criminal offense, to wit: a violation of Article 120, UCMJ, Indecent Acts, therein.

And, in Specification 2 of Charge II:

1 While we need not addres s the facts relative to appe llant’s provident pleas to wrongful sexual contact, in decent exposure and housebreaking with the intent to commit indecent exposure here, we addr ess those offenses in the context of appropriate relief below.RICE—ARMY 20100678

4 In that [appel lant], . . . did, on or about 13 August 2009, unlawfully enter a female lock er and shower room . . .
with intent to commit a crim inal offense, to wit: a violation of Article 120, UCMJ , Indecent Expo sure and an Indecent Act, therein.

Appellant entered pleas of guilty to each of th ese specifications.

The judge then provided th e following description and definition of elements:

MJ: Take a look at Specif ication 2 of Charge I.

[The accused did as directed.]

And there you are char ged with the offe nse of indecent
acts. The elements of this offense are as follows:

One, that on divers occasions between on or about 1 through 31 Janu ary of 2009, at or ne ar FOB Rustamiyah, Baghdad, Iraq, you engaged in a certain wrongful conduct, to wit: you observ ed and made visual recordings of naked and partially clothe d women while they conducted hygiene tasks and dressed in a female shower trailer;

And the second element, is th at the conduct was indecent.

‘Indecent Conduct’ m eans that form of immorality relating to sexual impurity which is grossly vu lgar, obsc ene and repugnant to common propriety, and tends to excite sexual desires or deprave morals with respect to sexual relations.
‘Indecent Conduct’ includes, but is not limited to observing or making a vide o tape, photograph, motion picture, print, negative[,] slide or other mechanically, electronically or chemically reproduced visual material without another person’s consent, and contrary to the other person’s reasonable expectation of privacy.

‘Wrongful’ means without legal ju stification or lawful excuse.

Take a look at Specifi cation 3 of Charge I.

[The accused did as directed.]RICE—ARMY 20100678

5 There you are charge d with another offe nse of indecent
acts. The elements of this offense are as follows[:]

One, that on or about 14 April of 2008, at FOB Rustamiyah, Baghda d, Iraq, you engage d in a certain wrongful conduct, to wit: you observed Specialist [TM’s] partially naked body while she was dressing in a female shower trailer; and

Two, that the conduct was indecent.

. . .

MJ: Take a look at Spec ification 1 of Charge II.

[The accused did as directed.]

And there you are charged with th e offense of housebreaking. The elements of this offense are as
follows:

One, that on or about 29 March 2008, at or near FOB Rustamiyah, Baghda d, Iraq, you unlawf ully entered a
female shower traile r, the property of the United States Government;

And two, that the unlawful en try was made with the intent
to commit therein the criminal offense of indecent acts.

‘Unlawfully Enter’ means an unauthorized entry without the consent of any person authorized to consent to the entry, and without ot her proper lawful authority. Proof that you actually committed or even attempted to commit
the offense of indecent acts is not require d, however, you
must have intended each elem ent of that offense at the time of the unlawful entry. These elements are as I informed you regard ing Specifications 2 and 3 of Charge I. Would you like me to repe at those elements, PFC Rice?

Acc: No, Your honor.

. . .

MJ: Take a look at Spec ification 2 of Charge II.RICE—ARMY 20100678

6 [The accused did as directed.]

In there you are charged with another offense of housebreaking. The elements of this offense are as
follows:

One, that on or about 13 August 2009, at or near Fort Hood, Texas, you unlawfully en tered a female locker room at Greywolf Gym, the proper ty of the United States Governmnet;

And two, that the unlawful en try was made with the intent to commit therein, the criminal offenses of indecent exposure and indecent acts.

Proof that you actually committ ed or even attempted to
commit the offense of indecent exposure and in decent acts is not required. Ho wever, you must ha ve intended each
element of those offenses at the time of the unlawful
entry.

The elements of those offens es are, as I informed you regarding Specifica tions 2, 3 and 4 2 of Charge I, would you like me to repeat th ose elements, PFC Rice?

Acc: No, Your Honor.

MJ: PFC Rice, do you unde rstand the elements and
definitions as I re ad them to you?

Acc: Yes, Y our Honor.

MJ: Do you have any ques tions about any of them?

Acc: No, Your Honor.

MJ: And do you un derstand that your plea of guilty
admits that these elements accurately desc ribe what you
did?

Acc: Yes, sir.

2 Specification 4 of Charge I was an indecent exposure charge un important to our
discussion here.RICE—ARMY 20100678

7 MJ: And do you believe and admit that the elements and definitions taken together do correctly describe what you
did?

Acc: Yes, sir.

The providence inquir y ensued and in cluded, in pert inent part, the following:

Acc: On or abou t 1 January 2009 and 31 January 2009, at FOB Rustamiyah, Iraq, I observed and digitally recorded female personnel in various states of undress while they were conducting hygiene task s in the female shower
trailer. I knew th at doing so was wr ongful because I was not doing it as pa rt of law enforcement or in medical

treatment.

. . .

MJ: And did the women that you were videotaping and watching, did they know that you were watching them?

Acc: No, Your Honor.

MJ: Or videotaping?

Acc: No, Your Honor.

MJ: I told you the definition of indecent, do you admit, given that definition of ind ecent conduct, that that was
indecent?

Acc: Yes, Your Honor.

. . .

MJ: Go ahead, continue.

. . .

Acc: On or about 15 April 2008, FOB Rustam iyah, Iraq, I observed Specialist [TM] whil e she was getting dressed in
the female shower trailer. She did not know that I was watching her at the time, and I did not have her permission to observe her gettin g dressed. I knew that doing so wasRICE—ARMY 20100678

8 wrongful because I was not doing it as part of law
enforcement or in medical treatment.

MJ: Was Specialist [TM] pa rtially naked when you were watching her, PFC Rice?

Acc: Yes, Your Honor.

MJ: And again, given the defi nition of indecent, do you
admit that that was indecent?

Acc: Yes, Your Honor.

. . .

MJ: Tell me about Spec ification 1 of Charge II.

Acc: On 29 March 2008, Ru stamiyah, Iraq, I entered the
female shower tra iler located on FOB Ru stamiyah. I did not have permission or authority to be in the trailer. I
knew that what I wa s doing was wrongful because I was not doing it as pa rt of law enforcement or in medical

treatment.

MJ: And why did you enter th e female shower trailer,
PFC Rice?

Acc: To view naked fe males, Your Honor.

MJ: And the reason I’m asking that is because the second
element is that the unlawful entry was made with the intent to commit, therein, the criminal offense of indecent acts, and that’s what you pled guilty to. Did you intend to
commit that offense of indecent acts when you unlawfully
entered the shower trailer?

Acc: Yes, Y our Honor.

. . .

MJ: Tell me about Specif ication 2 [of Charge II]—

. . .RICE—ARMY 20100678

9 Acc: On 13 August 2009, at Fort Hood, Te xas, I entered
the women’s locker room at Ab rams Gym. I did not have permission to be in the women’s locker room and when I
entered the locker room I knew what I was doing. I knew that what I was doing was wr ongful and th at I was not doing it as part of law en forcement or in medical
treatment. I entered the lock er room with the intent to expose myself to the female inside the shower.

MJ: PFC Rice, the specifi cation was amended back in January of this year, to also include that you entered the
shower room with the intent to commit the offense of
indecent acts as well . I’m just guessing here, but I would assume what the government was alleging was that you went in there to view females who were partially naked.

Is that what your th eory was, Government?

TC: Yes, Your Honor.

MJ: Is that wh y you went in th ere, PFC Rice?

Acc: Yes, Your Honor.

MJ: For both of those reas ons, to view women who were partially naked and to expose yourself?

Acc: Yes, Y our Honor.

From the stipulation of fact admitted the following is relevant:

On or about 15 April 2008 at FOB Rustamiyah, Baghdad, Iraq, the Accused pok ed his head into a female shower
trailer. As he l ooked in, he saw SPC [CW] and SPC [TM] who were wearing only a t-shirt and panties. . . .

On or about 15 Jan 2009 at FOB Rustamiyah, Baghdad, Iraq, the Accused revealed to PV2 [ES] that he had been peeping into a female shower trailer and videotaping/photographing females therein. . . . The Accused asked PV2 [ES] how fa r his wild side went then explained that he had found a way to spy on the female latrine. . . . [H]e showed PV 2 [ES] how he peered into the structure through a ve nt. . . . Once back at the barracks,RICE—ARMY 20100678

10 the Accused showed PV2 [ES] videos he had taken of
females in the shower trailer. The videos were of one Ugandan female, three female soldiers and one interrogator. . . .

The Accused’s video camera was seized and a forensic analysis was conducted. The investigation and forensic analysis determined that on or about 15-31 Jan 2009, at FOB Rustamiyah, Baghdad, Ira q, the Accused videotaped SSG [NL,] SPC [MM] and KBR employee Ms. [SK]
without their knowle dge while they co nducted personal hygiene inside a fema le shower trailer. . . . None of the
victims were aware that the photos/movi es had been taken of them and none had gran ted permission for these photos/movies to be taken of them.

A forensic examination of the Accused’s digital media revealed 13 deleted digital vi deo files and one (1) digital image file of evidentiary value. The digital video files contain footage of females conducting pers onal hygiene
tasks in a bathroom/s hower facility. The videos appear to have been recorded in a surrep titious manner in that they
are all recorded th rough the opening of a ventilation unit and the females appeared unaware they are being observed. The digital image f ile depicts a female in the
same bathroom/s hower facility.

The videos and images we re originally submitted as an enclosure to the stipulation of fact, but were ultimately admitted separately as Pr os. Ex. 2. Upon examination of the videos and image describe d above, we discover that four of the thirteen videos contain images that qualif y for criminal liabil ity under Article 120,
UCMJ. Three vide os contain images of certain fema les’ areolae and nipples, one of these also contains display of a female’s genitalia and the fourth contains image of a buttock. A fifth video may qual ify but it is difficult to discern. The remaining eight videos and the still image display nothing listed under the defi nition of indecent conduct provided under the 2007 versio n of Article 120(t)(12), UCMJ.

LAW

“The requirements of Arti cle 45 are designed to provide protection to the accused from entering an unknowing, unw itting, or coerced pl ea of guilty; the requirements of United States v. Care , [18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969)], are designed to provide reviewing authorities , including [courts of appeal], with an objective test to measure the understanding of the accused at the time of the plea.”RICE—ARMY 20100678

11 United States v. Pretlow , 13 M.J. 85, 88–89 (C.M.A. 1982). Upon review, “a guilty plea will be rejected only wh ere the record of trial shows a substantial basis in law and fact for questi oning the plea.” United States v. Aleman , 62 M.J. 281, 283 (C.A.A.F. 2006) (quoting United States v. Harris , 61 M.J. 391, 398 (C.A.A.F. 2005)).

We review a judge’s deci sion to accept a guilty plea fo r an abuse of
discretion. United States v. Weeks , 71 M.J. 44, 46 (C.A .A.F. 2012) (citing United
States v. Inabinette , 66 M.J. 320, 321 (C.A.A.F. 2008)). A judge can abuse his discretion if he accepts a gu ilty plea “without an adequate factual basis to support it” or if he accepts a guilty plea based upon “an erroneous view of the law.” Id. (citing Inabinette , 66 M.J. at 321–22).

A judge must question an accused rega rding the factual predicate of any charged offense to ensure th at “the acts or the omissions of the accused constitute the offense to which he is pleading guilty.” United States v. Bullman , 56 M.J. 377, 380 (C.A.A.F. 2 002) (quoting Care , 18 U.S.C.M.A. at 541, 40 C.M.R. at 253) (internal punctuation marks om itted). Rule for Courts-M artial 910(e) requires the military judge to determine if the factual predicate elicited during the providence inquiry objectively supports the guilty plea. Bullman , 56 M.J. at 380–81.

Further, a judge must explain the el ements of the charged offense to an
accused. United States v. Redlinski , 58 M.J. 117, 119 (C.A .A.F. 2003). “If the military judge fails to do so, he commits reve rsible error, unless ‘it is clear from the
entire record that the accused knew the el ements, admitted them freely, and pleaded guilty because he was guilty.’” Id. (quoting United States v. Jones , 34 M.J. 270, 272 (C.M.A. 1992)). This court reviews the entire record to determine if an accused was
aware of the elements of the charged offense. Id. “If an accused’s admissions in the plea inquiry do no t establish each of the elements of the charged offense, the guilty plea must be set aside.” Weeks , 71 M.J. at 46 (citing United States v. Gosselin , 62 M.J. 349, 352–53 (C.A .A.F. 2006)).

“The providence of a plea is based not only on th e accused’s understanding and recitation of the factual history of th e crime, but also on an understanding of
how the law relates to those facts. United States v. Medina , 66 M.J. 21, 26 (C.A.A.F. 2008) (citing Care , 18 U.S.C.M.A. at 538–39, 40 C.M.R. at 250–51).

DISCUSSION

Here government and defe nse counsel permitted, and the military judge accepted, appellant’s plea of guilty to violations of Article 120, UCMJ, on an
erroneous view of th e law, an incorrect definition of the crime, and factual
admissions that fall short of that required to find a plea of guilty provident.RICE—ARMY 20100678

12 Congress added voyeurism of a particular sort as an indecent act under Article 120, UCMJ, when it overh auled that article under the UC MJ in 2007. Pr ior to that, voyeurism, or peeping, was potentially cogni zable as a crime only under Article 134, UCMJ, as a simple disorder. See United Stat es v. McDaniel , 39 M.J. 173, 174–75 (C.M.A. 1994); United States v. Webb , 38 M.J. 62, 64, 69 (C.M.A. 1993); United

States v. Foster , 13 M.J. 789, 796– 97 (A.C.M.R. 1982); United States v. Johnson , 4 M.J. 770, 771–72 (A.C.M .R. 1978); see also Webb , 38 M.J. at 70 (Gierke, J., concurring in part and dissenting in part).

With the promulgation of the 2007 version of Articl e 120, UCMJ, those offenses previously contemplated under Manual for Courts-Martial

, United States (2005 ed.) [hereinafter MCM ], pt. IV, ¶ 90, Article 13 4, UCMJ, Indecent acts with another, were now subject to prosecution under Article 120 (k), UCMJ, Indecent Act.

See MCM , 2008, pt. IV analysis at A23–14 & 15. Congress also added voyeurism, involving the observation and/ or recording of particular body parts or particular acts, as an indecent act unde r Article 120, UCMJ. Voyeur ism that does not involve the body parts or specific acts listed under Article 120( t)(12), UCMJ, would, therefore, remain a potentia l violation of Article 134, UC MJ, as a simple disorder.

The record indicates that the military judge and partie s in this case agreed upon a view that Congress ha d listed voyeurism, as it di d, only as an example of what might constitute an indecent act. The inherent difficulties associated with interpretation of this particul ar statute are manifest and parties and judg es continue to address the challenge in good faith. With regard to voyeurism, recognition of the history of the common law, as described above, conjoine d with the nature of the
consolidation of offenses under Article 120, UCMJ, that were previously defined under Article 134, UCMJ, esta blishes that the interpretation employed in the courtmartial here was incorrect.

Application of certain fund amental principles of st atutory constr uction also reveals this error. “Ordinarily, where a sp ecific [statutory] provision conflicts with a general one, the specific governs.” Edmond v. United States , 520 U.S. 651, 657 (1997) (citation omitte d). Here, then , the specific provisio ns addressing voyeurism
under the 2007 version of Ar ticle 120(t)(12), UCMJ, define the limits of that
statute’s reach over that so rt of peeping behavior. See id. In addition, “‘ambiguity concerning the ambit of criminal statutes sh ould be resolved in favor of lenity.’”
Busic v. United States , 446 U.S. 398, 4 06 (1980) (citations omit ted). Therefore, if any ambiguity exists, the 2007 version of Article 120(k), UCMJ, necessarily considered in conjunction wi th Article 120(t)(12), UCMJ, limits crim inal liability under that article for voyeurism to those specific situ ations listed. See id.

The military judge in this case never correctly defined the offense as required. Rather than employ the specific definiti on required, he resort ed to the general definition alone. The judge did not advise appellant that to constitute “indecentRICE—ARMY 20100678

13 conduct,” his surreptit ious observation or recording of females in the shower areas must include the viewing of another person ’s genitalia, anus, buttocks, areola, or nipple, or involved the view ing of another person engage d in a sexual act, sodomy, or sexual contact. Appell ant neither expressed any unde rstanding consistent with the specific definition of the crime required nor uttered facts suffi cient to meet that definition. Indeed, appellant pled guilty to the 2 007 version of Article 120(k), UCMJ, violations based upon conduct for which it is impossible to be convicted
under that statutor y provision.

In Specification 2 of Charge I, eight of the thirteen recordings certainly fall completely outside the scope of the crime in question. Yet th e judge advised and appellant erroneousl y understood that all were equally su bject to prosecution, conviction and punishment un der Article 120(k), UCMJ. In Specification 3 of Charge I, the stipulation of fact establishe s that appellant observed a female soldier in t-shirt and panties—facts that fall well short of those required to support a plea of guilty in this case. In the specifications of Charge II, appellan t never uttered facts that satisfy the requirement of the statute and he acknow ledged guilt only in the
context of the errone ous definition initia lly rendered and repe ated by the military judge.

Stating that he obse rved or intended to observe or record naked or partially
naked women is not en ough. Both terms ar e sufficiently ambig uous to render them practically meaningless under the stri ctures of the stat ute in question. 3 As our court
“is confined to the definitions formulated by Congress,” we enforce the specific
definition of the el ement of the offense here at issue. See United States v. Wilkins

, 71 M.J. 410, slip op . at 7 (C.A.A.F. 16 Nov. 2012).

The legislature’s explicit exclusion of conviction under Article 120, UCMJ, based on simply viewing a na ked person, has also since been amplified: Congress amended the provisions addressing vo yeurism effective 28 June 2012. See 10 U.S.C. § 920 (2006 & Supp. V 2011). Article 120c, UCMJ, now criminalizes, among other surreptitious activities , those instances where a soldier, without legal justification or lawful authorization, “knowingly photographs , videotapes, films, or records by any means the private area of an other person, without that other person’s consent and
under circumstance s in which that other person ha s a reasonable expectation of privacy.” MCM , 2012, pt. IV, ¶ 45c.a(a) (2). “Private area” is defined as “the naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple.” MCM

, 2012, pt. IV, ¶ 45c.a(c) (2). Congress could quite r eadily make peep ing upon a naked

3 Reality also informs us that one can peep upon a naked or par tially naked person but not view any of the part s listed in the statute. An y number of poss ibilities exist
where an accused could observe a naked person but not violat e Article 120, UCMJ,
because his view is obscured in some fash ion or because of hi s particular vantage point, for example. We need not belabor the point.RICE—ARMY 20100678

14 person a violation of Article 120, UCMJ. It ha sn’t; rather, it made observation of particular naked part s as criminal under that statute.

Though the accused most cer tainly committed a simple disorder under Article 134, UCMJ, and sufficiently ad mitted to same at court- martial, he was neither charged with that offe nse nor is that offens e a lesser-included o ffense of the Article 120, UCMJ, offense levied. See United States v. Morton , 69 M.J. 12, 13–16 (C.A.A.F. 2010) (abrogating the “closely rela ted offense” doctrine and holding that “[a]ffirming a guilty plea base d on admissions to an offens e to which an accused has not in fact pleaded guilty an d which is not a lesser[-]inc luded offense of the charged
offense is inconsistent wi th traditional due process notions of fair notice.”); see also
United States v. Jones , 68 M.J. 465 (C.A.A .F. 2010).

During the providence inquiry, appellant never articulated the facts necessary
to establish that he observed or recorded another person’s genita lia, anus, buttocks, areola, or nipple, or seei ng a person engaged in a sexu al act, sodomy, or sexual
contact or that he understood that was required in order to be guilty under the offenses charged. The vide os admitted as Pros. Ex. 2 should not be considered
admissions of the accused as the judge actually removed them from the st ipulation of fact and obtained no accept ance from the accused that they constituted factual admissions by him. 4 Even if the videos were included as stip ulations of fact, we resolve that, under the circ umstances of this case, an y such admission would be insufficient to accept that portion of appell ant’s plea of guilty concerned where, as in this case, appellan t’s misunderstanding of the law and its re lation to the facts
establish a substantial basis in la w and fact to re ject the plea. See Weeks, 71 M.J. at 46; Medina , 66 M.J. at 26; Pretlow , 13 M.J. at 88–89; see also Bullman , 56 M.J. at
382–83. We do not review the record of a guilty plea to determine whether the government could prove the case in a cont ested trial or whether the accused could have been provident if properly advised. We review the record to determine if the plea was in fact a nd law provident. See UCMJ art. 45; Medina , 66 M.J. at 27;
Pretlow , 13 M.J. at 88–89; Care , 18 U.S.C.M.A. at 541, 40 C.M. R. at 253.

A plea based on an erroneous view of the law where appellant’s admissions
did not establish an essential elemen t of the offense warrants rejection. 5 See Weeks

,

4 As noted above, the stipulation itself fa lls short of the factua l admission required to uphold a guilty plea in this case.

5 As we are confined by the definitions formulated by Congress, we are similarly
confined to that which is ob jectively verifiable in the re cord to determine whether an appellant was properly advi sed on matters of law. See Henders on v. Morgan , 426 U.S. 637, 646–47 (1976 ) (holding a guilty plea invo luntary where the record

(continued . . .)RICE—ARMY 20100678

15 71 M.J. at 48–49. The senten ce imposed and approved is concomitantly unreliable in light of all of the circumstances of this case and the matter warrants rehearing.
See United Stat es v. Sales , 22 M.J. 305 (C.M.A. 1986).

CONCLUSION

On consideration of the entire record, the findings of guilty of Specifications 2-3 of Charge I and Specificat ion 1 of Charge II are set as ide. In addi tion, the court finds in relation to Specificat ion 2 of Charge II only so much of the finding of guilty that states appellant “did, on or about 13 August 2009, unlawf ully enter a female locker and shower room, the property of the Un ited States Government, with intent to commit a criminal offense, to wit: a violation of Article 120, UCMJ, Indecent Exposure, therein,” in violation of Article 130, UCMJ , should be approved. UCMJ art. 66; Inabinette , 66 M.J. 320. The re maining findings of gu ilty are affirmed. The same or a different convening authority ma y order a rehearing on Specifications 2-3 of Charge I and Specification 1 of Charge II and the sentence, wh ich is set aside. The same or a different convening authorit y may also order a rehearing on the part of Specification 2 of Charge II that is set aside. If th e convening authority determines that a rehearing on Specificatio ns 2-3 of Charge I, Specification 1 of Charge II, and part of Specification 2 of Ch arge II is impractic able, he may dismiss Specifications 2-3 of Char ge I, Specification 1 of Charge II, and part of Specification 2 of Charge II and order a rehearing on the sentence only for the remaining offenses. See United States v. Moffeit , 63 M.J. 40 (C .A.A.F. 2006); Sales

, 22 M.J. 305.

Senior Judge YOB concurs.

AYRES, Chief Judge, concurring in part and diss enting in part:

I agree with the majority that the military judge committed reversible error in accepting appellant’s guilty plea to Specifi cation 3 of Charge I. As stated by the majority, the overhaul of Ar ticle 120, UCMJ, in 2007 to include adding voyeurism
as an indecent act was meant to limit such activity to viewing the naked and defined specific body parts enumerated in Article 120(t)(12)(A), UCMJ, or the activities
described in Article 120(t)(12)(B), UCMJ. In the pr esent case, Specification 3 of Charge I alleged the victim was “partially naked . . . while sh e was dressing in a female shower,” the stipulation of fact st ates the victim was “wearing only a t-shirt

(. . . continued) established that neither judge nor defens e counsel explained to the accused an
essential element of the offense and where the accused did not su fficiently admit to such element); Pretlow , 13 M.J. at 88. Ou r system of military justice stands in contradiction to presumption in guilty pleas. See Care , 18 U.S.C.M.A. at 541, 40
C.M.R. at 253.RICE—ARMY 20100678

16 and panties,” and during th e inquiry the military judge failed to establish the appellant saw the victim’s genitalia, anus, buttocks, areola, or nipple. Neither the facts provided in the record nor the facts alleged in Specificatio n 3 of Charge I are sufficient to support the guilty plea to this specification.

I concur with the majority’s disposition of Specification 2 of Charge II. Here the military judge elicited from appellant that he entered the shower room “to view
females who were partially naked.” (emphasis added). Without more, the providence inquiry fails to s how appellant entere d the female shower room to view anyone’s genitalia, anus, buttocks, areo la, or nipple, as re quired by Article 120(t)(12)(A), UCMJ. For th at reason, I too would affi rm only so much of the finding of guilt of Sp ecification 2 of Charge II as alleged appell ant “did, on or about 13 August 2009, unlawfully enter a female locker and shower room, the property of the United States Government, with intent to commit a criminal offense, to wit: a violation of Article 120, UCMJ, Indecent Exposu re, therein.”

With respect to Specificati on 2 of Charge I and Specif ication 1 of Charge II, I part company with the majori ty’s view of facts and law. As our su perior court succinctly explained in United States v. Redlinski , 58 M.J. 117 (C.A.A.F. 2003):

For this Court to find a plea of guilty to be knowing and voluntary, the record of trial ‘must reflect’ that the elements of ‘each offense charged have been explained to the accused’ by the military judge. United States v. Care

, 18 C.M.A. 535, 541, 40 C.M.R. 247 (1969). See Art. 45(a), UCMJ, 10 U.S.C. § 845(a) (2002); R.C.M. 910(c)(1). If the military judg e fails to do so, he commits reversible error, unless ‘it is clear from the entire record
that the accused knew the elem ents, admitted them freely, and pleaded guilty because he was guilty.’ United States

v. Jones , 34 M.J. 270, 272 (C.M.A . 1992). Ra ther than focusing on a technical listi ng of the elements of an offense, this Court looks at the context of the entire record
to determine whether an accuse d is aware of the elements, either explicitly or inferentially. Id .; United States v.
Pretlow , 13 M.J. 85, 88 (C.M.A. 1982); United States v. Kilgore , 21 C.M.A. 35, 37, 44 C.M.R. 89 (1971).

Redlinski , 58 M.J. at 119. While th e military judge failed to complete the definition of Article 120(t)(12), UCMJ , as explained by the majori ty, the providence inquiry
satisfies me that in the context of this en tire guilty plea, appellant was fully aware of each and every element of Sp ecification 2 of Charge I an d Specification 1 of Charge II, that his intent was to view, photograp h, and make recordings of women who wereRICE—ARMY 20100678

17 completely naked, and as such , had the requisite intent to view their genitalia, anus, buttocks, areola, and/or nipp les. It is impossible for me to infer otherwise.

Before rejecting a guilty plea during appellate revi ew, we must be convinced
that the court-martial record evidences a subs tantial basis in law, in fact, or both, for questioning such a plea. United States v. Jordan , 57 M.J. 236, 238 (C.A.A.F. 2002) (citing United States v. Prater , 32 M.J. 433, 436 (C.M.A. 1991)). Here appellant
recounted the facts associated with his criminal behavior while exhibiting a sufficient understanding of how the elements of both Specification 2 of Charge I and Specification 1 of Charge II related to t hose facts. See United States v. Medina , 66 M.J. 21, 26 (C.A.A .F. 2008) (citing United States v. Care , 18 U.S.C.M.A. 535, 538– 39, 40 C.M.R. 247, 250–51 (1 969)). In at least four of the thirteen recordings that form the basis for Specification 2 of Charge I, the evidence positively shows and the majority agrees that appellant could and did see and record wo men who were naked. Appellant’s plea of guilty, wi th the assistance of pres umptively qualified defense counsel, 1 confirms this finding. Nothing within the record re buts an assumption that appellant was able to take full advantage of his counsel’ s advice and was able to
understand how his actions related to the elements of the offens es charged. 2 The failure of appellant to reci te on the record that he observed the “gen italia, anus, buttocks, and areola or nipple” of a comple tely naked woman of which he had a full view does not require this court to reject his plea.

Similarly, appellant’s admission du ring the providen ce inquiry to Specification 1 of Charge II that he unlawfully “entered the female shower trailer located on FOB Rustamiyah [Iraq] . . . [t]o view naked females” convinces me that his plea was knowing and with the requisite intent to commit the crim inal offense of
indecent act.

A determination that the victims were “naked” does not require further
definition here when viewed reasonably. If the victims were “naked,” it is apparent
to a reasonable mind that at least one of the enumerated body parts from the definition in Article 120(t)(12)(A), UCMJ, would have been visible. While one may argue that images in popular culture allow “naked” women to pose in such a way as to avoid displaying a ny of the enumerated body parts, it is crucia l to note the distinction here that unwitting victims are neither static nor posed imag es. It is unlikely that such victims might have been able to contort their bodies in such a way

1 See Henderson v. Morgan , 426 U.S. 637, 647 (1976) (“ it may be appropriate to presume that in most case s defense counsel ro utinely explain th e nature of the offense in sufficient detail to give the a ccused notice of what he is being asked to admit.”).

2 Appellant had a GT score of 122.RICE—ARMY 20100678

18 as to prevent observation of the enumerated body parts, especial ly when unaware of appellant’s presence.

The majority’s view is that all participan ts in this court-mart ial (trial counsel, defense counsel, and m ilitary judge alike) as well as both government and defense appellate counsel in their briefs, collectively failed to adequately appreciate the necessary definition s of the offenses in Specificati on 2 of Charge I and Specification 1 of Charge II. I believe common sense requires, an d the precedent cited in Morgan permits, a more reasonable and optimistic view of our military justice system. See Henderson v. Morgan , 426 U.S. 637, 647 ( 1976). The decision of the military judge,
to truncate the definition as he read it, was as li kely a conseq uence of the overwhelming nature of the evidence as a sp eculatively erroneous view of the law. Although I agree that a more explicit discussion of th e definitions during the providence inquiry would have been helpful, in this case the overwhelming evidence included in both the stipulat ion of fact, as well as in the video evidence included with that stipulation, demonstrate that appe llant was well-informed of the nature of the offense, thereby making his plea a “knowing” plea of guilty as required by Care

. See Care , 18 U.S.C.M.A. at 54 1, 40 C.M.R. at 253.

Appellant’s guilty pleas to Specification 2 of Charge I and Specification 1 of Charge II were both knowing and voluntary. While I find no substa ntial basis to reject his plea, I would affirm only so much of Specification 2 of Charge I as finds appellant “did, at or near Forward Operat ing Base Rustamiyah, Baghdad, Iraq, on
divers occasions between on or about 1 January 20 09 and 31 Ja nuary 2009, wrongfully commit indecent conduct, to wit: obs erving and making digital recordings of na ked women while they conducted hygiene tasks an d dressed in a
female shower trailer.”

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: