UNITED STATES ARMY COURT 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 Corps and Fort Hood 

Gregory A. Gross, Military Judge 

Colonel Stuart W. Risch, Staff Judge Advocate 

For Appellant: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene M. 

Jamison, JA; Major Richard E. Gorini, JA; Lieutenant Colonel Charles C. Choi, JA 

(on brief). 

For Appellee: Lieutenant Colonel Amber J. Roach, JA; Major Julie A. Glascott, JA; 

Captain Daniel H. Karna, JA (on brief). 

18 December 2012 

----------------------------------- 

OPINION OF THE COURT 

-----------------------------------

KRAUSS, Judge: 

Pursuant to his pleas, a military judge, sitting as a general court-martial, 

convicted appellant of wrongful sexual contact, two specifications of indecent acts, 

indecent exposure, and two specifications of housebreaking in violation of Articles 

120 and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 930 (2006 & 

Supp. I 2007) [hereinafter UCMJ]. The military judge sentenced appellant to a badconduct discharge, confinement for forty-two months, forfeiture of all pay and 

allowances, and reduction to the grade of E-1. In accordance with the terms of a 

pretrial agreement, the convening authority approved confinement for thirty-six 

months, but otherwise approved the adjudged sentence. 

Appellant’s case is now before this court for review under Article 66, UCMJ. 

Appellant asserts that dilatory post-trial processing of his case warrants relief but 

otherwise offers no complaint. After examining the record of trial, and considering 
RICE—ARMY 20100678 

2

the parties’ briefs, we find a substantial basis in law and fact to reject appellant’s 

pleas of guilty to the charges of indecent acts and housebreaking with the intent to 

commit indecent acts. 

Here we have a case where the military judge, defense and government 

counsel all endorsed an erroneous view of the law and a record that fails to 

satisfactorily establish a knowing plea of guilty on the part of the accused. Charged 

with criminal voyeurism as an indecent 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 defined the offense and appellant 

never offered sufficient admission to that particular offense necessary to approve the 

findings of guilty associated with that crime. Therefore relief shall be addressed 

below and granted in our decretal paragraph. 

Preface to our opinion 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 subject to this 

chapter who engages in indecent conduct is guilty of an 

indecent act and shall 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 grossly vulgar, obscene, and repugnant to 

common propriety, and tends to excite sexual desire or 

deprave morals with respect to sexual relations. Indecent 

conduct includes observing, or making a videotape, 

photograph, motion picture, print, negative, slide, or other 

mechanically, electronically, or chemically reproduced 

visual material, without another 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) that person’s areola or nipple; 

or 

(B) that other person while that other person is engaged in 

a sexual act, sodomy (under section 925 (article 125) of 

this chapter), or sexual contact. 
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3

FACTS 

 While deployed in Iraq, appellant surreptitiously observed, photographed and 

made video recordings of female soldiers and contractors in various states of undress 

in a female shower trailer. In addition, both in Iraq and at Fort Hood, appellant 

unlawfully entered facilities intended for the use of female personnel only, where 

one might find women in various states of undress.1

 

 In light of this conduct, appellant faced two specifications of a violation of 

Article 120, UCMJ, alleging the offense of indecent act and two specifications of a 

violation of Article 130, UCMJ, alleging the offense of housebreaking as follows: 

 

 In Specification 2 of Charge 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 January 2009 and 31 January 2009, 

wrongfully commit indecent conduct, to wit: observing 

and making digital recordings of naked and partially 

clothed women while they conducted hygiene 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, Iraq, on or about 15 April 

2008, wrongfully commit indecent conduct, to wit: 

wrongfully observing SPC [TM’s] partially naked body 

while she was dressing in a female shower trailer. 

 In Specification 1 of Charge II, Article 130, UCMJ: 

In that [appellant], . . . did, on or about 29 March 2008, 

unlawfully enter a female shower trailer . . . with 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 address the facts relative to appellant’s provident pleas to 

wrongful sexual contact, indecent exposure and housebreaking with the intent to 

commit indecent exposure here, we address those offenses in the context of 

appropriate relief below. 
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4

In that [appellant], . . . did, on or about 13 August 2009, 

unlawfully enter a female locker and shower room . . . 

with intent to commit a criminal offense, to wit: a 

violation of Article 120, UCMJ, Indecent Exposure and an 

Indecent Act, therein. 

 Appellant entered pleas of guilty to each of these specifications. 

The judge then provided the following description and definition of elements: 

MJ: Take a look at Specification 2 of Charge I. 

[The accused did as directed.] 

And there you are charged with the offense of indecent 

acts. The elements of this offense are as follows: 

One, that on divers occasions between on or about 1 

through 31 January of 2009, at or near FOB Rustamiyah, 

Baghdad, Iraq, you engaged in a certain wrongful conduct, 

to wit: you observed and made visual recordings of naked 

and partially clothed women while they conducted hygiene 

tasks and dressed in a female shower trailer; 

And the second element, is that the conduct was indecent. 

‘Indecent Conduct’ means that form of immorality relating 

to sexual impurity which is grossly vulgar, obscene 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 video 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 justification or lawful excuse. 

 Take a look at Specification 3 of Charge I. 

 [The accused did as directed.] 
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5

There you are charged with another offense of indecent 

acts. The elements of this offense are as follows[:] 

One, that on or about 14 April of 2008, at FOB 

Rustamiyah, Baghdad, Iraq, you engaged 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 Specification 1 of Charge II. 

[The accused did as directed.] 

And there you are charged with the offense of 

housebreaking. The elements of this offense are as 

follows: 

One, that on or about 29 March 2008, at or near FOB 

Rustamiyah, Baghdad, Iraq, you unlawfully entered a 

female shower trailer, the property of the United States 

Government; 

And two, that the unlawful entry 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 other proper lawful authority. Proof 

that you actually committed or even attempted to commit 

the offense of indecent acts is not required, however, you 

must have intended each element of that offense at the 

time of the unlawful entry. These elements are as I 

informed you regarding Specifications 2 and 3 of Charge 

I. Would you like me to repeat those elements, PFC Rice? 

Acc: No, Your honor. 

. . . 

MJ: Take a look at Specification 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 entered a female locker room 

at Greywolf Gym, the property of the United States 

Governmnet; 

And two, that the unlawful entry was made with the intent 

to commit therein, the criminal offenses of indecent 

exposure and indecent acts. 

Proof that you actually committed or even attempted to 

commit the offense of indecent exposure and indecent acts 

is not required. However, you must have intended each 

element of those offenses at the time of the unlawful 

entry. 

The elements of those offenses are, as I informed you 

regarding Specifications 2, 3 and 42

 of Charge I, would 

you like me to repeat those elements, PFC Rice? 

Acc: No, Your Honor. 

MJ: PFC Rice, do you understand the elements and 

definitions as I read them to you? 

Acc: Yes, Your Honor. 

MJ: Do you have any questions about any of them? 

Acc: No, Your Honor. 

MJ: And do you understand that your plea of guilty 

admits that these elements accurately describe what you 

did? 

Acc: Yes, sir. 

 

2

 Specification 4 of Charge I was an indecent exposure charge unimportant 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 inquiry ensued and included, in pertinent part, the following: 

Acc: On or about 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 tasks in the female shower 

trailer. I knew that doing so was wrongful because I was 

not doing it as part 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 indecent conduct, that that was 

indecent? 

Acc: Yes, Your Honor. 

. . . 

MJ: Go ahead, continue. 

. . . 

Acc: On or about 15 April 2008, FOB Rustamiyah, Iraq, I 

observed Specialist [TM] while 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 getting dressed. I knew that doing so was 
RICE—ARMY 20100678 

8

wrongful because I was not doing it as part of law 

enforcement or in medical treatment. 

MJ: Was Specialist [TM] partially naked when you were 

watching her, PFC Rice? 

Acc: Yes, Your Honor. 

MJ: And again, given the definition of indecent, do you 

admit that that was indecent? 

Acc: Yes, Your Honor. 

 . . . 

 MJ: Tell me about Specification 1 of Charge II. 

Acc: On 29 March 2008, Rustamiyah, Iraq, I entered the 

female shower trailer located on FOB Rustamiyah. I did 

not have permission or authority to be in the trailer. I 

knew that what I was doing was wrongful because I was 

not doing it as part of law enforcement or in medical 

treatment. 

MJ: And why did you enter the female shower trailer, 

PFC Rice? 

Acc: To view naked females, 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, Your Honor. 

. . . 

 

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

. . . 
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9

Acc: On 13 August 2009, at Fort Hood, Texas, I entered 

the women’s locker room at Abrams 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 wrongful and that I was not 

doing it as part of law enforcement or in medical 

treatment. I entered the locker room with the intent to 

expose myself to the female inside the shower. 

MJ: PFC Rice, the specification 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 theory was, Government? 

TC: Yes, Your Honor. 

MJ: Is that why you went in there, PFC Rice? 

Acc: Yes, Your Honor. 

MJ: For both of those reasons, to view women who were 

partially naked and to expose yourself? 

Acc: Yes, Your Honor. 

 

 From the stipulation of fact admitted the following is relevant: 

On or about 15 April 2008 at FOB Rustamiyah, Baghdad, 

Iraq, the Accused poked his head into a female shower 

trailer. As he looked 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 far his wild side went then 

explained that he had found a way to spy on the female 

latrine. . . . [H]e showed PV2 [ES] how he peered into the 

structure through a vent. . . . 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, Iraq, the Accused videotaped 

SSG [NL,] SPC [MM] and KBR employee Ms. [SK] 

without their knowledge while they conducted personal 

hygiene inside a female shower trailer. . . . None of the 

victims were aware that the photos/movies had been taken 

of them and none had granted permission for these 

photos/movies to be taken of them. 

A forensic examination of the Accused’s digital media 

revealed 13 deleted digital video files and one (1) digital 

image file of evidentiary value. The digital video files 

contain footage of females conducting personal hygiene 

tasks in a bathroom/shower facility. The videos appear to 

have been recorded in a surreptitious manner in that they 

are all recorded through the opening of a ventilation unit 

and the females appeared unaware they are being 

observed. The digital image file depicts a female in the 

same bathroom/shower facility. 

 The videos and images were originally submitted as an enclosure to the 

stipulation of fact, but were ultimately admitted separately as Pros. Ex. 2. Upon 

examination of the videos and image described above, we discover that four of the 

thirteen videos contain images that qualify for criminal liability under Article 120, 

UCMJ. Three videos contain images of certain females’ 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 qualify but it is difficult to discern. The remaining eight 

videos and the still image display nothing listed under the definition of indecent 

conduct provided under the 2007 version of Article 120(t)(12), UCMJ. 

LAW

“The requirements of Article 45 are designed to provide protection to the 

accused from entering an unknowing, unwitting, or coerced plea 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 

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United States v. Pretlow, 13 M.J. 85, 88–89 (C.M.A. 1982). Upon review, “a guilty 

plea will be rejected only where the record of trial shows a substantial basis in law 

and fact for questioning 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 decision to accept a guilty plea for 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 guilty 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 regarding the factual predicate of any 

charged offense to ensure that “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. 2002) (quoting Care, 18 U.S.C.M.A. at 541, 40 C.M.R. at 253) 

(internal punctuation marks omitted). Rule for Courts-Martial 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 elements 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 reversible error, unless ‘it is clear from the 

entire record that the accused knew the elements, 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 not 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 the accused’s understanding 

and recitation of the factual history of the 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 defense counsel permitted, and the military judge 

accepted, appellant’s plea of guilty to violations of Article 120, UCMJ, on an 

erroneous view of the 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 overhauled that article under the UCMJ in 2007. Prior to that, 

voyeurism, or peeping, was potentially cognizable as a crime only under Article 134, 

UCMJ, as a simple disorder. See United States 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 Article 120, UCMJ, those 

offenses previously contemplated under Manual for Courts-Martial, United States

(2005 ed.) [hereinafter MCM], pt. IV, ¶ 90, Article 134, 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 under Article 120, UCMJ. Voyeurism that does not involve 

the body parts or specific acts listed under Article 120(t)(12), UCMJ, would, 

therefore, remain a potential violation of Article 134, UCMJ, as a simple disorder. 

The record indicates that the military judge and parties in this case agreed 

upon a view that Congress had listed voyeurism, as it did, only as an example of 

what might constitute an indecent act. The inherent difficulties associated with 

interpretation of this particular statute are manifest and parties and judges continue 

to address the challenge in good faith. With regard to voyeurism, recognition of the 

history of the common law, as described above, conjoined with the nature of the 

consolidation of offenses under Article 120, UCMJ, that were previously defined 

under Article 134, UCMJ, establishes that the interpretation employed in the courtmartial here was incorrect. 

Application of certain fundamental principles of statutory construction also 

reveals this error. “Ordinarily, where a specific [statutory] provision conflicts with 

a general one, the specific governs.” Edmond v. United States, 520 U.S. 651, 657 

(1997) (citation omitted). Here, then, the specific provisions addressing voyeurism 

under the 2007 version of Article 120(t)(12), UCMJ, define the limits of that 

statute’s reach over that sort of peeping behavior. See id. In addition, “‘ambiguity 

concerning the ambit of criminal statutes should be resolved in favor of lenity.’” 

Busic v. United States, 446 U.S. 398, 406 (1980) (citations omitted). Therefore, if 

any ambiguity exists, the 2007 version of Article 120(k), UCMJ, necessarily 

considered in conjunction with Article 120(t)(12), UCMJ, limits criminal liability 

under that article for voyeurism to those specific situations listed. See id.

The military judge in this case never correctly defined the offense as required. 

Rather than employ the specific definition required, he resorted to the general 

definition alone. The judge did not advise appellant that to constitute “indecent 
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conduct,” his surreptitious 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 viewing of another person engaged in a sexual act, sodomy, 

or sexual contact. Appellant neither expressed any understanding consistent with 

the specific definition of the crime required nor uttered facts sufficient to meet that 

definition. Indeed, appellant pled guilty to the 2007 version of Article 120(k), 

UCMJ, violations based upon conduct for which it is impossible to be convicted 

under that statutory provision. 

In Specification 2 of Charge I, eight of the thirteen recordings certainly fall 

completely outside the scope of the crime in question. Yet the judge advised and 

appellant erroneously understood that all were equally subject to prosecution, 

conviction and punishment under Article 120(k), UCMJ. In Specification 3 of 

Charge I, the stipulation of fact establishes 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, appellant never uttered facts 

that satisfy the requirement of the statute and he acknowledged guilt only in the 

context of the erroneous definition initially rendered and repeated by the military 

judge. 

Stating that he observed or intended to observe or record naked or partially 

naked women is not enough. Both terms are sufficiently ambiguous to render them 

practically meaningless under the strictures of the statute in question.3

 As our court 

“is confined to the definitions formulated by Congress,” we enforce the specific 

definition of the element 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 naked person, has also since been amplified: Congress 

amended the provisions addressing voyeurism 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 another person, without that other person’s consent and 

under circumstances in which that other person has 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 readily make peeping upon a naked 

 

3

 Reality also informs us that one can peep upon a naked or partially naked person 

but not view any of the parts listed in the statute. Any number of possibilities exist 

where an accused could observe a naked person but not violate Article 120, UCMJ, 

because his view is obscured in some fashion or because of his particular vantage 

point, for example. We need not belabor the point. 
RICE—ARMY 20100678 

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person a violation of Article 120, UCMJ. It hasn’t; rather, it made observation of 

particular naked parts as criminal under that statute. 

Though the accused most certainly committed a simple disorder under Article 

134, UCMJ, and sufficiently admitted to same at court-martial, he was neither 

charged with that offense nor is that offense a lesser-included offense 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 related offense” doctrine and holding that 

“[a]ffirming a guilty plea based on admissions to an offense to which an accused has 

not in fact pleaded guilty and which is not a lesser[-]included offense of the charged 

offense is inconsistent with 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 genitalia, anus, buttocks, 

areola, or nipple, or seeing a person engaged in a sexual act, sodomy, or sexual 

contact or that he understood that was required in order to be guilty under the 

offenses charged. The videos admitted as Pros. Ex. 2 should not be considered 

admissions of the accused as the judge actually removed them from the stipulation of 

fact and obtained no acceptance from the accused that they constituted factual 

admissions by him.4

 Even if the videos were included as stipulations of fact, we 

resolve that, under the circumstances of this case, any such admission would be 

insufficient to accept that portion of appellant’s plea of guilty concerned where, as 

in this case, appellant’s misunderstanding of the law and its relation to the facts 

establish a substantial basis in law and fact to reject 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 contested trial or whether the accused could 

have been provident if properly advised. We review the record to determine if the 

plea was in fact and 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 element of the offense warrants rejection.5

 See Weeks, 

 

4

 As noted above, the stipulation itself falls short of the factual 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 objectively verifiable in the record to determine whether an 

appellant was properly advised on matters of law. See Henderson v. Morgan, 426 

U.S. 637, 646–47 (1976) (holding a guilty plea involuntary where the record 

(continued . . .) 
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15

71 M.J. at 48–49. The sentence imposed and approved is concomitantly unreliable 

in light of all of the circumstances of this case and the matter warrants rehearing. 

See United States 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 Specification 1 of Charge II are set aside. In addition, the court 

finds in relation to Specification 2 of Charge II only so much of the finding of guilty 

that states appellant “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 

Exposure, therein,” in violation of Article 130, UCMJ, should be approved. UCMJ 

art. 66; Inabinette, 66 M.J. 320. The remaining findings of guilty are affirmed. The 

same or a different convening authority may order a rehearing on Specifications 2-3 

of Charge I and Specification 1 of Charge II and the sentence, which is set aside. 

The same or a different convening authority may also order a rehearing on the part 

of Specification 2 of Charge II that is set aside. If the convening authority 

determines that a rehearing on Specifications 2-3 of Charge I, Specification 1 of 

Charge II, and part of Specification 2 of Charge II is impracticable, he may dismiss 

Specifications 2-3 of Charge 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 dissenting in part: 

I agree with the majority that the military judge committed reversible error in 

accepting appellant’s guilty plea to Specification 3 of Charge I. As stated by the 

majority, the overhaul of Article 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 present case, Specification 3 of 

Charge I alleged the victim was “partially naked . . . while she was dressing in a 

female shower,” the stipulation of fact states the victim was “wearing only a t-shirt 

 

(. . . continued) 

established that neither judge nor defense counsel explained to the accused an 

essential element of the offense and where the accused did not sufficiently admit to 

such element); Pretlow, 13 M.J. at 88. Our 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 the 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 Specification 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 show appellant entered the female shower room to view 

anyone’s genitalia, anus, buttocks, areola, or nipple, as required by Article 

120(t)(12)(A), UCMJ. For that reason, I too would affirm only so much of the 

finding of guilt of Specification 2 of Charge II as alleged appellant “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 Exposure, therein.” 

With respect to Specification 2 of Charge I and Specification 1 of Charge II, I 

part company with the majority’s view of facts and law. As our superior 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 judge fails to do so, he commits 

reversible error, unless ‘it is clear from the entire record 

that the accused knew the elements, admitted them freely, 

and pleaded guilty because he was guilty.’ United States 

v. Jones, 34 M.J. 270, 272 (C.M.A. 1992). Rather than 

focusing on a technical listing of the elements of an 

offense, this Court looks at the context of the entire record 

to determine whether an accused 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 the military judge failed to complete the definition 

of Article 120(t)(12), UCMJ, as explained by the majority, the providence inquiry 

satisfies me that in the context of this entire guilty plea, appellant was fully aware of 

each and every element of Specification 2 of Charge I and Specification 1 of Charge 

II, that his intent was to view, photograph, and make recordings of women who were 
RICE—ARMY 20100678 

17

completely naked, and as such, had the requisite intent to view their genitalia, anus, 

buttocks, areola, and/or nipples. It is impossible for me to infer otherwise. 

 Before rejecting a guilty plea during appellate review, we must be convinced 

that the court-martial record evidences a substantial 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 those 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 (1969)). 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 women who were naked. 

Appellant’s plea of guilty, with the assistance of presumptively qualified defense 

counsel,1

 confirms this finding. Nothing within the record rebuts 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 offenses charged.2

 The 

failure of appellant to recite on the record that he observed the “genitalia, anus, 

buttocks, and areola or nipple” of a completely naked woman of which he had a full 

view does not require this court to reject his plea. 

 Similarly, appellant’s admission during the providence 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 criminal 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 any of the enumerated body parts, it is crucial to note the 

distinction here that unwitting victims are neither static nor posed images. 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 cases defense counsel routinely explain the nature of the 

offense in sufficient detail to give the accused notice of what he is being asked to 

admit.”). 

2

 Appellant had a GT score of 122. 
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18

as to prevent observation of the enumerated body parts, especially when unaware of 

appellant’s presence. 

The majority’s view is that all participants in this court-martial (trial counsel, 

defense counsel, and military judge alike) as well as both government and defense 

appellate counsel in their briefs, collectively failed to adequately appreciate the 

necessary definitions of the offenses in Specification 2 of Charge I and Specification 

1 of Charge II. I believe common sense requires, and 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 likely a consequence of the 

overwhelming nature of the evidence as a speculatively erroneous view of the law. 

Although I agree that a more explicit discussion of the definitions during the 

providence inquiry would have been helpful, in this case the overwhelming evidence 

included in both the stipulation of fact, as well as in the video evidence included 

with that stipulation, demonstrate that appellant 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 541, 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 substantial 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 Operating Base Rustamiyah, Baghdad, Iraq, on 

divers occasions between on or about 1 January 2009 and 31 January 2009, 

wrongfully commit indecent conduct, to wit: observing and making digital 

recordings of naked women while they conducted hygiene tasks and 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: