## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before HOLDEN, HOFFMAN, and SULLIVAN Appellate Military Judges

UNITED STATES, Appellee

v. Cadet MARK R. CONLIFFE United States Army, Appellant

ARMY 20040721

United States Military Academy West Point, New York David L. Conn, Military Judge Colonel Lawrence J. Morris, St aff Judge Advocate (pretrial) Colonel Robin N. Swope, Staff Judge Advocate (post-trial)

For Appellant: Colonel John T. Phelps, JA; Lieutena nt Colonel Kirsten V.C. Brunson, JA; Major Char les A. Kuhfahl, JA; Captain To dd N. George, JA (on brief).

For Appellee: Colonel John W. Miller, JA; Lieutenant Colonel Michele B. Shields, JA; Major Tami L. Dillahunt, JA; Capt ain W. Todd Kuchenth al, JA (on brief).

31 October 2007

----------------------------------------- OPINION OF THE COURT

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HOLDEN, Senior Judge:

A military judge sitting as a general court-martial convicted appellant, pursuant to his conditional pleas, 1 of housebreaking (three specifications), conduct unbecoming an officer (five specifications alleging surreptitious videotaping of

female cadets in their barracks rooms or in the shower area of a female locker room), and surreptitious videotaping of a woman pe rforming oral sex up on him, in violation of Articles 130, 133, and 134, Uniform Code of Milita ry Justice, 10 U.S.C. §§ 930, 933, and 934 [hereinaft er UCMJ]. The convening auth ority approved the adjudged sentence to a dismissal, confinement for eighteen months, and forfeiture of all pay

1 Appellant entered conditional guilty pleas after the military judge denied a defense motion to suppress evidence obtained from appellant’s barr acks room and a computer server owned by the United States Government.CONLIFFE – ARMY 20040721

2 and allowances for eighteen months. 2 This case is before our court for review under Article 66, UCMJ.

Appellate defense counsel assert, inter alia , appellant’s guil ty pleas to the housebreaking specifications were improvi dent. They claim th e underlying offense appellant intended to commit when he en tered the female gymna sium locker room

and a female cadet’s barracks room was co nduct unbecoming an o fficer, a violation of Article 133, UCMJ. Appe llant maintains Article 133, UCMJ, offenses are purely military in nature and, th erefore, cannot suppo rt a housebreaking conviction under Article 130, UCMJ. Accordin gly, appellant requests we affirm only findings of guilty to the lesser included offense of unlawful entry under Article 134, UCMJ, for the three housebreaking specificati ons and reassess the sentence. The defense claim

merits discussion but not relief.

Article 133, UCMJ, is not pe r se a purely military offense. To determine whether a specific Article 13 3, UCMJ, offense qual ifies as an unde rlying “criminal offense” under Article 130, UCMJ, the character of th e Article 133, UCMJ, offense must be analyzed. In our examination of appellant’s case, we find his underlying Article 133, UCMJ, offenses we re not “purely military” in nature; therefore, they sufficiently suppor t his convictions for violation of Article 130, UCMJ.

FACTS

Appellant was a first clas s cadet (a senior) at th e United States Military Academy (the Academy), sche duled for graduation and co mmissioning as a second lieutenant in May, 2003. During the providence inqui ry, appellant to ld the military judge that he be gan filming women without their knowledge in 2002 when he was walking across the Academy grounds, saw a woman thro ugh the window of her barracks room, and noticed her undressing. The effect of the sun on the woman’s window at that time of day prevented her fr om seeing appellant, so he used a video camera he was carrying to film her undressing.

In the following year, appe llant twice unlawfully ente red the locker room of an Academy women’s varsity sports team, concealed his video ca mera, and secretly

filmed undressed wome n entering and exiting the shower . Similarly, he unlawfully

entered the barracks room of one of the female cadets he previously filmed in the locker room, hid the video ca mera in her barracks room , and secretly filmed her

2 Although there was a pretrial agreement, it did not provide a sentence limitation; rather, the parties agreed that six specific ations alleging violat ions of Article 92, UCMJ, would be dismissed in exchan ge for a stipulation of fact.CONLIFFE – ARMY 20040721

3 changing clothes. Finall y, while on leave at his pa rents’ home in Kentucky, appellant had consensual sexual activity wi th a civilian woman in his bedroom, but filmed her performing oral sex on hi m without her knowle dge or consent.

Appellant saved the surr eptitiously created images of the women on his computer and in a shared fo lder on the Academy computer network. One evening, a fellow cadet was randomly looking th rough the shared network folders for interesting photographs or video clips. The cadet discovered the video images at issue and recognized one or mo re of the females depicted. He reported his discovery to his superiors. A command review of appellant’s sh ared folder on the government network revealed the images. Appellant’s commander then author ized a search of appellant’s barracks room where appellan t’s digital camera, co mputer, and various items of computer st orage media were seiz ed as evidence.

During the providence inquiry concerning the housebreakin g offenses, appellant told the military judge that he accomplished his intend ed goal in each instance by successfully an d secretly filming the women undressed or undressing.

Each of the three hou sebreaking specificat ions alleged the unde rlying offense was “utiliz[ing] an imaging device to surreptitiously record the image[s] of [the various

victims in the various locati ons] by hiding a digital video camera in the room, such acts constituting conduct unbecoming an officer and gent leman, therein.”

LAW

Housebreaking

Housebreaking under Article 130, UCMJ , requires proof of two elements:

(1) That the accused unlawfully entere d a certain building or structure

of a certain ot her person; and

(2) That the unlawful entry was made with the intent to commit a

criminal offens e therein.

Manual for Courts-Martial, United States (2002 ed.) [hereinafter MCM ], Part IV, para. 56b.

Regarding the second element, the MCM defines qualifying criminal offenses

as: “ Any act or omission which is pu nishable by courts-martial, except an act or omission constituting a purely military offense, is a ‘criminal offense.’” MCM , Part IV, para. 56c(3) (emphasis added).CONLIFFE – ARMY 20040721

4 Purely Milita ry Offenses

Purely military offenses are those cr imes over which courts-martial have exclusive jurisdiction. Rule for Courts-Mar tial 201(d)(1). An offense is purely military when “by its expres s terms[,] the statutory prohibition applies only to a

‘member of the armed forces.’” United States v. Marsh , 15 M.J. 252, 254 (C.M.A. 1983) (quotation in or iginal). “[An] accused's stat us as a servicemember is an element of [a purely military] offense whic h, if contested, must be demonstrated to the trier of fact beyon d reasonable doubt.” United States v. McGinnis , 15 M.J. 345, 346 (C.M.A. 1983) (citations om itted). Purely military o ffenses include desertion, absence without authority (AWO L), disrespect toward or disobedience of superior

commissioned or noncommissioned offi cers, misbehavior before the enemy, dereliction of duty, and fa ilure to obey a lawful general order or regulation. See

United States v. Abdul-Rahman , 61 M.J. 25, 25-26 (C.A .A.F. 2005) (summary disposition) (affirming conviction of le sser included offens e of unlawful entry instead of housebreaking wh ere the purpose of the unlawful entry was to commit a purely military offense: i.e. , violation of a la wful general regula tion prohibiting drinking alcohol aboard ship).

Conduct Unbecoming an Officer

The offense of conduct unbecoming an officer un der Article 133, UCMJ, requires proof of two elements:

(1) That the accused did or om itted to do certain acts; and

(2) That, under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.

MCM , Part IV, para. 59b.

DISCUSSION

In asserting Article 133, UCMJ, viol ations do not satis fy the underlying criminal offense requirement for house breaking, appellat e defense counsel conducted an incomplete analysis.

Appellate defense co unsel are correct in assertin g “a purely military offense” cannot satisfy the intended criminal offense requirem ent of the second housebreaking element. It is also true that Ar ticle 133, UCMJ, stan ding alone, does not have a civilian counterpart and proscribes action or be havior that dishonors or disgraces the officer and seriously compro mises their character as a gentleman orCONLIFFE – ARMY 20040721

5 their standing as an officer. See MCM, Part IV, para. 59c(2). However, criminal offenses cognizab le under Article 133, UCMJ, specifically include:

[A]cts made punishable by any ot her article, provided these acts amount to conduct unbecoming an o fficer and a gent leman. Thus, a

commissioned officer who steals property violates both this article and

Article 121. Whenever th e offense charged is the same as a specific

offense set forth in this Manual, the elements of proof are the same as set forth in the para graph which treats th at specific offense, with the additional requirement that the act or omis sion constitutes conduct unbecoming an officer and gentleman.

Id. (emphasis added).

While some misconduct un derlying an Article 13 3, UCMJ, offense may be purely military in natu re, filming women in various stages of un dress without their knowledge and consent does not fall within that category. There is nothing exclusively military about such prurient conduct. Status as a member of the armed

forces is not an element of a surreptitious filming offense and the offense is not “[without] counterpart in nonmilitary criminal law.” United States v. Fornash , 2 M.J. 1045, 46 (A.C.M .R. 1976) (quoting Relford v. Commandant, U.S. Disciplinary

Barracks , 401 U.S. 355, 368-69 (1971)) . Indeed, several states prohibit su rreptitious filming, including New York, 3 where the housebreaking o ffenses at issue occurred, and appellant’s state of domicile, Kentucky. 4 Thus, a wide ra nge of offenses cognizable under Article 133 , UCMJ, may violate both mi litary and civ ilian law and could be prosecuted under either or both judicial systems. 5

3 “Stephanie’s Law”, N.Y. P ENAL L AW § 250.40 (Consol. 2007) , et. seq. The State

of New York enacted “Ste phanie’s Law” on 12 June 2003, before appellant committed two of the three housebreakings at issue. It became effective 60 days later and classified the very conduct engaged in by appe llant as unlawful

surveillance in the second degree, a Class E felony. Id . at § 250.45.

4 The Kentucky statutory pr ohibitions extend beyond secret reco rdings of sexual activity. The statute also prohibits “the use of any camera . . . or other image recording devi ce for the purpose of obs erving, viewing, photogr aphing, filming, or videotaping . . . [the] genitals . . . or nipple of the fema le breast of another person without that person's [ knowledge and] consent.” K Y . R EV . S TAT . A NN § 531.090 (LexisNexis 2006).CONLIFFE – ARMY 20040721

6 Appellant’s focus, therefore, on the Article 133, UCMJ, language to the

exclusion of the othe r words of criminality in the housebreaking specifications is misdirected. Our superior co urt resolved the central issu e more than fourteen years ago in a closely analogous case, United Stat es v. Webb, 38 M.J. 62 (C .M.A. 1993). In that case, Sergeant Webb hid in a storage room in a building housing female

officers so he could see them undressed in the shower area. When a female officer discovered him hiding, he knocked her down and fled. In affirm ing the conviction for “housebreaking with intent to peep,” the court held “the intent which must be proved is the in tent to commit the crime stated in the specification. ” Id. at 68-69 (emphasis added).

In appellant’s case, the crime stated in the specification is “utiliz[ing] an imaging device to surr eptitiously record the image[s] of [the va rious victims in the various locations] by hiding a di gital video camera in the room.” 6 The language following next, “such acts constituti ng conduct unbecomi ng an officer and gentleman, therein,” is surplusage in this case. The crime was adequately described without the additional langu age; further labeli ng the crime as conduct unbecoming an officer does not dictate a different legal result.

In the instant case, appell ant’s use of technology to effect his “peeping”— substituting a concealed vide o camera for his physical presence—does not alter the fact he merely committed a mo re modern version of preci sely the same offense as Sergeant Webb. Appellant’s use of a concealed camera made his crime harder to detect, but the underlying e ffect is the same. His con duct satisfies the underlying criminal offense requirement of Article 130, UCMJ. Appellant’ s claim is without merit and we deny th e requested relief.

(. . . continued)

5 “A person subject to the UCMJ who has been trie d in a civilian court may, but ordinarily will not, be tried by court-martial or puni shed under the UCMJ, Art. 15,

for the same act over which the civilian court has exercised ju risdiction.” Army Reg. 27-10, Legal Servic es: Military Justice, pa ra. 4-2 (16 Nov. 2005); United States

v. Schneide r, 38 M.J. 387 (C.M.A. 1993), cert

. denied , 511 U.S. 1106 (1994) (The Double Jeopardy Clau se does not bar one sovereign from proceedi ng on a charge of which an accused is acquitt ed by anothe r sovereign).

6 Appellant does not assert he was improvident to the wo rds of crimin ality in the housebreaking specifications desc ribing the surreptitious filming.CONLIFFE – ARMY 20040721

7 DECISION

We have considered th e remaining assi gnment of error and the matters personally raised by appellant pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) and find them also to be without mer it. The findings of guilty and

sentence are affirmed.

Judge HOFFMAN and Ju dge SULLIVAN concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: