UNITED STATES ARMY COURT 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, Staff Judge Advocate (pretrial) 

Colonel Robin N. Swope, Staff Judge Advocate (post-trial) 

For Appellant: Colonel John T. Phelps, JA; Lieutenant Colonel Kirsten V.C. 

Brunson, JA; Major Charles A. Kuhfahl, JA; Captain Todd N. George, JA (on brief). 

For Appellee: Colonel John W. Miller, JA; Lieutenant Colonel Michele B. Shields, 

JA; Major Tami L. Dillahunt, JA; Captain W. Todd Kuchenthal, JA (on brief). 

31 October 2007 

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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 performing oral sex upon him, in violation 

of Articles 130, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 930, 

933, and 934 [hereinafter UCMJ]. The convening authority 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 barracks 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 guilty pleas to the 

housebreaking specifications were improvident. They claim the underlying offense 

appellant intended to commit when he entered the female gymnasium locker room 

and a female cadet’s barracks room was conduct unbecoming an officer, a violation 

of Article 133, UCMJ. Appellant maintains Article 133, UCMJ, offenses are purely 

military in nature and, therefore, cannot support a housebreaking conviction under 

Article 130, UCMJ. Accordingly, appellant requests we affirm only findings of 

guilty to the lesser included offense of unlawful entry under Article 134, UCMJ, for 

the three housebreaking specifications and reassess the sentence. The defense claim 

merits discussion but not relief. 

Article 133, UCMJ, is not per se a purely military offense. To determine 

whether a specific Article 133, UCMJ, offense qualifies as an underlying “criminal 

offense” under Article 130, UCMJ, the character of the Article 133, UCMJ, offense 

must be analyzed. In our examination of appellant’s case, we find his underlying 

Article 133, UCMJ, offenses were not “purely military” in nature; therefore, they 

sufficiently support his convictions for violation of Article 130, UCMJ. 

FACTS 

Appellant was a first class cadet (a senior) at the United States Military 

Academy (the Academy), scheduled for graduation and commissioning as a second 

lieutenant in May, 2003. During the providence inquiry, appellant told the military 

judge that he began filming women without their knowledge in 2002 when he was 

walking across the Academy grounds, saw a woman through 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 from seeing appellant, so he used a video 

camera he was carrying to film her undressing. 

In the following year, appellant twice unlawfully entered the locker room of 

an Academy women’s varsity sports team, concealed his video camera, and secretly 

filmed undressed women 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 camera 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 specifications alleging violations of Article 92, 

UCMJ, would be dismissed in exchange for a stipulation of fact. 
CONLIFFE – ARMY 20040721 

3

changing clothes. Finally, while on leave at his parents’ home in Kentucky, 

appellant had consensual sexual activity with a civilian woman in his bedroom, but 

filmed her performing oral sex on him without her knowledge or consent. 

Appellant saved the surreptitiously created images of the women on his 

computer and in a shared folder on the Academy computer network. One evening, a 

fellow cadet was randomly looking through the shared network folders for 

interesting photographs or video clips. The cadet discovered the video images at 

issue and recognized one or more of the females depicted. He reported his discovery 

to his superiors. A command review of appellant’s shared folder on the government 

network revealed the images. Appellant’s commander then authorized a search of 

appellant’s barracks room where appellant’s digital camera, computer, and various 

items of computer storage media were seized as evidence. 

During the providence inquiry concerning the housebreaking offenses, 

appellant told the military judge that he accomplished his intended goal in each 

instance by successfully and secretly filming the women undressed or undressing. 

Each of the three housebreaking specifications alleged the underlying offense was 

“utiliz[ing] an imaging device to surreptitiously record the image[s] of [the various 

victims in the various locations] by hiding a digital video camera in the room, such 

acts constituting conduct unbecoming an officer and gentleman, therein.” 

LAW 

Housebreaking 

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

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

of a certain other person; and 

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

criminal offense 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 punishable 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 Military Offenses 

Purely military offenses are those crimes over which courts-martial have 

exclusive jurisdiction. Rule for Courts-Martial 201(d)(1). An offense is purely 

military when “by its express 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 original). “[An] accused's status as a servicemember is an 

element of [a purely military] offense which, if contested, must be demonstrated to 

the trier of fact beyond reasonable doubt.” United States v. McGinnis, 15 M.J. 345, 

346 (C.M.A. 1983) (citations omitted). Purely military offenses include desertion, 

absence without authority (AWOL), disrespect toward or disobedience of superior 

commissioned or noncommissioned officers, misbehavior before the enemy, 

dereliction of duty, and failure 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 lesser included offense of unlawful entry 

instead of housebreaking where the purpose of the unlawful entry was to commit a 

purely military offense: i.e., violation of a lawful general regulation prohibiting 

drinking alcohol aboard ship). 

Conduct Unbecoming an Officer 

The offense of conduct unbecoming an officer under Article 133, UCMJ, 

requires proof of two elements: 

(1) That the accused did or omitted 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, violations do not satisfy the underlying 

criminal offense requirement for housebreaking, appellate defense counsel 

conducted an incomplete analysis. 

Appellate defense counsel are correct in asserting “a purely military offense” 

cannot satisfy the intended criminal offense requirement of the second 

housebreaking element. It is also true that Article 133, UCMJ, standing alone, does 

not have a civilian counterpart and proscribes action or behavior that dishonors or 

disgraces the officer and seriously compromises their character as a gentleman or 
CONLIFFE – ARMY 20040721 

5

their standing as an officer. See MCM, Part IV, para. 59c(2). However, criminal 

offenses cognizable under Article 133, UCMJ, specifically include: 

[A]cts made punishable by any other article, provided these acts 

amount to conduct unbecoming an officer and a gentleman. Thus, a 

commissioned officer who steals property violates both this article and 

Article 121. Whenever the 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 paragraph which treats that specific offense, with the 

additional requirement that the act or omission constitutes conduct 

unbecoming an officer and gentleman. 

Id. (emphasis added). 

While some misconduct underlying an Article 133, UCMJ, offense may be 

purely military in nature, filming women in various stages of undress 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 surreptitious 

filming, including New York,3

 where the housebreaking offenses at issue occurred, 

and appellant’s state of domicile, Kentucky.4

 Thus, a wide range of offenses 

cognizable under Article 133, UCMJ, may violate both military and civilian law and 

could be prosecuted under either or both judicial systems.5

 

3

 “Stephanie’s Law”, N.Y. PENAL LAW § 250.40 (Consol. 2007), et. seq. The State 

of New York enacted “Stephanie’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 appellant as unlawful 

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

4

 The Kentucky statutory prohibitions extend beyond secret recordings of sexual 

activity. The statute also prohibits “the use of any camera . . . or other image 

recording device for the purpose of observing, viewing, photographing, filming, or 

videotaping . . . [the] genitals . . . or nipple of the female breast of another person 

without that person's [knowledge and] consent.” KY. REV. STAT. ANN § 531.090 

(LexisNexis 2006). 
CONLIFFE – ARMY 20040721 

6

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

exclusion of the other words of criminality in the housebreaking specifications is 

misdirected. Our superior court resolved the central issue more than fourteen years 

ago in a closely analogous case, United States 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 affirming the conviction 

for “housebreaking with intent to peep,” the court held “the intent which must be 

proved is the intent 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 surreptitiously record the image[s] of [the various victims in the 

various locations] by hiding a digital video camera in the room.”6

 The language 

following next, “such acts constituting conduct unbecoming an officer and 

gentleman, therein,” is surplusage in this case. The crime was adequately described 

without the additional language; further labeling the crime as conduct unbecoming 

an officer does not dictate a different legal result. 

In the instant case, appellant’s use of technology to effect his “peeping”— 

substituting a concealed video camera for his physical presence—does not alter the 

fact he merely committed a more modern version of precisely the same offense as 

Sergeant Webb. Appellant’s use of a concealed camera made his crime harder to 

detect, but the underlying effect is the same. His conduct satisfies the underlying 

criminal offense requirement of Article 130, UCMJ. Appellant’s claim is without 

merit and we deny the requested relief. 

 

(. . . continued) 

5

 “A person subject to the UCMJ who has been tried in a civilian court may, but 

ordinarily will not, be tried by court-martial or punished under the UCMJ, Art. 15, 

for the same act over which the civilian court has exercised jurisdiction.” Army 

Reg. 27-10, Legal Services: Military Justice, para. 4-2 (16 Nov. 2005); United States 

v. Schneider, 38 M.J. 387 (C.M.A. 1993), cert. denied, 511 U.S. 1106 (1994) (The 

Double Jeopardy Clause does not bar one sovereign from proceeding on a charge of 

which an accused is acquitted by another sovereign). 

6

 Appellant does not assert he was improvident to the words of criminality in the 

housebreaking specifications describing the surreptitious filming. 
CONLIFFE – ARMY 20040721 

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DECISION 

We have considered the remaining assignment 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 merit. The findings of guilty and 

sentence are affirmed. 

Judge HOFFMAN and Judge SULLIVAN concur. 

 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: