UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, HERRING, and PENLAND 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 MARQUES D. ENTZMINGER 

United States Army, Appellant 

ARMY 20150672 

Headquarters, 8th Army 

Tiernan P. Dolan, Military Judge 

Colonel Craig A. Meredith, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Christopher D. Carrier, JA; Major Andres 

Vazquez, Jr., JA; Captain Scott A. Martin, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Melissa Dasgupta Smith, JA; Captain Vincent S. Scalfani, JA (on brief). 

11 January 2017 

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OPINION OF THE COURT 

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CAMPANELLA, Senior Judge: 

 In this case, we find appellant was improvident when he pleaded guilty to 

violating Article 120c, UCMJ, for indecent exposure when the underlying offense 

was based on appellant electronically transmitting a photograph of his penis to a 

victim. The staff judge advocate (SJA) provided incorrect legal advice to the 

convening authority in the addendum to the staff judge advocate’s post-trial 

recommendation (SJAR) when he advised the convening authority that no legal error 

occurred regarding appellant’s conviction for indecent exposure under Article 120c 

Uniform Code of Military Justice, 10 U.S.C. § 920c (2012) [hereinafter UCMJ] in 

light of United States v. Williams, 75 M.J. 663, 669 (Army Ct. Crim. App. 2016). 

 A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of indecent exposure, one specification of 

indecent language to a child under sixteen years of age, one specification of indecent 

language, and two specifications of communicating a threat, in violation of Articles 

120c and 134, UCMJ. The military judge sentenced appellant to a bad-conduct 
ENTZMINGER–ARMY 20150672 

2

discharge and sixteen months confinement. In accordance with the pretrial 

agreement, the convening authority approved only so much of the sentence as 

provided for a bad-conduct discharge and confinement for thirteen months. 

We have reviewed this case pursuant to Article 66, UCMJ. Appellant asserts 

two assignments of error, one of which merits discussion and relief.1 

BACKGROUND 

Appellant met thirteen-year-old KT when they were both dependents at Camp 

Zama, Japan. At that time, appellant was about twenty years old. Appellant became 

smitten with KT and after they both left Japan, he sought a dating relationship with 

her. He regularly called her, texted her, and communicated with her via various 

computer messaging applications. 

After leaving Japan, appellant joined the Army and was stationed in Korea. 

He continued to reach out to KT until she decided she no longer wished to continue 

their association and “blocked” his various computer accounts. KT’s attempts to 

stop all communication with appellant were continuously foiled when he would 

simply open another account and reach out to her again. 

At some point, appellant became aware KT had another boyfriend and became 

enraged. Appellant then began a series of both indecent and intimidating messages 

to KT, threatening to publically distribute nude photographs of KT that he somehow 

came to possess.2

 The string of threats and indecent remarks began the night before 

KT’s sixteenth birthday and continued into the next morning. Appellant culminated 

his indecent and threatening barrage of messages by sending KT an unsolicited 

picture of his penis through a computer messaging system, followed by the indecent 

message, “You can suck my dick now.” 

Appellant pleaded guilty, inter alia, to violating Article 120c, UCMJ, 

indecent exposure, for transmitting a photograph of his penis via computer to KT. 

 

1

 Appellant also alleged as an assigned error an unreasonable multiplication of 

charges (UMC). It is clear from the military judge’s inquiry on the record that 

appellant affirmatively waived UMC in exchange for his pretrial agreement. We, 

therefore, find the issue to be meritless. 

2

 The nude photographs were extracted from a video found on appellant’s cell phone, 

surreptitiously taken by someone outside KT’s bedroom window through a crack in 

the blinds after KT had showered and was getting dressed. 
ENTZMINGER–ARMY 20150672 

3

LAW AND ANALYSIS 

Acceptance of Plea to Indecent Exposure. 

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

discretion. United States v. Schell, 72 M.J. 339, 345 (C.A.A.F. 2013) (citing United 

States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008)). Although the standard for 

this case is “abuse of discretion,” when the law changes due to a case decided while 

an appellant’s case is on direct appeal, appellant is entitled to avail himself of the 

new rule, even though the military judge did not err at the time. United States v. 

Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008) (Ryan, J. concurring). A guilty plea 

will only be set aside if we find a substantial basis in law or fact to question the 

plea. Id. (citing Inabinette, 66 M.J. at 322). The court applies this “substantial 

basis” test by determining whether the record raises a substantial question about the 

factual basis of appellant’s guilty plea or the law underpinning the plea. Inabinette, 

66 M.J. at 322. 

Whether Article 120c(c), UCMJ, proscribes the appellant’s electronic 

transmission of a photograph of his penis is a de novo question of statutory 

interpretation. 

After appellant’s court-martial but before the convening authority took action, 

this court decided Williams, and considered whether Article 120c(c), UCMJ, applied 

to an appellant sending a still “digital image” of his penis via text message to a 

victim. We determined it did not. We held the term “exposed” under Article 

120c(c), UCMJ, did not encompass showing a person a photograph or digital image 

of one’s genitalia because there was no live display of actual genitalia. Finally, we 

concluded Congress did not intend to criminalize an “exposure” through 

communication technology under Article 120c(c), UCMJ. In other words, after trial 

this court definitively determined appellant’s actions did not constitute the offense 

of indecent exposure. 

As in Williams, here the record establishes no legally sufficient theory of how 

appellant committed indecent exposure under Article 120c(c), UCMJ. Accordingly, 

there is a substantial basis in law to question the providence of appellant’s plea. 

The government concedes the point. 

Addendum to the Staff Judge Advocate’s Recommendation. 

 Commendably, appellant’s trial defense counsel outlined the then week-old 

holding in Williams in accurate and persuasive detail in appellant’s Rule for CourtsMartial [hereinafter R.C.M.] 1105 matters to the convening authority and argued that 

the holding in Williams squarely applied to the facts in appellant’s case and thus 

rendered the indecent exposure conviction legally insufficient. Indeed, the binding 
ENTZMINGER–ARMY 20150672 

4

precedent established by that case eliminated any argument to the contrary. 

Appellant requested disapproval of the indecent exposure conviction and a reduction 

in his court-martial sentence. 

 In the addendum to his recommendation, the SJA provided the following 

advice to the convening authority: 

I have considered the defense allegation of legal error 

regarding PVT Entzminger’s conviction of indecent 

exposure under 120c, based on US v. Williams (ACCA, 30 

March 2016). I disagree that this was legal error and, in 

my opinion, no corrective action is necessary. 

While it is unclear why the SJA arrived at his conclusion, it is certain his 

advice to the convening authority was erroneous. The holding in Williams squarely 

establishes Article 120c, UCMJ, does not encompass showing a person a photograph 

or digital image of one’s genitalia. 

Nonetheless, we note that recent changes to a convening authority’s Article 

60, UCMJ, power may place SJAs in an unusual position. The SJA is required to 

opine on legal error in his or her advice to the convening authority, see R.C.M. 

1106, but the convening authority may now be powerless to remedy the error. 

As an initial matter, when applicable, the SJA should advise the convening 

authority of the amendments to Article 60, UCMJ, implemented by the National 

Defense Authorization Act of 2014, removing the convening authority’s power to 

disapprove the findings or the sentence in cases wherein the non-qualifying offense 

occurred after 24 June 2014 and explaining what power the convening authority does 

possess.3

 Such advice, either in writing in the SJAR or given verbally, reliably 

informs the convening authority of her or his post-trial options. 

 

3

 The convening authority’s power to modify (approve a lesser included offense) or 

set aside a finding is limited to qualifying offenses. UCMJ art. 60. “Qualifying 

offenses” include: (1) offenses under the UCMJ for which the maximum sentence to 

confinement that may be adjudged does not exceed two years; and (2) the adjudged 

sentence does not include a punitive discharge (dismissal, dishonorable discharge or 

bad-conduct discharge) or confinement of more than six months. Id. Excluded from 

the definition of “qualifying offenses” are: 1) offenses under Articles 920(a) and 

920(b), UCMJ; 2) offenses under Articles 920b and 925, UCMJ; and 3) offenses 

specified by the Secretary of Defense. Id. 
ENTZMINGER–ARMY 20150672 

5

In this case, appellant implored the convening authority to disapprove the 

Article 120c offense and reduce his sentence in his R.C.M. 1105 matters based on 

the noted legal error. This remedy was outside the bounds of the CA’s authority. If 

the SJA had correctly noted the legal error to the convening authority, we see two 

possible avenues he could have recommended at that point. 

First, while the convening authority had no power to disapprove a finding or 

reduce appellant’s sentence, the SJA could nonetheless recommend that the 

convening authority return the case to the military judge pursuant to R.C.M. 1102(d) 

because this was a military judge alone case.4

 This action would have allowed the 

military judge to consider the issue raised by appellant in his post-trial R.C.M. 1105 

submission and consider taking corrective action. 

A second, less timely, method of correction would have been to recommend 

that the convening authority approve the findings and sentence as adjudged and note 

the error for the convening authority–allowing this court to provide a remedy for 

error when one is required. This option, which prevents correcting the error at the 

trial level, at least provides accurate legal advice to the convening authority and 

highlights the issue for appeal. 

Which option the SJA recommends to the convening authority will turn on 

many factors to include whether the court-martial was judge alone or with a military 

panel and the gravity of the error. 

 

CONCLUSION 

 The findings of guilty of the Specification of Charge II and Charge II are set 

aside and DISMISSED. The remaining findings of guilty are AFFIRMED. 

Applying the principles of United States v. Sales, 22 M.J. 305, 308 (C.M.A. 

1986) and the factors set forth in United States v. Winckelmann, 73 M.J. 11, 15-16 

(C.A.A.F. 2013), we conclude that we can confidently reassess appellant’s sentence 

without returning this case for a sentence rehearing. 

In evaluating the Winckelmann factors, our decision does not result in a 

dramatic change in the penalty landscape as appellant’s maximum exposure to 

confinement is reduced by only one year. Id. at 15-16. Because appellant was 

sentenced by a military judge as opposed to members, we are more likely to be 

certain of how the military judge would have sentenced appellant had he acquitted 

him of indecent exposure. Id. at 16. While the gravamen of the criminal conduct is 

reduced without the specification dismissed by our decision today, we have the 

 

4 See United States v. Chandler, 74 M.J. 674 (Army Ct. Crim. App. 2015) regarding 

a court-martial with a panel. 
ENTZMINGER–ARMY 20150672 

6

familiarity and experience with the remaining offenses and can reliably determine 

what sentence would have been imposed at trial. Id. Furthermore, appellant 

received the benefit of his pretrial agreement, which limited his possible 

confinement to thirteen months. Based on the entire record and appellant’s course 

of conduct, we can conclude the military judge would have imposed a sentence of at 

least that which was adjudged. 

Reassessing the sentence based on the noted error and the entire record, we 

AFFIRM the approved sentence. All rights, privileges, and property, of which 

appellant has been deprived by virtue of that portion of the findings set aside by this 

decision are ordered restored. 

Judge HERRING and Judge PENLAND and concur. 

FOR THE COURT: 

MALCOLM H. SQUIRES JR. 

 Clerk of Court 

 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: