United States v. Mays, XX M.J. XX (C.A.A.F. 2023)
What this case is about, in its most simple terms: This case clarifies what “viewing” means for purposes of Article 120c, Indecent Viewing. Specifically, “viewing” includes viewing a simultaneously created visual image of the private area of another person.
Facts of the case (make them as interesting as possible):
The events surrounding this case occurred while appellant was deployed with his unit to Kandahar, Afghanistan. While deployed, the unit lived in housing that contained bathroom units. The bathrooms contained three shower stalls, all arranged in a row.
On 8 November 2018, a soldier brushing his teeth at the sink in one of the bathroom units observed appellant standing between the last sink and first shower stall. The first shower stall was occupied. The soldier brushing his teeth saw appellant holding his cellphone in the air. At trial, the soldier testified he initially thought appellant was attempting to get a better cellphone signal but then recalled there was no cellphone signal available in their deployed location. Upon a closer look, the soldier saw appellant had the camera application open on his cellphone, was standing on his tiptoes, and holding his cellphone at a downward angle oriented over the shower stall divider into the occupied shower stall. The soldier brushing his teeth then confronted appellant regarding the situation. Appellant quickly washed his hands and departed the bathroom. The soldier showering did not observe appellant or his cellphone but testified at trial that he was showering naked and heard the other soldier confront appellant, heard water run in the sink, and the bathroom door open and close.
On 9 November 2018, a different soldier was showering and observed a cellphone extend over his shower stall divider. The soldier immediately shouted at appellant. The soldier grabbed his towel, stepped out of his stall, and saw appellant standing in the adjacent shower with the curtain partially open. The soldier then left to report the incident, asking another soldier to keep appellant from leaving the bathroom. Appellant, however, immediately departed the bathroom.
The next day, appellant's commander seized appellant's cellphone. A subsequent search of the cellphone revealed water damage. The government did not find any digital images or videos of the showering soldiers on appellant's cellphone. Either he never made such images or videos, or in the alternative, he made such images or videos but the water damage prevented a thorough search of his cellphone.
At trial appellant entered a mixed plea. For purposes of this episode, appellant contested the two specifications of Attempted Indecent Viewing described above. The military judge ultimately convicted appellant of these offenses.
Appellant appealed, claiming that he could not have “wrongfully viewed” the private area of another using a cellphone. He argued that viewing required him to solely use his eyes. The ACCA disagreed with the argument, affirming his conviction. Appellant then sought review by CAAF.
What issue(s) did the CAAF grant: Whether the offense of indecent viewing under Article 120c, UCMJ, includes viewing a visual image of the private area of another person.
Holding/Relevance:
For the reasons explained above, we see no substantial ambiguity about whether an accused can violate Article 120c(a)(1), UCMJ, by viewing a contemporaneously produced visual image of the private area of a person.
This case clears some ambiguity in the law. After the 2012 amendments to Article 120, there was some confusion about what was required for viewing/exposure.
Article 120b speaks in terms of lewd act with a child and allows for electronic transmission. Other areas of Article 120 remained silent on this. (Quick – wrongfully viewing a visual recording of the private area of another person (NMCCA 2014); Williams – indecent exposure by showing a photo of a private area (ACCA 2016))
Synopsis of the important points of the decision:
Legal sufficiency - The evidence is legally sufficient for finding an accused guilty of an offense if "any rational factfinder . . . could have found all essential elements of the offense beyond a reasonable doubt." In determining whether the evidence was legally sufficient, this Court must "draw every reasonable inference from the evidence of record in favor of the prosecution."
Attempt to commit – specific intent amounting to more than mere preparation.
Indecent viewing – Any person subject to this chapter who, without legal justification or lawful authorization—
-
knowingly and wrongfully views 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;
Viewing is what is at issues
The CAAF agrees with the government – he attempted to view in real time through the camera function on his cell phone the private area of soldiers while they showered.
We cannot agree with Appellant's assertion that, in ordinary English usage, an attempted viewing of an object can be accomplished only by attempting to view the object itself and not by attempting to view a contemporaneously produced visual image of the object, as Appellant did in this case. Indeed, we need not look beyond the field of military justice to find clear counterexamples that contradict Appellant's position. For instance, Rule for Courts-Martial (R.C.M.) 804(d)(2) provides: "The accused's absence [when a child accuser testifies] will be conditional upon his being able to view the witness' testimony from a remote location." In this sentence, the term "view the witness' testimony" must include viewing a contemporaneously produced video display of the testimony because directly viewing the witness's testimony would be impossible from a remote location. Other rules similarly use the term "view" in ways that must include viewing contemporaneously produced visual images
It is not a problem that an accused could violate indecent viewing and recording simultaneously. You could also violate one or the other through means of an electronic device:
Like here – view but not record
Or – record by not view (if he couldn’t see, but still recorded)
Article 117a also does not present an issue – intimate visual image
Question in this case is not whether it is unlawful to view an intimate visual image though, according to the CAAF. It is whether viewing includes viewing a contemporaneously produced visual image of the private area of another violates 120b – which it does.
Rule of lenity does not apply – there is no ambiguity.
Interesting note at the end
Although we hold that the evidence was legally sufficient for the military judge to find Appellant guilty of the two specifications of attempted indecent viewing in this case, we do not hold or imply that any viewing of images of another person's private parts violates Article 120c(a)(1), UCMJ. We leave the question of whether Article 120c(a)(1), UCMJ, prohibits viewing a visual image that is not contemporaneously produced for another case.
Result: The CAAF affirmed ACCA’s decision.
How this case may affect the field (note other significant cases/rules implicated):
Government Counsel – Choose carefully when charging cases with digital media. Is it really a viewing? Is it a recording? Think about when the private area was actually observed – was it contemporaneous or later?
Defense Counsel – There is still some room to argue about whether a recording is legally sufficient to meet this definition. Be on the lookout for creative charging when it comes to digital images.