United States v. Conliffe

67 M.J. 127, 2009 CAAF LEXIS 3, 2009 WL 48220
CourtCourt of Appeals for the Armed Forces
DecidedJanuary 7, 2009
Docket08-0158/AR
StatusPublished
Cited by21 cases

This text of 67 M.J. 127 (United States v. Conliffe) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Conliffe, 67 M.J. 127, 2009 CAAF LEXIS 3, 2009 WL 48220 (Ark. 2009).

Opinions

Judge BAKER

delivered the opinion of the Court.

Appellant entered guilty pleas before a military judge sitting as a general court-martial at West Point, New York. Following the providence inquiry, the military judge accepted Appellant’s pleas and found Appellant guilty of three specifications of housebreaking, five specifications of conduct unbecoming an officer and a gentleman, and “intentionally us[ing] an image recording device for the purpose of videotaping the sexual conduct of [another] without her consent,” in violation of Articles 130, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 930, 933, and 934 (2000), respectively.1 The adjudged and approved sentence consisted of confinement for eighteen months, forfeiture of all pay and allowances for eighteen months, and dismissal from the Army. The United States Army Court of Criminal Appeals affirmed. United States v. Conliffe, 65 M.J. 819, 823 (A.Ct.Crim.App.2007). We granted review of the following issue:

WHETHER APPELLANT’S PLEAS OF GUILTY TO THE THREE SPECIFICATIONS OF CHARGE II, HOUSEBREAKING, ARE IMPROVIDENT WHERE THE INTENDED CRIMINAL OFFENSE UPON ENTRY, CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN, IS A PURELY MILITARY OFFENSE.

We hold that “conduct unbecoming an officer and gentleman” is a purely military offense for the purposes of an Article 130, UCMJ, housebreaking charge. We therefore reverse the lower courts decision with respect to Appellant’s guilty pleas to Charge II. However, for the reasons stated below, we affirm the lesser included offense of unlawful entry for each of the offenses under Charge II.

BACKGROUND

The lower court’s opinion provides the facts at issue in this case:

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....
[In 2003], 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 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.
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 [to Charge II] alleged the underlying offense was “uti-liz[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.”

Conliffe, 65 M.J. at 820-21 (alterations in original).

During the plea inquiry, the military judge provided Appellant with the elements of both housebreaking and of conduct unbecoming an officer and a gentleman:

[130]*130In order to plead guilty to these offenses, you must admit and agree, without reservation, that your conduct constituted the following elements:
One, that on 3 May 2003, at or near West Point, New York, you unlawfully entered the barracks room of Cadet [LB]; and on two separate occasions, on 29 and 31 July 2003, you unlawfully entered the U.S. Military Academy women’s’ [sic] basketball team dressing room, the property of the United States Army; and
Two, that the unlawful entry was made with the intent to commit therein the criminal offense of using a digital imaging device to surreptitiously record images of Cadet [LB] in her barracks room in the first instance, and the members of the U.S. Military Academy [women’s] basketball team in their locker room, a crime constituting conduct unbecoming an officer and gentleman under Article 133, UCMJ.
These elements of conduct unbecoming an officer and gentleman are:
That you did certain acts; that is, you used an imaging device to surreptitiously record the image of Cadet [LB], or members of the United States Military Academy basketball team in their locker room, by hiding a digital video camera in the rooms; and
Two, that under the circumstances, these acts constituted conducted [sic] unbecoming an officer and gentleman.
“Conduct unbecoming an officer and gentleman” means behavior in an official capacity which is dishonoring or disgracing an individual as a cadet, which seriously detracts from your character as a gentleman, or behavior in an unofficial or private capacity which dishonors or disgraces you personally, or seriously detracts from your standing as a cadet.
“Unbecoming conduct” means behavior more serious than slight, and of a material and pronounced character. It means conduct morally unfitting and unworthy, rather than inappropriate or unsuitable. It is misbehavior which is more than opposed to good taste or propriety.

The military judge also advised Appellant that he should plead guilty only to the lesser included offense of unlawful entry if he did not enter with the intent to commit a crime within:

If you admit that you unlawfully entered the barracks room, or the locker rooms, on these occasions, but did not do so with the specific intent of hiding a digital video camera to surreptitiously record the images of these females, but perhaps later developed the intent once inside, you would not be guilty of housebreaking, but instead, only of the lesser-ineluded offense of unlawful entry, which is a much less serious offense, amounting to a criminal trespass. In contrast to housebreaking, which has a maximum punishment including 5 years’ confinement, unlawful entry permits only a maximum punishment of 6 months’ confinement. So if you do not freely and readily admit that you had the intent to commit the crime alleged when you entered these rooms, you should not plead guilty to housebreaking, but instead, plead guilty to unlawful entry.

The military judge then engaged in a colloquy with Appellant regarding the three specifications of Charge II. When discussing Specification 1, the military judges dialogue with Appellant consisted of the following:

MJ: Do you believe that under the circumstances, that your actions that you intended inside this room would be conduct unbecoming an officer and gentleman?
ACC: Yes, sir.
MJ: Why do you believe that?
ACC: Well, actions such as this completely destroys [sic] the trust between two people; it is morally reprehensible, to say the least.

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Cite This Page — Counsel Stack

Bluebook (online)
67 M.J. 127, 2009 CAAF LEXIS 3, 2009 WL 48220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-conliffe-armfor-2009.