United States v. Private First Class GREGORY A. RICE

71 M.J. 709
CourtArmy Court of Criminal Appeals
DecidedDecember 18, 2012
DocketARMY 20100678
StatusPublished

This text of 71 M.J. 709 (United States v. Private First Class GREGORY A. RICE) is published on Counsel Stack Legal Research, covering Army Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Private First Class GREGORY A. RICE, 71 M.J. 709 (acca 2012).

Opinions

OPINION OF THE COURT

KRAUSS, Judge:

Pursuant to his pleas, a military judge, sitting as a general court-martial, convicted appellant of wrongful sexual contact, two specifications of indecent acts, indecent exposure, and two specifications of housebreaking in violation of Articles 120 and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 930 (2006 & Supp. I 2007) [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for forty-two months, forfeiture of all pay and allowances, and reduction to the grade of E-l. In accordance with the terms of a pretrial agreement, the convening authority approved confinement for thirty-six months, but otherwise approved the adjudged sentence.

Appellant’s case is now before this court for review under Article 66, UCMJ, 10 U.S.C. § 866. Appellant asserts that dilatory post-trial processing of his case warrants relief but otherwise offers no complaint. After examining the record of trial, and considering the parties’ briefs, we find a substantial basis in law and fact to reject appellant’s pleas of guilty to the charges of indecent acts and housebreaking with the intent to commit indecent acts.

Here we have a case where the military judge, defense and government counsel all endorsed an erroneous view of the law and a record that fails to satisfactorily establish a knowing plea of guilty on the part of the accused. Charged with criminal voyeurism as an indecent act under Article 120, UCMJ, and housebreaking under Article 130, UCMJ, with the intent to commit an indecent act under Article 120, UCMJ, the judge never properly defined the offense and appellant never offered sufficient admission to that particular offense necessary to approve the findings of guilty associated with that crime. Therefore relief shall be addressed below and granted in our decretal paragraph.

Pi'efaee to our opinion is the statute under which appellant was charged that was in effect at the time of his alleged offenses:

Article 120, UCMJ, Indecent Act (2007 version)
Article 120(k) Indecent act Any person subject to this chapter who engages in indecent conduct is guilty of an indecent act and shall be punished as a court-martial may direct.
Article 120(t)(12) Indecent conduct. The term ‘indecent conduct’ means that form of immorality relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person’s consent, and contrary to that other person’s reasonable expectation of privacy, of—
(A) that other person’s genitalia, anus, or buttocks, or (if that other person is female) that person’s areola or nipple; or
(B) that other person while that other person is engaged in a sexual act, sodomy (under section 925 (article 125) of this chapter), or sexual contact.

[721]*721FACTS

While deployed in Iraq, appellant surreptitiously observed, photographed and made video recordings of female soldiers and contractors in various states of undress in a female shower trailer. In addition, both in Iraq and at Fort Hood, appellant unlawfully entered facilities intended for the use of female personnel only, where one might find women in various states of undress.1

In light of this conduct, appellant faced two specifications of a violation of Article 120, UCMJ, alleging the offense of indecent act and two specifications of a violation of Article 130, UCMJ, alleging the offense of housebreaking as follows:

In Specification 2 of Charge I, Article 120, UCMJ:
In that [appellant], ... did, at or near Forward Operating Base Rustamiyah, Baghdad, Iraq, on divers occasions between on or about 1 January 2009 and 31 January 2009, wrongfully commit indecent conduct, to wit: observing and making digital recordings of naked and partially clothed women while they conducted hygiene tasks and dressed in a female shower trailer.
In Specification 3 of Charge I:
In that [appellant], ... did, at or near Forward Operating Base Rustamiyah, Baghdad, Iraq, on or about 15 April 2008, wrongfully commit indecent conduct, to wit: wrongfully observing SPC [TM’s] partially naked body while she was dressing in a female shower trailer.
In Specification 1 of Charge II, Article 130, UCMJ:
In that [appellant], ... did, on or about 29 March 2008, unlawfully enter a female shower trailer ... with intent to commit a criminal offense, to wit: a violation of Article 120, UCMJ, Indecent Acts, therein.
And, in Specification 2 of Charge II:
In that [appellant], ... did, on or about 13 August 2009, unlawfully enter a female locker and shower room ... with intent to commit a wit: a violation of Article 120, UCMJ, Indecent Exposure and an Indecent Act, therein.

Appellant entered pleas of guilty to each of these specifications.

The judge then provided the following description and definition of elements:

MJ: Take a look at Specification 2 of Charge I.
[The accused did as directed.]
And there you are charged with the offense of indecent acts. The elements of this offense are as follows:
One, that on divers occasions between on or about 1 through 31 January of 2009, at or near FOB Rustamiyah, Baghdad, Iraq, you engaged in a certain wrongful conduct, to wit: you observed and made visual recordings of naked and partially clothed women while they conducted hygiene tasks and dressed in a female shower trailer; And the second element, is that the conduct was indecent.
‘Indecent Conduct’ means that form of immorality relating to sexual impurity which is grossly vulgar, obscene and repugnant to common propriety, and tends to excite sexual desires or deprave morals with respect to sexual relations. ‘Indecent Conduct’ includes, but is not limited to observing or making a video tape, photograph, motion picture, print, negative!,] slide or other mechanically, electronically or chemically reproduced visual material without another person’s consent, and contrary to the other person’s reasonable expectation of privacy.
‘Wrongful’ means without legal justification or lawful excuse.
Take a look at Specification 3 of Charge I. [The accused did as directed.]
There you are charged with another offense of indecent acts. The elements of this offense are as follows[:]
One, that on or about 14 April of 2008, at FOB Rustamiyah, Baghdad, Iraq, you en[722]

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Cite This Page — Counsel Stack

Bluebook (online)
71 M.J. 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-private-first-class-gregory-a-rice-acca-2012.