For Appellant: Captain Sean S. Park (argued); Colonel Adele H. Odegard, Lieutenant Colonel E. Allen Chandler, Jr., and Major Imogene M. Jamison (on brief).

For Appellee: Captain Susana E. Watkins (argued); Colonel Steven T. Salata and Major Paul T. Cygnarowicz (on brief).

Military Judge: Keith H. Hodges
 
 

This Court granted review of the following issue:

The offenses arose when appellant hosted a party in his quarters in Riyadh, Saudi Arabia. The offenses of which he was found guilty were consensual sodomy (fellatio) with a young female soldier, Private First Class (PFC) AB, who attended the party; indecent acts by touching PFC AB’s bared breasts; and falsely denying that he had taken a female into his bedroom during the party.

The parties stipulated to the facts underlying the pleas of guilty. The stipulated facts offered to support the plea of guilty to committing an indecent act are as follows:

Appellant kept a supply of hard liquor in his bedroom because "there were a lot of people at the party and [he] didn’t want to run out of liquor." He had also told the women present at the party that they could leave their purses and personal items in his bedroom.

Appellant invited three male soldiers and AB into his bedroom for "a private party" separate from the main party. They stayed for five to ten minutes and each had two or three shots of hard liquor. A video showing female nudity was playing on a television in appellant’s bedroom, but he did not know who put it in the video player.

The three male soldiers departed, leaving appellant alone with AB. Appellant and AB watched the video, talked, and had another drink. The door was closed but not locked. During the time that appellant and AB were alone in the bedroom, no one knocked on the door or came into the room. At this point in the plea inquiry, the military judge explained the requirement for "open and notorious" conduct as follows:

Appellant told the military judge that he asked AB if he could touch her breasts. AB lifted up her shirt, and appellant touched her breasts.

RCM 910(e), Manual for Courts-Martial, United States (2000 ed.),² provides: "The military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea." In order to establish an adequate factual predicate for a guilty plea, the military judge must elicit "factual circumstances as revealed by the accused himself [that] objectively support that plea[.]" United States v. Davenport, 9 MJ 364, 367 (CMA 1980). It is not enough to elicit legal conclusions. The military judge must elicit facts to support the plea of guilty. United State v. Outhier, 45 MJ 326, 331 (1996).

Appellant contends that his guilty plea was improvident because his act was not performed in an "open and notorious manner." The Government contends that appellant’s act was committed "openly and notoriously" because it was reasonably likely that others would see it, even though no one actually saw it.

"‘Indecent’ signifies that form of immorality relating to sexual impurity which is not only grossly vulgar, obscene, and repugnant to common propriety, but tends to excite lust and deprave the morals with respect to sexual relations." Para. 90c, Part IV, Manual, supra. An otherwise lawful sexual act may violate Article 134, supra, if it is committed "openly and notoriously." United States v. Berry, 6 USCMA 609, 614, 20 CMR 325, 330 (1956). An act is "open and notorious . . . when the participants know that a third person is present." Id.

In United States v. Izquierdo, 51 MJ 421, 423 (1999), decided after appellant’s court-martial, this Court held that the evidence was legally sufficient to support a conviction of committing an indecent act, where the accused had sexual intercourse with a woman in his barracks room while his two roommates were in the room, even though he blocked their view by hanging up a sheet "that substantially blocked his roommates’ view of his side of the room." In the same case, however, we held that the evidence was legally insufficient to prove an indecent act where the accused had sexual intercourse in a shared barracks room, with the door closed but unlocked and no one else present in the room.

Izquierdo was a contested case, but it is instructive and closely analogous to this case. In Izquierdo, this Court tacitly approved the military judge’s instruction that sexual acts are open and notorious when committed "in such a place and under such circumstances that it is reasonably likely to be seen by others even though others actually do not view the acts." Id.; see United States v. Carr, 28 MJ 661, 664 (NMCMR 1989). Izquierdo clarified the Berry definition ("when the participants know that a third person is present") by holding that it was not necessary to prove that a third person actually observed the act, but only that it was reasonably likely that a third person would observe it. However, we concluded that, even when viewed in the light most favorable to the prosecution, the evidence was legally insufficient to prove that the sexual act, committed in a shared barracks room with no third party present and with the door closed but unlocked, was open and notorious.

In this case, the sexual touching was committed in a private bedroom, with the door closed but unlocked. This is a close case, because as in Izquierdo, there was a possibility that someone, in this case from the ongoing party, would enter through the closed but unlocked door and observe the sexual activity. However, this case is weaker than Izquierdo in two respects: (1) appellant was in his private bedroom, which gave him a greater expectation of privacy than a shared barracks room; and (2) neither party had disrobed. The act in question could have been terminated easily and quickly. Had anyone knocked, called out, or in any way signaled their entry into the room, AB could have quickly pulled her shirt down and covered herself.

We have noted appellant’s stipulation that "there was a substantial risk that his activity could be discovered[.]" In our view, appellant’s conclusory stipulation, without any additional facts to distinguish this case from Izquierdo, is inadequate to establish a factual predicate for "open and notorious" sexual conduct. See Outhier, supra. Accordingly, there is a substantial basis for rejecting the plea as improvident, because appellant’s responses and the stipulation of fact state only the conclusion that it was reasonably likely under these circumstances that appellant’s act of touching PFC AB would have been seen by others, but they do not provide the factual basis for that conclusion.³United States v. Prater, 32 MJ 433, 436 (CMA 1991).

We turn finally to the question of prejudice. Considering the nature of the remaining findings of guilty and the sentence adjudged at trial, we are satisfied that appellant was not prejudiced as to sentence, and "we perceive no reasonable possibility of benefit to [appellant] by remand of the record
. . . for reassessment of the sentence." See United States v. Rushing, 11 MJ 95, 98 (CMA 1981).

The decision of the United States Army Court of Criminal Appeals is reversed as to the finding of guilty of Specification 2 of Charge V. The finding of guilty of Specification 2 of Charge V is set aside, and that specification is dismissed. In all other respects, the decision is affirmed.

FOOTNOTES:

¹ The military judge’s explanation clearly shows that this case is not about victims’ rights, as the dissent suggests. Appellant pleaded guilty to a consensual act. The alleged unlawfulness of the act was based on its public nature, not the co-actor’s lack of consent.

² All Manual provisions cited are identical to those in effect at the time of appellant’s court-martial.

³ Our decision does not establish a per se rule, as asserted by the dissent. We have applied well-established law providing that otherwise lawful sexual conduct is indecent if committed in public, and we have held, on a case-specific basis, that the factual predicate elicited from appellant in this case was inadequate to establish that his conduct was "public."

SULLIVAN, Senior Judge (concurring in the result):

I agree with the result reached by the majority in this case, but not its rationale. The alleged indecent act of consensually fondling an adult female’s (AB’s) breasts was done behind the closed door of appellant’s barracks room, and no third person was actually present. Under our case law at the time of appellant’s trial, a consensual sexual act of this type by a servicemember in these circumstances did not constitute the crime of indecent acts because it was not "open and notorious." See United States v. Berry, 6 USCMA 609, 614 20 CMR 325, 330 (1956) (known presence of a third party required for otherwise lawful sexual intercourse to be considered an indecent act). The military judge obviously ignored Berry and erred by applying a "reasonably likely to be viewed by another" standard in determining appellant’s guilt. (R.425-28) Accordingly, the indecent act conviction here needs to be reversed.

I also do not agree with the majority now adopting a broader rule of criminal liability than approved in Berry based on dicta in United States v. Izquierdo, 51 MJ 421, 423 (1999) (a case decided after appellant’s trial), and applying it in appellant’s case.^* The majority would hold that consensual sexual acts by a servicemember can be considered "open and notorious" (and, thus, criminal) when committed "in such a place and under such circumstances that it is reasonably likely to be seen by others even though others actually do not view the acts." __ MJ at (6). Moreover, in applying the new standard, the majority weakly reasons that the facts of appellant’s case do not satisfy this new test because "[t]he act in question [touching a female’s bare breasts] could have been terminated easily and quickly… . AB could have quickly pulled her shirt down and covered [her exposed breasts]." __ MJ at (7). I have serious concerns with this vague and uncertain approach to criminal law in the consensual sex area. See Rogers v. Tennessee, 532 U.S. 451 (2001)(due process limitation on application of a judicial construction of a criminal statute). A crime in the area of consensual sex between adults needs to be clear and certain.

Finally, I disagree with this new rule of the majority, which is apparently derived from the decision of the Navy-Marine Corps Court of Military Review in United States v. Carr, 28 MJ 661, 664 (NMCMR 1989). See United States v. Izquierdo, supra at 423-24 (Sullivan, J., concurring in the result).

FOOTNOTE:

^* The majority opinion in Izquierdo reversed one of two convictions for indecent acts because it concerned sexual acts which occurred between a servicemember and another when "the door was closed and nobody else was in the room." This is the same standard used in United States v. Berry, 6 USCMA 609, 614, 20 CMR 325, 330 (1956). See United States v. Tollinchi, 54 MJ 80, 83 (2000).

CRAWFORD, Chief Judge (dissenting):

This is a case of a non-commissioned officer plying a 19-year-old with alcohol and then taking sexual advantage of her by indecently "fondl[ing]" her breasts "with both hands," asking her to masturbate, and persuading her to commit fellatio on him. Although the granted issue concerns only the indecent act specification, when viewed in context with the other sexual activity behind closed doors, I am not persuaded that appellant’s fondling the victim’s breasts involved an activity that "could have been terminated easily and quickly." ___ MJ at (7).

The majority opinion effectively establishes a per se rule that if a sexual act takes place behind a closed door without intrusion, the act cannot be "indecent" as a matter of law. Having considered it, along with other cases involving sexual offenses, see, e.g., United States v. Baker, No. 01-0064, ___ MJ ___ (2002); United States v. Ayers, 54 MJ 85, 95, 99 (2000)(Crawford, C.J., concurring in part and dissenting in part; Sullivan, J., dissenting); United States v. Tollinchi, 54 MJ 80, 83 (2000)(Sullivan, J., concurring in part and dissenting in part; Crawford, C.J., dissenting); United States v. Morrison, 52 MJ 117, 124 (1999)(Sullivan, J., joined by Crawford, J., dissenting); United States v. Hoggard, 43 MJ 1, 4, 8 (1995)(Crawford, J., dissenting in part and concurring in the result in part; Sullivan, C.J., dissenting); United States v. Cage, 42 MJ 139, 145, 147 (1995)(Sullivan, C.J., and Crawford, J., dissenting), I must once again express my concern with the impact of the majority opinion on prevailing jurisprudence, the rights of victims, and the public perception of military justice.

Appellant pleaded guilty. Because appellant’s plea is provident under our prior case law, RCM 910, Manual for Courts-Martial, United States (2000 ed.), and United States v. Vonn, ___ U.S. ___, ___, 122 S.Ct. 1043, 1052-53 (2002), I respectfully dissent.

In order to affirm a conviction of committing an indecent act, there must be a finding:

Appellant argues that his guilty plea to committing an indecent act was improvident because the act itself was not "open and notorious." RCM 910(e) states that "[t]he military judge shall not accept a plea of guilty without making such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea[.]" As the majority states, "[i]n order to establish an adequate factual predicate for a guilty plea, the military judge must elicit ‘factual circumstances as revealed by the accused himself [that] objectively support that plea.’" ___ MJ at (5), quoting United States v. Davenport, 9 MJ 364, 367 (CMA 1980). The majority continues, "It is not enough to elicit legal conclusions. The military judge must elicit facts to support the plea of guilty." Id., citing United States v. Outhier, 45 MJ 326, 331 (1996).

As to the indecency of the act,

Appellant’s stipulation of fact stated:

The majority claims that this case is weaker than Izquierdo because appellant was in his private bedroom, which allowed a greater expectation of privacy than a shared barracks room. Consequently, the majority concludes that appellant’s "responses and the stipulation of fact state only the conclusion" that there was a substantial risk of discovery, and that is not enough to satisfy the required factual predicate for "open and notorious." ___ MJ at (7).

I disagree. Izquierdo makes it clear that that is exactly what is required. The facts show that it was reasonably likely that the conduct would be viewed by others for several reasons: (1) there was no lock on the door; (2) there were approximately 30-40 people at the party; (3) it was a small place; (4) purses were kept in the room; (5) the "special brew" was kept in the room; (6) the video "Freak-Nik" was playing in the room; and (7) the providency inquiry was sufficient (as was the agreed stipulation of facts) to meet the standard set forth in RCM 910(e). See Vonn, ___ U.S. at ___, 122 S.Ct. at 1052-53 (omission from guilty plea inquiry results in reversal of conviction only when an appellant demonstrates his substantial rights were affected, e.g., no automatic reversal when mistake conducting inquiry under Fed.R.Crim.P. 11 does not impact on "the overarching issues of knowledge and voluntariness"); RCM 910(c).

The military judge carefully covered every element of the offense with appellant, took the time to explain that the standard was a "substantial risk," and carefully placed on the record exactly how substantial that risk was. Appellant admitted this risk at trial and should not be allowed now to claim that his plea was improvident. Accordingly, I dissent.